LYNNE ALLEN et al. v. NIK PARIKH, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3244-04T23244-04T2

LYNNE ALLEN and DAVID ALLEN,

Plaintiffs-Appellants,

v.

NIK PARIKH, M.D.,

Defendant-Respondent.

___________________________________

 

Argued March 13, 2006 - Decided March 31, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County,

L-1493-03.

Gary D. Ginsberg argued the cause for appellant (Ginsberg & O'Connor, attorneys; Adam Raditz, on the brief).

Timothy M. Crammer argued the cause for respondent (Crammer, Bishop & Marczyk, attorneys; Mr. Crammer, on the brief).

PER CURIAM

Plaintiff, Lynne Allen, appeals from a judgment of no cause for action, and an order denying her motion for new trial following an adverse jury verdict in her medical malpractice case against defendant internist Dr. Nik Parikh. On appeal, plaintiff asserts that the trial judge's jury charge was confusing and misleading because it failed to adequately instruct the jury on plaintiff's alternative liability theory of malpractice. Defendant counters, essentially asserting that the judge's supplemental jury instructions, given shortly after the jury had begun its deliberations, cured any possible confusion that his initial charge may have caused. We conclude that the instructions given did not fully and adequately explain the applicable law regarding expert credibility, nor did it plainly spell out in understandable language how the jury should apply those legal principles to the facts as it may find them. We therefore are constrained to reverse and remand for new trial.

The following relevant facts were established at trial. On March 2, 2000, plaintiff visited defendant, a board certified physician in internal medicine, complaining of an ear infection in her left ear. Plaintiff told defendant of her ear itching, pain, discomfort, and drainage. Defendant examined her left ear and throat and diagnosed serous otitis media (an ear infection with fluid in the middle ear) and an upper respiratory infection. He prescribed Ceclor, an antibiotic, Zyrtec-D, a decongestant, and eardrops, which consisted of an antibiotic and steroid drops. According to plaintiff, the antibiotics "took . . . the drainage away. The itching stopped. It cleared up. The ear itself, it's like a pain [and] discomfort, it cleared up."

On May 7, 2000, plaintiff was admitted to the emergency room at Atlantic City Medical Center for chest pains and anxiety. She did not recall whether she complained of any ear problems at that time. Plaintiff testified that she saw defendant again on May 26, 2000, complaining that her ear infection had recurred. Contrary to plaintiff's testimony, defendant claimed that his May 26 records indicated that plaintiff complained of numbness in both hands, not ear problems. He did not examine her ears and diagnosed her with fatigue, depression, and high cholesterol. On cross-examination, plaintiff brought out that defendant's May 26 record stated in part "HENT (head, ears, nose, and throat ) within normal limits." Although plaintiff testified that defendant prescribed antibiotics on that date, which again cleared up her ear infection, the records indicate that defendant prescribed Celebrex, an anti-inflammatory, Prozac, an antidepressant, and a Nicotrol inhaler to help her to stop smoking.

On July 14, 2000, plaintiff, suffering from a left ear infection at that time, saw defendant again, which is confirmed by his records. Defendant prescribed Biaxin, an antibiotic, Zyrtec, and the eardrops, but plaintiff did not recall the eardrops. According to plaintiff, she returned on July 31, 2000, complaining that her left ear infection "was getting worse." Defendant, however, testified that on July 31 plaintiff complained of symptoms of sinus and upper respiratory problems and offered no complaints about her ear. He did not examine her ear. Instead, he examined her lungs and diagnosed sinus and upper respiratory infections. According to defendant, he did not examine plaintiff's ear because she did not present any complaints and standard of care requires him to examine the ear only if the patient complains about it.

Plaintiff visited defendant's office on September 29 and October 5, 2000. Again, the testimony given by plaintiff and defendant differed on whether plaintiff complained of ear problems. In November, plaintiff called defendant's office and asked to be referred to an ear, nose, and throat (ENT) specialist. Defendant referred her to Doctors Matlick and DeLorio, ENTs.

Following her referral, the plaintiff was diagnosed with cholesteatoma, a skin growth in the ear canal. She underwent three surgeries to relieve and clear up an infection, which had spread into the mastoid bone, and to attempt reconstruction of the ear canal. Although the infection was eventually eradicated, reconstruction was not possible and plaintiff was left with a deformed canal and hearing loss in her left ear.

Defendant testified that had plaintiff continuously complained of ear problems from March through July, he would have referred her to an ENT specialist earlier. Steven Huffman, M.D., a board certified specialist in family medicine, testified as plaintiff's expert. Dr. Huffman testified that, assuming defendant's records are true that plaintiff presented left ear complaints on March 2 and July 14, but not on May 26 or July 31, it was his opinion that defendant deviated from an acceptable standard of medical care. He testified that had defendant looked into plaintiff's ear on July 31, 2000, he would have been able to "visualize [the] mass or that the infection was not resolved and then refer her to an ear specialist." He concluded that defendant's failure to examine plaintiff's ear on July 31 after two documented incidents of ear infections and his corresponding failure to refer plaintiff to a specialist prolonged surgical intervention and increased the risk of harm that she would suffer the damage that she sustained. Dr. Huffman also believed, although somewhat contradicted by prior deposition testimony, that the growth in plaintiff's ear first existed in April or May and was visible by July 2000.

Defendant's expert, Dr. Joshua Barash, M.D., board certified in family practice, testified that the standard of care requires a physician to look into a patient's ear with an otoscope when the patient presents a specific ear complaint. If a patient does not have a specific ear complaint, the standard of care does not require the physician to look into the ear; rather, the physician may perform a cursory examination of the patient's head, ears, nose, and throat to determine whether the ears are red or tender, for example. Dr. Barash opined that defendant's treatment fell within the standard of care, which required a referral to a specialist only when otitis media occurs multiple times within a short period. He described these multiple complaints as three times within six months or four times within one year. Dr. Barash expressly disagreed with Dr. Huffman's testimony that the standard of care required defendant to do an internal examination of plaintiff's ear on July 31. He explained that because there were only two complaints between March 2 and July 14 defendant was not required to re-inspect plaintiff's ear on July 31. Dr. Barash, however, conceded that if plaintiff had complained on July 31 of ear problems, defendant should have referred her to a specialist at that time. He also agreed that if plaintiff had complained on May 26 then a referral was required because plaintiff had made three complaints within a six-month period.

Prior to summations, plaintiff's counsel requested the trial judge to explain to the jury the theory that defendant's failure to conduct an ear examination on July 31 was an alleged deviation from the standard of care. The following colloquy took place:

[PLAINTIFF COUNSEL]: I believe that Dr. Huffman's testimony was clear that an ear examination under any circumstances should have been performed on July . . . 31. That's clearly his, an allegation by him.

COURT: That is not, the question he was asked was whether the failure to have referred was a deviation and he testified that it was.

[PLAINTIFF COUNSEL]: Judge, I am certain that he testified that . . . he should have performed an ear exam and that if he would have performed an ear exam that would have caused him to make the referral.

COURT: That's correct, he did say that.

. . . .

[PLAINTIFF COUNSEL]: Judge, I am going to request that if you're going to instruct specifically on allegations of negligence that failure to do the ear exam on July 31st be included because that was a specific allegation made by my expert. And I certainly intend to argue that to the jury.

COURT: You may indeed argue it to the jury, but it's not an independent, he did not testify that that was the deviation. He testified that the deviation was in the failure to refer.

The judge gave the following instructions respecting the allegations that defendant deviated from the applicable standard of care:

Deviation from a standard of care means the failure to exercise in the given circumstances that degree of knowledge and skill which is normally possessed and used by the average family practitioner. The standard of care must be established by expert testimony and you must determine the accepted standards of practice applicable to the defendant in these circumstances. Now in this particular case there really frankly is not a lot of dispute about what the standard of care is. You heard the testimony of Dr. Huffman from the plaintiff's perspective, you've heard the testimony of Dr. Barash from the defendant's perspective, and you have heard defendant himself speak to the question of the standard of care. And as the attorneys have told you, they all agree that if in fact the facts of the matter are as the plaintiff asserts them, to wit, that in March and again in May and again in July on two occasions and even thereafter she complained to him of an ear condition and the symptoms associated with it, if those are the facts, all of the testimony and all of the experts agree that on those facts by July, certainly by the 31st, the defendant should have referred her to a medical specialist in the area of ear problems because at that point the condition would have been considered recurrent and under those circumstances the general practitioner's obligation is to refer. The dispute in this case, therefore, is not about what the standard of care is but rather about whether there was a deviation from it because there is a sharp dispute about what the facts are. From the plaintiff's perspective, if the facts are as she makes them out to be there would be a deviation. If, on the other hand, you believe that the facts asserted by the defendant are the correct ones or if you fail to find, more accurately, that the facts asserted by the plaintiff aren't the correct ones and that she did not in fact appear in May with any complaints referable to her ear or on July the 31st then the defendant's assertion is that he did not deviate from the standard of care and cannot be considered to have been negligent. So on this particular question, deviation from a standard of care, the focal point is, as the attorneys have both told you and I agree, is on the credibility of the evidence with respect to what the doctor knew from her and when he knew it. What it was that she told him about her ear on those particular occasions. And that's how you're going to decide whether in fact there was a deviation. (emphasis added).

Following the judge's instructions and before the jury retired to deliberate, plaintiff objected at sidebar, arguing that the charge too narrowly described the standard of care and essentially precluded the jury from considering plaintiff's second theory of negligence, which had "nothing to do with credibility," namely, that "even given the records of Dr. Parikh and assuming them to be true that he was still negligent." The judge initially disagreed, stating:

There is no question in my mind but that the only deviation that was testified to was the failure to refer. . . . [T]he relationship between the asserted failure to examine and the failure [to refer], and as I've already indicated that my view, while that's an interesting and potentially important factual determination for the jury to make it does not constitute the plaintiff's basis for a claim as I understand the testimony by Dr. Huffman. The issue is whether he failed to refer. And whether the failure to examine is a factual predicate for the failure to refer or it isn't is an interesting question but it's not a legal fulcrum. The legal fulcrum is the failure to refer.

After defendant conceded that Dr. Huffman opined that even if defendant's records are true, defendant should have looked into plaintiff's ear, the judge called for the jury and gave a supplemental charge. After reiterating his charge respecting the credibility differences between plaintiff's version and defendant's version and its applicability to the issue of deviation, the judge gave the following instruction:

The plaintiff makes an additional allegation or assertion, which is very closely related to that but may slightly be different in your minds and if it is you may consider it as well, and that is that the plaintiff asserts through the testimony of her expert, Dr. Huffman, that even if . . . the defendant's version of the facts are [sic] correct Dr. Huffman's conclusion was that still on July the 31st of that visit, and there is, as you will remember, a factual dispute as to what she told him on July 31st, that Dr. Huffman says that the defendant should have looked into her ear . . . and on that basis would have seen what he needed to see in order to make the determination to refer. That issue again still deals at least, you will have to decide whether that issue deals solely with the credibility of the plaintiff or whether it also reflects on the basis for Dr. Huffman's opinion. In any event, that is another factor that you may if you find it relevant consider in the ultimate determination of whether there was a deviation. And again I in closing remind you that the claimed deviation is the failure to refer her to an ENT . . . in a timely fashion. (emphasis added).

The jury returned a verdict within one hour, finding defendant not negligent. Denying plaintiff's motion for new trial, the judge explained:

[W]hether done as it was done or as the plaintiff would have had it done in terms of the form of the charge and the verdict sheet, the core issues in the case dealt with the jury's evaluation, subjective evaluation of principally the plaintiff herself because her credibility and the stark factual disputes with respect to what she said when and what the circumstances were formed the core aspect of the jury's ability to evaluate the claim. And it would appear, at least to me, that the jury concluded that they did not have sufficient confidence in her credibility and that's the basis for the verdict. And that, while it's not directly attacked in this motion, is a determination that I will indicate is amply justified on the record. . . . I am satisfied now, as I was then, that the issues were appropriately presented to the jury and that they had a full understanding and an adequate understanding of the legal principles and that the issues were appropriately structured. For all of those reasons I will deny [the] motion for a new trial and enter an order to that effect.

(emphasis added).

On appeal, plaintiff asserts that the instructions given to the jury concerning deviation based upon a determination of credibility of what was told to defendant during plaintiff's visits effectively foreclosed plaintiff's second theory, which was not dependent on a resolution of the parties' divergent factual testimony. She argues that the supplemental instructions were confusing and did not alleviate the problem. She also maintains that the judge focused too much on the evidence concerning plaintiff's credibility and not enough on those facts raising questions about defendant's credibility. Defendant counters that the supplemental charge removed any possibility of confusion by making it clear that Dr. Huffman's testimony was sufficient, if accepted by the jury, to impose liability on defendant, even if defendant's version of the events was true.

The applicable principles are well settled. Proper jury instructions are essential to a fair trial. Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). "A trial judge is obliged to give a comprehensible explanation of the questions that the jury must resolve and [apprise] them of the law applicable to the issues in the case." Myrlak v. Port Auth. of N.Y. and N.J., 302 N.J. Super. 1, 19 (App. Div. 1997) (internal quotations omitted), aff'd in part, rev'd in part, 157 N.J. 84 (1999). Appropriate jury charges "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)). "'When reviewing a trial court's instruction to the jury, an appellate court must read the charge as a whole' and should not reverse 'when the charge adequately conveys the law and does not confuse or mislead the jury.'" Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 487 (App. Div.) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997)), certif. denied, 165 N.J. 607 (2000). "There is no reversible error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

The Civil Model Jury Charge, 1.15 provides the following pertinent instructions respecting an expert witness:

In examining each expert's opinion(s), you may consider the person's reasons for testifying, if any. You may also consider the qualifications of the individual(s) and the believability of the expert, including all the considerations that generally apply when you are deciding whether or not to believe a witness' testimony.

The weight of the expert's opinion depends on the facts on which the expert bases his/her opinion. You as jurors must also decide whether the facts relied upon by the expert actually exist. (footnotes omitted).

Where there is a conflict in expert testimony, the following optional charge is applicable:

It is for you the jury to resolve any conflicts in the testimony of the experts, using the same guidelines in determining credibility that I mentioned earlier.

[Model Jury Charge (Civil), 1.15 Expert Testimony.]

In the initial charge, after instructing the jury on factors such as recollection, consistencies, and bias to be considered when deciding the credibility of factual witnesses, the judge gave the following general instruction respecting expert testimony:

And lastly on credibility, I remind you, as I've told you several times, with respect to the expert witnesses that testified, and there were two in this case, you are not bound to accept their testimony any more than you are bound to accept testimony of the fact witnesses. You should give consideration to the evidence that you heard about their knowledge, their training, their background, their qualifications, their experience. You should give consideration to the quality and quantity of information that was made available to them when they reached the expert opinions that they testified to you about, and you should, of course, give consideration to their overall credibility and persuasiveness.

We begin our analysis by noting that the judge's initial charge concededly did not accurately describe plaintiff's factual contentions. It failed to incorporate plaintiff's theory and Dr. Huffman's opinion that defendant's failure to examine plaintiff's ear on July 31 was malpractice notwithstanding the parties' divergent factual versions. Indeed, the instructions expressly focused the jury on defendant's theory of the case, which was primarily dependent upon the jury's findings respecting the parties' factual credibility and the judge's belief that the experts agreed. Moreover, in our mind, the supplemental instruction did not adequately explain plaintiff's contentions respecting the conflicting expert opinions.

Instructions should be "molded in a manner that explains the law to the jury in the context of the material facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988); see also State v. Maldonado, 137 N.J. 536, 576 (1994); Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 210-11 (1984); Patton v. Amblo, 314 N.J. Super. 1, 9-10 (App. Div. 1998). Neither the initial nor the supplemental charge addresses the conflicting expert opinions regarding whether the standard of care required defendant to examine plaintiff's ear based upon the two prior stipulated complaints. The judge's initial charge on expert credibility was effectively eviscerated by his instructions that there was no dispute on the standard of care. The supplemental instructions did nothing to explain the experts' dispute or advise the jury of its obligation to resolve the conflict between the experts. The judge's reiteration, on plaintiff's motion for a new trial, that the "core issue" was the jury's subjective evaluation of the factual dispute between plaintiff and defendant provides further insight into the judge's misunderstanding of plaintiff's theory of the case and his failure to give an adequate corrective instruction.

The lack of a clear explanation of the conflicting expert opinions respecting the required standard of care and directions on how to resolve the conflict compelled the jury to concentrate on the credibility of the parties. Thus, the jury was effectively prevented from deciding an issue presented by the evidence and asserted by plaintiff depending upon what it found was the appropriate standard of care. We conclude that the jury charge as a whole was sufficiently confusing and misleading to require reversal. It neither adequately conveyed the law concerning treatment of competing expert opinions nor plainly spelled out how it should be applied to the facts as the jury found them to be.

We reverse and remand for new trial.

 

Plaintiff's complaint included a claim for loss of consortium on the part of her husband David Allen, which was voluntarily relinquished during trial.

(continued)

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A-3244-04T2

March 31, 2006