Opinion
DOCKET NO. A-2980-13T3
10-26-2015
ROCKY NEVINS, Plaintiff-Appellant, and SYLVIA STEVENS, Plaintiff, v. JEFF PAN, M.D., Defendant-Respondent, and ADAM LIPSON, M.D., THOMAS KOWALENKO, D.O. and UNION COUNTY NEUROSURGICAL ASSOCIATES, Defendants.
William L. Gold argued the cause for appellant (Bendit Weinstock, P.A., attorneys; Mr. Gold, on the brief). James B. Sharp argued the cause for respondent (Scarinci & Hollenbeck, L.L.C., attorneys; Mr. Sharp and Benjamin A. Hooper, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3566-10. William L. Gold argued the cause for appellant (Bendit Weinstock, P.A., attorneys; Mr. Gold, on the brief). James B. Sharp argued the cause for respondent (Scarinci & Hollenbeck, L.L.C., attorneys; Mr. Sharp and Benjamin A. Hooper, on the brief). PER CURIAM
In this medical malpractice case, plaintiff Rocky Nevins appeals from a January 30, 2014 order dismissing his complaint and entering judgment for defendant Dr. Jeff Pan following a jury verdict of no cause of action. We affirm.
I.
We discern the following facts from the evidence adduced at trial. On September 23, 2008, plaintiff presented himself at the emergency room complaining of severe back pain and urinary hesitancy. The emergency room doctor ordered an MRI, which showed a herniated disc, and requested a consult from the on-call neurosurgeon, Dr. Pan.
Dr. Pan examined plaintiff and concluded that "surgery is not indicated at this time[.]" Dr. Pan prescribed anti-inflammatory steroids and pain killers, and sought to discharge plaintiff from the hospital. Plaintiff, however, contacted Dr. Thomas Kowalenko, his father's physician, expressing a desire to remain in the hospital. Dr. Kowalenko then admitted plaintiff into the hospital. Plaintiff remained there until September 28, 2008, under the care of Dr. Kowalenko and Dr. Yung Choi, an anesthesiologist and pain specialist.
Upon plaintiff's discharge, Dr. Kowalenko and Dr. Choi treated plaintiff until November 25, 2008, when Dr. Choi referred plaintiff to Dr. Adam Lipson, a neurosurgeon. On January 19, 2009, Dr. Lipson performed surgery on plaintiff for a condition known as cauda equina syndrome. Plaintiff suffered from post-surgery urinary and bowel dysfunction and impotence.
Cauda equina syndrome is a neurologic condition that impacts the roots of the spinal nerves below the first lumbar. Stedman's Medical Dictionary 328, 1892 (28th ed. 2006).
Plaintiff and his wife filed a complaint alleging medical malpractice against Drs. Pan, Lipson, and Kowalenko, and Union County Neurosurgical Associates (UCNA). Plaintiff's wife, Dr. Lipson, Dr. Kowalenko, and UCNA were subsequently dismissed from the lawsuit. Plaintiff then moved for partial summary judgment on Dr. Pan's liability, which the court denied. The case proceeded to trial solely on plaintiff's claims that Dr. Pan deviated from the accepted standard of care, and that Dr. Pan failed to obtain plaintiff's informed consent for the treatment he prescribed.
Plaintiff presented testimony from Dr. James Macon, an expert in the field of neurological surgery. Dr. Macon opined that Dr. Pan violated the standard of care. Dr. Pan presented testimony from Dr. Douglas Cohen, also an expert in the field of neurosurgery. He opined that Dr. Pan did not deviate from the standard of care.
At the close of the evidence, plaintiff moved for directed verdicts on apportionment of damages between a pre-existing condition and injuries allegedly resulting from the purported malpractice, and deviation from the standard of care, both of which were denied. The jury then returned a verdict of no cause of action, finding no deviation from the standard of care, and that plaintiff provided informed consent for the treatment provided by Dr. Pan.
On appeal, plaintiff argues that (1) the trial court erroneously denied his motion for summary judgment on liability; (2) the trial court erroneously denied his motion for a directed verdict on deviation from the accepted medical standard; (3) the trial court improperly defined on the jury verdict sheet the reasonable patient standard applicable to plaintiff's informed consent claim; (4) the trial court erroneously denied his motion for a directed verdict on allocation of damages; and (5) prejudicial comments by defense counsel warrant a new trial.
II.
We begin by addressing plaintiff's contention for the first time that the trial court erred by denying his motion for summary judgment on liability. We decline to address this argument because plaintiff failed to preserve the issue on appeal.
Rule 2:5-1(f)(3)(A) requires that the appealing party "designate the judgment, decision, action or rule, or part thereof appealed from" in its notice of appeal. It is well established that when a party appeals from a final judgment, the party may also "appeal from all interlocutory orders that have not been rendered moot or definitively ruled upon by the appellate court in a prior or separate appeal." Pressler & Verniero, Current N.J. Court Rules, comment 2.3.2 on R. 2:2-3 (2015). A denial of summary judgment is an interlocutory order. Taylor v. GE Co., 208 N.J. Super. 207, 210 (App. Div.), certif. denied, 104 N.J. 379 (1986).
However, an interlocutory order is only preserved as a subject for appeal if it is specifically identified in the notice of appeal or case information statement. Pressler & Verniero, supra, comment 2.3.2 on R. 2:2-3; see also Synnex Corp. v. ADT Sec. Servs. Inc., 394 N.J. Super. 577, 588 (App. Div. 2007). If an order is not listed, "the right to appeal therefrom is deemed waived." Pressler & Verniero, supra, comment 2.3.2 on R. 2:2-3 (citing Naporano Assocs. v. B & P Builders, 309 N.J. Super. 166, 178 (App. Div. 1998)). Although a party's failure to "designate an order in the notice of appeal" can be overlooked in "appropriate circumstances," Ridge at Back Brook, L.L.C. v. Klenert, 437 N.J. Super. 90, 97 n.3 (App. Div. 2014), this is not one of them.
Plaintiff failed to identify in both his notice of appeal and case information statement the interlocutory order denying him summary judgment on liability. Moreover, plaintiff does not even allude to the summary judgment order in his notice of appeal or case information statement, he only references the "trial" and subsequent jury verdict. See Synnex Corp., supra, 394 N.J. Super. at 588 (finding the appeal properly before the court when the text of the case information statement specifically references the order in question and states it is appealing from the "judgment" which necessarily includes all interlocutory orders). Plaintiff's failure to reference the summary judgment order is not fatal to the consideration of the rest of his appeal, which relates solely to the final order, and thus does not warrant the rules to be relaxed in the interest of justice. R. 1:1-2(a).
We note that plaintiff's argument would be unsuccessful even if we considered it on the merits. We agree with the motion judge that plaintiff's and defendant's experts disagreed "as to whether Dr. Pan deviated from the standard of care by failing to recommend surgery." Thus, plaintiff was not entitled to summary judgment on liability as a matter of law because a genuine issue of material fact existed as to whether Dr. Pan complied with the standard of care.
III.
We disagree with plaintiff's contention that both experts conceded that Dr. Pan deviated from the standard of care. As a result, we conclude that the trial court properly denied plaintiff's motion for a directed verdict.
In deciding a motion for directed verdict at the close of the evidence, the trial court must "accept as true all evidence presented . . . and the legitimate inferences drawn therefrom, to determine whether the proofs are sufficient to sustain a judgment[.]" Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558, 570 (App. Div. 2014), aff'd, ___ N.J. ___ (2015). The court is not concerned with "'the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.'" Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).
If reasonable minds could reach different conclusions, the motion must be denied. Id. at 569-70. However, if the evidence is such that one party must prevail as a matter of law, then a directed verdict is appropriate. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). We apply the same standard that governed the trial court when reviewing an order granting or denying a motion for directed verdict. Ibid.
We agree with the trial court that there was a jury question on whether Dr. Pan deviated from the accepted medical standard. Plaintiff's argument, that both experts agreed on the applicable standard of care and that Dr. Pan deviated from it, ignores much of the trial testimony that suggests otherwise. Plaintiff highlights the following excerpt from Dr. Cohen's trial testimony:
Q: Would you agree that the standard of care requires either the surgeon recommend surgery or he follow up?Plaintiff also notes Dr. Macon's deposition testimony:
A: I would say, in a general sense, one of those two, yes.
Q: Okay.
A: Although follow[ ]up does not necessarily mean re-evaluation of the patient in every case.
Q: Okay. Was there any follow[ ]up done by Dr. Pan in this case?
A: No, there was not.
Q: Fair enough. Okay. Was there anything else that the standard of care allowed aside from surgery?However, in his trial testimony, Dr. Cohen disagreed that the standard of care required Dr. Pan to personally follow up with plaintiff. Dr. Cohen also repeatedly maintained that Dr. Pan's treatment of plaintiff "was consistent with the standard of care."
A: Yes, he could have arranged for a careful follow up with more detailed and comprehensive evaluation of the sacral nerve roots.
Additionally, contrary to plaintiff's contentions on appeal, Dr. Pan's counsel never admitted that Dr. Pan deviated from the standard of care when he was discussing the issues with the court and stated:
[Defendant's counsel]: Okay. Judge . . . I would just suggest to the [c]ourt that the analogy that I would draw is if a complaint is filed against the doctor and in the course of providing answers to interrogatories, the doctor admits that he deviated from accepted standards of medical practice. As the pretrial discovery then went forward in that case, there would not be a need for the plaintiff to come up with an expert report opining that the doctor deviated for the simple reason that the doctor had admitted that he deviated.Dr. Pan's counsel was clearly making an analogy in the context of arguing to the trial court that an expert report was not required to introduce testimony from Dr. Kowalenko, and therefore was not an admission that Dr. Pan deviated from the accepted medical standard.
Finally, plaintiff contends that the trial court's reference to Dr. Pan only examining plaintiff for a "short amount of time" was unsupported by and mischaracterized the expert testimony in that both experts agreed that the standard of care required either surgery or a follow up. This argument is without merit. The trial court correctly pointed out that there were conflicting expert opinions, which created a jury question on deviation. Therefore, the trial court properly denied plaintiff's motion because, when viewing the evidence in the light most favorable to Dr. Pan, reasonable minds could reach different conclusions on what the appropriate standard of care was and thus whether Dr. Pan deviated from it.
IV.
We reject plaintiff's assertion that the trial court committed plain error on the verdict sheet by improperly defining reasonable patient on plaintiff's informed consent claim.
Ordinarily, "a trial court's interrogatories to a jury are not grounds for reversal unless they were misleading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997). When "reviewing an interrogatory for reversible error, we should consider it in the context of the charge as a whole." Ponzo v. Pelle, 166 N.J. 481, 491 (2001). An "accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory." Ibid. We apply the plain error standard because plaintiff's counsel did not object to the language in the verdict sheet at trial. R. 2:10-2. That is, the error must be "of such a nature as to have been clearly capable of producing an unjust result[.]" Ibid.
The Model Jury Charge for informed consent provides:
The plaintiff must prove all of the following elements: (1) the defendant doctor failed to give the plaintiff all of the information that a reasonable person in the plaintiff's position would expect a doctor to disclose so that the plaintiff might make an informed decision about the course of treatment; (2) the undisclosed risk (of the treatment)/(of non-treatment) occurred; (3) a reasonable person under the circumstances of this case would not have consented to (or would have chosen to undergo) the treatment or operation had he/she been so informed; and (4) the course of treatment or operation (or failure to operate or treat) was a proximate cause in producing plaintiff's injuries or conditions.Here, the jury interrogatory read: "Would a reasonable person under the circumstance of this case have chosen a course of treatment different from the course Dr. Pan took?"
[Model Jury Charge (Civil), "Informed Consent" (Mar. 2002) (emphasis added).]
The trial court's use of different language in the interrogatory does not amount to plain error. Plaintiff takes issue with the trial court focusing on the actions that "Dr. Pan took" rather than what course a reasonable patient would have chosen if fully informed. However, in the written charge presented to the jury, the trial court followed the language from the Model Jury Charge.
Therefore, when reading the verdict sheet as a whole, accompanied by the jury charge, it cannot be said that the interrogatory was so misleading, confusing, or ambiguous that it was clearly capable of producing an unjust result. See Flood v. Aluri-Vallabhaneni, 431 N.J. Super. 365, 379 (App. Div.) (holding that "[b]ecause the charge was correct, and the questions posed on the jury verdict sheet correctly stated the law, any deviation was insignificant"), certif. denied, 216 N.J. 14 (2013).
V.
We conclude that the trial court's curative instructions and jury charge were sufficient to cure any purported prejudicial remarks referencing Dr. Kowalenko's culpability by Dr. Pan's counsel. Thus, there is no basis to grant a new trial.
We may not grant a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Caldwell v. Haynes, 136 N.J. 422, 432 (1994). "Fleeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair." Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009). "[E]ven a large number of errors, if inconsequential, may not operate to create an injustice." Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009). Moreover, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden v Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004).
Dr. Pan's counsel indicated during his opening statement:
Now, I just want to emphasize something to you, so you understand and then I'll go back. Just to digress for a second. Dr. Pan examined him for numbness he didn't have. Dr. Kowalenko examined him. He didn't have it. Dr. Choi examined him. He didn't have it. All during the course of that hospitalization[,] and that's important.Plaintiff's counsel immediately objected and the trial court overruled the objection stating that Dr. Pan's counsel "knows the limits of what I've instructed." Plaintiff argues that Dr. Pan's counsel nevertheless ignored the trial court's instructions at numerous points in his opening statements. However, the trial transcript excerpts cited by plaintiff show that Dr. Pan's counsel was simply summarizing the facts for the jury and about which he believed Dr. Kowalenko would be testifying. Dr. Pan's counsel complied with the trial court's instructions.
Okay. It's also important to know that cauda equina syndrome is a medical condition that physicians learn about in medical school. So, Dr. Kowalenko learned about it in medical school and he'll tell you that. He's a family practitioner. Dr. Choi learned about it in medical school. He's a pain management physician. Okay. And Dr. Pan learned about it in medical school, okay, and thereafter, bearing in mind that it's one of those conditions that patients don't present initially to a neurosurgeon. They present to a family practitioner —
The trial court initially barred Dr. Kowalenko from testifying about his settlement with plaintiff and his own negligence and liability.
The trial court subsequently barred Dr. Kowalenko from testifying completely due to "confusion of the issues and misleading the jury[.]" --------
Then, during his closing remarks, Dr. Pan's counsel stated:
I'm going to tell you that [plaintiff's burden of proof] is not met when the case is tried without a single treating physician being called to testify. No Dr. Kowalenko, no Dr. Choi. Interestingly enough, no Dr. Lipson. No Dr. Opell, no Dr. Sinha. Not a single person who ever participated in the care of [plaintiff] has testified, save Dr. Pan.
So, at a point in time when, again, everybody was concerned about treating the patient appropriately, okay, all of those people, nobody came in here to testify. Okay? And there's a reason. The reason is because the care that was provided by everyone in this case was entirely appropriate. They know it and based upon a
fair understanding of the medicine in the case, you know it as well.Plaintiff's counsel immediately objected and the trial court responded:
I don't think that [Dr. Pan's counsel] was actually suggesting anything else . . . . The only doctor who is at play here, and you'll get this instruction later, is Dr. Pan and whether his treatment was a deviation and whether he provided what's called informed consent — you'll get more details. But that's the only one to consider.
Whether any other doctor was involved who did or did not treat appropriately, that's not for you to decide. I don't necessarily think [Dr. Pan's counsel] was suggesting that, but just to be clear.
Finally, when charging the jury, the trial court stated:
Here's the critical sentence I really want you to pay attention to. Whether or not any other medical provider rendered appropriate or inappropriate care is not before you and is not for your consideration. I'm going to read that again. Underline. Whether or not any other medical provider rendered appropriate or inappropriate care is not before you and is not for your consideration.The trial court also gave the jury the following language in the written charge: "Whether or not any other medical provider rendered appropriate or inappropriate care is not before you and is not for your consideration." This court must presume that the jury followed those instructions. Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div.), certif. denied, 216 N.J. 366 (2013). The trial court gave a clear and firm jury charge and the verdict is fair in light of all the evidence in the record such that there was no miscarriage of justice to warrant a new trial.
Now, that's so important that I had prevented, I made a ruling that [Dr. Pan's counsel], on behalf of [Dr. Pan], would not be able to call Dr. Kowalenko, because any implication that he did appropriate care or did not do appropriate care is not what's before you. You focus on what was knowable on September 23[], 2008.
VI.
Plaintiff's remaining argument, that he is entitled to a directed verdict on allocation because Dr. Pan failed to meet his burden of separating the damages attributable to the pre-existing condition from the malpractice, is moot in light of our opinion. The jury never reached the issue of allocation, because the jury found no cause of action against Dr. Pan on liability.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION