Opinion
DOCKET NO. A-0463-12T1
07-14-2014
DANIEL JONES, Plaintiff-Appellant, v. ALAN DIAS, M.D., VIRTUA-MEMORIAL HOSPITAL BURLINGTON COUNTY, INC. VIRTUA, SOUTH JERSEY EMERGENCY PHYSICIANS, P.A., Defendant-Respondents.
Lance Brown and Associates, LLC, attorneys for appellant (Lance D. Brown, on the brief). Stahl & DeLaurentis, P.C., attorneys for respondents Alan Dias, M.D. and Virtua, South Jersey Emergency Physicians, PA (Sharon K. Galpern, on the brief). Parker McCay P.A., attorneys for respondent Virtua-Memorial Hospital, Burlington County Inc. (Stacy L. Moore, Jr., of counsel; Jarad L. Silverstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3466-09.
Lance Brown and Associates, LLC, attorneys for appellant (Lance D. Brown, on the brief).
Stahl & DeLaurentis, P.C., attorneys for respondents Alan Dias, M.D. and Virtua, South Jersey Emergency Physicians, PA (Sharon K. Galpern, on the brief).
Parker McCay P.A., attorneys for respondent Virtua-Memorial Hospital, Burlington County Inc. (Stacy L. Moore, Jr., of counsel; Jarad L. Silverstein, on the brief). PER CURIAM
Plaintiff appeals from judgment entered dismissing his complaint for medical malpractice following a jury verdict that defendant physician Alan Dias, M.D., did not deviate from accepted standards of medical practice in the treatment and care he rendered to plaintiff. Plaintiff also appeals from the denial of his subsequent motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.
The jury verdict also resulted in judgments of dismissal in favor of defendants Virtua-Memorial Hospital and South Jersey Emergency Physicians, P.A., against which plaintiff had only asserted claims of vicarious liability.
A crucial liability issue at trial was the extent of the information plaintiff provided at the emergency room about his symptoms and complaints. Defendants asserted that plaintiff did not complain about pain "in" his right testicle, but rather complained generally about abdominal pain, and that consequently his discharge with a diagnosis of kidney stones did not constitute a departure from accepted standards of care. Plaintiff asserted that he explicitly complained about pain in the testicle, which would have suggested the possibility of testicular torsion, a condition which would have required an immediate surgical response to save the testicle. As it turned out, plaintiff went to another hospital the next day, where he was diagnosed as suffering from right testicular torsion. Unfortunately, at that point, emergency surgery could not save plaintiff's right testicle, and it was removed.
Plaintiff argues that even viewing the evidence at trial in a light most favorable to defendants, such evidence is nonetheless "so heavily in plaintiff's favor that no reasonable juror" could have found for defendants. In the alternative, plaintiff argues that the denial of his motion for a new trial was a miscarriage of justice because of the following: 1) defendants' counsel improperly cross-examined plaintiff about his "bouts with drug abuse and whether he was injured in a parachuting accident" and the trial judge's "curative instruction proved insufficient;" 2) the trial judge improperly precluded plaintiff from introducing as substantive evidence, and cross-examining defendants' expert with, an article from a medical journal that contradicted the expert's opinion; and 3) the trial judge improperly denied a jury request for transcripts of the testimony of plaintiff's expert witnesses, defendants' expert witness and Dr. Dias, but then allowed a read-back of some testimony of a nurse-witness that the jury did not request.
We have considered these arguments in light of the record and applicable law and we affirm.
I.
Motions brought pursuant to Rules 4:40-1 (motion for judgment at trial) and 4:40-2 (motion for judgment notwithstanding the verdict) are governed by the same evidential standard:
[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .In our review of the trial court's decision on such motions, we apply the same standard of review, ibid, and therefore we accept as true all the evidence supporting defendants and accord them all legitimate inferences. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005). Neither the trial judge nor this court, as a reviewing court, are "concerned with the weight, worth, nature or extent of evidence, but must accept as true all [of] the evidence supporting the party opposing the motion, and accord him [or her] the benefit of all favorable inferences. Then, if reasonable minds could differ, the motion must be denied." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978) (citing Dolson v. Anastasia, 55 N.J. 2, 5 ( 1969)), aff'd o.b., 79 N.J. 547 (1979).
[Filgueiras v. Newark Pub. Schools, 426 N.J. Super. 449, 456 (App. Div.), certif. denied, 212 N.J. 460 (2012) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (citations omitted).]
With this standard as our guide, we briefly set forth the facts adduced at trial.
On June 8, 2008, plaintiff, forty-seven years of age, was being transported by van to the Hampton Behavioral Health Center (Hampton) where he was being treated for depression and undergoing "drug and alcohol counseling[,]" when he began experiencing pain "in [his] testicle and abdomen." Shortly after arriving at Hampton, plaintiff asked for painkillers and an ambulance to take him to a hospital. He told Hampton's nurse practitioner he had "abdominal pain" and "believe[s]" he also said he had pain in his right testicle, as well. An ambulance was called and plaintiff was taken to Virtua Memorial Hospital (Virtua).
Records from Hampton do not mention that plaintiff complained of any testicular pain, but only "sudden onset of severe stomach pain."
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The records from Virtua state that plaintiff complained in the emergency room of "lower right side pain." Nurse Ursula Rich examined plaintiff and her notes stated that plaintiff "complains of pain to right lower quadrant . . . sharp . . . Pain radiates to right flank. Tenderness noted to right lower quadrant, right flank." The notes continue and state, "patient has pain to right testicle. Pain described as sharp. On a scale 0-10 patient rates pain as 10."
Dr. Dias read Rich's notes and undertook a physical examination of plaintiff, which revealed, according to the hospital record: "abdomen [wa]s nontender. . . . no masses, no pulsatile masses, no distension, no peritoneal signs. McBurney's point nontender. No hernias. Liver and spleen normal." Based on plaintiff's symptoms of flank pain radiating downward in the right lower quadrant of his body, Dr. Dias concluded that "that is most consistent with a kidney stone, based on his age and the presentation." He then ordered blood work, a urinalysis, and a computerized axial tomography (CT) scan "while providing pain medication to try and relieve the excruciating pain of a kidney stone."
The urinalysis revealed no blood in plaintiff's urine. However, Dr. Dias testified that patients that "don't have blood in their urine . . . . [That] does not in and of itself exclude the diagnosis of a kidney stone." Plaintiff's CT scan also uncovered no evidence of "obstructive uropathy."
Dr. Das examined the CT film and
documented a one to two-millimeter right distal ureteral stone with mild hydroureteronephrosis. What that means in English is that I saw a small stone sitting at the very end of the ureter, the tube that runs from the kidney to the bladder, and IThis analysis confirmed, in Dr. Dias' opinion, that plaintiff presented a classic case of kidney stones. He did not, therefore, perform a testicular exam on plaintiff. Dr. Dias testified:
noted that there seemed to be swelling of both the ureter and of the kidney on the right, and that it was mild.
I have never ever seen a case of testicular torsion where the first words out of the person's mouth were anything other than, "My testicle hurts." Oftentimes they are - - they are - - they're cupping themself, they're holding their testicle or holding their groin, but that's the first thing that's out of their mouth. "My testicle hurts."Dr. Dias discharged plaintiff and provided him with discharge instructions, a prescription for pain medication, and follow-up procedures.
They're not complaining of pain anywhere else in their belly, in their side, in their whatnot. And, like I said, the age is completely off for it.
As we noted above, plaintiff continued to experience pain and swelling, and the next day went to another hospital where he was diagnosed with testicular torsion. By that point, however, plaintiff's right testicle was necrotic and had to be removed.
Plaintiff asserted that he repeatedly complained of pain in his right testicle and argued at trial that the notes of Nurse Rich supported that fact. As we explained earlier, this was a crucial liability issue, because defendants conceded that if plaintiff had complained of testicular pain, Dr. Dias would have deviated from the accepted standards of care by not examining plaintiff's testicle for a torsion injury.
During trial, Nurse Rich testified that her note did not indicate that plaintiff complained of pain "in" the right testicle, but that the pain plaintiff was experiencing in the right flank was radiating "to" the testicle.
Following the jury verdict, plaintiff moved for JNOV or, in the alternative, for a new trial. Plaintiff argued that no juror could ever disbelieve his testimony and should have disregarded both nurse Rich and Dr. Dias' testimony because "(a) they were testifying from medical records, and (b) their testimony in medical records was inconsistent and incomplete as to same, and that, therefore, the jury verdict should be overturned because it was so overwhelmingly obvious."
The trial judge denied the motion and this appeal followed.
II.
Guided by the principles governing JNOV motions which we have stated above, and after reviewing the trial record, we perceive no error in the judge's denial of plaintiff's motion. JNOV exists "to correct a clear error or mistake by the jury," and is not a vehicle for the trial judge to "substitute his judgment for that of the jury merely because he [or she] would have reached an opposite conclusion[.]" Dolson, supra, 55 N.J. at 6. Rather, a court 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." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)).
As we noted earlier, the standard for JNOV is the same as for a motion for judgment at trial. Judge v. Blackfin Yacht Corp., 357 N.J. Super. 418, 424 (App. Div.), certif. denied, 176 N.J. 428 (2003) (citing (2003) Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:40-2). "In reviewing whether the trial court properly denied [a] motion for a [JNOV], R. 4:40-2, [the reviewing court] 'must accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced [from the evidence].' Bessler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l Sch. Dist., 201 N.J. 544, 572 (2010) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). The factfinder's determination is "entitled to very considerable respect [and] . . . . should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination[.]" Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977).
Plaintiff essentially argues that his experts testified that his complaints at Virtua should have prompted a testicular examination, even if, as defendants suggest, his complaints were somewhat more general than explicitly identifying his right testicle as a situs of pain. Defendants' expert, of course, reached the opposite conclusion.
Not only were the jurors not compelled to credit plaintiff's experts, but also reasonable jurors could have concluded on this record that plaintiff did not clearly present symptoms of a testicular torsion to defendants. Additionally, as the trial judge observed in denying plaintiff's motion,
[n]o doctor disagreed at all on if there's - - you know, if there's pain in the testicle, examine. No doctor disagreed with this, that if it's not clear that it's pain in the testicle or it's radiating to or stuff like that, it could be kidney stones. No one disagreed with either one. It all centered around the question of how did he present.
Further, on the issue of the purported inconsistencies in the testimony of Nurse Rich and Dr. Dias, the question as to how to evaluate their testimony can only be answered by a jury. Indeed, "'where [people] of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted or even undisputed, evidence of such character is for the jury.'" Bldg. Materials Corp. of Am. v. Allstate Ins. Co. , 424 N.J. Super. 448, 489 (App. Div. 2012) (quoting Sons of Thunder, supra, 148 N.J. at 415 (quoting Ferdinand v. Agric. Ins. Co. of Watertown, NY, 22 N.J. 482, 494 (1956)). However,
when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury.Here, the jury was entitled to evaluate any inconsistencies in the testimony of the witnesses and to decide whether their testimony was believable or not. We will not override a jury determination on the basis of the record before us.
[Ferdinand, supra, 22 N.J. at 494.]
We next briefly turn to plaintiff's argument that he is entitled to a new trial because of various errors by the trial judge. As to plaintiff's assertion that defendants should have been precluded from cross-examining him about his drug and alcohol use, we observe that plaintiff himself introduced this issue on direct examination. Not only does that fact permit the defense to explore it on cross examination, see N.J.R.E. 611, but also the issue is clearly related to plaintiff's claims of emotional damage. See Ocasio v. Amtrak, 2 99 N.J. Super. 139, 155-59 (App. Div. 1997) (history of drug abuse and other personal issues was relevant to credibility of damage claim arising from personal injury). The trial judge provided a cautionary instruction to the jury that it could use such information, if it chose to do so, only on the issue of damages.
Plaintiff also argues he was unfairly prejudiced when on cross-examination, he was questioned about falsely advising he had suffered a prior injury through a "parachuting accident." Again, we observe that plaintiff himself tried to bolster his own credibility on direct examination by advising the jury he would be as "accurate as possible" when giving health care workers information about his condition or injury. Again, the judge explicitly limited the scope of the juror's use of that testimony to the question of plaintiff's credibility in "providing healthcare [workers] with accurate medical information." Plaintiff did not object to the instruction given by the judge. See Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-574 (App. Div. 1995) (the absence of an objection suggests counsel "perceived no error or prejudice").
Turning to plaintiff's arguments pertaining to the judge's actions regarding the jury's request to review the trial transcripts of the testimony of Dr. Dias and all the experts, we note the trial judge told the jury that
[w]e are asking that you rely upon your recollection of their testimony. Tonight if you go home, think about it, don't do any research, don't talk to anyone about the case, and tomorrow through your collective discussions, if that generates particular questions about particular items, then we can address them on a particularized basis . . . . [F]irst of all, we don't have transcripts. It's not like in the movies where they just sit there - - we don't have transcripts. So rely upon your collective recollection which will I am sure, with the appropriate communication, exceed your individual concerns.Asking the jury to rely on their memory, rather than providing them with transcripts that "will take weeks" to create, does not constitute an abuse of discretion. State v. Wolf, 44 N.J. 176, 185-86 (1965). We add that the trial judge's allowing a readback of testimony of Nurse Rich was undertaken in response to a jury question.
Finally, we find plaintiff's arguments arising from the trial judge's refusal to permit him to cross-examine defendants' expert with a medical journal to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that with regard to a trial judge's evidentiary rulings, "an appellate court is limited to examining the decision for an abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We perceive no such abuse of discretion here and note that plaintiff had a number of expert witnesses testify in this case respecting the standard of care and its alleged breach by defendants. Under these circumstances, the decision by the trial judge to preclude plaintiff from bringing to the jury's attention an article in a medical journal that added yet another point of view — and not subject to cross-examination, in any event — did not result in a manifest denial of justice. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Also, "a party may not generally introduce a treatise into evidence as a substitute for expert testimony." Morlino v. Med. Ctr., 152 N.J. 563, 580-81 (1998) (citing Adamski v. Moss, 271 N.J. Super. 513, 519-22 (App. Div. 1994)); Tyndall v. Zaboski, 306 N.J. Super. 423, 428 (App. Div. 1997), certif. denied, 153 N.J. 404 (1998); Canesi v. Wilson, 295 N.J. Super. 354, 360 (App. Div. 1996), aff'd in part and rev'd in part, 158 N.J. 490 (1999).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION