MAUREEN CASTELLANI v. NICHOLAS R. KADAR, M.D, et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5819-02T1

MAUREEN CASTELLANI, See footnote 1

Plaintiff-Respondent,

v.

NICHOLAS R. KADAR, M.D.,

Defendant-Appellant,

and

MARK GERSHENBAUM, D.O., JOHN
GUMINA, M.D., ANTHONY DE LUCA,
M.D., MONMOUTH FAMILY MEDICINE
ASSOCIATES, FREDERICK HEITZER,
M.D., VINCENT DESTASIO, M.D.,
KEE SEON KANG, M.D., and
CENTRASTATE MEDICAL CENTER,

Defendants.

_________________________________________

Text Box
 
September 26, 2005

Argued: January 10, 2005 - Decided:

Before Judges A. A. Rodr guez, Cuff and Weissbard.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2048-96.

Michael E. McGann argued the cause for appellant (Amdur, Maggs & McGann, attorneys; Richard A. Amdur, of counsel and on the brief).

Joel A. Leyner argued the cause for respondents (Chasan, Leyner & Lamparello, attorneys; Mr. Leyner, of counsel and on the brief; Steven L. Menaker and Georgea Tarachas Shikar, on the brief).
 
PER CURIAM
In this medical malpractice case plaintiff, Maureen Castellani, sued defendant, Nicholas R. Kadar, M.D., and other physicians and health care providers for failure to diagnose diverticulitis. She alleges that as a result, she suffered the rupture of a diverticular abscess and had to undergo a colostomy. After a thirteen-day trial, the jury found defendant liable and awarded $1,650,000 in compensatory damages. Defendant appeals from the judgment and from the denial of his motion for a new trial. We affirm.

I
 
These are the salient facts. On March 31, 1994, Castellani went to the Monmouth Family Medicine Associates (Monmouth) with complaint of abdominal pain and fever. At the time she was fifty-five years old. She was examined by Vincent DeStasio, M.D., who diagnosed an upper respiratory tract infection. He prescribed an antibiotic. Castellani took the antibiotic and improved.
About two weeks later, she felt an ache on the left side of her body between her waist and leg. The ache "would come and go every several hours." On April 16, 1994, she developed a fever and made an appointment to see one of the physicians at Monmouth. She was examined by Frederick Heitzer, M.D. Dr. Heitzer diagnosed a possible "gas pocket" and ordered an ultrasound test. However, Castellani did not go for the ultrasound.
Four days later, Castellani called Monmouth because she had a high fever. She spoke with Dr. Vitale, who is not a defendant in this case. He prescribed alternating Tylenol and Advil and advised her to come in for an examination.
Five days later, she was examined by Mark Gershenbaum, M.D., at Monmouth. He opined that she might have diverticulitis, ordered a CT scan and prescribed Floxin. The scan was interpreted by Kee Seon Kang, M.D., a radiologist, at the CentraState Hospital. The next day, Castellani met Anthony De Luca, M.D., at Monmouth to find out the results of the CT scan. The CT scan report was negative for diverticulitis, but revealed the presence of a tumor on the left ovary. Dr. DeLuca referred Castellani to defendant, a gynecologist-oncologist.
The following day, Castellani met with defendant. He told her that he agreed that she did have a mass in the ovary that should be removed, although he was quite sure that the mass was benign. An operation to remove the mass was scheduled for May 16, 1994. In the interim, Castellani made five telephone calls to defendant's office. On each occasion, she spoke with a nurse named Eleanor.
On the day after she saw defendant, she called to see if she should continue to take Floxin. Eleanor told her to stop taking the Floxin. On May 2, 1994, Castellani called to find out if she should arrange to donate blood so that it would be available for a transfusion at the operation, if needed. Eleanor told her she could do that and recommended the blood bank in Shrewsbury. The following day, Castellani called Eleanor because she was not feeling well. Eleanor told her to take Motrin or ibuprofen. The following day, Castellani called again because she was not feeling any better. Eleanor told her to double the dosage.
When Castellani arrived home after the pre-admission testing on May 11, 1994, there was a telephone message from defendant's office, telling her that her white blood cell count was elevated. She was advised to discuss with her primary care physicians what should be done to get ready for her operation. She called Monmouth and made an appointment. Upon examining Castellani, Dr. Gershenbaum sent her immediately to CentraState for a second CT scan. Castellani had the CT scan immediately and was admitted to the hospital on an emergency basis. The next day, she underwent emergency surgery by Mark Lehman, M.D. to repair the rupture of a diverticulitis abscess. A colostomy was performed in addition to removal of the tumor. She stayed in the hospital for two weeks.
Castellani sued defendant, Monmouth, CentraState and six other physicians. Prior to trial, the claims against Dr. John Gumina, Dr. DeStasio, and CentraState Medical Center were dismissed. The matter proceeded to trial against Drs. Gershenbaum, Heitzer, DeLuca and defendant.
Before Castellani testified, Drs. Heitzer and Gershenbaum moved for an order in limine to bar her from testifying about any conversation she had with Dr. Eng, who was not expected to be a witness, regarding whether or not the colostomy could be reversed. Castellani's chart at Monmouth, which was in evidence, included two notations, among Dr. Heitzer's notes, documenting that Dr. Eng. had advised Castellani to have the colostomy reversed. The judge ruled that Castellani could testify that she asked whether the colostomy could be reversed, but could not testify to the answer to her question. She could then be asked if she had made any arrangement to have the colostomy reversed.
Castellani testified about the impact the colostomy had on her life. Nine years after that operation, she still wears the colostomy bag. She was asked if she had ever received any advice about whether the colostomy could be "reversed." She said that she had received advice, but that she still has the colostomy. On direct, Castellani was asked how she and her husband coped with the colostomy. She answered that her husband was very helpful and understanding and would assist her if she had a spill of the contents of the bag. She was then asked if something had happened to her husband about a year before trial. She replied that he became ill and died. She was then asked:
[CASTELLANI'S ATTORNEY]: Now, since then, how have you felt about having and dealing with this situation? Having that bag and dealing with this?

[CASTELLANI]: I still deal with it. It's still something I have had to make, I talked with my husband before he had died and I made a promise to him that I would not let this keep me home, keep me down. I have a life to lead and I would get out and do and not get bitter because it's something that you have to deal with every single day and some days are worse than others.
 
Joseph DePasquale, M.D., a board certified physician in internal medicine with a subspecialty in gastroenterology, testified as an expert for Castellani. Prior to Dr. DePasquale's testimony, defendant moved to bar his testimony on the ground that he was not a gynecologist-oncologist and as an internist and gastroenterologist he lacked the training, education and experience to testify to the appropriate standard of care. The judge reserved decision until he heard the "qualifications testimony."
Dr. DePasquale testified that as a gastroenterologist he deals with problems of the gastrointestinal tract. He is very familiar with diverticulitis and has treated hundreds of patients with that disease. He opined that the standard of care for the diagnosis and treatment of diverticulitis applies across the board to family practitioners as well as to gynecologists and obstetricians. After the testimony on qualifications, defendant renewed the motion to bar Dr. DePasquale as an expert witness. The judge ruled that Dr. DePasquale qualified as an expert.
Dr. DePasquale opined that defendant, as well as Dr. Gershenbaum and Dr. DeLuca, deviated from the standard of care in their treatment of Castellani because they delayed the diagnosis of diverticulitis. In time, the condition developed into a perforated abscess that required emergency surgery.
Defendant testified that the colostomy was reversible. He denied knowledge of conversations between Castellani and Eleanor, nor of the advice that was allegedly given by Eleanor. He also stated that no such advice should have been given by Eleanor.
A juror asked if defendant could be held responsible for Eleanor's actions or inaction, and whether they had any bearing on the case. Outside of the jury's hearing, Castellani's counsel acknowledged that Eleanor could not be liable for negligence because she was not a party and because there was no evidence about the standard of care for her work. He represented that he would limit his argument about defendant's negligence to the physician's failure to communicate with his nurse and failure to retrieve messages. The judge said he would allow such arguments about defendant's own negligence, but not arguments like respondeat superior that would have to be based on Eleanor's supposed negligence. Defendant's counsel noted the absence of testimony that defendant had a duty to obtain information from his staff and objected to the argument that Castellani's counsel proposed.
When the jury returned, the judge gave an instruction that, "Eleanor is not a defendant in this case," but that Castellani was arguing that defendant "has certain responsibilities vis- -vis his interaction with his nurse," which defendant was disputing.
In summation, defendant's counsel argued that Castellani's colostomy was reversible, and mentioned evidence "about a doctor in New York saying that it was reversible." Castellani's counsel objected. Defendant's counsel noted that Dr. Eng's opinion was mentioned in Dr. Heitzer's notes, which had been admitted without objection. The judge stated that if he had known that those notes would be in evidence, he would have allowed Castellani to testify about the medical advice she received from Dr. Eng. The judge ruled that Dr. Eng's opinion was in evidence and defendant had the right to comment, and Castellani could testify about it. The defense resumed summation by reading the notation about Eng's opinion in Dr. Heitzer's notes.
At the end of the defense summation, the judge told the jury that he had failed to recognize that Dr. Eng's opinion had been admitted "through the medical record." Thus, he should have allowed Castellani to testify about it. Castellani testified that Dr. Lehman had recommended against reversal because of the risk of complications and that Dr. Eng. had advised that reversal was possible, but would involve "a great deal of risk." She decided it "would not be good to have more surgeries."
In summation, after Castellani's counsel admired her "heroic" manner of living with a colostomy, he said:
Her credibility is as obvious as her good nature and her extraordinary attitude. She made a promise to her husband before he died that she'd live life even with having to wear a bag. That would not be the end of her life. And we can see that she's keeping that promise. And as you listened to her testify, you must have been moved by her honesty and her quality as a person.
 
Defendant contends that the judge should have specifically directed the jury to disregard Castellani's improper appeal for sympathy concerning her alleged promise to her now deceased husband. Defendant joined Dr. Heitzer's and Dr. Gershenbaum's motion for a mistrial based on Castellani's summation, regarding the promise Castellani made to her dying husband. The judge denied the motion because he was confident the jury would follow his instructions against relying on sympathy. The judge gave such an instruction. The judge said:
Because again, sympathy is a normal emotion for human beings. No one can be critical of any of us for feeling some degree of sympathy. That sympathy must play no part in your thinking and the decision you reach in the jury room. Similarly, your decision must not be based upon prejudice or bias that you've developed during the course of the trial for any party, any witness or any attorney. Your duty is to decide this case fairly and impartially, and a decision based on sympathy with passion, bias or prejudice would violate that duty.
 
The jury found that Drs. Heitzer, Gershenbaum, Deluca and the radiologist Dr. Kang, were not negligent. The jury found defendant liable for the failure to make the diagnosis of diverticulitis.
Defendant moved for a new trial. The judge denied the motion repeating that he would have let Castellani testify about Dr. Eng's opinion if he had been "advised" that the Heitzer records, which were admitted by consent, contained Dr. Eng's opinion. The judge said those records "did not give the full picture to the jury" because they omitted Dr. Eng's qualification that the risks outweighed the benefits for Castellani and that "the only fair way to deal with that was to allow her" to explain why she did not follow what defendant had represented to the jury as a recommendation to reverse the colostomy.
In denying the motion for a new trial, the judge noted that the verdict was "very easily explainable" because defendant had two weeks more than any other physician in this case to diagnose an increasingly severe case of diverticulitis. Defendant was negligent not because he failed to make a precise diagnosis of diverticulitis, but rather because he failed to recognize it earlier as a possibility that merited sending Castellani "back for someone to do something."
Defendant filed this appeal; the judgment has been stayed pending appeal.

II
 
On appeal, defendant contends that it was prejudicial error to permit Castellani to reopen her proofs to present testimony after the parties had rested and defendant's attorney had commenced his closing argument. We disagree. A motion to reopen evidence is addressed to the trial court's discretion, which is to be exercised depending upon the circumstances of the particular case. Carlo v. Okonite-Callendar Cable Co., 3 N.J. 253, 262-63 (1949); Clay v. City of Jersey City, 84 N.J. Super. 9, 17-18 (App. Div. 1964). We will reverse the trial court's decision only if we find that "the discretion as exercised results in a manifest denial of justice." O'Neil v. Bilotta, 18 N.J. Super. 82, 90 (App. Div.), aff d o.b., 10 N.J. 308 (1952).
In Carlo, after the plaintiff closed his case on the liability issues, the defendant moved for judgment. Carlo, supra, 3 N.J. at 261. The plaintiff then realized that he proceeded under an "erroneous impression" about the elements needed to establish liability, and requested permission to present an expert witness on one of them. Ibid. The judge denied the motion on the ground that the plaintiff had declared the completion of his case on all matters other than damages. Id. at 262. The Supreme Court agreed with us that the denial was an abuse of discretion because it "injuriously affected the substantial rights of the plaintiff." Id. at 260, 263. See also Handleman v. Cox, 74 N.J. Super. 316, 324 (App. Div. 1962) (holding that a plaintiff could reopen the case to present the report of his investigator, because the additional evidence would probably have allowed the plaintiff to avoid dismissal), aff d, 39 N.J. 95 (1963). Moreover, due process requires that a party have an opportunity to address an adverse party's evidence and arguments. See Tosca v. N.J. Dep't of Transp., 337 N.J. Super. 199, 208 (App. Div. 2001).
Here, the medical records gave an incomplete version of Dr. Eng's advice. This could only be corrected by evidence of Dr. Eng's reservations about reversal of the colostomy. If the judge allowed the jury to learn only that Dr. Eng thought reversal was possible without hearing that he also thought it was inadvisable, the jury might have been persuaded that Castellani lacked a sufficient reason to avoid reversing the colostomy.
Defendant argues that his summation was diminished and interrupted by following it with testimony. We note, however, that a judge has discretion over the conduct of the trial in order to ensure fairness. Persley v. N.J. Transit Bus Ops., 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). That discretion extends to the conduct of summations. Condella v. Cummberland Farms, 298 N.J. Super. 531, 535-36 (Law Div. 1996). See also Panko v. Grimes, 40 N.J. Super. 588, 598-99 (App. Div. 1956) (construing failure of former court rules to mention conduct of summations as conferring discretion). We will ordinarily not reverse rulings about the conduct of a trial "unless there is a clear abuse of discretion which has deprived a party of a fair trial." Persley, supra, 357 N.J. Super. at 9; Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993). We find no such abuse here.
III
 
Defendant also contends that the jury instruction as to the standard of care was erroneous. Defendant requested a charge that he would be "judged by the standards of the average gynecological oncologist under the same or similar circumstances." The judge granted the request and charged the jury on finding and applying standards of care for medical specialists, but he added that there was also expert testimony about standards of care that applied to all physicians regardless of specialty, and that it was the jury's task to determine which standard governed a defendant's conduct and whether the defendant deviated from it. We perceive no error in this instruction, which is consistent with Dr. DePasquale's opinion.
One ground for finding an instruction erroneous and likely to mislead the jury is the absence of support for it in the evidence. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000). Here, however, there was support for such a charge. See James v. City of East Orange, 246 N.J. Super. 554, 560-61 (App. Div. 1991) (holding that general physician was qualified to give expert testimony that general standards of care applied in the particular case to the treatment given by a specialist in emergency medicine). We find no error in the standard of care instruction.
IV
 
Defendant contends that the jury finding that he failed to adhere to the standard of care owed to Castellani is clearly and convincingly against the weight of the evidence, thus the judge erred by denying his motion for a new trial. We are not persuaded, being mindful that we must refrain from overturning a jury verdict unless "there has been a manifest miscarriage of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). Upon reviewing the denial of a motion for a new trial based on the weight of the evidence, "the verdict must be considered in the light most favorable to the prevailing party." Crego v. Carp, 295 N.J. Super. 565, 578 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). We must also consider that the jury is "free to accept or reject in whole or in part the testimony of" any expert. Southbridge Park, Inc. v. Borough of Fort Lee, 201 N.J. Super. 91, 94 (App. Div. 1985) (citing Middlesex County v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-74 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979)). A motion to deny a new trial shall be reversed only when it clearly appears that it constitutes a miscarriage of justice. R. 2:10-1.
Judged against that standard, we have no warrant to reverse the denial of the motion for a new trial. Moreover, we must defer to the judge's perception of "intangibles" not transmitted by the record, including credibility, "feel of the case" and demeanor. Carrino v. Novotny, 78 N.J. 355 (1979).
V
 
Defendant contends that it was error for the judge to refuse to charge the jury on the exercise of medical judgment. Defendant argues that Dr. DePasquale emphasized each doctor's failure to diagnose diverticulitis, and that he was entitled to the charge because his diagnosis that Castellani needed surgery for an ovarian tumor reflected an exercise of judgment in conformity with the standard of care applicable to his specialty.
We agree that the judgment charge was not appropriate here. Such a charge would have been unfounded. New Jersey courts have generally limited the application of the judgment charge to medical malpractice actions concerning selection of one of two or more generally accepted courses of treatment. Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677, 687 (2000). There was no evidence that defendant exercised medical judgment in choosing among treatment options in accordance with accepted standard medical practice. No expert testified that defendant's failure to monitor Castellani after examining her or his failure to take action at some point before learning of the abnormal preoperative test results was an acceptable exercise of judgment rather than a deviation.
Defendant's expert did not make that argument. He focused instead on explaining that Defendant had not deviated from the standard of care by failing to diagnose diverticulitis at the time of examination, and that Defendant's surgical plan was not a deviation because it accommodated the possibility of an unsuspected bowel infection.
VI
 
Defendant contends that it was prejudicial error for the judge to have refused to instruct the jury that it could not find liability on the part of Defendant by reason of any act or omission of his nurse Eleanor. We are not persuaded.
Castellani's counsel argued in summation that defendant's job was "to monitor and supervise any staff member dealing with his patients," and that defendant was required to insist that he receive notes of phone calls. Counsel then stated that there was no claim that the interaction between defendant and Eleanor represented "a deviation by anybody." There was no objection to those comments. In the jury charge, the judge did not mention Eleanor or the interactions between doctors and their staff. There was no objection to that part of the charge.
A party's failure to object to a jury charge is presumed to reflect an assessment of the charge as unlikely to prejudice his or her case. Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998); Domurat v. Ciba Spec. Chems. Corp., 353 N.J. Super. 74, 92-93 (App. Div.), certif. denied, 175 N.J. 77 (2002), and Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573 (App. Div. 1995). That failure is a useful indication that the charge was not clearly capable of causing prejudice, which is the standard for establishing plain error. In addition, juries are presumed to understand and follow instructions. McRae v. Saint Michael's Med. Ctr., 349 N.J. Super. 583, 599 (App. Div. 2002); Casino Reinv. Dev. Auth. v. Lustgarden, 332 N.J. Super. 472, 495-96 (App. Div.), certif. denied, 165 N.J. 607 (2000); and Derfuss v. N.J. Mfrs. Ins. Co., 285 N.J. Super. 125, 134 (App. Div. 1995).
The judge instructed the jury that it could not hold any defendant liable unless his conduct was a deviation from an applicable standard of care, and Castellani conceded in summation that she was not claiming a deviation in the interaction between Eleanor and defendant.
VII
 
Defendant contends that the judge erred by failing to instruct the jury that the duty to decide the case without sympathy included ignoring Castellani's promise to her dead husband. He argues that the testimony was too powerful, especially in its timing immediately before the day's lunch recess, for the court to disregard the need for an immediate curative instruction.
We are satisfied that the judge's non-specific instruction on passion or sympathy was adequate. Focusing specifically on the promise to Castellani's husband would have been more prejudicial to defendant. It would have highlighted the comment.
Text Box
 
 
Affirmed.

Footnote: 1 Plaintiff John G. Castellani filed a per quod claim. However, he died prior to trial and his claim was not presented to the jury.

A-