NOEMI GONZALEZ et al. v. ASHOKE AGARWAL, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4226-03T54226-03T5

NOEMI GONZALEZ and

JORGE GONZALEZ,

Plaintiffs-Respondents,

v.

ASHOKE AGARWAL, M.D.,

Defendant-Appellant,

and

CARLOS TELLO, M.D., and

ST.JOSEPH'S MEDICAL CENTER,

Defendants.

____________________________

 

Argued November 29, 2005 - Decided January 23, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

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

L-869-00.

Hugh P. Francis argued the cause for appellant (Francis & Berry, attorneys; Hugh P. Francis, of counsel and on the brief; Peter A. Olsen, on the brief).

John C. Emolo argued the cause for respondents (Emolo & Collini, attorneys;

Mr. Emolo, on the brief).

PER CURIAM

This is a medical malpractice case. Defendant, Ashoke Agarwal, M.D., appeals from a jury verdict in favor of plaintiff, Noemi Gonzalez.

I

We review the trial testimony in some detail, because it is critical to our conclusions.

In 1996, thirty-four-year-old plaintiff Noemi Gonzalez, a married mother of three young girls who was also working full-time as a supervisor for a bus company, began consulting defendant Ashoke Agarwal, M.D., an internist and cardiologist, as her primary care physician. She advised defendant that she had a history of asthma, but did not suffer from diabetes or high blood pressure, and did not smoke or drink.

Plaintiff recalled that she first complained to defendant of headaches in the back of her head on April 7, 1997. Defendant did not, however, ask her when the headaches had started or where the pain was located. He also did not refer her to a neurologist, prescribe an MRI, or offer her any pain medication. Rather, he simply told her to try to reduce the stress in her life.

Plaintiff continued to have headaches at the back of her head, three times a week, for up to four hours at a time. Although she tried to control the situation with over-the-counter pain killers, she eventually returned to defendant on July 22, 1997, and then again on two occasions in September 1997. Despite her repeated complaints, defendant again told her that the headaches were likely stress-induced and did not prescribe follow-up testing.

Plaintiff next consulted defendant in February 1998. While she had a cold at the time, she also advised him that her headaches were now occurring four times per week for about six hours at a time. Although defendant gave her cold medicine, he offered her nothing for her headaches and did not order any follow-up testing.

In April 1998, plaintiff again consulted defendant for unabated headaches, but ultimately refused the medication he offered because he advised her that it would make her sleepy. Over the next five months, plaintiff's headaches continued but, believing that defendant could not help her, she simply took Advil to try to alleviate her pain. She ultimately returned to defendant in October 1998 complaining of stress, loss of appetite, nausea, stomach upset and headaches. Defendant gave her a prescription for Xanax.

Plaintiff went back to see defendant one more time in December 1998 complaining of headaches, poor sleep, weakness, pain in her neck and blurry vision. She told defendant that her whole head hurt and he gave her a referral to see an ophthalmologist. He also gave her stress medicine, and told her that she should see a psychiatrist if she did not get better. Plaintiff recalled that this remark upset her because she knew the headaches were not being caused by stress.

On August 22, 1999, the pain plaintiff was experiencing from her headaches became so great that her husband took her to the emergency room at St. Joseph's Medical Center in Paterson. The emergency room doctor immediately ordered a CT scan. When the results came back, it initially appeared that everything was all right and plaintiff was released after receiving a shot of Demerol. However, two hours later, a police officer came to plaintiff's door and informed her that there was a problem and that she had to immediately return to the hospital.

Upon plaintiff's arrival at the hospital, the doctors in the emergency room advised her that she had an inoperable brain stem tumor. Plaintiff was admitted to the hospital and lapsed into a coma several hours later. When she regained consciousness five weeks later, on September 28, 1999, she had right-sided paralysis and numbness, was unable to walk, breathe without a tube or move her bowels, and had slurred speech and double vision.

Based upon a variety of imaging studies, including MRI's and an angiogram, the physicians at St. Joseph's concluded that plaintiff had suffered a hemorrhage as a result of a brain stem glioma, a highly malignant brain tumor which usually causes death within six to twelve months; they prescribed radiation and chemotherapy treatments. Alternatively, the physicians believed that plaintiff's hemorrhage had been caused by a vascular malformation known as a cavernous hemangioma. Plaintiff underwent chemotherapy and radiation therapy and, on October 30, 1999, was transferred from St. Joseph's to Lakeview Hospital for physical and speech therapy. She was finally released on November 22, 1999, but was still unable to walk, use her right hand to feed and dress herself, go to the bathroom, or speak clearly.

At the time of trial, plaintiff still had difficulty walking, slurred speech, weakness on the right side of her body, and cold sensations. She did not believe that her condition had materially improved since August 1999, noting that she still required a walker and a wheelchair. She spent her days on a sofa watching television and did limited physical therapy on a non-motorized treadmill.

Plaintiff's husband, Jorge, confirmed that plaintiff's headaches began in April 1997 and that, by the end of 1998, she was also complaining of blurry vision and pain in her legs. He further recalled that he stopped by defendant's office on three occasions in late 1999, after plaintiff had hemorrhaged, and had requested plaintiff's medical records, but defendant refused to produce them.

Plaintiff's three daughters, Jennifer, Elizabeth, and Sandra, also confirmed that plaintiff's headaches began in 1997. Sandra recalled that plaintiff's blurred vision began in 1998, and that plaintiff also started to have balance problems in February of that year. Several of plaintiff's former co-workers, Myra Morales, Margarita Acuna, and Elizabeth Sanchez, similarly testified that plaintiff complained of headaches on almost a daily basis between late 1997 and 1999. Acuna recalled that the headaches became worse over time.

Neurologist Dr. John Greenberg assessed the care given to plaintiff prior to the onset of her illness and also evaluated plaintiff for residual neurological impairment. Dr. Greenberg assumed the accuracy of what plaintiff told him, i.e., that she had repeatedly made defendant aware of her persistent headaches beginning with her visit to defendant in February 1998. Dr. Greenberg testified that a patient who has persistent unexplained headaches for more than two weeks should be sent for a CT scan or an MRI. Dr. Greenberg opined that defendant should have sent plaintiff for an MRI in February 1998 given her history of persistent headaches with associated nausea and vomiting. He noted that such headaches were presumed to be related to elevated intracranial pressure until proven otherwise. In Dr. Greenberg's view, defendant also should have sent plaintiff for follow-up testing in December 1998 given her on-going complaints. Dr. Greenberg asserted that defendant's failure to do so at either point in time violated the standard of care.

Dr. Greenberg also testified that defendant's treatment notes, indicating that he performed a fundoscopic examination on plaintiff on December 28, 1998, was evidence that plaintiff was complaining at that time of persistent headaches. Dr. Greenberg explained that a fundoscopic examination is performed to determine whether "something inside the head [was] causing elevated cranial pressure." Defendant's treatment notes did not explain why he performed this test, and Dr. Greenberg also testified that it was inconsistent with the standard of care to perform such an examination without documenting in treatment notes why it was being performed.

Dr. Greenberg testified that "there was a deviation in not detecting the brain stem 'lesion' because . . . there was a mass there that had a hemorrhage, whatever the etiology of that lesion was; and that if proper diagnostic studies had been performed earlier, it would have afforded this patient an earlier opportunity to have the [proper] diagnosis of the brain stem lesion . . . detected and treated and that that treatment would have avoided the hemorrhage . . . from that lesion that caused her neurological disability."

With respect to plaintiff's neurological condition, Dr. Greenberg found that while she was oriented, her verbal memory was below normal and she had attention, concentration, memory and learning problems. She also had significant weakness in her throat and down the right side of her body, causing her to, among other things, drag her right foot.

Dr. Mitchell Lipton, an internist and cardiologist, testified that an internist should always document a patient's subjective complaints, all objective findings, an analysis of the patient's condition, and a planned course of treatment. He reported that, based upon his review of plaintiff's medical records, it appeared that defendant had repeatedly failed to properly document plaintiff's prior history and headache complaints, as well as order appropriate testing and explain the reasons for the conclusions he reached. He particularly noted that, unless plaintiff made an undocumented neurological complaint, such as persistent headaches and visual disturbances, there would have been no reason for defendant to have performed a fundoscopic exam on plaintiff in December 1998 since she was not diabetic or hypertensive.

Neuroradiologist Dr. Michael Deck testified that, aside from a glioma, plaintiff could have had an arterial venous malformation ("AVM"), which occurs when arteries and veins are directly connected without a capillary network resulting in a large volume of highly-pressurized blood flowing through dilated veins. Dr. Deck acknowledged that, alternately, plaintiff could have had a cavernous hemangioma, which involves dilated veins containing thin-walled sinusoids through which blood flows at a very slow rate. According to Dr. Deck, pre-hemorrhage AVM's can usually be diagnosed by an MRI unless they are very minute in which case an angiogram is required. He testified that ninety-nine percent of AVM's can be diagnosed through an MRI.

Since there were no pre-hemorrhage films in this case, Dr. Deck relied upon plaintiff's August 22, 1999, CT scan and her August 23, 1999, MRI, but not the MRI and angiogram performed one month later, in reaching his conclusions. Based upon his review of these films, Dr. Deck opined within a reasonable degree of medical certainty that plaintiff most likely had an AVM, and that it had hemorrhaged. He based his opinion on the following factors: (1) the presence of enhanced, abnormal blood vessels around the periphery of the hemorrhage as reflected on plaintiff's August 22, 1999, CT scan; (2) the location of the lesion, its subsequent shrinkage, and the fact that plaintiff was still alive; and (3) the fact that brain stem gliomas rarely hemorrhage, progressively grow, and usually kill the patient within two years. He further noted that the associated signs of a brain stem AVM that had hemorrhaged were severe headaches, double vision, lack of coordination, gait difficulties, numbness, and extremity weakness. But he also testified that prior to any hemorrhage occurring, "a significant number of patients with arterial venous malformations have headaches." Dr. Deck could not say with certainty how long plaintiff had had the AVM because no diagnostic testing was done prior to August 1999.

Dr. Deck acknowledged that the possibility that plaintiff had an AVM was rendered less likely by the fact that no bleeding vessels were found on the September 1999 angiogram, but he also testified that the large blood vessels seen on the CT scan were more consistent with an AVM. However, Dr. Deck maintained that some AVM's do not appear, even on an angiogram, after they have hemorrhaged. He explained that ten to twenty percent of AVM's completely disappear after they hemorrhage, leaving no enlarged, peripheral blood vessels.

Dr. Deck reported that plaintiff's post-hemorrhage lesion was approximately three centimeters in diameter. Although he could not be certain, he estimated that plaintiff's pre-hemorrhage AVM was between two and five millimeters in diameter, although it could have been as large as one centimeter. He believed it was small enough such that it could have been effectively treated with stereotactic radio surgery which could have shrunk the lesion, reduced the risk of hemorrhage after eight months to two years of treatment, and ultimately obliterated the AVM.

Dr. Alan Meek, a radiation oncologist, testified that, although the original working diagnosis in this case was a brain stem glioma, he, after consultation with Dr. Deck, was persuaded that plaintiff had actually had an AVM. He noted that this conclusion was supported by the fact that patients with gliomas normally die within nine to twelve months and plaintiff was still alive.

Dr. Meek related that AVM's can be successfully treated by: (1) surgical removal; (2) embolization (clogging the arteries feeding the malformation utilizing a catheter); or (3) stereotactic radio surgery (delivering a single high dose of radiation to the affected area). He explained that radio surgery causes the affected blood vessels to begin to shrink within six to nine months and reduces the risk of hemorrhage. Dr. Meek further related that AVM's of less than a centimeter to a centimeter and one-half in size have a seventy to eighty percent chance of obliterating in two years. Dr. Meek opined that, if plaintiff had received treatment prior to her hemorrhage, her hemorrhage and current deficits could have been avoided. Dr. Meek specifically disagreed with the opinion of a defense expert, Dr. Pertchick, that radiotherapy was an inappropriate treatment for AVM's.

Dr. Meek stated that a cavernous hemangioma can also be surgically removed or treated by administering radiation in a fractionated pattern over a period of time. This treatment will successfully cause cavernous hemangiomas to shrink over time.

Dr. Meek was uncertain whether an AVM would necessarily show up on an angiogram after a significant hemorrhage, but stated that he supposed it was possible that it would not. He acknowledged that he was unfamiliar with the phrase "disappearing AVM," and that he had never heard of self-destructing AVM's. He noted, though, that such patients would not be referred to him and that he would defer to a neuroradiologist on this issue.

Dr. David Mahalick, a board certified clinical neuro-psychologist, evaluated plaintiff in May 2000 and then again in May 2003. He noted that plaintiff complained of double vision, hearing problems, balance problems, memory problems, speech and language changes, numbness, cold hands, and difficulty walking. On both occasions, Dr. Mahalick determined that, while plaintiff's language abilities had not been significantly compromised, she had only a limited ability to concentrate, pronounced memory deficits, very limited strength in her dominant right hand, and poor balance. Testing revealed that plaintiff's overall intelligence was in the mentally deficient range. Because of plaintiff's physical and mental problems, Dr. Mahalick was of the opinion that she could no longer perform her former work duties or care for herself. He also believed that any future improvement in her condition was unlikely given the amount of time that had passed since the hemorrhage.

Accountant Gary Trugman reported that, based upon her 1999 salary of $31,178, plaintiff had lost the opportunity of earning $1,018,447 in income as a result of her present disability. She also had a $227,012 claim for loss of household production and a $127,911 claim for unreimbursed medical bills. In sum, these damages totaled $1,373,370.

Donna Flannery, a life care planner and rehabilitation counselor, visited plaintiff in December 2002. She determined that, because of her condition, plaintiff required a home health aide, the care of numerous doctors, several forms of therapy, family and individual counseling, regular follow-up testing, a wheelchair, transportation assistance, and a number of home modifications. She estimated that it would cost $3,187,041.80 to provide plaintiff with this assistance, based on plaintiff's statistical life expectancy of 36.7 years.

In his testimony, defendant denied that plaintiff ever complained to him of headaches or mentioned constant use of over-the-counter pain medications when she consulted him in April, July, and September of 1997, and in October and December of 1998. He admitted that he performed a fundoscopic exam on plaintiff in December 1998, but insisted that this was in response to plaintiff's complaints of eye strain and fatigue, not headaches or blurred vision. Defendant conceded that, while plaintiff did complain of a frontal headache in February 1998, she also had a cough, a cold, and a fever, and he diagnosed her at that time with sinusitis in conjunction with an upper respiratory infection. Defendant acknowledged that he should have noted the duration of the headache, but asserted that his notation that plaintiff's sinusitis was acute indicated that it had been of less than seven days duration.

Defendant admitted that, after receiving a letter advising him of plaintiff's lawsuit, it took him a month to supply her medical records. He claimed he did not recall plaintiff's husband stopping by his office on three occasions in August 1999 to request the records. In response to questions first from defense counsel and then from plaintiff's counsel, he denied that he altered the records in any way.

Defense neurologist Dr. Alan Pertchik testified that defendant had not deviated in his care of plaintiff. In particular, Dr. Pertchik stated that defendant had not been under any obligation to send plaintiff for an MRI when she complained of a headache associated with a cold. Dr. Pertchik found no evidence that plaintiff was experiencing any focal neurological signs such as double vision in December of 1998 or before. He noted that neither chronic headaches nor blurred vision were focal neurological signs warranting a consultation with a neurologist and/or imaging studies. He stated that it was unlikely that plaintiff's lesion was present in December 1998 given her lack of symptoms, but admitted that he would send a patient for an MRI on suspicion of a glioma if he or she had headaches, weakness, numbness and blurred vision. Dr. Pertchik also acknowledged that many AVM'S and cavernous hemangiomas do not immediately become symptomatic and that headaches are a symptom of an AVM.

Dr. Pertchick had not reviewed the MRI's, CAT scan films or angiograms themselves, but was relying on the reports of plaintiffs' treating doctors who had interpreted those tests. Dr. Pertchik initially agreed with plaintiff's treating physicians that plaintiff had a diffuse brain stem glioma that hemorrhaged resulting in her current deficits. However, based on the length of time plaintiff had survived, he later concluded that it was more likely that she had a cavernous hemangioma.

Dr. Pertchik rejected the contention that plaintiff had an AVM, noting that the characteristic blood vessels did not show up on plaintiff's MRI's or on her angiogram. He noted that, contrary to Dr. Deck's testimony, there is no such thing as a disappearing AVM because the feeding arteries always remain even after hemorrhage and are detectable either on an MRI or an angiogram. He testified that he had heard "anecdotal" reports of the phenomenon, but there was nothing in the professional literature to support it. He did testify that if the lesion was a tumor, it could be smaller than it might appear on the diagnostic films, because some of what is seen on the films would be the blood from the hemorrhage.

Dr. Pertchik reported that pre-hemorrhage AVM's of between two and five millimeters in size are observed regularly, but that there is no effective treatment for either AVM's or cavernous hemangiomas. He stated that, while some physicians will attempt to use radiation to treat the lesion, this risks harming normal brain cells. According to Dr. Pertchik, one in twenty patients will develop radiation necrosis or death of brain tissue. Radiation can also cause damage to blood vessels, brain tumors and memory problems. He also testified that if radiation is used to treat a cavernous hemangioma, "it takes about two years for it to work."

Plaintiff's present treating physician, Dr. Dennis Chadderjee, an internist and doctor of pulmonary medicine, testified on behalf of defendant that plaintiff was properly diagnosed with a brain stem glioma and that, according to follow-up MRI's, she still had a very small residual tumor. He noted that, according to plaintiff's September 1999 MRI, an AVM was not even part of the differential diagnosis. Dr. Chadderjee admitted that he was a colleague of Dr. Agarwal, who had referred cases to him on occasion, and that he had advised plaintiff to drop her lawsuit because it was a waste of time. He also acknowledged that plaintiff could not work and needed someone to care for her on a daily basis.

Dr. Susan Cocoziello, plaintiff's obstetrician and gynecologist, saw plaintiff in March and April 1998, and again in April 1999. At no time did plaintiff make any complaints of headaches. Dr. Cocoziello confirmed that, in her practice, she inquires about a patient's general health before focusing on gynecological problems.

Dr. Daniel Conroy, a cardiologist and internist, also testified that defendant did not deviate in his care of plaintiff. He also testified that performing a fundoscopic examination would not necessarily be evidence that the patient had complained of headaches. His testimony was premised on the accuracy of Dr. Agarwal's treatment notes. He acknowledged that he would send a patient for imaging studies if he or she presented with a complaint of recurrent headaches, and he admitted that if plaintiff had complained of headaches to defendant as she testified she had, "she should have been evaluated more" either "by a neurologist or by an imaging study."

II

The jury returned a verdict in plaintiff's favor and awarded her: (1) $2,250,000 for pain and suffering; (2) $88,400 for past lost earnings; (3) $883,600 for future lost earnings; (4) $4,000,000 for future health care costs; and (5) $127,911 for unreimbursed medical expenses. However, based upon the jury's further finding that plaintiff was thirty five per cent responsible for her injuries by virtue of her failure to consistently follow defendant's medical advice to return for follow-up visits, Judge Gelade reduced the aggregate award to $4,777,442.20. On February 2, 2004, the judge entered final judgment in the amount of $5,205,405.30, which included $1,603,102.15 in prejudgment interest.

On February 25, 2004, defendant moved unsuccessfully for a new trial or, in the alternative, remittitur.

III

On this appeal, defendant raises the following contentions:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE COMPLAINT FOR PLAINTIFFS' FAILURE TO DEMONSTRATE THAT DR. AGARWAL'S ALLEGED NEGLIGENCE BETWEEN APRIL 7, 1 997 AND DECEMBER 28, 1998 WAS THE PROXIMATE CAUSE OF PLAINTIFF'S AUGUST 22, 1999 CEREBRAL HEMORRHAGE.

POINT II: THE TRIAL COURT ERRED IN FAILING TO STRIKE THE TESTIMONY OF PLAINTIFFS' EXPERT MICHAEL DECK, M.D. AS HIS OPINION TO THE EFFECT THAT MS. GONZALEZ EXPERIENCED A "DISAPPEARING AVM" WAS NOT BASED ON SCIENTIFIC REASONING OR SOUND METHODOLOGY.

POINT III: THE TRIAL COURT ERRED IN PERMITTING PLAINTIFFS' COUNSEL TO QUESTION DR. AGARWAL CONCERNING THE AUTHENTICITY AND/OR ALTERATION OF HIS RECORDS IN THE ABSENCE OF EVEN A SCINTILLA OF PROOF SUPPORTING SUCH A SERIOUS ALLEGATION.

POINT IV: PLAINTIFFS' COUNSEL'S IMPROPER COMMENTS THROUGHOUT SUMMATION WERE INFLAMATORY [SIC], PREJUDICIAL, CONTRARY TO THE EVIDENCE AND WERE COMPOUNDED BY THE TRIAL COURT'S REFUSAL TO GIVE CORRECTIVE INSTRUCTIONS.

POINT V: THE JURY'S $4 MILLION AWARD FOR FUTURE HEALTH CARE COSTS WAS UNSUPPORTED BY THE EVIDENCE AND MUST BE VACATED.

POINT VI: THE JUDGMENT AGAINST DR. AGARWAL SHOULD BE VACATED BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE.

Having reviewed the record, we conclude that all of these contentions are without merit and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Defendant's arguments that the verdict was against the weight of the evidence, and that the complaint should have been dismissed on motion at the close of plaintiff's case, need not detain us long. At oral argument, defense counsel candidly conceded that this case "could have gone either way." That concession eliminates defendant's contentions concerning the dismissal motion and the weight of the evidence and in fact, although not specifically conceding the points, counsel did not pursue these issues at oral argument. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). And in any event, having reviewed the entire trial transcript, we conclude that reasonable jurors could have credited the testimony of plaintiff's witnesses, found proximate cause, and reached the verdict that they did.

The gravamen of plaintiff's complaint was that Dr. Agarwal failed to refer her to a neurologist for an MRI of the brain. If the jurors believed that plaintiff repeatedly complained to defendant of severe headaches, they could also reasonably conclude, based on plaintiff's experts' testimony, that these headaches were symptoms of an existing AVM. And if they believed plaintiff's expert witnesses, all of whom were eminently qualified in their fields and cogent in their testimony, an MRI performed in 1997 or 1998 would likely have revealed the presence of the AVM, which could have been successfully treated with radiotherapy, thus preventing the hemorrhage that eventually occurred in 1999. Viewed in the light most favorable to plaintiff, the evidence would permit a finding, by a preponderance of the evidence, that plaintiff had an AVM at the time she was being treated by defendant, and that but for his negligent failure to order the appropriate diagnostic tests, plaintiff would have received radiosurgery that would have prevented the hemorrhage from occurring.

The case thus turned in large part on a credibility dispute between plaintiff and defendant over what she told defendant. She testified that from April 7, 1997 to December 1998, she repeatedly complained to Dr. Agarwal that she was having severe headaches. He denied that she made such complaints except for one occasion on February 24, 1998, when she complained of a frontal headache, which he diagnosed as being a symptom of sinusitis. His office records are consistent with his testimony; other than February 24, 1998, there are no entries about headaches. But plaintiff produced numerous witnesses, including her husband, her three daughters, and several co-workers, to corroborate her testimony that she was complaining of severe headaches throughout this time period. Reasonable jurors could have concluded that it was more likely than not that she was suffering from persistent headaches, that she would have told her treating physician about her headaches, and that Dr. Agarwal's treatment notes did not accurately reflect what plaintiff told him. This brings us to the issue of Dr. Agarwal's records.

At trial, plaintiff questioned the accuracy of Dr. Agarwal's treatment notes; her counsel raised the possibility that defendant might have re-copied his original notes and omitted references to the headaches. Defendant contends that it was error for the trial judge to have permitted plaintiff's counsel to raise this issue. We disagree.

Defense counsel raised no objection to the trial judge's ruling that plaintiff's counsel could question defendant about his records. Defense counsel also opened the door on the issue by asking defendant a series of questions on direct examination concerning whether he had altered his records. Since defendant's counsel raised the issue on direct examination, plaintiff's counsel was entitled to cross-examine him about it.

More significantly, we find no error in the trial judge's ruling. The accuracy of defendant's records was a critical issue in the case, and plaintiff was entitled to explore the issue. There was more than a speculative basis to raise questions about the records. Plaintiff produced numerous witnesses to corroborate her testimony that she was consistently complaining of headaches during the time she was seeing Dr. Agarwal. Moreover, Dr. Lipton's testimony supported an inference that there were omissions in defendant's treatment records and that those omissions likely concerned plaintiff's complaints of headaches. The testimony of plaintiff's husband, that defendant refused to produce the records despite repeated requests, also supported an inference that the records, when eventually produced, had been altered.

Defendant's reliance on Rosenblit v. Zimmerman, 166 N.J. 391 (2001), is misplaced. That case, which concerned spoliation of evidence, supports our conclusion that plaintiff was properly permitted to question the accuracy of defendant's records. In Rosenblit, the Supreme Court recognized that:

[a]bsent extraordinary circumstances, evidence of intentional alteration or destruction of medical records by a physician accused of malpractice should not be excluded under N.J.R.E. 403. The mere fact that "evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof." State v. West, 29 N.J. 327, 335, 149 A.2d 217 (1959).

[Id. at 410.]

While plaintiff here did not have the direct proof of spoliation that plaintiff had in Rosenblit, we find nothing in Rosenblit to support defendant's argument that plaintiff should have been barred from raising the issue.

We likewise find no merit in defendant's argument that the trial court should have stricken the testimony of Dr. Deck concerning the so-called "disappearing AVM." In explaining the difficulty in diagnosing an AVM from diagnostic tests performed after the hemorrhage occurred, Dr. Deck testified that in ten to twenty percent of cases, an AVM will not be visible on an angiogram after a hemorrhage has occurred, because the AVM's "will disappear after they bleed." He testified that this phenomenon is a "well-known entity" in his field, and he explained in detail why it occurs.

On cross-examination, defense counsel did not ask Dr. Deck to substantiate his opinion by reference to any professional literature. Nor did defense counsel seek a Rule 104 hearing before trial in order to preclude Dr. Deck's testimony on this issue. See N.J.R.E. 104. The testimony of defense expert Dr. Pertchick, that the disappearing AVM was merely "anecdotal" and not supported in medical literature, merely created a credibility dispute between experts, which the jury was entitled to resolve in plaintiff's favor.

We also find no merit in defendant's contention that plaintiff's counsel made improper statements during his summation, including alleged unfair attacks on opposing counsel and misstating the testimony of Dr. Deck. None of plaintiff's counsel's remarks approached the kind of impropriety we condemned in Geler v. Akawie, 358 N.J. Super. 437 (App. Div.), certif. denied, 177 N.J. 223 (2003). His references to defense counsel's liking "gray" was made in response to defendant's argument that the jury could not tell when the brain lesion came into existence. In his summation, plaintiff's counsel pointed out "if the defendant did what he was supposed to do we would have no gray in April or October of '97 or even into '98 we'd know, we would have done the CAT scan or MRI, we would have seen what was there, and then she would have been sent out for treatment." Taken in context, plaintiff counsel's argument was a proper comment on the evidence and a reasonable response to defense counsel's summation on this point.

We also find no merit in the argument that plaintiff's counsel mischaracterized the testimony of his experts. Plaintiff's counsel cogently explained to the jury the different purposes for which he had called his various experts, consistent with their respective areas of expertise. In this context, he accurately explained to the jury that his expert on treatment of brain lesions, Dr. Meek, had testified that cavernous hemangiomas can be successfully treated with conventional fractionated radiation.

We also find no basis in the record for defendant's argument that plaintiff's counsel implied that Dr. Chadderjee had been improperly coached. While we do not condone counsel's reference to this doctor as "good old Dr. Chadderjee", we find nothing so prejudicial as to warrant our disturbing the verdict in this case. Plaintiff's counsel made a forceful and proper argument that Dr. Chadderjee's testimony was not credible because the evidence did not support his diagnosis that plaintiff's lesion was a glioma.

In context, plaintiff counsel's brief reference to "taking the shackles off" plaintiff's daughters, was simply an argument that plaintiff needed professional home health care. Counsel did not ask, or even imply, that the jury should award damages to plaintiff's daughters. Defendant's additional criticisms of counsel's summation are likewise without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, we find no error in the jury's award of future health care costs, although it was higher than the sum to which plaintiff's life care expert testified. The life care expert's total was based on plaintiff living an average projected life span. But the jury was not bound to accept the statistical average as to plaintiff's life expectancy. As the trial judge properly charged the jury in accordance with the Model Jury Charge (Civil), 6.llK:

[Y]ou should be aware that the figures you have been given on life expectancy are only statistical averages. Do not treat them as necessary or fixed rules since they're general estimates. Use them with caution and use your sound judgment in taking these into account because, of course, people can live a longer life or shorter life depending on the circumstances of an individual case. . . .

In deciding what the plaintiff's future healthcare expenses are, understand that the law does not require . . . mathematical exactness. You must award a lump sum of money which you believe would . . . allow the plaintiff to obtain such future care.

It was open to the jury to conclude that plaintiff would live a longer or shorter time than the average person. The defense presented some testimony from Dr. Chatterjee that plaintiff would have a shorter than average life expectancy, but the jury was not obligated to accept that testimony. Further, Dr. Chadderjee admitted that if she did not have a glioma, she had a normal life expectancy. In fact, based on her continued survival despite the apparent odds, the jury could well have concluded that plaintiff was a person of stronger than average constitution and that she would live longer than the average person.

McRae v. St. Michael's Medical Center, 349 N.J. Super. 583 (App. Div. 2002), on which defendant relies, is not on point. In that case, the jury miscalculated plaintiff's prior lost earnings, an amount necessarily limited by the amount of her former salary and the number of years she had been unable to work prior to trial.

On appellate review, we "may overturn a jury verdict 'only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice, or partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990)(citation omitted); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005). In this case, the jury's award to plaintiff represents approximately an additional nine years of life care expenses at the annual rate calculated by her expert, or an approximately twenty-six percent increase over the amount to which the expert testified. In light of the record, we cannot say that the verdict is so excessive or inconsistent with the evidence as to constitute a manifest injustice. See Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). See also Hudgins v. Serrano, 186 N.J. Super. 465, 481 (App. Div. 1982) (suggesting that a twenty percent deviation between the expert's evaluation and the jury verdict in a wrongful death case might easily be justified).

Affirmed.

 

Mrs. Gonzalez' former husband, Jorge Gonzalez, was also a plaintiff. He was awarded $1 on his per quod claim. We will refer to Mrs. Gonzalez as "plaintiff."

Notably, Dr. Greenberg testified that, while he thought plaintiff had a glioma, he would defer to a neuroradiologist on this point.

Prior to Dr. Lipton's testimony, the trial judge granted defense counsel's application to bar Dr. Lipton from testifying that defendant may have altered or re-written his treatment notes to eliminate references to plaintiff's headaches. The judge ruled that such an opinion would not be within Dr. Lipton's area of expertise and would be prejudicial. The judge did not rule that defendant could not be questioned about this possibility. In fact, he later clarified that plaintiff's counsel could ask defendant about any possible alteration of his notes. Defense counsel did not object to this ruling.

Notably, Dr. Meek testified that neurologists such as Dr. Pertchik do not treat AVM's and cavernous hemangiomas.

Defendant has not raised any issue concerning the propriety of the jury charge. We note defendant initially requested a Scafidi charge, see Scafidi v. Seiler, 119 N.J. 93 (1990), and then specifically withdrew that request. After the jury was charged, defense counsel requested additional instruction to the jury on the issue of proximate cause, which the trial judge provided in accordance with this request. The trial judge charged the jury that plaintiff must show that her injury would not have occurred "but for" defendant's negligence, instead of giving plaintiff the benefit of the more favorable charge that defendant's conduct "increased the risk of harm" to plaintiff. See Verdicchio v. Ricca, 179 N.J. 1, 23 (2004); Evers v. Dollinger, 95 N.J. 399, 415 (1984)(where plaintiff has a pre-existing condition, she must show that defendant's malpractice increased the risk of harm from that condition and was a substantial factor in bringing about the harm that befell plaintiff). This omission placed a greater burden on plaintiff and, in this case, did not prejudice defendant. We conclude that, viewed in the light most favorable to plaintiff, the evidence was strong enough to support a finding of "but for" causation.

(continued)

(continued)

30

A-4226-03T5

January 23, 2006