IRENE CHUDIO v. KESSLER CARE CENTER, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1194-04T51194-04T5

IRENE CHUDIO,

Plaintiff-Appellant,

v.

KESSLER CARE CENTER, INC.,

KESSLER CARE CENTER at CEDAR

GROVE, INC. and SARAH RUITENBERG, P.T.,

Defendants-Respondents,

and

LORRAINE FUENTES, P.T.,

Defendant.

_______________________________________

 

Argued April 26, 2006 - Decided June 1, 2006

Before Judges Stern and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

L-5741-02.

Irene Chudio, appellant, argued the cause

pro se.

Roger G. Ellis argued the cause for

respondents (Bumgardner, Ellis, McCook

& Kingsley, attorneys; Mr. Ellis, on the

brief).

PER CURIAM

Plaintiff Irene Chudio appeals, pro se, from a judgment dismissing her complaint alleging negligence by defendant Sarah Ruitenberg, who is a physical therapist employed by defendant Kessler Care Center, Inc. Because plaintiff's case against Kessler was based solely on the employer's responsibility for the acts of Ruitenberg, the parties agreed to have the jury determine Ruitenberg's liability and mold any verdict in favor of plaintiff to include Kessler. Thus, the order of dismissal resolves all issues as to all parties.

In April 2000 plaintiff was admitted to Kessler from the University of Medicine and Dentistry, where she had been hospitalized since January of 2000 as a consequence of injuries she sustained when she was struck by a car while crossing the street. At the time of her admission to Kessler, plaintiff was unable to put any weight on her right foot. Her right leg was stabilized with an external, metal fixator, and she was confined to a wheelchair.

Plaintiff made progress at Kessler. By May she had improved enough to ambulate with a walker. By June 13 her strength, balance and movement had improved sufficiently to permit her to use a quad-cane rather than a walker. At first she was given contact assistance while she walked with the wide-bottomed cane, which means that she was physically supported by a therapist. By June 14 she was permitted to walk with the cane on her own under "close supervision," which means with a therapist remaining no more than a foot or so from the patient. By June 20 she was walking with the cane and "distant supervision," which means with a therapist observing and giving instruction from a distance.

On June 22 plaintiff was authorized to use the cane outside therapy, which permitted her to get to the bathroom on her own. Plaintiff explained that she walked with her cane in the corridor completely alone and without assistance on June 22. She reported that staff who observed her accomplishment congratulated her with "bravos."

The accident that led to this litigation happened on June 23. Ruitenberg, who was aware of plaintiff's progress but who had not seen her ambulate on June 22, assessed plaintiff's condition and ability before allowing her to walk alone that day. She first had plaintiff walk under her close supervision and then had her do some exercises at the parallel bars. After plaintiff had rested, Ruitenberg took her to the corridor for more walking.

Plaintiff and Ruitenberg agree that plaintiff fell backward and onto the floor while Ruitenberg was adjusting her footwear. Their accounts differ in two respects: whether the footwear was a sock or brace and whether Ruitenberg directed plaintiff to raise her foot to permit the adjustment.

According to plaintiff, she was wearing a sock that fell down after she took a few steps. Ruitenberg asked her to lift her foot so that she could reposition the sock, and she fell backward.

According to Ruitenberg, plaintiff was using a brace, not a sock on the day of her fall. She explained that the brace and the sock (actually a tube of cloth opened on both ends and taped in the front to the top of a patient's foot) were two different devices used to prevent plaintiff's right foot from dropping down and causing her to trip. These devices are alternative means of addressing plaintiff's problem with a "drop foot," and they are not used together. Ruitenberg acknowledged that plaintiff had used both devices at different times during her stay at Kessler, but stated that on June 23 she was wearing a brace, which began "flopping" after plaintiff took a few steps. Concluding that plaintiff had sufficient balance to permit her to stand with the cane while she adjusted the brace, Ruitenberg asked her to stop walking, checked that her feet were both firmly on the ground, put one hand behind plaintiff and leaned over to adjust the straps that held the brace in place. Ruitenberg said she did not ask plaintiff to lift her foot and would not have done so because that would have placed the patient in too precarious a position. When plaintiff fell suddenly, Ruitenberg was unable to stop the fall.

Plaintiff's expert opined that accepted standards of care required Ruitenberg to have this patient seated while adjusting either a sock or a brace. His opinion was based, in part, on his assumption that plaintiff's foot had been raised. He explained: "By altering her foot, elevating it either passively by the therapist or even actively by asking the patient to raise [it], her center of gravity would change and there would be a tendency to lose her balance." The expert admitted that a fall during therapy does not mean that a therapist deviated from accepted standards.

On the basis of the foregoing evidence, the jury found that Ruitenberg did not deviate from accepted standards of physical therapy. The verdict was returned on September 3, 2004. Plaintiff did not move for a new trial before the trial judge.

On appeal plaintiff argues that the verdict is against the weight of the evidence. She points to no trial error but asserts that defendant's tender of an offer of settlement during trial and the brevity of the jury's deliberations are indicative of a miscarriage of justice.

This court may not consider whether a jury verdict "is against the weight of the evidence . . . unless a motion for a new trial on that ground was made in the trial court." R. 2:

10-1. The motion must be "served not later than [twenty] days after . . . return of the verdict of the jury." R. 4:49-1(b). The time may not be enlarged, R. 1:3-4(c), and this court may not relax R. 2:10-1 to permit consideration of the issue on appeal. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998). Although plaintiff moved before this court for a remand on July 29, 2005, the time for filing of a motion for a new trial had expired, and this court had no authority to authorize the trial judge to consider the motion at that time. See ibid.

There is no authority for plaintiff's claim that either defendant's proffer of a settlement offer during trial or the brief duration of jury deliberations give rise to suspicion that the verdict was unsupported or otherwise unjust. Our consideration of the evidence and reasonable inferences that support this verdict convinces us that there is no apparent miscarriage of justice. See Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

Affirmed.

 

Prior to trial and without objection, the court dismissed plaintiff's allegations of negligence on the part of a second physical therapist, Lorraine Fuentes.

(continued)

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A-1194-04T5

June 1, 2006