MADELENE HOFFMAN v. ATLANTIC HEALTH SYSTEM/OVERLOOK HOSPITAL CAMPUS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1666-04T51666-04T5

MADELENE HOFFMAN, Executrix

of the Estate of Neil Hoffman,

Plaintiff/Cross-Appellant,

v.

ATLANTIC HEALTH SYSTEM/OVERLOOK

HOSPITAL CAMPUS, DENNIS RITTER,

Defendants-Appellants/

Cross-Respondents,

and

CARRIER CLINIC, JEFFREY McGOVERN, M.D.,

Defendants-Respondents,

and

SHEILA GRIINKE, D.O., UMESH S.

MEHTA, M.D.,

Defendants.

 
_______________________________________

Argued November 10, 2005 - Decided February 9, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

No. L-753-02.

Nicholas Caruso argued the cause for

appellants/cross-respondents Atlantic

Health System/Overlook Campus and

Dennis Ritter (Fost & Caruso, attorneys;

Nicholas Caruso, on the brief).

Philip G. Auerbach argued the cause

for cross-appellant/respondent

Madelene Hoffman.

Respondents Carrier Clinic and

Jeffrey P. McGovern, M.D. did not participate

in this appeal.

PER CURIAM

Defendants Dennis Ritter and his employer, Atlantic Health Systems ("Ritter"), appeal from a trial court order denying their motion for judgment notwithstanding the verdict. Plaintiff Madelene Hoffman, executrix of the estate of Neil Hoffman, cross-appeals. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In this action, Madelene Hoffman sought damages following the death of her husband, Neil Hoffman, in April 2001. Neil Hoffman was forty-nine years of age at his death; he and his wife had three children, two sons and a daughter ranging from twenty to fourteen. Approximately two years before her husband's death, Mrs. Hoffman began to see signs that he had developed a drinking problem. She began to find empty vodka bottles in the house and to notice, in her words, that her husband was a "little off." At times he was very hard to rouse; on one occasion he fell out of bed and broke his arm. She had insisted that he seek counseling, and he had agreed. The counselor, however, refused to continue seeing him when he would not comply with her treatment suggestions.

Mr. Hoffman worked quite successfully for a number of years as a programmer in the television industry. In 2000, he became executive vice president of Lifetime cable network. He was fired from that position, however, in March 2001 when he failed to attend any of the scheduled meetings during a conference in California. All attempts by his employer and Mrs. Hoffman to contact him were fruitless. Upon his return to New Jersey, Mr. Hoffman did not tell his wife that he had been terminated. She learned of it when a letter was delivered to their home by Federal Express.

With the loss of his position, Mrs. Hoffman prevailed upon her husband to enter Carrier Clinic. He was admitted on March 4, 2001, and stayed for six days. When he was discharged from Carrier Clinic, he commenced an intensive outpatient program at Overlook Hospital. Defendant Ritter was his counselor at Overlook.

On March 16th, Mrs. Hoffman and her husband met with Ritter because she suspected her husband had begun drinking again. Ritter administered a breathalyzer test, which showed a blood alcohol level of .213. Eventually, Neil Hoffman acceded, reluctantly, to return to Carrier Clinic. Mrs. Hoffman took him there that day, and he remained until he was again discharged on March 25, 2001. He then re-enrolled in Overlook's outpatient program, and Ritter was again his counselor.

On April 4, 2001, Mrs. Hoffman called Ritter because she suspected that Neil Hoffman, who was scheduled to attend a group meeting at Overlook that evening, was again drinking. Ritter made the following note of their telephone conversation:

She suspected that patient was drinking and requested Breathalyzer be done at IOP [intensive outpatient] treatment center. But she said "if he's positive, don't send him back to me." Advised her I will call her with results.

When Hoffman arrived, Ritter administered a breathalyzer test which showed a blood alcohol level of .238. Ritter would not permit him to attend the group session and took the car keys from him. He telephoned Mrs. Hoffman and told her to come and pick up her husband. Ritter, who was scheduled to run a group program, left the car keys with the receptionist, with instructions to summon him if Mr. Hoffman attempted to leave on his own.

Mrs. Hoffman called a family friend, Gary Scharlat, to accompany her, and the two drove to Overlook to get her husband. Mr. Scharlat testified that when they arrived, Mr. Hoffman walked without any apparent difficulty and spoke without slurring his words. The three then drove to a motel approximately one mile from the Hoffman home, and Mrs. Hoffman registered her husband for the night. She checked his briefcase and clothes to make sure he had no alcohol with him and took the car keys. Mr. Hoffman asked to go home, but she refused, saying they had agreed that if he started drinking again, he could not return. She told him to walk home in the morning, and they would then make arrangements for further treatment. She then drove home, leaving him at the motel, alone.

Unfortunately, Mr. Hoffman did not remain there. He walked from the motel to a liquor store and purchased three bottles of vodka. He returned to his motel room and began drinking. He was found the next day, dead in the motel room. The autopsy showed a blood alcohol level of .533.

This suit resulted. Mrs. Hoffman claimed that Carrier Clinic was negligent in discharging her husband when it did and that Ritter was negligent in not arranging for his admission that evening into an in-patient facility. Both Carrier Clinic and Ritter counterclaimed against Mrs. Hoffman, contending that she was negligent in leaving her husband alone at the motel. Mrs. Hoffman testified that she had told Ritter that if her husband had started drinking again, she would not permit him to come home that evening. Ritter testified that he did not recall her saying that she planned to take her husband to a motel and that he would have warned against doing so because of his history of drinking if he were left alone.

The jury found all three parties negligent. It found that the negligence of both Carrier Clinic and Ritter increased the risk of harm posed by Hoffman's alcoholism. For Carrier Clinic, it concluded that eighty-seven percent of the damages were due to his alcoholism, thirteen percent to Carrier Clinic's negligence. For Ritter, it assessed percentages of seventy-one percent and twenty-nine percent respectively. Finally, it ascribed forty-five percent of the overall fault to Ritter, forty-five percent to Mrs. Hoffman and the remaining ten percent to Carrier Clinic. It found damages of $718,000. Ritter moved for judgment notwithstanding the verdict, which the trial court denied. This appeal followed.

Ritter presents a number of arguments on appeal in support of the contention that the judgment entered below should be reversed. Before proceeding to analyze these arguments, we note that appellant does not contend that the trial court made any error of law in its instructions to the jury; he argues, rather, that the matter should not have been submitted to the jury in the first instance.

Further, in our review of the transcript of this matter, we have noted that when the jury was polled after returning its verdict, there was colloquy indicating that the jury reached the percentage figures by averaging. There was no request by counsel that the trial court explore the matter further, and there is no contention on appeal that such a procedure would be improper as a quotient verdict. See Shankman v. State, 184 N.J. 187 (2005).

Ritter's first argument on appeal is that the testimony against him offered by plaintiff's expert constituted a net opinion. Having reviewed the trial transcript in detail, we disagree. Plaintiff's liability expert, John Verdon, M.D., was asked whether Ritter's actions on the evening of April 4, 2001, deviated from the standard of care; he responded affirmatively.

Dr. Verdon testified as follows:

At that point and time the appropriate standard of care would have been for him to have been referred then back to a center that could do withdrawal management, either at Carrier or to the emergency room at Overlook Hospital which is nearby to evaluate him and have, make arrangements for him to be admitted to either to Overlook or to another facility for detoxi[fi]cation.

Dr. Verdon explained to the jury that Hoffman's blood alcohol level of .238, combined with the fact that he was not exhibiting visible signs of intoxication, and the further fact that during his initial admission at Carrier Clinic he had experienced problems with withdrawal from alcohol, made it "overwhelming" that Hoffman would go into withdrawal if he were not treated. Dr. Verdon also told the jury that Mr. Hoffman would require medical treatment as his blood alcohol levels decreased because he would experience an elevation in blood pressure and tremors, both of which had occurred during his first stay at Carrier Clinic.

Dr. Verdon's testimony in this regard finds support in the records of Carrier Clinic that were admitted into evidence for the jury to review. Mr. Hoffman returned to Carrier on March 16, 2001, after he was found to have a blood alcohol level of .213. He was admitted for detoxification and was described as "extremely anxious" and "concerned over having 'the shakes.'" The treatment objective listed on March 16th, the day of that second admission, was "detox safely"; this was projected to take two days to complete. In addition, Ritter admitted on cross- examination that he knew on April 4th that Hoffman would go into withdrawal if he did not continue to drink. The jury could reasonably conclude that if Mr. Hoffman required monitored detoxification on March 16th, when he had a blood alcohol level of .213, he required a similar service on April 4th, when he had

a blood alcohol level of .238. That Dr. Verdon did not specifically recite a written code or regulation reciting the need to arrange for immediate medical monitoring does not transform his opinion into a net opinion.

Dr. Verdon told the jury what the standard of care, in his opinion, required Ritter to do on the evening of April 4th and explained the need for adherence to that requirement and Ritter's deviation from it. Defendants presented expert testimony to the contrary, but the jury evidently accepted Dr. Verdon's testimony as the more persuasive.

We are equally unpersuaded by appellant's next contention, that Ritter owed no further duty of care to Neil Hoffman on April 4, 2001. This argument is premised on the principle that Hoffman had the right to refuse medication and treatment and exhibited no physical signs that he was incapacitated. In support of this contention, Ritter cites N.J.A.C. 8:43G-4.1, which recognizes a patient's right to refuse treatment, and N.J.A.C. 8:66A-1.2, which defines incapacitated as needing "substantial medical attention; or [be] likely to suffer substantial physical harm."

These do not bear upon Ritter's duty, however. N.J.A.C. 8:66A contains the regulations governing programs for intoxicated drivers while N.J.A.C. 8:43G deals with licensing standards for hospitals. Their terms cannot be incorporated wholesale into the present context.

The argument, moreover, overlooks the provisions of N.J.A.C. 13:34C-3.1, which includes among the core functions of a drug and alcohol counselor both crisis intervention and referral. N.J.A.C. 13:34C-1.2 defines crisis intervention as "the provision of services which respond to an alcohol and/or drug abuser's needs during acute emotional and/or physical distress" and referral as "identifying the needs of a client that cannot be met by the drug and alcohol counselor or agency and/or assisting the client to utilize the support systems and community resources available."

We are satisfied that the record, fairly read, presents a jury question as to whether Ritter's response on April 4, 2001, represented a deviation from those core functions.

Similarly, we reject appellant's argument that the trial court should have ruled, as a matter of law, that there was no proximate cause between Ritter's actions on April 4th and Hoffman's death later that evening. In support of his position, he cites cases such as Jensen v. Schooley's Mountain Inn, Inc., 216 N.J. Super. 79 (App. Div.), certif. denied, 108 N.J. 181 (1987), and Griesenbeck by Kuttner v. Walker, 199 N.J. Super. 132 (App. Div.), certif. denied, 101 N.J. 264 (1985). We are satisfied that those cases are sufficiently distinguishable from the present matter, in which Mrs. Hoffman testified that she told Ritter that she would not allow her husband to return home that evening and was taking him to a motel. Ritter, moreover, did not directly deny that such a conversation took place; he was asked if Mrs. Hoffman ever told him that she was not taking her husband home but to a motel, and he responded that he did not recall such a conversation. The jury was entitled to accept Mrs. Hoffman's testimony in this regard.

We note, as we did earlier in this opinion, the limited nature of the argument put forth on appeal. There is no contention that there was error in explaining to the jury the concepts of proximate cause, superseding cause and intervening cause. It is rather that appellant asserts he was entitled to judgment on this issue as a matter of law. From our review of the record, as we have noted, we are unable to concur.

Appellant next argues that testimony presented at several points in the trial about a concept referred to as "tough love" unfairly prejudiced Ritter. Again, having reviewed the trial transcript, we do not agree. Mrs. Hoffman testified that she had learned it was important that an alcoholic learn that consequences flowed from continued alcohol abuse and that one

should not enable the behavior to continue. Ritter was questioned about the topic and provided to the jury a full explanation of its meaning within the context of treating an alcoholic. The testimony was not so prejudicial as to require its exclusion under N.J.R.E. 403.

We also reject out of hand the contention that the trial court should have submitted to the jury for its consideration the question whether Neil Hoffman was comparatively negligent on April 4th by rejecting at that point a return to Carrier Clinic. According to the record, as we have noted several times, he had a blood alcohol level of .238; whatever his outward appearance may have been, he had clearly consumed a sufficient quantity of alcohol as to have severely impaired his judgment. Cowan v. Doering, 111 N.J. 451 (1988); R. 2:11-3(e)(1)(E).

Appellant's remaining two arguments are addressed to the sufficiency of the expert testimony adduced in support of plaintiff's claim for damages. Our review in this regard is somewhat hampered by the nature of the verdict sheet submitted to the jury, which merely asked the question: "What amount of money would reasonably and fairly compensate Madelene Hoffman for the death of Neil Hoffman?" To that, the jury responded with the answer $718,000. The jury was not asked to delineate

between such items as past lost income, future lost income and loss of services. Appellant made no request that the trial court make such a provision on the verdict sheet.

In support of her claim for damages, plaintiff presented the testimony of Matityahu Marcus, Ph.D., an economist. Dr. Marcus reviewed Mr. Hoffman's earnings history for the five years preceding his death. He testified that, based upon Mr. Hoffman's lowest earnings within that period, he had calculated a combined loss of past and future lost earnings of $1,245,700. He further testified that based upon Mr. Hoffman's highest salary within that period (which Mr. Hoffman earned at the position at Lifetime from which he was terminated shortly before his death) that he had calculated a combined loss of past and future earnings in excess of $2,000,000. Dr. Marcus offered no testimony about the value of any services that may have been lost as a result of Mr. Hoffman's death.

It is immediately clear that the jury's final award was substantially below the amounts to which Dr. Marcus testified. We can only attribute this to the jury finding persuasive defendants' contention that Mr. Hoffman's return to the productive work force, at the level he had previously enjoyed, was by no means assured.

Having considered the entire context of this trial, we decline to overturn the verdict based upon any perceived insufficiency in the testimony of Dr. Marcus. The jury clearly found negligence on the part of Ritter, which played a role in the death of Neil Hoffman. It found that Hoffman's survivors suffered some economic loss as a consequence of his death but rejected plaintiff's contention as to its extent. It was free to accept portions and reject portions of Dr. Marcus's testimony. We do not consider the inability to delineate precisely how it calculated its award to be a basis to overturn it in its entirety.

We turn now to the cross-appeal, in which Mrs. Hoffman contends summary judgment should have been entered in her favor. Plaintiff has not identified any point during the proceedings in which she sought the entry of such judgment. The only such motion which is evident from our review of the record is an oral motion described as one to dismiss defendants' counterclaim against her. Neither party has provided us with the pleadings that were filed in this matter, R. 2:6-1(a), but we infer from the brief colloquy at the time of the motion, and the parties' briefs before us, that the question raised was whether there was a basis for the jury to assess a percentage of comparative fault

against the plaintiff. We concur with the trial court that the record was more than sufficient in this regard. The motion was properly denied.

Affirmed as to both the appeal and the cross-appeal.

 

Improperly pleaded as Overlook Hospital and Dennis Ritter.

(continued)

(continued)

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A-1666-04T5

February 9, 2006