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Ligouri v. Wyandotte Hospital and Med. Ctr.
Ligouri v. Wyandotte Hospital and Med. Ctr.
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Liberty Nat’l Life Ins. Co. v. Univ. of Ala. Health Svcs. Found., P.C. (Summary)
Liberty Nat’l Life Ins. Co. v. Univ. of Ala. Health Svcs. Found., P.C. (Summary)
Liberty Nat’l Life Ins. Co. v. Univ. of Ala. Health Svcs. Found., P.C., No. 1012346 (Ala. Sept. 19, 2003)
A life insurance company that provided supplemental cancer insurance to individuals brought suit against a hospital, a health services foundation, and a health system, seeking damages for what the insurer deemed to be improper billing practices. The hospital issued a bill to each patient upon his or her discharge that listed the “actual charges” from its charge master, regardless of whether the hospital had accepted a lesser amount from Medicare or the patient’s private health insurer. Insured patients would submit those bills to the insurer for reimbursement. Pursuant to its insurance policies, the insurer would pay the patients the amount listed on the statement, which was frequently more than the amount received by the hospital.
The insurer sued, claiming that the Hospital’s billing practices were interfering with its contractual relations, causing the insurer tort damage, and violating the state statute governing hospital billing. The trial court dismissed the suit, finding that the insurer lacked standing to sue the hospital over its billing practices. The Alabama Supreme Court reversed in part and remanded the case to the trial court for further proceedings. The court did find the hospital was entitled to sovereign immunity, however, since it was affiliated with a State University.
Lewis v. UPMC Bedford (Full Text)
Lewis v. UPMC Bedford (Full Text)
Ligouri v. Wyandotte Hospital and Med. Ctr.
Ligouri v. Wyandotte Hospital and Med. Ctr.
Ligouri v. Wyandotte Hospital and Med. Ctr.,
No. 227245 (Mich. Ct. App. Oct. 4, 2002)
The
Michigan Court of Appeals held that investigative reports concerning a patient’s
fall in her room were protected from discovery by the state statute protecting
"professional review functions" of hospitals.
A patient who sustained head injuries after falling in her hospital room sued
the hospital for negligence. During discovery, she requested copies of any written
reports, investigations or statements made concerning the circumstances of her
fall. The trial court ordered that the information be provided to the plaintiff,
reasoning that the statute protecting "professional review functions"
only applied in malpractice cases, not negligence suits. The Court of Appeals
reversed the trial court, noting that the plain language of the statute stated
that information related to professional review functions is not discoverable
in any type of action.
Limbaugh v. Coffee Med. Ctr.,
Limbaugh v. Coffee Med. Ctr.,
Limbaugh v. Coffee Med. Ctr.,
No. M1999-01181-SC-R11-CV (Tenn. Oct. 16, 2001)
A government run nursing home (“home”) was sued by the son of a woman
who was assaulted in the home by one of the home’s nursing assistants whose
past behavior indicated a propensity for violent behavior. The son alleged that
the home had prior notice of the behavior and that it had negligently failed
to take precautionary measures. The trial court found in favor of the son, but
that decision was reversed by the appellate court. However, the Supreme Court
of Tennessee reversed the appellate court and held that the home had acted negligently
in failing to take reasonable precautions and that the home was not afforded
governmental immunity under Tennessee’s Governmental Tort Liability Act (“Act”).
Although the court recognized that the Act does provide protection to a governmental
entity under certain circumstances, the immunity provision did not specifically
list assault and battery within its intentional tort exception.
Lewis-Gale Med. Ctr. v. Alldredge (Full Text)
Lewis-Gale Med. Ctr. v. Alldredge (Full Text)
Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy and Koontz, S.JJ.
LEWIS-GALE MEDICAL CENTER, LLC
OPINION BY
v. Record No. 100457
SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
June 9, 2011
KAREN J. ALLDREDGE
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
Lewis-Gale Medical Center, LLC (“Lewis-Gale”) appeals
from a jury verdict awarding Dr. Karen J. Alldredge $900,000
for tortious interference with her contract of employment with
Southwest Emergency Physicians, Inc. (“SWEP”). The
dispositive issue we consider is whether Dr. Alldredge
presented sufficient evidence to permit the jury to find that
Lewis-Gale employed improper methods to induce SWEP to
terminate her employment.
BACKGROUND
Lewis-Gale has assigned three errors to the circuit
court’s judgment approving the jury’s verdict in favor of Dr.
Alldredge, contending that the circuit court erred in
permitting the jury to consider Dr. Alldredge’s alleged
emotional distress as an element of her damages, in failing to
find that the jury’s award of damages was excessive, and in
failing to rule that Dr. Alldredge had not met her burden of
proving that Lewis-Gale employed improper methods to induce
SWEP to terminate Dr. Alldredge’s employment and, thus, had
not proven as a matter of law that this termination was the
result of a tortious interference by Lewis-Gale in her
contract relationship with SWEP. Because we find the
resolution of this last issue to be dispositive, we will limit
our recitation of the facts established in that part of the
voluminous record necessary for our resolution of this appeal.
Union of Needletrades, Industrial & Textile Employees v.
Jones, 268 Va. 512, 514, 603 S.E.2d 920, 921 (2004). Under
familiar principles, we consider those facts in the light most
favorable to Dr. Alldredge, the prevailing party in the
circuit court.
SWEP and Lewis-Gale entered into a contract in 2005 under
which SWEP’s physician-employees exclusively staffed Lewis-
Gale’s Emergency Department. Dr. Alldredge, an emergency room
physician, was a contract participant in SWEP from 2005 until
the termination of her employment in 2008. Her contract
provided for a 12-month term of employment with SWEP and
included an automatic renewal provision. However, the
contract further provided that it could be terminated by
either party without cause subject to a 90-day written notice
of the intent to do so.
In late March 2008, Alldredge attended an informal dinner
with some of the emergency room nursing staff who were
employees of Lewis-Gale. During the dinner, these nurses
2
discussed a letter addressed to the Lewis-Gale administration
voicing certain work-related concerns. Dr. Alldredge was the
only physician present. A few weeks later, Dr. Alldredge was
shown the letter by one of the nurses and explained to the
nurse that she did not sign the letter because it related to
“a nursing issue, not a physician issue.” She subsequently
conceded that she did not sign this letter because she also
knew that SWEP did not want its physicians involving
themselves in Lewis-Gale’s personnel issues.
Candi Carroll, Lewis-Gale’s chief nursing officer,
received a copy of the letter. Carroll subsequently became
aware of Dr. Alldredge’s involvement with the signatories to
the letter. By email, Carroll contacted Dr. Robert E.
Dowling, SWEP’s president who also served as Medical Director
for the Emergency Department at Lewis-Gale. Carroll informed
him of her belief that Dr. Alldredge had supported the staff
that had sent the letter and inquired “what the plan of [SWEP]
is to deal with Doctor Alldredge.” Carroll and Dr. Dowling
exchanged several emails addressing Carroll’s concerns.
Carroll also advised her superiors of the situation.
After learning that Dr. Alldredge had attended the
dinner, Charlotte Tyson, chief operating officer of Lewis-
Gale, was concerned that Dr. Alldredge, as a non-employee of
Lewis-Gale, had become involved in the hospital’s personnel
3
matters. Tyson contacted Dr. Jeffrey M. Preuss, one of the
other physicians with SWEP, and “brought to [SWEP] the fact
that there was a perceived issue with Doctor Alldredge’s
behavior and they had asked that [SWEP] do something to take
care of that issue, resolve it one way or another.”
On April 29, 2008, at SWEP’s request, Tyson and Carroll
met with members of SWEP’s executive board. During the
meeting, Tyson described Dr. Alldredge’s behavior as that of
an “organizational terrorist,” and told SWEP’s executive board
that when a business has someone like Dr. Alldredge, “they had
to go.” Although the representatives of SWEP repeatedly asked
Tyson how Lewis-Gale wanted the situation addressed, Tyson
maintained that she never expressly told SWEP that Lewis-
Gale’s administration wanted Dr. Alldredge’s employment to be
terminated. Nonetheless, shortly after the meeting Dr.
Dowling informed Tyson in an email that he was going to
recommend the termination of Dr. Alldredge’s employment at a
meeting of the SWEP board on May 1, 2008.
The minutes of SWEP’s board meeting cite additional
concerns about Dr. Alldredge’s “treatment of other partners
and group members” and “her behavior over the years.” The
board was of opinion that “the situation had come to a crisis
point” and that Dr. Alldredge “was not likely to improve her
behavior long-term.” Nonetheless, the principal concern cited
4
by the board was that not terminating Dr. Alldredge’s
employment could jeopardize SWEP’s contract with Lewis-Gale.
Dr. Alldredge, who was present for part of the meeting,
defended herself and expressed frustration and sadness at
being called an “organizational terrorist.”
Dr. Alldredge arranged a meeting with Tyson and Vincent
Giovanetti, Lewis-Gale’s chief executive officer, on May 5,
2008. SWEP suspended making a decision on whether to
terminate her employment pending the outcome of this meeting.
According to Dr. Preuss, SWEP did not want to terminate Dr.
Alldredge’s employment and would not have done so if “the
outcome was favorable” in her meeting with Tyson and
Giovanetti.
According to Dr. Alldredge, the purpose of the meeting
with Tyson and Giovanetti was that “I was going to try and
save my job, because ultimately it was hospital administration
that wanted me gone,” not SWEP. During the meeting, Dr.
Alldredge was anxious and knew it was a “live or die”
situation. After Dr. Alldredge’s meeting with Tyson and
Giovanetti, Dr. Preuss concluded that Lewis-Gale’s
“administration wanted [SWEP] to proceed with how [its
executive board] had voted” to terminate Dr. Alldredge’s
employment.
5
SWEP terminated Dr. Alldredge’s employment in accord with
the provision of her contract by providing her with a 90-day
notice period. However, when Dr. Alldredge declined to report
for her next scheduled shift at the emergency room, SWEP
removed her from active employment but continued to pay her
salary for the next three months.
On June 2, 2008, Dr. Alldredge filed in the Circuit Court
of the City of Roanoke a complaint against Lewis-Gale alleging
tortious interference with her contract of employment with
SWEP. Dr. Alldredge did not specifically allege that Lewis-
Gale used “improper methods” in procuring the termination of
her employment, but asserted that Lewis-Gale had used
“threats” and referred to its “illegal interference.” Dr.
Alldredge alleged that in addition to lost income, shareholder
interest and other opportunities as a result of her employment
being terminated from SWEP, she would continue to suffer from
loss of “future employment and employment opportunities [and]
damage to [her] professional reputation.” Dr. Alldredge
sought $10,000,000 in compensatory damages.
6
Lewis-Gale filed an answer denying liability as well as a
plea in bar 1 asserting that Alldredge could not maintain an
action for tortious interference because she was an employee-
at-will as her contract with SWEP allowed her employment to be
terminated without cause. Lewis-Gale further contended that
because it could likewise terminate its contract with SWEP
without cause, it actions as alleged in Dr. Alldredge’s
complaint did not rise to the level of improper methods
required for establishing a tort action for interference with
an at-will contract. The circuit court rejected Lewis-Gale’s
argument, finding that even if the termination without cause
provision of the SWEP contract made Dr. Alldredge an at-will
employee, the allegations of the complaint were sufficient to
support a cause of action against Lewis-Gale for using
improper methods to interfere with Alldredge’s rights under
that contract.
Following discovery, Lewis-Gale filed a motion for
summary judgment alleging that there were no disputed material
1 Though styled a plea in bar, Lewis-Gale’s pleading was
more properly a demurrer. The asserted failure of the
complaint to allege use of improper methods in the intentional
interference with the at-will employment contract would not
have created a jurisdictional bar to the suit, but merely
would have resulted in a failure to state a viable claim.
Regardless of how a pleading is styled, we review the judgment
of the circuit court on that pleading under the standard
appropriate to its substance. See Chesterfield County v.
Stigall, 262 Va. 697, 701 n.2, 554 S.E.2d 49, 52 n.2 (2001).
7
facts and that Dr. Alldredge could not establish that Lewis-
Gale acted improperly in its dealings with SWEP in seeking the
termination of Dr. Alldredge’s employment. Lewis-Gale
conceded that Tyson’s abrasive manner and intemperate language
may have been “unsavory,” “careless,” and “harsh,” but
maintained that because Tyson and the other Lewis-Gale
administrators were pursuing what they perceived as the best
commercial interests of the hospital and were within their
rights under the hospital’s contract with SWEP, Alldredge
could not establish that any improper method had been used to
procure the termination of Dr. Alldredge’s employment.
Dr. Alldredge responded to the motion for summary
judgment asserting that Lewis-Gale had fabricated a pretext of
“smoke and mirrors” to procure the termination of her contact
with SWEP. Dr. Alldredge maintained that the response of
Lewis-Gale’s “all-mighty chain of command” to the employees’
letter and her involvement in its drafting was “irrational and
disproportionate” and led to Tyson and others threatening to
cancel SWEP’s contact and making defamatory statements
concerning Dr. Alldredge. She contended that these
allegations were in dispute and, if proven, were sufficient to
establish that Lewis-Gale’s actions exceeded that permissible
in its commercial relations with SWEP and, thus, were improper
and rendered its interference in the contract between SWEP and
8
Dr. Alldredge tortious. During a pre-trial hearing covering
numerous motions, the circuit court took Lewis-Gale’s motion
for summary judgment under advisement.
A jury trial commenced in the circuit court on September
8, 2009. At the conclusion of Dr. Alldredge’s case-in-chief
following three days of testimony presented by witnesses for
Dr. Alldredge during which evidence in accord with the above
recited facts was adduced, Lewis-Gale moved to strike Dr.
Alldredge’s evidence and for summary judgment. Lewis-Gale
again asserted that, because the termination of Dr.
Alldredge’s employment was authorized under the at-will
provision of her contract with SWEP, Dr. Alldredge had not met
her burden of proving that any action by Lewis-Gale that
resulted in SWEP’s decision to terminate Dr. Alldredge’s
employment was illegal, tortious, or otherwise improper.
The circuit court denied the motion to strike. In doing
so the court did not expressly find what actions by Lewis-Gale
could form the basis for the jury finding that the hospital’s
administrators had employed improper methods in procuring
SWEP’s termination of Dr. Alldredge’s employment. Rather, the
court focused on whether Lewis-Gale was aware that Dr.
Alldredge had an expectancy of continued employment and
whether “the members of SWEP felt pressured to respond to
[Lewis-Gale’s] statements and actions.”
9
The case was submitted to the jury, which was instructed
that Dr. Alldredge had the burden of proving that Lewis-Gale
“use[d] improper methods to interfere with the contractual
relationship or expectancy” between Dr. Alldredge and SWEP.
The jury returned its verdict for Dr. Alldredge, awarding her
$900,000 in compensatory damages. Lewis-Gale filed a post-
trial motion to set aside the verdict, for a new trial, or
remittitur. The circuit court denied this motion without
further comment in a final order dated December 10, 2009 and
confirmed the jury’s verdict. This appeal followed.
DISCUSSION
In Chaves v. Johnson, 230 Va. 112, 120, 335 S.E.2d 97,
102 (1985), we recognized that the tort of intentional
interference with performance of a contract by a third party
is a permissible cause of action in Virginia. “The elements
required for a prima facie showing of the tort are: (i) the
existence of a valid contractual relationship or business
expectancy; (ii) knowledge of the relationship or expectancy
on the part of the interferor; (iii) intentional interference
inducing or causing a breach or termination of the
relationship or expectancy; and (iv) resultant damage to the
party whose relationship or expectancy has been disrupted.”
DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140,
10
145, 670 S.E.2d 704, 706 (2009) (citing Chaves, 230 Va. at
120, 335 S.E.2d at 102).
“Additionally, when a contract is terminable at will, a
plaintiff, in order to present a prima facie case of tortious
interference, must allege and prove not only an intentional
interference that caused the termination of the at-will
contract, but also that the defendant employed improper
methods.” Dunn, McCormack & MacPherson v. Connolly, 281 Va.
553, 559, ___ S.E.2d ___, ___ (2011) (internal quotation marks
omitted) (emphasis in original); see also Jae-Woo Cha v.
Korean Presbyterian Church of Washington, 262 Va. 604, 613,
553 S.E.2d 511, 515 (2001); Perk v. Vector Resources Group,
253 Va. 310, 314, 485 S.E.2d 140, 143 (1997); Restatement
(Second) of Torts § 766, cmt. g (1979). However, the
plaintiff need not prove that “the ‘improper methods’ used
were inherently illegal or tortious,” but “only that the
interference was intentional and improper under the
circumstances” of the particular case. Maximus, Inc. v.
Lockheed Info. Mgmt. Sys. Co., 254 Va. 408, 414, 493 S.E.2d
375, 379 (1997).
An employment contract is terminable at-will if the plain
terms of the contract provide that the employer may terminate
the contact prior to the designated period of time of the
employment without being required to establish a just cause
11
for doing so. Cave Hill Corp. v. Hiers, 264 Va. 640, 646, 570
S.E.2d 790, 793 (2002). Although such a contract may place
conditions of notice and timing of the termination, when the
employer complies with these conditions the termination does
not constitute a breach of the employment contract. Id.
In the present case, regardless of any expectancy that
Dr. Alldredge may have had with regard to her continued
employment by SWEP, because her contract provided for
termination by SWEP after giving 90 days notice, Dr.
Alldredge’s contract was for employment at-will. Accordingly,
Dr. Alldredge was required to prove not only that Lewis-Gale
intentionally interfered with her contract relationship with
SWEP, but also that in doing so Lewis-Gale employed “improper
methods.”
The thrust of Lewis-Gale’s assertions is that when Dr.
Alldredge’s evidence adduced at trial is viewed in its
totality, it was insufficient as a matter of law to permit the
jury to find that Lewis-Gale’s dealings with SWEP with regard
to its employment of Dr. Alldredge constituted improper
methods that would sustain her cause of action for
interference with her at-will employment contract. Thus,
Lewis-Gale contends that the court erred in not striking her
evidence and submitting the case to the jury. We agree.
12
Our recent decision in Dunn, McCormack & MacPherson
reiterated the contours of what constitutes the types of
“improper methods” that a third party may not undertake when
it intends for those actions to result in the termination of
an at-will contract between others. Quoting from Duggin v.
Adams, 234 Va. 221, 227-28, 360 S.E.2d 832, 836-37 (1987), we
said:
“Methods of interference considered improper
are those means that are illegal or independently
tortious, such as violations of statutes,
regulations, or recognized common-law rules.
Improper methods may include violence, threats or
intimidation, bribery, unfounded litigation, fraud,
misrepresentation or deceit, defamation, duress,
undue influence, misuse of inside or confidential
information, or breach of a fiduciary
relationship. . . .”
“Methods also may be improper because they
violate an established standard of a trade or
profession, or involve unethical conduct. Sharp
dealing, overreaching, or unfair competition may
also constitute improper methods.”
Dunn, McCormack & MacPherson, 281 Va. at 559, ___ S.E.2d at
___. We declined, however, to expand the parameters of
“improper methods” to include “actions solely motivated by
spite, ill will and malice” toward the plaintiff. Id.
Dr. Alldredge did not allege or present any evidence
tending to prove that Lewis-Gale’s actions were “illegal or
independently tortious.” Nor was there any fiduciary duty
owed to Dr. Alldredge that Lewis-Gale could have violated.
13
Dr. Alldredge did not assert that Lewis-Gale’s motivation in
seeking to have SWEP terminate her employment involved a
desire to gain some competitive advantage, violated an
established standard of the dealings between hospitals and
their independent medical contractors, or involved unethical
conduct in the form of sharp dealing, overreaching, or unfair
competition.
Rather, Dr. Alldredge maintains that Lewis-Gale’s actions
were improper in that it used intimidation, duress, and undue
influence based upon Lewis-Gale’s ability to bring “financial
ruin” on SWEP by canceling its contract to provide emergency
room services to Lewis-Gale, which was SWEP’s principal source
of revenue. However, while the evidence supported the
inference that SWEP was concerned about the continuation of
its contract with Lewis-Gale, the at-will contract between
Lewis-Gale and SWEP allowed termination of the contract upon
due notice and without cause at any time. This status required
that SWEP be continually sensitive to the possibility of
termination for any reason or no reason, regardless of any
specific action or comment made by Lewis-Gale officers or
personnel. Thus, the inherent intimidation or duress
experienced as a result of the very nature of this at-will
contract cannot rise to the level of improper methods
necessary to establish a cause of action for tortious
14
interference with contract expectancy. Furthermore, in this
case neither Dr. Alldredge’s allegations nor her evidence
demonstrated a specific threat or other action by Lewis-Gale
that it was going to cancel its contract with SWEP if SWEP did
not terminate Dr. Alldredge’s employment.
We also reject Dr. Alldredge’s allegations that Tyson’s
statements, such as her use of the term “organizational
terrorist” to describe Dr. Alldredge, were independently
tortious and therefore rose to improper methods. These
statements were certainly unwise, unprofessional hyperbole,
and may even indicate a personal animus toward Dr. Alldredge.
In the context of Tyson’s discussions with SWEP, however, the
statements did not rise to the level of fraud,
misrepresentation, deceit, or defamation that could constitute
improper methods of interference with the contract between Dr.
Alldredge and SWEP. Likewise, we find no significant support
in the record for Dr. Alldredge’s assertion that Lewis-Gale
violated its contract with SWEP or its own internal personnel
policies by bringing its complaints directly to SWEP’s
executive board.
We disagree with Dr. Alldredge that the actions of Lewis-
Gale’s administrators, particularly Tyson, which Lewis-Gale’s
counsel concedes were “unsavory,” “careless,” and “harsh,”
rose to the level of the “improper methods” required to prove
15
Lewis-Gale’s actions exceeded that permissible in normal
business relations in order to give rise to a cause of action
in tort. In Chaves, we noted that where the defendant has its
own contractual or commercial relationship with the other
party to the plaintiff’s contract, a balance must “be struck
between the social desirability of protecting the business
relationship [of the plaintiff and the other party], on one
hand, and the interferor’s freedom of action [with the other
party] on the other.” 230 Va. at 121, 335 S.E.2d at 103. In
Chaves, we addressed this observation to the availability of
an affirmative defense of privilege or justification, but we
are of opinion that it applies with equal force to determining
what the law will deem to be an improper method by the
interferor when there is an existing commercial relationship
between it and the other party to the contract with the
plaintiff. See, e.g., Charles E. Brauer Co. v. NationsBank of
Va., N.A., 251 Va. 28, 36, 466 S.E.2d 382, 387 (1996); see
also Frank Brunckhorst Co. v. Coastal Atlantic, Inc., 542
F.Supp.2d 452, 464 (E.D. Va. 2008).
Under Virginia law, a threat to perform an act one is
legally entitled to perform is not a wrongful act. Goode v.
Burke Town Plaza, Inc., 246 Va. 407, 411, 436 S.E.2d 450, 452-
53 (1993); Bond v. Crawford, 193 Va. 437, 444, 69 S.E.2d 470,
475 (1952). Thus, in Charles E. Brauer Co. we held that “the
16
lawful exercise of [defendant’s] statutory and contractual
rights which incidentally may have interfered with the
[plaintiff’s] negotiations for sale of the inventory . . . is
not actionable and will not support recovery for tortious
interference with contractual relations.” 251 Va. at 36, 466
S.E.2d at 387.
As we have previously observed, “the law will not provide
relief to every disgruntled player in the rough-and-tumble
world comprising the competitive marketplace.” Williams v.
Dominion Tech. Partners, L.L.C., 265 Va. 280, 290, 576 S.E.2d
752, 758 (2003) (internal quotation marks omitted). The fact
that Virginia recognizes the existence of the tort of
intentional interference with a contract does not mean that
every contract relationship which is terminated or disrupted
through the interference of a third party promoting its own
interests will result in tort liability for that party.
Rather, the law provides a remedy in tort only where the
plaintiff can prove that the third party’s actions were
illegal or fell so far outside the accepted practice of that
“rough-and-tumble world” as to constitute improper methods.
In sum, Lewis-Gale’s actions in this case involving at-
will contracts did not rise as a matter of law to the level of
the “improper methods” required for Dr. Alldredge to prove
that Lewis-Gale’s purposeful interference in her contract
17
relationship with SWEP was tortious. Accordingly, we hold
that the circuit court erred in not striking Dr. Alldredge’s
evidence and in not granting summary judgment to Lewis-Gale.
CONCLUSION
For the reasons stated, we will reverse the judgment of
the circuit court confirming the jury verdict in favor of
Alldredge and enter final judgment for Lewis-Gale. 2
Reversed and final judgment.
2 Having found that Dr. Alldredge failed to meet her
burden of proof to establish tortious interference in her
contract relationship with SWEP by Lewis-Gale, its remaining
assignments of error and the assignment of cross-error raised
by Dr. Alldredge, all concerning the elements and quantum of
her damages, are now moot.
18
Liguori v. Elmann
Liguori v. Elmann
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
SYLLABUS
Patricia Liguori v. Elie M. Elmann, M.D., et al. (A-52-06)
Argued March 5, 2007 — Decided June 25, 2007
HOENS, J., writing for a unanimous Court.
This appeal presents the Court with four medical malpractice jurisprudence issues: The dividing line
between specialists and general practitioners for purposes of determining the applicable standard of care; the extent
to which medical emergencies fall outside the doctrine of informed consent; whether post-surgical communications
from a physician to the members of a patient’s family may give rise to a fraud-based cause of action or, in the
alternative, to a claim based on lack of informed consent; and, whether a discovery violation that inures to plaintiffs’
benefit nonetheless entitles plaintiffs to a new trial.
On December 9, 1999, Dr. Elie Elmann, a cardiovascular and thoracic surgeon, performed quadruple
coronary artery bypass surgery on Mrs. Geraldine Liguori at Hackensack University Medical Center (HUMC). He
was assisted during the surgery by Dr. James Hunter, who at the time was a cardiac surgery assistant/fellow.
Following the surgery, Mrs. Liguori was sent to the cardiac intensive care unit (ICU). At approximately 2:30 p.m., a
nurse informed Elmann that a chest x-ray revealed that Mrs. Liguori had developed a pneumothorax, a condition
commonly referred to as a collapsed lung. Because Elmann was then in the middle of operating on another patient,
he directed Hunter to assess Mrs. Liguori’s status and, if necessary, to insert a chest tube to alleviate the condition.
Elmann testified that he warned Hunter to “be careful” because Mrs. Liguori had an enlarged heart.
After assessing Mrs. Liguori’s situation, Hunter determined that it would be necessary to insert a chest tube
to relieve the air pressure in the chest cavity. Hunter testified that he knew Mrs. Liguori’s heart was enlarged and
that he took precautions to avoid injuring it. Hunter made a small incision and used a clamp to create a hole
between the ribs so he could insert the tube. He described the whole procedure as “pretty uneventful.” Hunter was
“totally satisfied that the tube was functioning [and] that the problem was relieved. There was no evidence of
bleeding and the blood pressure was stable.”
A few minutes after Hunter had returned to the operating room, a nurse contacted Elmann who was still
performing surgery on the other patient. That nurse told him that Mrs. Liguori was experiencing substantial
bleeding. Elmann sent Dr. Peter Praeger to assess Mrs. Liguori’s condition. Upon performing exploratory surgery,
Dr. Praeger discovered a hole in the left ventricle of her heart, which he repaired. He noted that the hole was
“related to the insertion of the chest tube” and advised Elmann of Mrs. Liguori’s status.
Patricia Liguori, Mrs. Liguori’s daughter, was in the cardiac waiting room throughout the time of the
surgery and the chest tube insertion. Her brother, John J. Liguori, was present for part of the bypass operation.
According to Hunter, he would have spoken to Mrs. Liguori’s family if he had known they were at the hospital and
if there had been time. Elmann and experts who appeared for both plaintiffs and defendants all testified that a
collapsed lung that occurs right after surgery constitutes a medical emergency. Elmann spoke to Patricia and John at
approximately 6:30 p.m., though the parties’ recollection of the substance of that conversation is sharply in dispute.
Significantly, according to Patricia and John, Elmann did not tell them about the collapsed lung, did not reveal that
Hunter had inserted the chest tube and failed to mention that the chest tube had caused the injury to Mrs. Liguori’s
heart. Elmann, however, testified that he informed Patricia and John completely about the chest tube and its
complications.
On January 17, 2000, Dr. Leonardo DiVagno, a cardiologist who was assisting Elmann with Mrs. Liguori’s
care, told Patricia that Mrs. Liguori had sustained a significant amount of bleeding following the laceration to her
heart during the insertion of the chest tube. According to Patricia, she was shocked, immediately called her brother,
and they transferred their mother to a hospital in North Carolina, where John lived. However, Mrs. Liguori suffered
from a series of “cascading complications,” resulting in her death from septic shock on February 12, 2000.
In December 2001, John and Patricia Liguori filed a wrongful death complaint against, among others, Drs.
Elmann and Hunter, asserting a variety of theories of recovery including medical malpractice, lack of informed
consent, battery and fraudulent misrepresentation. The jury returned a verdict in favor of defendants. Plaintiffs
raised thirteen issues on appeal to the Appellate Division. In an unpublished decision, the Appellate Division
rejected all thirteen arguments and affirmed the jury verdict. One of the Appellate Division judges filed a dissent,
which was limited to a single issue. He asserted that the trial judge erred in the jury charge relating to the
appropriate standard of care applicable to Hunter in two respects. First, he reasoned that Hunter should have been
held to the standard of care applicable to a specialist rather than the one appropriate for a general practitioner.
Second, he suggested that, in circumstances where there is doubt about a physician’s level of expertise for purposes
of the standard of care, the issue should be decided separately by the jury.
Because of the dissent, the question concerning the applicable standard of care is before the Supreme Court
as an appeal of right. R. 2:2-1(a)(2). In addition, the Court granted plaintiffs’ petition for certification of four other
questions relating to informed consent, fraudulent misrepresentation, and discovery of experts.
HELD: The trial judge’s instruction to the jury on the appropriate standard of care applicable to Dr. Hunter, though
not entirely in keeping with the Model Jury Charge, nonetheless did not result in error; the Court is satisfied that the
jury concluded that Hunter’s actions were reasonable in light of all of the facts relating to the emergency he
confronted; the Court finds no error in the trial court’s dismissal of the fraud claim or in the Appellate Division’s
analysis of plaintiffs’ argument on appeal; and, because the change in the expert’s opinion, although significant,
was one which brought his opinion into alignment with plaintiffs’ expert, the Court does not perceive, in these
circumstances, any prejudice to plaintiffs.
1. Our Model Jury Charge on medical negligence and standard of care, in relevant part, charges the jury that
“[n]egligence is conduct which deviates from a standard of care” and that “[t]he determination of whether a
defendant was negligent requires a comparison of the defendant’s conduct against a standard of care.” The trial
court had the option of instructing the jury on the standard of care for specialists or the standard of care for general
practitioners. Each of these options advises the jury that defendant is to be judged, in essence, against others of like
skill, training and knowledge. The trial judge opted for a hybrid charge, using general practitioner language, but
also referring to Hunter’s job title, assistant cardiac surgeon or assistant cardiac thoracic fellow. The appellate
division majority concluded that the general practitioner standard was appropriate because Hunter was not a surgeon
and did not hold himself out as a surgeon. More significantly, however, to the majority was the undisputed trial
testimony, which made plain that chest tube insertion is not a procedure reserved for specialists. Even if the
Supreme Court was to agree with the dissenting judge that Hunter should have been held to a standard of care other
than that of a general practitioner, the Court would conclude that there was no reversible error here. The trial
judge’s effort to span what he perceived to be a gap in the Model Charge by referring to Hunter’s job title, while not
entirely in keeping with the Model Charge, nonetheless did not result in error. (Pp. 19-26)
2. Plaintiffs contend that the trial court erred in dismissing their informed consent and battery claims, to the extent
that those claims were based on Hunter’s insertion of the chest tube without first seeking their permission. They
suggest that the Court adopt a rule of law that would require physicians to secure consent, even in the context of a
medical emergency, unless it is “truly impossible” and urge the Court to conclude that the record here does not
support dismissal of their claim under that theory. In 1989, our Legislature enacted a statutory patient “bill of
rights” providing protections for hospital patients. That statute is consistent with our case law that recognizes the
existence of an exception to the informed consent doctrine for medical emergencies. Although some emergencies
might well present physicians with sufficient time to seek consent, the Court declines to adopt plaintiffs’ rigid
formulation of the circumstances in which their failure to do so would be permissible. The Court is satisfied that the
jury concluded that Hunter’s actions were reasonable in light of all of the facts relating to the emergency he
confronted. (Pp. 26-29)
3. Plaintiffs also urge the Court to recognize a separate cause of action against Elmann sounding in fraud and
arising from what plaintiffs characterize as his post-surgical misrepresentations. A patient generally has three
avenues for relief against a physician, namely, “(1) deviation from the standard of care . . . ; (2) lack of informed
consent; and (3) battery.” Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 (2002). In Howard, the Court
2
declined to create a “novel fraud or deceit-based cause of action” arising from a doctor’s pre-treatment
misrepresentation about his professional qualifications. The Court, however, did not address the potential for a post-
surgical fraud claim, but cited a New York decision addressing the circumstances in which a fraud claim might arise
and rejecting the creation of a new fraud based claim in a medical malpractice case. The Court sees nothing in this
record that suggests that it should now deviate from Howard. The claims raised against both Elmann and Hunter are
based on asserted lack of informed consent and deviations from the applicable standard of care. The harms suffered
by Mrs. Liguori cannot be separated from the insertion of the chest tube, regardless of what Elmann did or did not
say about those events. Therefore, the Court finds no error in the trial court’s dismissal of the fraud claim or in the
Appellate Division’s analysis of plaintiffs’ argument on appeal. (Pp. 29-31)
4. Plaintiffs also contend that the trial court erred in converting their fraud claim into a separate claim based on a
lack of informed consent, and that the Appellate Division erred in failing to reverse that decision. As the Appellate
Division correctly concluded, plaintiffs’ claim against Elmann relating to what he did or did not say after the
insertion of the chest tube and the surgical repair is in reality an argument that they were not given sufficient
information on which they could decide whether or not to permit defendants to proceed to care for Mrs. Liguori.
Seen in that light, the claim is indeed one arising out of an asserted lack of informed consent. The trial court
properly converted plaintiffs’ fraud claim into a lack of informed consent claim. (Pp. 31-32)
5. Finally, the Court addresses plaintiffs’ assertions that they were deprived of a fair trial because they were not
alerted in advance of trial to a change in the causation opinion that would be offered by defendants’ expert, Dr.
Richard Kline. Approximately two weeks prior to trial, Dr. Kline advised counsel for defendants that he believed
that the injury was caused by the clamp, whereas earlier he had opined that the injury could have been caused
directly by the insertion of the clamp or by a sudden shift of the heart in the chest cavity, causing the heart to strike
the clamp. In effect, this change in his testimony brought his view about causation directly into alignment with the
views of plaintiffs’ expert. The Court does not retreat from the views it has previously expressed about the
significance of a failure to abide by the requirements of the discovery rules. However, because the change in the
expert’s opinion, although significant, was one which brought his opinion into alignment with plaintiffs’ expert, the
Court does not perceive, in these circumstances, any prejudice to plaintiffs. (Pp. 32-35)
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and
RIVERA-SOTO join in JUSTICE HOEN’s opinion.
The judgment of the Appellate Division is AFFIRMED.
3
SUPREME COURT OF NEW JERSEY
A-52 September Term 2006
PATRICIA LIGUORI,
INDIVIDUALLY and as EXECUTRIX
OF THE ESTATE OF GERALDINE
LIGUORI, and as EXECUTRIX OF
THE ESTATE OF JOHN J.
LIGUORI, and JOHN C. LIGUORI,
Plaintiffs-Appellants,
v.
ELIE M. ELMANN, M.D., JAMES
B. HUNTER, M.D. and CARDIAC
SURGERY GROUP, P.A.,
Defendants-Respondents,
and
PETER PRAEGER, M.D., DIANE
ANDERSON, R.N., LYNNANN
ANDERSON, R.N., NILO ANTONIO,
R.N., SHARON BREADY, R.N.,
ELLY CALLIAS, R.N., TOM
CAREN, R.N., JESSICA CONNERS,
R.N., LUCY COVINO, R.N.,
TERRY DAVOREN, R.N., BETH
DRONEY, R.N., KATHY ENRIGHT,
R.N., ERIN GIARRUSSO, R.N.,
LAURA HYNES, R.N., JENNIFER
KRAWAIK, R.N., ISELA LAZICKI,
R.N., MELANIE LENDIS, R.N.,
ANNE LOBASSO, R.N., PATRICIA
LOPEZ, R.N., LUZ MALIT, R.N.,
RACHEL MARCHIONY, R.N.,
BARBARA MARTIN, R.N., CESAR
MARTOS, R.N., KELLIE MCGUIRE,
R.N., CILA MERRIAM, R.N.,
WENDY MITCHELL, R.N., PATRICE
O’CONNOR, R.N., SUE PATLOCK,
R.N., KATHY PAWLOSKI, R.N.,
JEANNE POLLEY, R.N., PATRICE
PULFORIO, R.N., ALICIA QUINN,
R.N., ANNIE READIE, R.N.,
SHEILA RHODES, R.N., DIANE
RICHARD, R.N., DEBBIE
RODITSKI, R.N., KEVIN ROONEY,
R.N., PRATIVA SAHU, R.N.,
SHEILA SCOLLO, R.N., DONNA
SENNA, R.N., GLADYS SILLERO,
R.N., JOHN STANTON, R.N.,
BECKY THUM, R.N., DAWN
TRUSIO, R.N., SUE TUDDA,
R.N., MARIA VILLALONGO, R.N.,
TES WELCH, R.N., ALISON
WRIGHT, R.N., JANET H.
KILROY, R.N., GAIL
VANDERHOVEN, R.N., HEATHER
CASSIDY, R.N., LUCY XXX, R.N.
(Last Name Fictitious),
STEPHANIE ZZZ, R.N. (Last
Name Fictitious), ELLEN ZOE,
R.N., PATRICE MOE, R.N., ROE
BOES 1-10, HACKENSACK
UNIVERSITY MEDICAL CENTER,
JOHN DOES 1-100 and ABC
CORPORATIONS 1-20,
Defendants.
Argued March 5, 2007 – Decided June 25, 2007
On appeal from and certification to the
Superior Court, Appellate Division.
Adam M. Slater argued the cause for
appellants (Mazie Slater Katz & Freeman,
attorneys; Mr. Slater and Bruce H. Nagel, on
the briefs).
Scott T. Heller argued the cause for
respondents Elie M. Elmann, M.D. and Cardiac
Surgery Group, P.A. (Giblin & Combs,
attorneys; Mr. Heller and Eric B. Bailey, on
the briefs).
2
Judith A. Wahrenberger argued the cause for
respondent James B. Hunter, M.D.
(Wahrenberger, Pietro & Sherman, attorneys).
Dennis J. Alessi submitted a brief on behalf
of amicus curiae, Medical Society of New
Jersey (Mandelbaum Salburg Gold Lazris &
Discenza, attorneys).
JUSTICE HOENS delivered the opinion of the Court.
This appeal calls upon us to consider several issues that
are significant to our medical malpractice jurisprudence.
First, we consider the dividing line between specialists and
general practitioners for purposes of determining the applicable
standard of care. Second, we consider the extent to which
medical emergencies fall outside the doctrine of informed
consent. Third, we consider whether post-surgical
communications from a physician to the members of a patient’s
family may give rise to a fraud-based cause of action or, in the
alternative, to a claim based on lack of informed consent.
Finally, we consider whether a discovery violation that inures
to plaintiffs’ benefit nonetheless entitles plaintiffs to a new
trial.
I.
Plaintiffs Patricia Liguori and John J. Liguori are the son
and daughter of the decedent, Mrs. Geraldine Liguori. Acting in
3
their individual and representative1 capacities, they filed their
action in the Law Division asserting that Mrs. Liguori’s death
was caused by medical malpractice. More particularly, they
alleged that defendant Dr. James Hunter negligently performed a
post-surgical procedure on Mrs. Liguori that eventually led to
her death, that he and defendant Dr. Elie Elmann failed to
secure informed consent for that procedure, and that Elmann
engaged in fraud and misrepresentation in his descriptions to
plaintiffs of the post-surgical course of events. Prior to
trial, the misrepresentation claim was dismissed and tried as
part of the informed consent claim. The matter therefore
proceeded to trial against Hunter and Elmann,2 on the medical
malpractice and informed consent theories only. We derive our
statement of the facts from the extensive trial record.
The events that gave rise to plaintiffs’ claims began on
December 9, 1999. On that date, Elmann, a cardiovascular and
thoracic surgeon, performed quadruple coronary artery bypass
1 At the time of the events in question, Mrs. Liguori was married
to John J. Liguori. He died after the events that gave rise to
the complaint but before the complaint was filed as a result of
which Patricia Liguori sued as the Administratrix Ad
Prosequendum of both Mrs. Liguori’s estate and John J. Liguori’s
estate. In addition, she and her brother, Dr. John C. Liguori,
sued individually.
2 The original complaint also named as defendants Elmann’s
practice group, Cardiac Surgery Group; Hackensack University
Medical Center; Elmann’s partner, Dr. Peter Praeger; and
numerous nurses. Of these, Cardiac Surgery Group remained as a
nominal defendant, but the claims against the other defendants
were either resolved or dismissed.
4
surgery on Mrs. Liguori at Hackensack University Medical Center
(HUMC). He was assisted during the surgery by Hunter, who at
the time was a cardiac surgery assistant/fellow. That surgery
lasted approximately until noon, following which Mrs. Liguori
was sent to the cardiac intensive care unit (ICU).
At approximately 2:30 p.m., Patrice Pulford, a nurse in the
cardiac surgery ICU, informed Elmann that a chest x-ray revealed
that Mrs. Liguori had developed a pneumothorax, a condition
commonly referred to as a collapsed lung. Because Elmann was
then in the middle of operating on another patient, he told
Hunter to attend to Mrs. Liguori. Elmann directed Hunter to
assess her status and, if necessary, to insert a chest tube to
alleviate the condition. Elmann testified that he warned Hunter
to “be careful” because Mrs. Liguori had an enlarged heart.
Hunter immediately left the operating room and quickly
arrived at Mrs. Liguori’s bedside. He observed that Mrs.
Liguori’s ventilator was sounding an alarm that indicated to him
that there was significant pressure in her airway. At the same
time, he detected that she was experiencing respiratory distress
as evidenced by the asymmetrical expansion and retraction of her
chest. He also noted that she was “bucking the respirator”
which he described as being “akin to a big cough.” Hunter
examined the post-surgical x-ray that had been taken
approximately an hour and fifteen minutes earlier.
5
He testified that he was concerned that Mrs. Ligouri had a
condition known as “tension pneumothorax,” which involves a
buildup of air pressure in the chest cavity. That condition,
according to Hunter, can cause certain of the organs in the
chest, including the heart, to shift. Hunter was concerned
because tension pneumothorax can reduce or potentially eliminate
blood flow to the heart and can lead to a cardiovascular
collapse.
Hunter testified that he determined it would be necessary
to insert a chest tube to relieve the tension pneumothorax. He
decided that the proper placement of the tube was on the
patient’s left side between the sixth and seventh ribs. He
could not remember where he had actually inserted the chest
tube, but testified that he knew that Mrs. Liguori’s heart was
enlarged and that he took precautions to avoid injuring it.
According to Hunter, he made a small incision and
“dissected down to the chest wall through the adipose tissue.”
He said that when he reached Mrs. Liguori’s ribs, he used a
clamp to separate the subcutaneous tissue and to create a hole
between the ribs so he could insert the tube. Hunter explained
that doctors know when they have reached the chest cavity
because there is a sound or feel of air being released. In his
words, “you’ll know when you’re in there and that’s the point
6
you stop.” He testified that he recalled hearing a rush of air
when the clamp was inserted.
According to Hunter, he then inserted his finger into the
incision and felt Mrs. Liguori’s heart, which was very close to
the chest wall. He then slid the chest tube in the cavity over
his finger and at an upward angle, embedding the tube into the
pleural space and causing Mrs. Liguori’s lung to reinflate. He
then sutured the tube into place, completing the procedure,
which he described at trial as “pretty uneventful.”
Hunter recalled that he remained at Mrs. Liguori’s bedside
for approximately ten, fifteen, or twenty minutes following
insertion of the chest tube. He was then “totally satisfied
that the tube was functioning [and] that the problem was
relieved. There was no evidence whatsoever of bleeding and the
blood pressure was stable.” He then left the cardiac ICU and
returned to the operating room where he began again to assist
Elmann with the other patient’s surgery.
Hunter testified that he had “absolutely no indication at
that time . . . that there was anything wrong” with Mrs.
Liguori. Two other witnesses at trial, however, cast doubt on
Hunter’s recollection. According to Pulford, the cardiac ICU
nurse, shortly after Hunter inserted the chest tube and while he
was still tending to her, Mrs. Liguori’s blood pressure dropped,
her heart rate increased and her heart began beating abnormally.
7
Elmann’s testimony was also somewhat at odds with Hunter’s
recollection. During Elmann’s pretrial deposition, he testified
that when Hunter returned to the operating room after inserting
the chest tube, he “looked quite alarmed” and told Elmann that
Mrs. Liguori was experiencing “increased bleeding in her
drains.” At trial, Elmann testified that Hunter had not
actually exhibited that reaction when he first returned to the
operating room. Rather, Elmann recalled that Hunter came in and
out of the operating room several times during the afternoon,
suggesting that it was later that Hunter exhibited concern about
Mrs. Liguori’s condition.
At approximately 3:20 p.m., a few minutes after Hunter had
returned to the operating room, a nurse contacted Elmann who
was still performing surgery on the other patient. That nurse
told him that Mrs. Liguori was experiencing substantial
bleeding. Elmann then contacted his partner, Dr. Peter Praeger,
a board certified cardiothoracic surgeon, to have Praeger assess
Mrs. Liguori’s condition. Elmann also instructed Hunter to go
back and attend to Mrs. Liguori until Praeger arrived.
According to Hunter, he was upset to the point of thinking that
he was “going to pass out” but “pulled [him]self together and
went back to Mrs. Liguori’s bedside.”
Within about five minutes of being called, Praeger arrived
at the hospital. He evaluated Mrs. Liguori and found that the
8
pleurovac, a collection unit connected to the pericardial tube,
which is a tube inserted as a part of the heart surgery, was
full of blood and that Mrs. Liguori’s blood pressure was very
low. Praeger determined that immediate surgery would be
required. He then performed exploratory surgery and discovered
a hole in the left ventricle of her heart, which he repaired.
According to his operative report, Mrs. Liguori “tolerated the
procedure well and left the operating room in satisfactory
condition.” He also noted that the hole in the heart was
“related to the insertion of the chest tube.” Praeger then
advised Elmann about Mrs. Liguori’s status.
After Elmann finished operating on the other patient, he
examined Mrs. Liguori and drafted his progress notes. That
report indicated that the left ventricle injury was related to
the chest tube and that it was repaired. At trial, Hunter could
not explain how Mrs. Liguori’s heart was punctured, although he
conceded that it had happened during the chest tube procedure.
Patricia Liguori was in the cardiac waiting room throughout
the time of the surgery and the chest tube insertion. Although
her brother John Liguori had also been at the hospital for part
of the bypass operation, he eventually went to Mrs. Liguori’s
nearby home while Patricia remained at the hospital. According
to Hunter, he would have spoken to the family if he had known
they were there and if there had been time. He conceded that
9
“in most situations” patients are asked to sign a consent form
before a chest tube is inserted, but that in a situation such as
the one he confronted, “in the time that it takes to get consent
and everything else, Mrs. Liguori could have easily gone into
cardiac arrest.” Elmann, Pulford and the experts who appeared
for both plaintiffs and defendants all testified that a
collapsed lung that occurs right after surgery constitutes a
medical emergency.
At approximately 6:30 p.m., Elmann spoke to both plaintiffs
about Mrs. Liguori’s treatment. The parties’ recollection of
the substance of that conversation is sharply in dispute. John
Liguori testified that Elmann informed him by telephone that
Mrs. Liguori was losing more blood than expected through her
tubes after the original surgery and that “‘[r]ather than just
continue to transfuse blood into her and wait for the clotting
to occur, [they] decided to be aggressive and take her back into
the operating room.’” According to John Liguori, Elmann also
told him that they had found “‘a small bleeder’” and that they
had repaired it, commenting that “sometimes these things happen,
and she’s fine.”
Patricia Liguori, who testified that she was listening to
the conversation from Elmann’s end of the call, had a
recollection largely consistent with her brother’s.
Significantly, according to the plaintiffs, Elmann did not tell
10
them about the collapsed lung, did not reveal that Hunter had
inserted the chest tube and failed to mention that the chest
tube had caused the injury to Mrs. Liguori’s heart.
Elmann, however, testified that he informed both plaintiffs
completely about the chest tube and its complications.
According to him, he spoke to Patricia Liguori personally in the
waiting room and told her both that Mrs. Liguori had suffered a
collapsed lung and that he had not been available to treat it
because he was in the middle of a surgery on another patient.
He also testified that he told Patricia that because of Mrs.
Liguori’s condition, the insertion of a chest tube was
necessary, but that thereafter she became unstable and required
a second emergency surgery. He asserted that he also told
Patricia that Praeger had found a small hole and had repaired
it.
According to Elmann, Patricia then asked him to telephone
her brother John and explain everything to him because John is a
physician. Elmann testified that he then had a brief telephone
conversation with John in which he repeated the information he
had given to Patricia. He recalled telling John that Mrs.
Liguori had “bled, she ha[d] a hole in the heart, the apex of
the heart was fixed . . . and that she was stable.”
Although the specific details of Mrs. Liguori’s post-
surgical course of care are not germane to the issues we
11
address, she remained in the ICU largely because of
complications arising from the laceration to her heart. By
early January 2000, her condition had deteriorated and John
Liguori met with several of her caregivers to express his
dissatisfaction about her treatment.
On January 17, 2000, Dr. Leonardo DiVagno, a cardiologist
who was assisting Elmann with Mrs. Liguori’s care, spoke to
Patricia Liguori. He testified that he described Mrs. Liguori’s
collapsed lung and the laceration to her heart during the
insertion of the chest tube. He also stated that he told
Patricia that Mrs. Liguori had sustained a significant amount of
bleeding following that event. According to DiVagno, he
explained that Praeger had repaired the laceration during the
subsequent emergency surgery. DiVagno testified that Patricia
“broke down into tears” and was “very disturbed” by the
information he gave her, insisting to him that “no one had told
her that.” According to Patricia, she was shocked to learn this
information from DiVagno and immediately called her brother John
for advice. They then transferred their mother to a hospital in
North Carolina, where John lived. However, Mrs. Liguori
suffered from a series of “cascading complications,” resulting
in her death from septic shock on February 12, 2000.
12
II.
In December 2001, plaintiffs filed their wrongful death
complaint, asserting a variety of theories of recovery including
medical malpractice, lack of informed consent, battery and
fraudulent misrepresentation.
Following the close of discovery, the trial court granted
partial summary judgment in favor of Elmann on plaintiff’s
informed consent and agency claims. Thereafter, the trial court
granted Elmann’s motion to dismiss plaintiff’s claim for
fraudulent misrepresentation, converting that claim instead into
an informed consent claim. At the conclusion of the evidence,
the trial court granted plaintiffs’ motion for a directed
verdict on causation based on defendants’ concession that Mrs.
Liguori’s death was caused by complications stemming from the
laceration to her heart during the chest tube insertion.
The jury returned a verdict in favor of defendants, finding
that Hunter did not “deviate from the accepted standard of
medical practice in the insertion of the chest tube” and that
Elmann did not “fail to obtain the informed consent of the
Liguori family to the continued course of treatment.”
Plaintiffs’ motion for a new trial was denied.
Plaintiffs raised thirteen issues on appeal to the
Appellate Division, as follows: (1) the fraud claim against
Elmann based on post-surgical misrepresentation should not have
13
been dismissed; (2) the trial court erred in converting the
fraud claim into an informed consent claim; (3) the trial court
erred in dismissing the negligence claim against Elmann; (4) the
informed consent and battery claims should not have been
dismissed merely because there was a medical emergency; (5) the
defense expert’s material change in testimony warranted a new
trial; (6) defense counsel’s closing argument required a new
trial; (7) the trial court erred in charging the jury to hold
Hunter to the standard of care applicable to a general
practitioner rather than to regard him as a surgeon; (8) the
trial court erred in allowing Hunter to testify that he has not
changed his technique for inserting a chest tube as a result of
the incident; (9) the jury verdict in favor of Hunter was
against the weight of the evidence; (10) an anonymous letter
should have been admitted into evidence; (11) defense counsel’s
interruption of plaintiffs’ opening with objections required a
new trial; (12) defense counsel’s interruptions of plaintiffs’
summation with objections required a new trial; and (13) the
trial court should have excused certain jurors for cause.
In an unpublished decision, the Appellate Division rejected
all thirteen arguments and affirmed the jury verdict. One of
the Appellate Division judges filed a dissent, which was limited
to a single issue. He asserted that the trial judge erred in
the jury charge relating to the appropriate standard of care
14
applicable to Hunter in two respects. First, he reasoned that
Hunter should have been held to the standard of care applicable
to a specialist rather than the one appropriate for a general
practitioner. Second, he suggested that, in circumstances where
there is doubt about a physician’s level of expertise for
purposes of the standard of care, the issue should be decided
separately by the jury.
Because of the dissent, the question concerning the
applicable standard of care is before us as an appeal of right.
See R. 2:2-1(a)(2). In addition, we granted plaintiffs’
petition for certification of four other questions, 188 N.J. 485
(2006), relating to informed consent, fraudulent
misrepresentation, and discovery of experts.
III.
In evaluating the standard of care to which Hunter should
have been held, we begin with his testimony, in which he
described his training and education as well as his
responsibilities at HUMC.
A.
According to Hunter, he graduated from medical school in
1986 and entered a two-year surgical residency program at the
University of Medicine and Dentistry of New Jersey (UMDNJ). In
1988, he was licensed as a physician in New Jersey. He had
hoped to secure a place in the UMDNJ program as a urology
15
resident, but he was unable to do so. Hunter testified that,
although he had already completed the two-year surgical
residency program, to become a surgeon, he would have been
required to begin his residency anew and complete a different
five-year surgical residency program. Instead of doing so, he
was offered, and he completed, a third year of residency. He
then went to work at Jersey City Medical Center as a “surgery
house officer,” where he assisted in the operating and emergency
rooms, admitted patients, and cared for them after surgery.
Hunter testified that his duties included inserting chest tubes,
intravenous lines, and arterial lines, as well as performing
evaluations and diagnostic procedures of various kinds.
According to Hunter, he was “fascinated” by adult cardiac
surgery after first being exposed to it when he was a third-year
resident. He testified that he first saw a chest tube insertion
when he was a medical student, at which time he was only
permitted to observe and assist others. He began participating
in chest tube placements when he was a resident and he was able
to place chest tubes independently in the second year of his
residency. By that time, he had undergone classroom training
about the procedure, which he described: “what they call
‘didactic’ or basic introductory lectures on the proper
technique. . . . we were certainly lectured to in the
16
classroom, versed in the proper anatomy and technique of placing
of chest tubes.”
Hunter began to work at HUMC as a cardiac surgery
assistant/fellow in approximately 1991. He described the
duties of that position as follows:
assisting in the open-hear[t] cardiac
surgery program, which involves assisting in
the coronary artery bypass grafting or CABG,
if you will; valve replacements, aortic and
mitral valve replacements; assisting in
thoracic aneurysms and –- and a whole
multitude of operations that they perform in
the chest and on the heart.
Other responsibilities include taking
in-house call, which means you’re in the
hospital, you sleep in the hospital, you eat
in the hospital; fielding calls regarding
the questions that the nurses may have about
the patients; also performing any procedures
that are required either on an emergent or
non-emergent or elective basis, if you will.
It involves the preoperative workup of the
patients, including histories, physical
examinations,
consenting
patients
for
surgery; any procedures related to any of
the previous-mentioned operations such as
chest
tube
placement,
arterial
line
placement, central line placement, and also
to be involved in the postoperative
management of the patients.
He further explained that when needed, he participates in
resuscitating patients who are experiencing cardiac arrest and
that on occasion he is even required to “reopen” patients’
chests to “assess where the problem is.” He is not a board-
17
certified surgeon nor is he eligible to participate in the
process of becoming board certified in surgery.
By 1999, when Mrs. Liguori was a patient at HUMC, Hunter
had been performing chest tube insertions for approximately
thirteen years. He estimated that he had inserted between 100
and 200 chest tubes prior to that time and that none had
involved any complications. He was aware, however, that there
can be complications relating to the procedure. The major
complications, according to Hunter, are insertion on the wrong
side of the chest, “actual misplacement” of the tube and “[a]s
we know now they, unfortunately, can end up in close proximity
to the heart; also any of the great vessels of the chest,
meaning the aorta or the vena cava, pulmonary artery, or the
lung itself.”
Hunter also described his primary responsibilities during
Mrs. Liguori’s cardiac bypass surgery, explaining that he
“‘harvest[ed]’ the saphenous vein” from her leg for Elmann’s use
in bypass grafting and “expose[d] the heart” meaning that he
“lift[ed] the heart and turn[ed] it slightly to expose the areas
that [were] going to be bypassed.” Finally, Hunter’s role was
to assist while the surgeon was suturing the grafts of vein to
the heart by “maintain[ing] proper tension on the suture so that
the . . . ‘anastomoses,’ where the vein is actually sewn to the
18
heart, does not loosen and leak. We have to cut the suture for
[the surgeon], anything that he may ask us to do.”
B.
The issue about the appropriate standard of care to which
Hunter should be held was raised at a charge conference during
the trial. Plaintiffs argued that Hunter should be held to the
standard of care applicable to a “specialist in the field of
surgery” because the procedure he performed was, in fact, a
surgical procedure. The trial judge rejected that request. He
noted that Hunter’s job title was not as a surgeon but only that
of an “assistant cardiac surgeon or an assistant cardiac
thoracic surgeon fellow.” The trial judge further pointed out
that all of the witnesses and experts agreed that even a
resident would be permitted to insert a chest tube. He
therefore reasoned that the appropriate charge to the jury about
the standard of care to which Hunter would be held was that of a
general practitioner rather than the one relating to
specialists.
Nevertheless, in delivering the charge to the jury, the
trial court used the language of the charge for a general
practitioner, but also referred to Hunter’s job title, assistant
cardiac surgeon or assistant cardiac thoracic fellow. As a
result, he charged the jury as follows:
19
The determination whether the defendant, Dr.
Hunter, was negligent requires a comparison
of the defendant’s conduct against a
standard of care. If the defendant’s
conduct is found to have fallen below an
accepted standard of care, then he was
negligent.
In this case, Dr. Hunter has been
described in his profession alternatingly as
an assistant cardiac –- assistant cardiac
thoracic
fellow
or
assistant
cardiac
surgeon. Therefore, you must decide this
case –- to decide this case properly, you
must know the standard of care imposed by
law against which Dr. Hunter’s conduct as
assistant cardiac surgeon or assistant
cardiac thoracic surgeon fellow should be
measured.
Dr. Hunter, in this case, is a general
practitioner. A person who is engaged in
the general practice of medicine represents
that he will have and employ knowledge and
skill normally possessed and used by the
average physician practicing his profession
as a general practitioner. Given what I
have just said, it is important for you to
know that the standard of care which a
general practitioner as an assistant cardiac
surgeon or an assistant cardiac thoracic
surgeon fellow is required to observe in his
treatment
of
a
patient
under
the
circumstances of this case.
Based upon common knowledge alone and
without technical training, jurors normally
cannot
know
what
conduct
constitutes
standard of medical practice. Therefore,
the standard of practice by which a
physician’s conduct is to be judged must be
furnished by expert testimony. That is to
say, by the testimony of persons who by
knowledge, training and experience are
deemed qualified to testify and to express
their opinions on medical subjects. You, as
jurors, should not speculate or guess about
20
the standards of care by which the defendant
physician, Dr. Hunter, should have conducted
himself in the diagnosis and treatment of
the deceased plaintiff, Mrs. Liguori.
the
determine
must
you
Rather,
applicable
medical
the
standard
from
testimony of the expert witnesses that you
have heard in this case.
Plaintiffs assert that Hunter should have been held to the
standard of care applicable to a specialist and that the trial
judge erred in charging the jury that he was a general
practitioner. The dissenting appellate division judge agreed.
He reasoned that the appropriate standard of care should be
determined not, strictly speaking, by how the doctor holds
himself out but instead by how it is that the physician
“undertakes to act . . . and in that sense holds himself out.”
Using that logic, the dissenter reasoned that because Hunter
undertook to act as a surgeon, board certified or not, he should
have been held to the specialist’s standard of care. Further,
the dissenter suggested that our model jury charge is inadequate
because it only offers the choice of general practitioner or
specialist, and that, in a case such as this one, we should
leave to the jury the decision of determining the appropriate
standard of care.
C.
Our Model Jury Charge on medical negligence and standard of
care, in relevant part, charges the jury that “[n]egligence is
21
conduct which deviates from a standard of care” and that “[t]he
determination of whether a defendant was negligent requires a
comparison of the defendant’s conduct against a standard of
care.” Model Jury Charge (Civil) § 5.36A Medical Negligence
(March 2002). The charge then explains that defendant is a
member of a profession and that “to decide this case properly
you must know the standard of care . . . against which the
defendant’s conduct as a [member of that profession] should be
measured.” Ibid. That aspect of the charge is followed by two
options, namely, Option A, the instructions concerning
specialists, and Option B, the instructions concerning general
practitioners.
Each of these options advises the jury that defendant is to
be judged, in essence, against others of like skill, training
and knowledge. Option A explains that a specialist has a duty
“to have and to use that degree of knowledge and skill which is
normally possessed and used by the average specialist in that
field.” Ibid. Option B notes that a general practitioner
“represents that he/she . . . will have and employ knowledge and
skill normally possessed and used by the average physician
practicing his/her profession as a general practitioner.” Ibid.
Regardless of which option, specialist or general
practitioner, the judge selects, the Model Charge then instructs
the jury as follows:
22
Given what I have just said, it is important
for you to know the standard of care which a
general practitioner/specialist in [insert
appropriate
specialty
description,
if
applicable] is required to observe in
his/her treatment of a patient under the
circumstances of this case. Based upon
common
knowledge
alone,
and
without
technical training, jurors normally cannot
know what conduct constitutes standard
medical practice. Therefore, the standard
of practice by which a physician’s conduct
is to be judged must be furnished by expert
testimony, that is to say, by the testimony
of persons who by knowledge, training or
experience are deemed qualified to testify
and to express their opinions on medical
subjects.
You as jurors should not speculate or guess
about the standards of care by which the
defendant physician(s) should have conducted
himself/herself/themselves in the diagnosis
and treatment of the plaintiff. Rather, you
must determine the applicable medical
standard from the testimony of the expert
witness(es) you have heard in this case.
[Ibid.]
Ordinarily, it is apparent whether a particular physician
is a specialist or a general practitioner and the decision about
which of these options to choose is not contested. We have, for
example, noted that board certification and eligibility for
board certification are considered to be indicators of a
doctor’s status as a specialist. See Howard v. Univ. of Med. &
Dentistry of N.J., 172 N.J. 537, 544 n.1 (2002). But other
indicia of a doctor’s status may also be found in his
interactions with the particular patient or will be apparent
23
from the manner in which he or she “holds himself or herself
out” to the general public.
This case is perhaps an unusual one, in that Hunter had a
position with HUMC that is not itself a recognized specialty,
but that might appear, by the description of the role he played
and the training he had, to encompass more skill and knowledge
than that possessed by a general practitioner. Although Hunter
was a doctor who had some training in surgery and was capable of
performing some surgical procedures, he plainly was not a
surgeon. Faced with this circumstance, the trial judge
concluded that Hunter would be held only to the standard of care
of a general practitioner. Nevertheless, in charging the jury
at trial, he referred to Hunter as a general practitioner and
used the general practitioner option, but then, in fact, crafted
a hybrid charge. He did so by also stating that Hunter is an
assistant cardiac surgeon or assistant cardiac thoracic fellow
and by charging the jury that “to decide this case properly, you
must know the standard of care [applicable to an] assistant
cardiac surgeon or assistant cardiac thoracic surgeon fellow.”
The appellate division majority concluded that in these
circumstances, the general practitioner standard was appropriate
because Hunter was not a surgeon and did not hold himself out as
a surgeon. More significant, however, to the majority was the
undisputed trial testimony, which made plain that chest tube
24
insertion is not a procedure reserved for specialists. For
example, Hunter first performed a chest tube insertion when he
was still a second-year resident. Even plaintiffs’ expert
testified that he had taught the procedure to residents.
In a medical malpractice trial in which the standard of
care is contested, the jury must decide what the standard of
care requires as well as whether the doctor deviated from that
standard of care. The function of the charge is to explain to
the jury that a physician is held to a standard of care and to
advise the jury about its duty to evaluate the expert testimony
about what the standard of care requires. Even were we to agree
with the dissenting judge that Hunter should have been held to a
standard of care other than that of a general practitioner, we
would conclude that there was no reversible error here.
In this case, although the charge differentiates between
general practitioners and specialists, there was no significant
debate about the standard of care to which any physician who
attempts to insert a chest tube should be held. Rather, the
debate was about whether Hunter performed the procedure as he
said he did, in compliance with the applicable standard of care,
or whether he deviated from that standard, directly causing the
injury to Mrs. Liguori’s heart. The jury was not misled about
that debate nor were they misinformed by the judge’s reference
to Hunter’s job description during the charge. Therefore, the
25
trial judge’s effort to span what he perceived to be a gap in
the Model Charge by referring to Hunter’s job title, while not
entirely in keeping with the Model Charge, nonetheless did not
result in error. In this matter, we need not answer the broader
question raised in the dissent regarding the manner in which
physicians may be seen as holding themselves out in order to
conclude that the charge did not unfairly suggest that Hunter be
held to an inappropriate standard of care.
IV.
We granted plaintiffs’ petition for certification, in which
they raised four additional issues to which we now turn.
A.
Plaintiffs contend that the trial court erred in dismissing
their informed consent and battery claims, to the extent that
those claims were based on Hunter’s insertion of the chest tube
without first seeking their permission. In granting defendants’
motion to dismiss those counts of the complaint, the trial court
reasoned that plaintiffs’ consent was not required because Mrs.
Liguori’s condition presented defendants with a medical
emergency. The Appellate Division agreed, reasoning that the
undisputed evidence demonstrated that the patient’s condition
placed her life in immediate jeopardy, thus making it
unnecessary for Hunter to attempt to secure plaintiffs’ consent
to the procedure.
26
Plaintiffs characterize this aspect of the Appellate
Division’s analysis as holding that there is never a duty to
seek consent in a medical emergency. They urge us to conclude
that in so holding, the court deviated from our decision in
Perna v. Pirozzi, 92 N.J. 446 (1983). Plaintiffs contend that
by rejecting their informed consent claim, the trial court and
the Appellate Division created a new rule of law, obviating the
need to seek informed consent even in circumstances where it
would have been possible to secure it. They suggest that we
should instead adopt a rule of law that would require physicians
to secure consent, even in the context of a medical emergency,
unless it is “truly impossible” and urge us to conclude that the
record here does not support dismissal of their claim under that
theory. We, however, disagree with plaintiffs’ reading of the
Appellate Division’s decision and its implications.
In 1989, our Legislature enacted a statutory patient “bill
of rights” providing protections for hospital patients. See
N.J.S.A. 26:2H-12.8. In relevant part, that statute provides
that hospital patients have the right to “receive . . .
information necessary to give informed consent prior to the
start of any procedure or treatment . . . except for those
emergency situations not requiring an informed consent.”
N.J.S.A. 26:2H-12.8d. That statute is consistent with our case
27
law that recognizes the existence of an exception to the
informed consent doctrine for medical emergencies.
In Perna, supra, which preceded the enactment of this
legislation, we considered the scope of a patient’s right to
give informed consent and we held that it is an act of battery
for a surgeon to operate without consent. See 92 N.J. at 461-
62. In determining that a patient’s consent, given to a
particular physician, did not extend automatically to two of
that physician’s partners, we observed that “[a]bsent an
emergency, patients have the right to determine not only whether
surgery is to be performed on them, but who shall perform it.”
Id. at 461; see also Samilov v. Raz, 222 N.J. Super. 108, 113
(App. Div. 1987) (noting that patients have the right to decide
whether surgery will be performed “[a]bsent an emergency”).
Although some emergencies might well present physicians
with sufficient time to seek consent, we decline to adopt
plaintiffs’ rigid formulation of the circumstances in which
their failure to do so would be permissible. Nor, for that
matter, need we generally address the scope of the emergency
exception to the informed consent doctrine in the context of
this appeal.
Both plaintiffs’ and defendants’ experts agreed that the
circumstances Hunter confronted constituted a medical emergency.
Both agreed that Mrs. Liguori’s condition required the insertion
28
of a chest tube. Although plaintiffs point to the amount of
time that passed after Hunter was sent to evaluate her and
before he inserted the chest tube, and suggest that there was
enough time for him to seek consent, the record reflects that
the jury considered this argument and disagreed. We are
satisfied, based on our review of the record, that the jury
concluded that Hunter’s actions were reasonable in light of all
of the facts relating to the emergency he confronted.
B.
Plaintiffs also urge us to recognize a separate cause of
action against Elmann sounding in fraud and arising from what
plaintiffs characterize as his post-surgical misrepresentations.
Arguing that our most recent discussion about causes of action
for fraud in the context of medical malpractice left this
question unanswered, see Howard, supra, 172 N.J. at 544,
plaintiffs contend that the trial court and the Appellate
Division erred in limiting plaintiffs to a cause of action
sounding in informed consent.
The essence of plaintiffs’ claims relating to a fraud
theory rest on their assertions regarding what Elmann said about
the chest tube and the events that followed its insertion. They
assert that he only told them that Mrs. Liguori had suffered
from a “small bleeder” after the completion of the bypass. As
such, they contend, he did not tell them about the collapsed
29
lung, the insertion of the chest tube, or the injury to her
heart during the chest tube insertion, and failed to mention the
involvement of either Hunter or Praeger in her care. Plaintiffs
assert that these facts constitute post-surgical
misrepresentations consistent with a fraud-based cause of
action.
In Howard, supra, we recognized that a patient generally
has three avenues for relief against a physician, namely, “(1)
deviation from the standard of care . . . ; (2) lack of informed
consent; and (3) battery.” 172 N.J. at 545. We there declined
to create a “novel fraud or deceit-based cause of action”
arising from a doctor’s pre-treatment misrepresentation about
his professional qualifications. See id. at 553. We did not
address the potential for a post-surgical fraud claim. As a
part of our analysis, however, we cited a New York decision
addressing the circumstances in which a fraud claim might arise.
See id. at 553-54 (citing Spinosa v. Weinstein, 571 N.Y.S.2d 747
(App. Div. 1991)). In Spinosa, supra, the New York court
reasoned that a fraud claim can only arise “‘when the alleged
fraud occurs separately from and subsequent to the malpractice
. . . and then only where the fraud claim gives rise to damages
separate and distinct from those flowing from the malpractice.’”
571 N.Y.S.2d at 753 (quoting Coopersmith v. Gold, 568 N.Y.S.2d
250, 252 (App. Div. 1991)). Our reference to that decision in
30
Howard, supra, 172 N.J. at 553-54, illustrated the reasoning of
a sister state which had also rejected the creation of a new
fraud based claim in a medical malpractice case.
We see nothing in this record that suggests that we should
now deviate from our careful analysis in Howard. The claims
raised against both Elmann and Hunter are based on asserted lack
of informed consent and deviations from the applicable standard
of care. The harms suffered by Mrs. Liguori cannot be separated
from the insertion of the chest tube, regardless of what Elmann
did or did not say about those events. Therefore, we find no
error in the trial court’s dismissal of the fraud claim or in
the Appellate Division’s analysis of plaintiffs’ argument on
appeal.
C.
Plaintiffs also contend that the trial court erred in
converting their fraud claim into a separate claim based on a
lack of informed consent, and that the Appellate Division erred
in failing to reverse that decision. More specifically,
plaintiffs assert that there was no relationship between
Elmann’s alleged misrepresentations and any request for informed
consent and that the trial court therefore presented the jury
with no basis on which it could return a verdict in their favor.
As the Appellate Division correctly concluded, plaintiffs’
claim against Elmann relating to what he did or did not say
31
after the insertion of the chest tube and the surgical repair is
in reality an argument that they were not given sufficient
information on which they could decide whether or not to permit
defendants to proceed to care for Mrs. Liguori. Seen in that
light, the claim is indeed one arising out of an asserted lack
of informed consent. Reasoning in the alternative, however, the
Appellate Division concluded that even were the claim more
appropriately cognizable as being in the nature of a deviation
from the standard of care, the jury plainly believed Elmann’s
testimony that he advised plaintiffs of all of the events that
had transpired, including Hunter’s involvement and Praeger’s
repair. We agree that the trial court properly converted
plaintiffs’ fraud claim into a lack of informed consent claim.
Therefore, even were we to find some merit in plaintiffs’
theoretical argument, we would find no ground on which to
reverse the verdict.
D.
Finally, we address plaintiffs’ assertions that they were
deprived of a fair trial because they were not alerted in
advance of trial to a change in the causation opinion that would
be offered by defendants’ expert.
Although the precise details of the testimony are not
germane to our discussion, we summarize the facts that gave rise
to the dispute for the sake of completeness. In his deposition
32
testimony, defendants’ expert, Dr. Richard Kline, opined that
the injury to Mrs. Liguori’s heart could have been caused in one
of two ways. He believed that, if she had developed a tension
pneumothorax, her heart would have shifted inside of the chest
cavity, with the result that when Hunter inserted the clamp as a
part of the chest tube insertion, her heart would have suddenly
shifted back, causing her heart to strike the clamp and be
damaged. In the alternative, he believed that the insertion of
the clamp during the procedure to insert the chest tube could
have directly damaged the heart. Approximately two weeks prior
to trial, Dr. Kline advised counsel for defendants that he
believed that the injury was caused by the clamp. In effect,
this change in his testimony brought his view about causation
directly into alignment with the views of plaintiffs’ expert.
Ultimately, defendants conceded on causation, resulting in a
directed verdict on that issue. It is in this context that we
consider the arguments raised on appeal relating to defendants’
violation of the discovery rules.
We have previously reiterated the underlying purposes of
our discovery rules. “The discovery rules ‘were designed to
eliminate, as far as possible, concealment and surprise in the
trial of law suits to the end that judgments therein be rested
upon the real merits of the causes and not upon the skill and
maneuvering of counsel.’” Wymbs v. Twp. of Wayne, 163 N.J. 523,
33
543 (2000) (quoting Evtush v. Hudson Bus Transp. Co., 7 N.J.
167, 173 (1951)). Further, “[l]awyers have an obligation of
candor to each other and to the judicial system, which includes
a duty of disclosure to the court and opposing counsel.”
McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001).
Thus, defense counsel has an “obligation to disclose to the
trial court and counsel for plaintiffs any anticipated material
changes in a defendant’s or a material witness’s deposition
testimony.” Ibid. This Court has explained that, “[f]or
plaintiffs to proceed to trial without being informed of the
surprise testimony created a ‘make believe scenario [for
plaintiffs], the legal equivalent of half a deck.” Id. at 375-
76 (alteration in original) (internal quotation omitted)
(quoting Buckley v. Estate of Pirolo, 101 N.J. 68, 79 (1985)).
We do not retreat from the views we have previously
expressed about the significance of a failure to abide by the
requirements of our discovery rules. In this case, however, the
record discloses that the change in the expert’s opinion,
although significant, was one which brought his opinion into
alignment with plaintiffs’ expert. That is to say, although the
opinion he offered was a change from the view he expressed in
his deposition, it was, in the end, an acknowledgment that
plaintiffs’ expert’s opinion on how the injury to Mrs. Liguori’s
34
heart was caused was correct. We do not perceive, in these
circumstances, any prejudice to plaintiffs.
V.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN,
WALLACE, and RIVERA-SOTO join in JUSTICE HOENS’ opinion.
35
SUPREME COURT OF NEW JERSEY
SEPTEMBER TERM 2006
Appellate Division, Superior Court
Plaintiffs-Appellants,
v.
Defendants-Respondents.
NO. A-52
ON APPEAL FROM
PATRICIA LIGUORI,
INDIVIDUALLY and as EXECUTRIX
OF THE ESTATE OF GERALDINE
LIGUORI, and as EXECUTRIX OF
THE ESTATE OF JOHN J.
LIGUORI, and JOHN C. LIGUORI,
ELIE M. ELMANN, M.D., JAMES
B. HUNTER, M.D. and CARDIAC
SURGERY GROUP, P.A.,
June 25, 2007
DECIDED
Chief Justice Zazzali
OPINION BY Justice Hoens
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
CHIEF JUSTICE ZAZZALI
JUSTICE LONG
JUSTICE LaVECCHIA
JUSTICE ALBIN
JUSTICE WALLACE
JUSTICE RIVERA-SOTO
JUSTICE HOENS
TOTALS
AFFIRM
X
X
X
X
X
X
X
7
PRESIDING
Liberty Nat’l Life Ins. Co. v. Radiotherapy of Ga.
Liberty Nat’l Life Ins. Co. v. Radiotherapy of Ga.
Liberty Nat’l Life Ins. Co. v. Radiotherapy of Ga.,
P.C., No. A01A1380 (Ga. Ct. App. Nov. 21, 2001)
The Georgia Court of Appeals held that an insurance company’s failure to exercise
due diligence precluded its recovery, and granted summary judgment to two healthcare
providers who allegedly submitted billing statements to the insurance company
that included amounts the providers were foreclosed by federal law from recovering.
The evidence showed that the insurance company knew as early as 1993 that there
were often discrepancies between the actual charges of health care providers
and the allowable charges under Medicare. And because the insurance company
could have ascertained the actual information for any medical procedure had
it troubled itself to do so, it could not show that it exercised due diligence.
Therefore, defendants were entitled to judgment as a matter of law. The insurance
company similarly failed to show that the defendants incorporated false, inaccurate,
or misleading information into their billing statements in an attempt to induce
it to rely and act to its detriment on that information. The voluntary payment
doctrine precluded the insurance company’s recovery.
Liguori v. Elmann
Liguori v. Elmann
Liguori v. Elmann, 2007 WL 1800693 (N.J. June 25, 2007)
The Supreme Court of New Jersey affirmed the judgment of an appellate court in a lawsuit filed by the estate of a deceased patient against the physicians who treated her during and after coronary artery bypass surgery, by holding that a cause of action for fraud based on post-surgical misrepresentations by a physician only originates when it gives rise to damages separate from those flowing from a cause of action for malpractice. The court also concluded that the trial court did not err in dismissing claims based on lack of informed consent and battery arising out of a physician inserting a chest tube in the patient because the procedure was performed during an emergency.