                         NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-1483-16T3

MAURINE A. VILLAPANDO,

        Plaintiff-Appellant,

v.

RARITAN BAY MEDICAL CENTER,
ARNOLD DERMAN, M.D.,
VIRGINIA KO CHUA, R.N.,
and LIZA ABUNDO, R.N.,

        Defendants,

and

CARL NATH, M.D.,

     Defendant-Respondent.
_________________________________

              Argued May 3, 2018 – Decided August 13, 2018

              Before    Judges    Haas,   Rothstadt,     and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No.
              L-2845-12.

              Howard D. Crane argued the cause for appellant
              (Koerner & Crane, LLC, attorneys; Howard D.
              Crane, on the briefs).
            Peter L. Korn argued the cause for respondent
            (McElroy, Deutsch, Mulvaney & Carpenter, LLP,
            attorneys; Peter L. Korn, of counsel and on
            the brief; William S. Mezzomo, on the brief).

PER CURIAM

      In this foreign object medical malpractice case, plaintiff

Maurine Villapando appeals from the December 2, 2016 Law Division

order denying her motion for a new trial, following the October

25, 2016 jury verdict in favor of defendant Carl Nath, M.D, and

the entry of the November 1, 2016 conforming judgment in favor of

Nath.   We affirm.

      The underlying facts in this case are not in dispute.                    In

August 2005, plaintiff went to the emergency room at Raritan Bay

Medical Center (Raritan Bay), complaining of severe abdominal pain

on her right side.      The emergency room staff performed a physical

examination, an ultrasound, and a CAT scan on plaintiff's abdomen

and   pelvis,   which    revealed    an    ovarian   cyst.    Dr.   Nath,      an

obstetrician/gynecologist           (OB/GYN)     surgeon,     performed         a

laparotomy, an open incision directly into the abdomen, to remove

the cyst.

      Per   Raritan     Bay's   policy,    a   laparotomy    involved     three

distinct "counts" of instruments and lap pad sponges performed by

the nurses, who, in this case, were defendants Virgina Ko Chua,

the circulating nurse, and Liza Abundo, the scrub nurse.                 Before


                                       2                                A-1483-16T3
the surgery commenced, an initial count was conducted to determine

the number of instruments and sponges circulating in the operating

room.   The second count occurred upon the initial closure of the

peritoneal lining1, wherein the nurses would count aloud for

everyone in the operating room to hear.    The third and final count

occurred when the surgeon was ready to close the skin.

     After the second and third counts, the nurses would verbally

inform the surgeon that the count was correct and would document

the count by denoting hash marks on a "count sheet" for each item

removed from the operating field, including used sponges, in order

to ensure that all items were accounted for.      At the end of the

procedure, the circulating nurse would sign the count sheet,

indicating that the surgeon was verbally notified of the final

count status, and the surgeon would acknowledge the count report

by signing the count sheet.

     In this case, although a total of thirteen lap sponges were

used during plaintiff's surgery, the hash marks denoting the tally

revealed a count of only twelve sponges retrieved, indicating that

one sponge was unaccounted for.       However, the circulating nurse

mistakenly wrote the number "thirteen" next to the hash marks

after adding them incorrectly. Neither nurse noticed the computing


1
   The peritoneal lining is "the lining of the abdomen underneath
the skin."

                                  3                          A-1483-16T3
error, and, after verbally advising Nath that the count was

correct, Nath acknowledged the count by signing the count sheet.

     Immediately after the surgery, another CAT scan was performed

because plaintiff developed a fever and continued to have pain.

However, according to Arnold Derman, the radiologist, the CAT scan

did not reveal any abnormal findings in the abdomen and plaintiff

was later discharged from Raritan Bay once her symptoms abated.

     Approximately five years after the surgery, plaintiff injured

her back and an x-ray was taken at U.S. HealthWorks.             She was told

that "something [was] wrong with [her] x-ray" and directed to see

her primary care physician. After ordering a CAT scan, her primary

care physician referred her to an OB/GYN.           The OB/GYN performed a

pelvic   examination    and    "felt    a   mass   on   the   right   side    of

[plaintiff's] lower abdomen" that, based on the CAT scan, may have

been a cancerous tumor. The OB/GYN referred plaintiff to an OB/GYN

oncologist, who performed exploratory surgery on plaintiff in May

2010.

     The 2010 surgery revealed that plaintiff had a large amount

of scar tissue and a foreign object in her lower abdomen, which

had attached itself to her ovary.             The foreign object was the

unaccounted for lap sponge from the 2005 laparotomy.             As a result,

plaintiff's   right    ovary   and     fallopian   tube   were   removed     and

plaintiff, who was then thirty-one years old, was informed that

                                        4                              A-1483-16T3
she would not be able to get pregnant without some sort of assisted

reproductive technology.

     On February 20, 2013, plaintiff filed an amended medical

malpractice complaint against Raritan Bay, Nath, Chua, Abundo,

Derman, and various fictitious individuals and entities.          In 2014,

plaintiff's   motion   for   partial   summary   judgment   was   granted,

shifting the burden of proof to defendants Nath, Chua and Abundo.2

In 2015, plaintiff settled with all remaining defendants except

Nath, who proceeded to trial.3

     A trial was conducted from October 11 to 25, 2016, during

which plaintiff testified on her own behalf and introduced the

deposition testimony of the OB/GYN oncologist who performed the

2010 surgery, as well as the testimony of a psychiatrist who

evaluated her.   Chua also testified for plaintiff and acknowledged

that it was the nurses' responsibility to count the sponges.           Chua

admitted informing Nath that the count was correct and admitted

that she did not notice the error in the tally nor how it occurred.


2
   In a March 14, 2014 order, the complaint was dismissed with
prejudice against Raritan Bay Medical Center.
3
  Based on the court's burden shifting ruling, at trial, Nath had
to prove by a preponderance of the evidence that he was not
negligent. If he failed to do so, then the jury would consider
the conduct of the settling defendants, and the burden of proving
that the settling defendants were at fault rested on Nath. See
Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 107-08 (App. Div.
2001).

                                   5                               A-1483-16T3
     Nath testified on his own behalf and confirmed that he was

verbally informed by the circulating nurse that the counts were

correct.   Although he signed the count sheet, he testified that

he had never been involved in sponge counts or count sheets, and

was not responsible for verifying the nurses' counts.          According

to Nath, he did not read the entire form before signing and his

signature on the count sheet simply meant that he "was told that

the . . . counts were correct."      Nath also presented the testimony

of a diagnostic radiologist who detected "a foreign body" in the

CT scan of plaintiff's abdomen performed three days after the 2005

surgery, a psychiatrist who evaluated plaintiff, and Geraldine

Giovanni, a retired registered nurse with forty-five years of

experience at Raritan Bay.

     As to Nath's compliance with the applicable standard of

medical practice in the OB/GYN field, plaintiff presented the

expert testimony of Dr. Richard Luciani, an OB/GYN.         In turn, Nath

presented the expert testimony of Dr. Anthony Quartell and Dr.

Myles Dotto, who, like Luciani, were both OB/GYNs.               Luciani

admitted   that   at   the   two   hospitals   where   he   worked,   "the

responsibility for counting all of the sponges . . . rest[ed] with

the nurses" and surgeons were not responsible for the sponge count.

In fact, he testified that once the nurses complete the count,

they indicate that the count is correct verbally, and the surgeons

                                     6                            A-1483-16T3
acknowledge by saying, "[t]hank you very much," and do not double

check the nurses' count.

     Notwithstanding this practice, Luciani testified that:

           The standard . . . in [m]edicine . . . in
           terms of documents is very, very simple. When
           a doctor signs a document in [m]edicine,
           whether it be an operative report, a progress
           note, a nurse's note, an order on a chart,
           [or] a count form, . . . if you're told that
           you have to sign it, the standard of care is
           to read it, because the contents of those
           particular medical documents can have an
           impact on the health and welfare of the
           patient.

Luciani continued:

           [I]n this particular hospital, they have a
           protocol that the doctor has to sign this
           form. Are we to believe that the protocol is
           that the doctor has to sign the form, but
           . . . the hospital doesn't care if the doctor
           reads it? He just has to sign it. . . . Is
           that the most ludicrous thing . . . you or I
           have ever heard? You have to sign it, but you
           don’t have to read it.

                So the bottom line is in [m]edicine when
           you sign a document, you read the document
           before you sign it.

     Luciani explained that Nath's mistake was "not reading what

he was signing," which led to the sponge being left in plaintiff's

abdomen.   According to Luciani, because "[s]even lap pads were not

used, . . . that would mean that there were [thirteen] that went

in the abdomen, because there were [twenty] to begin with."

Luciani continued:

                                 7                          A-1483-16T3
            [H]ad Dr. Nath, who signed this [form] read
            this appropriately, which is the standard of
            care, he would . . . see that there were
            [twelve] that came off the field so this could
            not have been a final count . . . and the
            question would be, "[w]ell, where's the
            sponge?" And they would have counted.

       In contrast, Quartell opined that Nath "complied completely

with accepted standards."    Quartell testified that Raritan Bay's

policy requiring the surgeon to acknowledge the count sheet at the

end of the procedure via signature was something he "had never

seen . . . before" and was not a requirement in other hospitals.

In his opinion, the policy meant that the surgeon "acknowledge[d]

the fact that the nurse told him that the sponge counts were

correct."     When asked if he was aware of any practice where

surgeons were required to double check the nurses' arithmetic, he

responded, "No, not at all," and it made no sense to him why this

policy would be in effect.

       He elucidated that the standard of care he was familiar with,

which was what every operating room he had ever worked at did, was

that

            when you operate, at the end of the
            operation[,]   the   scrub   tech   and   the
            circulating nurse do the count, and you let
            them know when you’re closing the . . .
            peritoneum, . . . you say . . . we’re closing
            now, and they’ll come back and say count is
            correct. And then when you’re about to close
            the skin[,] they do a second count and they
            tell you . . . that count is correct also.

                                  8                          A-1483-16T3
     When questioned about the surgeon's response after the nurses

read the counts aloud, Quartell replied, "You just say thank you,"

which was an acknowledgment that you correctly heard their count.

While acknowledging that he had trained Luciani and worked with

him at Saint Barnabas, Quartell found Luciani's opinion to be

"ludicrous" because Saint Barnabas followed the same procedure he

(Quartell) described where surgeons were not required to double

check the arithmetic of the nurses, but rather acknowledge that

the counts were what the nurses relayed to them.      According to

Quartell, "[n]ever anywhere does it say you're supposed to count

hash marks and figure it out."

     Likewise, Dotto agreed that Nath "compl[ied] with . . . the

standard[] of care."   He testified that the nurses performed the

sponge counts and reported to the surgeon that the counts were

correct.   The surgeon then did "nothing further" besides closing

up the patient.   When asked whether surgeons typically relied upon

the sponge counts conveyed to them by the nurses, he responded,

"Yes, absolutely."     He explained that the significance of the

acknowledgement policy at Raritan Bay was to corroborate that "the

sponge counts were reported as correct."     When asked whether he

had ever encountered a surgeon double checking a sponge count in




                                 9                          A-1483-16T3
the operating rooms he worked in, he unequivocally responded, "No,

never."

     During her forty-five year career at Raritan Bay, Giovanni

had worked as a circulating nurse, scrub nurse, coordinator,

supervisor, and manager.    She was ultimately promoted to Director

of Surgical Services. She testified that she was directly involved

in drafting the hospital's count sheet policy and explained that

the word "acknowledge" in the policy meant that the surgeon was

acknowledging "[w]hatever [count] the circulating nurse told him.

If she told him that . . . the count was correct, that's what he

[was] acknowledging."     According to Giovanni, in all her years

working in the operating room at Raritan Bay, she had "never seen

[a surgeon] go over the math" on the form.

     At the conclusion of the trial, the jury reached a verdict

in favor of Nath, finding by a vote of 7-1 that he proved by a

preponderance of the credible evidence that he did not deviate

from accepted standards of medical care in his treatment of

plaintiff.    Accordingly, the trial judge entered judgment in favor

of Nath.     Following the trial, plaintiff moved for a new trial,

asserting that Nath failed to articulate a standard of care.

     On December 2, 2016, the trial judge denied plaintiff's motion

on the papers.      In an oral decision placed on the record on

December 22, 2016, applying Rule 4:49-1, the judge found no clear

                                 10                          A-1483-16T3
and convincing evidence of "any miscarriage of justice under the

law."   The judge determined that "there was sufficient evidence

to sustain [the] verdict," and "there [was] no legal or factual

basis to disturb the verdict of the jury."           In rendering his

decision, the judge related that the evidence showed that Nath

"did not perform the count" and "did not oversee the count."

Instead, "[i]t was the responsibility of the nurses" to perform

the count correctly, and "Nath was then asked to sign a document"

which acknowledged "that the count had occurred."        In fact, the

judge recalled that at counsel's request, the jury had been

instructed on the definition of the word acknowledge.4

     The   judge   continued   that   even   the   plaintiff's    expert

acknowledged "that even in [his] practice [he] had never been

required to sign off on a count sheet and [he] ha[s] always relied

upon the nursing staff to provide [him] with oral acknowledgment

that the count was correct which was [the] procedure followed by

Dr. Nath."    The judge noted further that the defense experts

testified that "Nath met the standard of care simply by signing



4
   Indeed, from one source, the judge instructed the jury on the
definition of acknowledge as "to say that you accept or do not
deny the truth or existence of something; to regard or describe
someone or something as having or deserving a particular status;
and . . . to tell or show someone that something such as a letter
or message has been received." The judge defined acknowledge from
another source as "to recognize as a fact; admit the truth of."

                                 11                              A-1483-16T3
the count sheet . . . which acknowledged that the nursing staff

had informed him that the count was correct."   Moreover, according

to the judge,

            [b]oth defense experts testified that Dr. Nath
            was not obligated to read the count sheet and
            make certain that the nurses' calculations as
            to the number of pads inserted and removed
            were correct, simply that he was required
            . . . by the hospital under their particular
            procedures to sign that document.

     The judge also explained that in addition to the expert

testimony, DiGiovanni "confirmed that the protocol at the hospital

for a surgeon under these circumstances was to sign that sheet so

as to simply acknowledge that the surgeon had received an oral

confirmation from the nursing staff that the count was complete

and was correct."    The judge continued that "DiGiovanni testified

that in her [forty] years of experience at Raritan Bay . . . she

never witnessed a surgeon reviewing the sheet to confirm a correct

count."   Thus, the judge concluded that given the "testimony from

experts as well as [lay] witnesses that Dr. Nath had comported

with the standard of care applicable to a gynecological surgeon

under the circumstances and . . . acted within the hospital's

protocol within the operating suite," the "jury simply rejected

the plaintiff's argument that . . . Dr. Nath was negligent in some

fashion."    This appeal followed.



                                 12                          A-1483-16T3
       We begin with the well-established fundamental principle that

jury trials are the cornerstone of our civil jurisprudence and

that the fact-finding functions of a jury deserve a high degree

of respect and judicial deference.      See, e.g., Lockley v. Turner,

344 N.J. Super. 1, 13 (App. Div. 2001), modified and aff'd, 177

N.J.   413   (2003).   A   jury   verdict   is   "impregnable   unless   so

distorted and wrong, in the objective and articulated view of a

judge, as to manifest with utmost certainty a plain miscarriage

of justice."    Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div.

2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)). Thus,

a trial judge shall grant a new trial only where "it clearly and

convincingly appears that there was a miscarriage of justice under

the law."     R. 4:49-1; see also Dolson v. Anastasia, 55 N.J. 2, 7

(1969).

       Our Supreme Court has described the miscarriage of justice

standard as:

             a pervading sense of "wrongness" needed to
             justify [an] appellate or trial judge undoing
             of a jury verdict . . . [which] can arise
             . . . from manifest lack of inherently
             credible evidence to support the finding,
             obvious overlooking or under-valuation of
             crucial evidence, [or] a clearly unjust
             result.

             [Risko v. Thompson Muller Auto. Grp., Inc.,
             206 N.J. 506, 521 (2011) (alterations in
             original) (quoting Lindenmuth v. Holden, 296
             N.J. Super. 42, 48 (App. Div. 1996)).]

                                   13                             A-1483-16T3
In deciding a motion for a new trial, the trial judge must "canvass

the record, not to balance the persuasiveness of the evidence on

one side as against the other, but to determine whether reasonable

minds might accept the evidence as adequate to support the jury

verdict."     Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962).

       We review a trial judge's decision on a new trial motion

under the same standard.       Dolson, 55 N.J. at 7; R. 2:10-1.              We

must   make   our   own   determination   as   to   whether   there    was    a

miscarriage of justice, but defer to the trial judge with respect

to "intangible aspects of the case not transmitted by the written

record," such as, "witness credibility and demeanor and the 'feel

of the case.'"      Carrino, 78 N.J. at 360-61 n.2 (quoting Pressler,

Current N.J. Court Rules, comment 4 on R. 2:10-1 (1979)).                    In

reviewing a trial judge's decision on a motion for a new trial,

we view the evidence in a light most favorable to the party

opposing the new trial motion.      Caldwell v. Haynes, 136 N.J. 422,

432 (1994).

       With these principles in mind, we are satisfied that the

evidence was such that the jury could reasonably have found that

Nath was not negligent in operating on plaintiff.         Thus, there was

no "miscarriage of justice."        On appeal, plaintiff argues that

Nath failed to meet his burden of proof by failing to provide


                                   14                                 A-1483-16T3
expert testimony setting forth "the generally accepted standard

of care as it applies to the circumstances here where a surgeon

signs the sponge count sheet."         Instead, according to plaintiff,

Nath only provided expert testimony about "the standard of care

. . . for situations where the hospital protocol does not require

the surgeon to sign the sponge count sheet."           As such, plaintiff

asserts she was entitled to a judgment against Nath on the issue

of liability and "the jury had no basis in the evidence to come

to its conclusion."      We disagree.

       As a general rule, "a plaintiff in a medical malpractice

action must prove the applicable standard of care, that a deviation

has    occurred,   and   that   the   deviation   proximately   caused   the

injury." Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (citations

omitted). However, in very limited circumstances, such as occurred

here, the plaintiff's burden of proof will be shifted to the

defendants.    Anderson v. Somberg, 67 N.J. 291, 298-301 (1975).

       In Anderson, our Supreme Court established a bright line rule

that

            where an unconscious or helpless patient
            suffers an admitted mishap not reasonably
            foreseeable and unrelated to the scope of the
            surgery (such as cases where foreign objects
            are left in the body of the patient), those
            who had custody of the patient, and who owed
            him a duty of care as to medical treatment,
            . . . can be called to account for their
            default.        They   must    prove    their

                                      15                            A-1483-16T3
            nonculpability, or else risk liability for the
            injuries suffered.

            [67 N.J. at 298.]

       The Court held that in those instances, "a mere shift in the

burden of going forward . . . is insufficient."                         Id. at 300.

Rather,   "not      only   the    burden     of   going   forward       shift[s]      to

defendants, but the actual burden of proof as well." Ibid.                            In

Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454 (1999), our

Supreme     Court     reaffirmed      the    application      of    the       Anderson

principles where a "case presents a fact pattern that mirrors that

presented in Anderson."          Chin, 160 N.J. at 465.

       Here,   our   review      of   the   trial   record   does       not    support

plaintiff's contention that defendant failed to meet his burden

of proof.      On the contrary, defendant's experts established the

applicable standard of care in the field of OB/GYN. They explained

that   surgeons      are   not    required    nor     expected     to    verify     the

arithmetic     of    the   nurses     who   perform    the   count,      but    simply

acknowledge verbally that the nurses stated the count was correct.

Indeed, all the experts, including plaintiff's expert, admitted

that they had never seen a hospital protocol like Raritan Bay's

where the surgeon was required to acknowledge the count sheet by

signing it.      Instead, they all opined that the circulating nurse

was solely responsible for performing the count correctly, and the


                                        16                                     A-1483-16T3
surgeon had no duty to verify the accuracy of the count.         Thus,

regardless of Raritan Bay's unique protocol, the standard of care

delineated by all three experts was the accepted practice in the

medical community.

     Under Raritan Bay's protocol, the surgeon's acknowledgement

on the form simply indicated that the nurses' verbal count was

provided to him or her.     In fact, DiGiovanni explicitly stated

that the protocol did not create an added responsibility on the

part of the surgeon to double check the counts.5       We also reject

plaintiff's   contention   that   the   defense   experts'   testimony

regarding their own personal standards resulted in a manifest

injustice.    "[T]he weight to be given to the evidence of experts

is within the competence of the fact-finder."        LaBracio Family

P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 165

(App. Div. 2001).    Therefore, the fact-finder is free to "accept


5
   We reject plaintiff's contention that DiGiovanni's testimony
was "totally irrelevant" and "should not have been allowed." As
a fact witness, DiGiovanni's testimony was permissible under
N.J.R.E. 602, as she had extensive personal knowledge of the
hospital's protocol and how the sponge count was performed based
on her forty-five years of experience at Raritan Bay Medical
Center. Moreover, N.J.R.E. 701 permits a lay witness's "testimony
in the form of opinions or inferences . . . if it (a) is rationally
based on the perception of the witness and (b) will assist in
understanding the witness' testimony or in determining a fact in
issue."    To the extent DiGiovanni's testimony represented an
opinion on the hospital's protocol, it was permissible under
N.J.R.E. 701.


                                  17                           A-1483-16T3
some of the expert's testimony and reject the rest."                     State v.

M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004).

     Moreover,    the   jury    was   properly     instructed     that    "[w]hen

determining the applicable standard of care, [they] must focus on

the accepted standards of practice in OB/GYN surgery, radiology

and the standards applicable to the surgical nurses, and not based

upon the personal subjective belief or practice of a particular

defendant."      We   presume     that   the   jury    followed    the    judge's

instructions.    State v. Burns, 192 N.J. 312, 335 (2007) ("One of

the foundations of our jury system is that the jury is presumed

to follow the trial court's instructions.").               Therefore, on this

record,   we   are    satisfied    that    there      is   no   basis    for   our

intervention because the jury's verdict is sound.

     Affirmed.




                                      18                                  A-1483-16T3
