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Dr. Kenneth Cartaxo and Pascack Emergency Services, P.A. appealed the May 2009 jury verdict, as well as the award granted to Matthew Calbi’s father, Christopher. They sought a new trial.
But the appellate court judges said jurors in the case made a just decision in determining that Matthew’s life could have been saved if Cartaxo more quickly identified the extent of his wounds.
The higher court also had no problem with the final damage award.
Calbi, of Old Tappan, was brought to the then-Westwood hospital’s emergency room at 1:10 the afternoon of Aug. 17, 2003, complaining of a sharp pain on the right side of his face and right shoulder after being kicked by his mother, Linda.
Matthew rated his pain level at 10, the most severe. The triage nurse rated his a “non-urgent” case, court records show, while another nurse “found no discoloration in Matthew’s neck and only slight swelling,” nor any “visible pain or distress.” Although he vomited in front of her, she didn’t tell the attending physician, Kenneth Cartaxo, the decision says.
Cartaxo, who was the only doctor working the ER at the time, testified that he was told that “there was some kind of scuffle between [Matthew’s mother and him]” and that “when he was on the floor his neck was turned and all of a sudden he felt this pain.”
He examined Matthew and said he found “a significant swelling of his neck, which was. . . pretty alarming[,]” but that Matthew’s vital signs were stable, he appeared comfortable, and his skin was warm and dry. The only sign of trauma was a “small little hemorrhage in the white part of his eye.”
Cartaxo said he “was baffled because Matthew’s lack of bruising or associated injuries did not give an explanation as to the significant swelling in his neck….,” the appeals judges wrote. “Dr. Cartaxo believed that Matthew appeared ‘pretty comfortable’ at that time and was not in extreme pain.”
A short time later, Cartaxo made a different diagnosis, citing four possible causes for the sudden swelling: a collection of pus near the tonsils (caused by an infection), a collection of pus in the wall of the pharynx, an injury to an artery or vein, or a ballooning of the wall of an artery or vein in the thorax or upper part of the trunk. He “ordered a soft tissue x-ray to determine whether Matthew’s airway was obstructed by the swelling,” the decision says.
After Matthew vomited again in the x-ray room, Cartaxo read the x-ray and found that “there was a lot of soft tissue swelling pushing the trachea . . . out of position.” He re-examined Matthew an hour later and determined that the boy “remained stable” and looked “relatively comfortable.”
Cartaxo summoned a head and neck surgeon, then gave Matthew a shot of morphine to help ease his pain. The teen got another shot an hour later, according to the decision. CAT scans were done before the head and neck surgeon arrived, it says.
As time went by, Matthew’s heart rate began to rise. Cartaxo determined this wasn’t a problem, the court papers say.
A radiologist on call read some of the CAT scans from home and determined that Matthew might have had a “jugular injury with venous hemorrhage.” She then “left her house to attend a wake, not knowing that there were additional CAT scan images of Matthew’s chest that she had not read,” the decision says.
Cartaxo summoned a vascular surgeon 10 minutes before his shift officially ended at 7 o’clock. But the vascular surgeon testified that “she did not have the training to do what was required to stem the bleeding… Only a thoracic surgeon could perform such an operation.”
Cartaxo reached out to the thoracic surgeon on call, “but he did not come to the hospital or return several calls placed by doctors in the emergency room in the next hour,” the appellate court decision says.
Dr. Steven Schreiber, who settled his liability with Matthew’s dad before the trial, took over for Cartaxo.
Cartaxo testified that he left the hospital believing “there was a venous injury that . . . would need a vascular surgeon” and that “the vascular surgeon was on her way in and the thoracic surgeon had also been notified.”
Matthew had been at the hospital several hours before his blood was finally taken. It showed that the boy “had already lost two or more pints of blood,” the decision says.
Another doctor testified that Matthew’s blood pressure was normal but that his heart rate “seemed on the high side.” The doctor “found no evidence of trauma to the head, but a blood spot on the right eye and swelling at the top of the chest and bottom of the neck,” court papers show.
SOURCE: NJ Dept. of CorrectionsLinda Calbi spent 29 months in state prison and was released three years ago Tuesday, after pleading guilty to aggravated assault in her son’s death. Matthew, who was only 4-foot-8 and 108 pounds, had just returned from his very first date at a summer camp. His parents were divorced and his father dropped him off at Linda Calbi’s home a short time before the assault. Matthew was under the supervision of the state Division of Youth and Family Services, which was roundly criticized after his death.
The radiologist called back, saying she had finally seen the additional CAT scan images. She sent an amended report that one of Matthew’s arteries was bleeding.
The thoracic surgeon said he couldn’t operate on Matthew at Pascack Valley Hospital “because he did not have the team or equipment to do so there,” the decision says.
All of the doctors involved “agreed that Matthew would have a better outcome if transferred to Westchester Medical Center (Westchester), a level-one trauma center, where he could be treated by a pediatric thoracic surgeon and pediatric residents.”
Christopher Calbi gave permission to move the boy, but his condition worsened quickly, the decision says. His heart rain shot up and he began “screaming out” in pain – putting his pain level at 15 on a scale of 1 to 10.
A short time later, his heart rate plummeted and a torrent of blood flowed through Matthew’s chest, hospital reports show. He was in shock.
Forty minutes later, the surgeon made his first incision.
The doctor found “massive bleeding” that he was able to control, the decision says. But Matthew went into cardiac arrest and died on the operating room table an hour and 20 minutes later.
Dr. Marc Borenstein, the chairman of emergency medicine at Newark Beth Israel Medical Center, testified that the boy’s injury was uncommon but that Cartaxo’s “failure to diagnose and treat Matthew’s injury in a timely manner increased the risk of harm to Matthew and caused his death.”
“[T]he only thing that can [cause that kind of swelling] in this kind of setting is blood,” Borenstein said, dismissing other potential causes listed in Cartaxo’s diagnosis.
It should have been clear, he said, that Matthew’s situation was “a major emergency” after the x-ray was read, and that Cartaxo “should have immediately sprung into action to treat the internal bleeding as quickly as possible,” the decision says.
Cartaxo should have ordered a CAT scan, vascular surgery and blood work right away, among other measures, the expert testified. Borenstein said Cartaxo also failed to meet the standard of care by not beginning blood pressure monitoring until it was too late. In his view, Matthew was “salvageable” as late as 2½ hours before he died, Borenstein said.
He also “emphasized that Matthew reported to the triage nurse that he had been kicked in the face, and that the kick certainly could have been violent, even if the physical signs were not very apparent.”
Dr. James A. Espinosa, a board-certified emergency room physician and associate professor of emergency room medicine at the University of Medicine and Dentistry of New Jersey, countered that Cartaxo’s care was “absolutely appropriate.”
Espinosa said Matthew had “an extraordinarily rare unusual injury” that was “very difficult to diagnose.”
Espinosa “absolutely disagree[d]” with Borenstein’s contention that the x-ray should have alerted Cartaxo to the strong likelihood that Matthew was bleeding internally from the neck. Such a patient ordinarily would be “in . . . shock [and] lethargic and deteriorating from it,” with some type of visible injury, Espinosa testified. Matthew wasn’t even bruised, he said.
It was “a hundred to a thousand times more likely” that the mass was an abscess rather than the type of bleeding that actually killed Matthew, Espinosa contended. Calling a vascular surgeon before receiving the CAT scan results would have been premature, he said, adding that the boy’s heart rate could have been increased by the anxiety of being in an ER.
Meanwhile, Dr. Jerry Scott Bergman, a board-certified practicing pediatric surgeon and former director of pediatric trauma at Morristown Memorial Hospital, concluded that “even if a CAT scan had been ordered [early on] and read shortly thereafter, Matthew’s injuries were so grave and complex that earlier diagnosis and treatment would not have changed Matthew’s fate.”
Christina Calbi, Matthew’s cousin, testified that she saw Matthew in his hospital bed and “thought his clavicle was broken” because his neck was extremely swollen. She said he became “more and more agitated and. . . in more pain and his condition was deteriorating very rapidly, it seemed[.]”
She also said her cousin “was squirming around, he couldn’t get comfortable, he . . . would lay back, sit up, you know, he would ask for a soda, but he couldn’t drink it[.]” He kept asking questions such as “[A]m I gonna be okay”? “[W]hen can I go home”? and “[A]m I gonna die”?
Following a month-long trial in Hackensack, jurors found that Cartaxo “deviated from accepted standards of medical practice, that his deviation increased the risk of harm posed by the decedent’s pre-existing condition,” and that Cartaxo failed to prove that Matthew would have died, anyway.
A request for a new trial was denied, so Cartaxo appealed to the higher court.
The appellate judges, in the decision released this week, noted that negligence need not be “the sole or primary factor producing the injury; it need only be a substantial factor…. [T]here may be several substantial factors contributing to the same result.”
The key, they said, is “the increased risk to which [Matthew] was exposed by [Cartaxo’s] negligence” and whether that was “a substantial factor in producing the ultimate harm of death.”
There was “adequate evidence” supporting that finding and the ultimate verdict, the appeals judges wrote. This included Borenstein’s contention that Cartaxo “had an opportunity” to alert the thoracic surgeon much earlier, which delayed the ultimate operation by hours, they said.
“The jury therefore was capable of finding that Dr. Cartaxo’s failure to adhere to the standard of care caused a delay that prevented appropriate specialists from becoming meaningfully involved in Matthew’s case until after the window of opportunity to save him had closed,” the appellate court found.
“Dr. Cartaxo’s negligence delayed surgery, and timely surgery could have saved Matthew by stopping his bleeding,” the decision states.
Cartaxo also appealed the amount of the award, saying he shouldn’t be held responsible for damages from Matthew’s initial injuries, “which by themselves had a risk of causing the plaintiff the harm he ultimately experienced in this case.”
The appellate judges, however, said the expert testimony convincingly showed that Cartaxo could have mitigated the injuries while saving Matthew’s life.
Finally, Cartaxo argued that the size of the award was the result of “an obvious intention to punish” him, rather than to compensate loved ones for their loss. This, he said, was grounds for a new trial. The appeals judges disagreed, calling jurors’ award decision just.
“Our civil system of justice places trust in ordinary men and women of varying experiences and backgrounds, who serve as jurors, to render judgments concerning liability and damages,” they wrote in their decision. “Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion.
“Although the measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances, reasonable people may differ on what is fair compensation in any particular case.”
In the end, that is what jurors – and not the courts — must decide, the judges found. The only time a court should step in, they said, is when the amount of damages is so “wide of the mark” that it represents “a manifest denial of justice.”
That wasn’t the case here, the higher court ruled.
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