CHARLES J. McKINLESS v. SHERENE FRANCIS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5971-03T25971-03T2

CHARLES J. McKINLESS,

Plaintiff-Appellant,

v.

SHERENE FRANCIS, R.N. and HACKENSACK

UNIVERSITY MEDICAL CENTER,

Defendants-Respondents,

and

DIANE POLIFRONE, LUCIA IZZO, R.N.,

KAY HARRIS, N.A., JOY CREIGHTON-

MORRIS, N.A.,

Defendants.

___________________________________

 

Argued October 12, 2005 - Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, L-10295-01.

Arthur J. Messineo, Jr. argued the cause

for appellant (Messineo and Messineo, attorneys; Nancy C. Ferro, on the brief).

Rowena M. Duran argued the cause for respondents Hackensack University Medical Center and Sherene Francis, R.N. (Duran and Pandos, attorneys; Ms. Duran on the brief).

PER CURIAM

Plaintiff appeals from an Order denying his motion for a new trial after a jury returned a verdict of "no cause for action" on his nursing malpractice complaint. We affirm.

Plaintiff was a patient at Hackensack University Medical Center, where he had undergone triple by-pass surgery on February 22, 2000. On February 29, 2000, despite his physician's orders that he remain in bed, he was assisted by defendant, Nurse Sherene Francis, to the bathroom. Plaintiff fell while returning from the bathroom with the assistance of defendant. He sued, asserting that allowing him to walk to the bathroom was a deviation from applicable standards and that the fall loosened the surgical sutures placed in his chest after the by-pass surgery. He asserted that, as a result, he suffered substantial complications, including an infection of the wound, necessitating a second operation.

A trial was conducted on April 20, 2004, through April 6, 2004. At that trial, plaintiff claimed that he had fallen to the floor, striking his chest. That testimony was contradicted by Nurse Francis who asserted that, while plaintiff had fallen, it was only to his knees and that he had not struck his chest in any way. Her version of the fall was corroborated by medical records that omitted any reference to bruising or other evidence of chest trauma resulting from the fall.

Plaintiff produced causation evidence from his treating physician. The doctor was asked if he held an opinion "based upon reasonable medical probability as to whether or not the fall sustained by your patient on February 29 ... proximately caused the wound dehiscence and the following infection that he had?" The doctor responded

It is very difficult to say what caused the wound ... [separation]. The temporal, the time function of it was as I can best put together, I don't have certainty to it, but I have some probability that a patient that is doing well for several days, then apparently falls. Again, I did not witness the fall, I don't know anything but I'm told patient fell. Next the bone comes apart, the wire rips through it, the skin opens up, the chance of having infection is certainly increased. Again, is it possible that he had it before and it manifests now? It's possible. I don't know. I have no clue to that and the chart says that.

On the other hand, if he fell, the wires ripped out a man whose debilitative, who has multiple medical problems, it certainly won't help. But I have no certainty, but I could say it is probable.

This testimony could well have been understood to indicate that plaintiff may have suffered from an infection "before [the fall] and it manifests now." Defendant also produced evidence, including evidence of a "sternal click" that was indicative of unstable sutures before the incident of February 29, 2000, permitting an inference that plaintiff suffered from a pre-fall infection, which is a recognized complication of the by-pass surgery. The jury found a deviation from the appropriate standard of care but also found that the deviation did not proximately cause any injury.

Judge Mecca denied the ensuing motion for a new trial. He explained his decision in the following passage.

I went through all of the documents submitted in the letter brief of the defendant and I agree that there has been no clear error or mistake. I was very careful to charge more than once with respect to a proximate cause -- that if the jury found that the negligence was a proximate cause, allowing for other causes that they should find for the plaintiff in this case.

And it is clear that the jury deliberated on the facts and used the facts on the record to conclude that the plaintiff was not injured by the deviation from the standard of case by Nurse Francis. That is so because there was evidence, as pointed out recently in the arguments of Ms. Duran, that there was indicia of problems occurring before the fall. Not only the palpation of the sternal click, but the general state of the plaintiff prior to the fall.

We will not reverse a denial of a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "In considering that standard, we must make an independent assessment of the trial record while given deference to the trial judge regarding the intangible aspects of the case including witness credibility and 'the feel of the case.'" Okulicz v. DeGraaff, 361 N.J. Super. 320, 329 (App. Div. 2003).

 
We agree with Judge Mecca that a reasonable jury could have determined a violation of appropriate nursing standards when plaintiff, contrary to his physician's directions, was assisted to the bathroom. We further agree with him that a reasonable jury could have determined that the subsequent fall did not proximately cause the loosening of the surgical sutures, the consequent infection, and the second operation. On this evidence, a jury might well have rejected plaintiff's version of the fall and accepted defendant's testimony that the fall did not affect the chest area at all. In that case, a rejection of causal connection between the fall and the loosening of the sutures would have been justified. Similarly, the jury might have considered the testimony of plaintiff's physician as equivocal and concluded that plaintiff suffered from an infection that had loosened the sutures before the fall, rather than that the fall loosened the sutures, causing an infection. We are in full accord with Judge Mecca's conclusion that the verdict did not reflect "clear error or mistake" and conclude that there was no miscarriage of justice.

Affirmed.

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A-5971-03T2

November 1, 2005