MICHAEL VINCENT PUZIO, et al. v. GAINES MIMMS, D.S., and MORRISTOWN MEMORIAL HOSPITAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6385-03T16385-03T1

MICHAEL VINCENT PUZIO, an

infant by his Guardian Ad

Litem, MICHELE PUZIO and

MICHELE PUZIO and MICHAEL

PUZIO, Individually,

Plaintiffs-Respondents/

Cross-Appellant,

v.

GAINES MIMMS, D.S., and

MORRISTOWN MEMORIAL HOSPITAL,

Defendants-Appellants/

Cross-Respondent,

and

ARNOLD FINKEL, M.D., JAY

BERNSTEIN, M.D., PEDIATRIC

OPHTHALMOLOGY ASSOCIATES, P.A.,

ANDREW SCHENKMAN, M.D., LAWRENCE

SKOLNICK, M.D. and CALVIN

SHEN, M.D.,

Defendants.

 
________________________________________________________________

Argued November 15, 2005 - Decided January 20, 2006

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

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2831-01.

Michael S. Bubb argued the cause for appellants/cross-respondents (Mr. Bubb, of counsel and on the brief; Maria L. Zarrella, on the brief).

John B. Collins argued the cause for respondents/cross-appellants (Bongiovanni, Collins, Warden & Wiskow, attorneys; Mr. Collins, on the brief).

PER CURIAM

The jury in this medical malpractice case determined that Dr. Gaines Mimms, a staff neonatologist at Morristown Memorial Hospital (hospital), and Dr. Arnold Finkel, a pediatrician, deviated from the applicable standards of medical care, proximately causing the blindness of the infant plaintiff, Michael Puzio (Michael). The jury apportioned 34% of the fault to Mimms and 66% to Finkel. The jury awarded Michael $2,500,000 for pain and suffering, $986,543 for future lost earnings, and $1,414,358 for future life care expenses over the age of twenty-one. For his parents, Michael and Michele Puzio (plaintiffs), the jury awarded $500,000 for loss or decrease of their son's earnings, services, companionship and contributions before age twenty-one, nothing for loss or decrease of their son's services, companionship and contributions after age twenty-one, and $644,287 for extraordinary life care expenses before age twenty-one.

Prior to trial, plaintiffs settled with Finkel and Dr. Jay Bernstein, a pediatric ophthalmologist. After the verdict was returned, plaintiffs moved for an additur, or alternatively, a new trial on the issue of damages. The motion was denied. The judge molded the verdict and entered judgment against Mimms and the hospital in favor of Michael in the total amount, including interest and costs, of $1,988,428.31, and in favor of plaintiffs in the total amount of $464,109.05. The hospital and Mimms then moved for a new trial based on the trial court's exclusion of Mimms' testimony regarding his routine practice. The motion was denied.

Mimms and the hospital appeal. They argue that the trial judge erred in (1) excluding Mimms' testimony regarding his routine practice, (2) denying defendants' request for a hearing to modify the judgment based on the Collateral Source Statute, N.J.S.A. 2A:15-97, and (3) striking the testimony of their expert, Dr. Reynolds, regarding lost-chance damages and failing to give the accompanying jury charge pursuant to Scafidi v. Seiler, 119 N.J. 93 (1990). Plaintiffs cross-appeal from the trial court's denial of their motion for additur or a new trial on damages based on the jury's failure to award damages to the parents for loss of services and companionship after Michael reaches age twenty-one and for the inadequate pain and suffering award to Michael of $2,500,000.

We are satisfied from our review of the record that Judge Dumont's rulings on the admissibility of evidence, motions and applications, which are implicated in the appeal and cross-appeal, were within the bounds of permissible discretion and were adequately supported by the record. We therefore affirm in all respects.

I

Michael was born prematurely, at a gestational age of twenty-eight weeks, on June 23, 1993, weighing three pounds, six ounces. He was immediately admitted to the hospital's neonatal intensive care unit (NICU). In addition to Mimms, the neonatology staff at the hospital included its director, Dr. Lawrence Skolnick, and Drs. Andrew Schenkman and Calvin Shen. Because of Michael's gestational age at birth and his birth weight, he was at risk for Retinopathy of Prematurity (ROP), a condition that affects the normal growth of retinal blood vessels and, if not timely treated, may result in retinal detachment and total loss of vision.

In accordance with the policy of the neonatology department, a referral was made to Bernstein to examine Michael for an ROP screening. Bernstein conducted the examination in the NICU on July 22, 1993. Bernstein determined that Michael's eyes were immature and recommended a follow-up examination in two weeks. He planned to conduct that examination in the hospital or, if Michael were discharged sooner, at his office. There was no ROP as of July 22, 1993, but because of the immaturity of the blood vessels and the age of the child, Michael was still at risk for developing ROP.

Mrs. Puzio was present during Bernstein's examination. She said that Bernstein told her "everything was okay" and "that Michael had some burst membranes, but that was normal for a baby his age and for a vaginal delivery." Mrs. Puzio said Bernstein told her nothing further and made no mention of ROP or the need for a follow-up exam. He gave her an insurance form, which she either filled out and handed back to him or returned the next day. Bernstein had no specific recollection of his meeting with Mrs. Puzio, but he testified that as a matter of routine if a parent was present at the time of the examination, he would explain his findings and the need for a follow-up exam. He would advise the parent that he needed to see the baby again in two weeks and would tell them to call the office for an appointment if the baby was discharged from the hospital at an earlier time.

Bernstein entered a note in Michael's chart regarding the results of his examination and the need for a follow-up exam in two weeks. Skolnick wrote a progress note on July 23, 1993 that said "eye exam 7/22" and "no ROP." Skolnick acknowledged that he understood Bernstein's notes to mean that he needed to see Michael again in two weeks and that he would do this in the hospital if Michael was still there or in his office otherwise.

Sometime within the next week, it was determined that Michael was ready to be discharged. Mimms called Mrs. Puzio advising her that Michael would be ready to go home on July 30, 1993. This, of course, would be prior to the intended follow-up eye exam by Bernstein. The hospital had no practice to advise Bernstein that a baby was being discharged prior to the time for an intended follow-up appointment with him.

The problem that occurred here, and that resulted in the loss of sight for Michael, was that the follow-up exam was not conducted two weeks after the initial screening. Michael did not see Bernstein again for several months. By that time he was at stage 5 ROP, his retinas had completely detached, attempted surgical intervention was unsuccessful, and he was left totally blind. Plaintiffs contended they were never told anything about a condition known as ROP, they were never advised of a potentially serious eye condition that required any particular follow-up evaluation, and the hospital and doctors responsible for Michael's care were negligent for failing to take reasonable steps to schedule the follow-up exam in a timely manner.

Without dispute, plaintiffs were given no written materials regarding ROP and were given nothing in writing about the need for a follow-up eye exam. Also without dispute, there is nothing in Michael's hospital chart that memorializes that any advice was given to plaintiffs regarding ROP or the need for a follow-up eye exam. As we have stated, although Bernstein testified to a routine practice of informing a parent of the need for a follow-up exam within two weeks, Mrs. Puzio denied that he so informed her. Thus, the events surrounding Michael's discharge and the transfer of his care from the hospital to his pediatrician, Finkel, were of critical importance in fixing responsibility for the failure to timely schedule the follow-up exam.

Skolnick testified as to the hospital's policy for discharging NICU patients and for facilitating outpatient follow-up exams in 1993. One of the neonatologists would meet with the parents at the time of the discharge to find out who the baby's pediatrician would be and to discuss any complications that had occurred in the hospital. The doctor would make sure the parents understood the kind of follow-up the baby needed, and the baby would be discharged to the parents. With patients being screened for ROP, Skolnick testified that the discharge meeting was designed to make sure the family knew that the baby needed follow-up.

According to Skolnick, the hospital preferred discharges to occur during the day when the hospital was well-staffed, but discharges also occurred after hours in order to accommodate families. Shen testified that the majority of discharges occurred during the day but that it "was not uncommon" for babies to be discharged at night too. A neonatologist would still speak with the family prior to the discharge.

The neonatologist who was discharging the baby would fill in a preprinted form discharge letter designed to give the pediatrician any "essential" information needed for the care of the baby. The contents of the form were discussed with the family and the letter was then mailed to the pediatrician to give fast access to the information. Skolnick testified that the group wrote on the preprinted discharge letters by hand in order to transmit the essential information to the pediatrician quickly, because issuing the formal discharge summary could "take weeks and sometimes months." The form had a section entitled "special instructions" to tell the pediatrician what "wasn't immediately obvious from the information that came above it" or whether the baby had any special medical needs.

Skolnick testified that it was also hospital policy to contact the pediatrician, if known, by phone on the day of discharge, or shortly thereafter to discuss the baby and "make sure the pediatrician understood what was involved in the care of the baby and could accept the infant into his or her practice." This policy was designed to transfer care of the baby to the outpatient physician with all essential information. If the discharge occurred on a Friday night or weekend, the policy was to call Saturday morning if the pediatrician had Saturday hours, or Monday morning.

Skolnick and Shen testified that it was not hospital policy to schedule outpatient examinations before the babies were discharged because the appointments needed to "suit[] the family's needs" and HMO patients needed referrals. Also, it was not possible to make an appointment when discharges took place in the evening.

Shen conducted Michael's discharge examination, and he completed the form letter to the pediatrician on July 30, 1993. Based on his review of Michael's chart, Shen testified that he would have reviewed the chart and performed a physical examination of Michael before preparing the discharge letter. Shen made progress notes dated July 30, 1993, which stated, among other things, that the July 22, 1993 eye exam showed no evidence of ROP at that time.

The discharge letter did not contain the name of the pediatrician. Shen did not know the name of Michael's pediatrician at that time and did not believe that he called Finkel. Although he had no specific recollection, Shen testified that he probably assumed that he would conduct the discharge meeting at the time he prepared the letter. That did not occur, however, because the discharge took place that evening, a Friday, and Mimms, who was on call, came in to conduct the discharge meeting with plaintiffs.

Shen wrote "ophthal outpatient f/u [follow-up]" in the special instructions section of the form letter to make sure that the pediatrician assuming care of the patient knew that a follow-up eye exam was needed. However, he made no reference to ROP nor to the timeframe in which the exam should occur. At his deposition, Shen testified he was surprised he had not written the date of the exam in the letter.

Plaintiffs met with Mimms at the hospital at about 8:00 p.m. on Friday, July 30, 1993. According to Mrs. Puzio, Mimms told them he was very happy with Michael's progress. He mentioned some conditions specifically, noting, for example that the apnea had subsided and the Bradycardia was no longer a problem. Michael "was keeping his body temperature, gaining weight. That's about it." Mr. Puzio agreed. He said Mimms discussed general health issues, such as vaccinations and feedings and said that Michael was doing well. Mr. Puzio said he asked "[I]s there anything special, anything that we have to do with him and I was told take him home and treat him like a normal child." Both parents denied that Mimms said anything about ROP or about the need for Michael to be re-examined by Bernstein within two weeks of his July 22, 1993 eye exam or at any time. Plaintiffs further testified that Mimms did not show them the discharge letter that was to be sent to Michael's pediatrician nor did he give them any literature on ROP or ophthalmology follow-up. Skolnick testified it was not the hospital's practice to give parents a copy of the discharge letter to the pediatrician.

Mimms had no independent recollection of meeting with plaintiffs or of discussing the need for a follow-up ophthalmologic examination. At the meeting, Mimms asked for the name of Michael's pediatrician and was told Finkel. Mimms testified that he would have had the discharge letter with him at the meeting and would have written Finkel's name on it at that time. Finkel's name was written in his handwriting. The letter had special instructions that said "ophthal outpatient f/u" or follow-up, and Mimms testified that it was his routine to advise the parents that a follow-up exam was needed. However, he had no recollection of the meeting with plaintiffs on July 30, 1993, of calling Finkel that night, or of discussing ROP with Finkel. Mimms admitted that he did not give plaintiffs any written information at the discharge meeting. Mimms could not recall whether he had Michael's medical chart with him at the time of the discharge meeting because his practice varied depending upon the type of problem the patient had.

Mimms admitted that the July 30, 1993 letter did not specifically state that Michael needed to be seen by Bernstein by August 5, 1993. Likewise, the discharge summary, which had not yet been prepared at the time of the discharge meeting, did not specify a date by which the follow-up exam should be held. Skolnick prepared the discharge summary on August 5, 1993, but it was not mailed to Finkel until August 24, 1993. In the discharge summary, Skolnick indicated that ROP had been ruled out in the hospital, which he explained at trial meant that the baby was examined and screened while in the hospital and did not have ROP, but it could still develop.

Plaintiffs met with Finkel for the first time on August 4, 1993. It was a "typical baby visit," and they were told to come back in a month. Although Finkel examined Michael's eyes at that visit, they did not discuss Michael's eyes, and the plaintiffs were not concerned about his eyes at that time. Finkel said nothing about ROP or the need for an eye exam with Bernstein.

Mrs. Puzio brought Michael to Finkel again on September 9, 1993. Prior to the visit, both Mr. and Mrs. Puzio were concerned about Michael's failure to make eye contact. At that visit, Finkel gave Mrs. Puzio a written referral to see an eye doctor, but he did not examine Michael's eyes. He did not suggest any urgency.

After obtaining the referral, Mrs. Puzio phoned Bernstein's office the next day. After several unsuccessful attempts to get through, on September 15, 1993, Mr. Puzio scheduled the appointment for about a month later. When he made the appointment, Mr. Puzio did not mention ROP screening or ROP because the Puzios did not understand the urgency.

Mrs. Puzio brought Michael to see Finkel again in early October for his three-month well-baby appointment. Although Michael was still not making eye contact, Mrs. Puzio did not mention anything to Finkel at that visit.

Mrs. Puzio took Michael to Bernstein's office on October 14, 1993. She did not mention that she was there for a follow-up exam for ROP because she did not know what ROP was at that time. After examining Michael's eyes, Bernstein told Mrs. Puzio that he thought Michael had ROP. Although he explained the detached retina, Mrs. Puzio did not really understand what that meant but she understood that Michael was "pretty much blind." As we stated, the ROP progression was complete and efforts to save Michael's sight were unsuccessful. Plaintiffs asked Finkel why he did not detect the problem with Michael's eyes, and Finkel said "that he wasn't the right person to identify retinopathy of prematurity."

Finkel, a pediatrician in private practice with twenty-seven years of experience in 1993, never had a patient with ROP before Michael and was then unfamiliar with cryotherapy, the usual treatment for ROP during that time. But he was aware in 1993 of ROP and understood it to be a problem that occurs in premature infants twenty-eight weeks or younger. He had treated premature babies, including ones discharged from the defendant hospital. Finkel remembered receiving a phone call around the time of Michael's discharge but he did not remember who called him, or any details about the call. He agreed it was the normal practice of the hospital to call him with information about patients that were discharged to his care.

On August 4, 1993, Finkel understood that he was to be Michael's pediatrician. He could not recall when he received the July 30, 1993 discharge letter or if he received it before Michael's first appointment. Finkel understood the special instructions "ophtho outpatient f/u" to mean that the child was scheduled for an ophthalmology outpatient follow-up, but he did not know why, when or with whom. He had no recollection of discussing the matter with Mrs. Puzio.

When Finkel received the typed discharge summary that stated "retinopathy of prematurity/ruled out," he interpreted that to mean that Michael did not have ROP and that there was no further risk of developing it. Finkel attached no significance to Bernstein's report that the retinal vasculature was normal but immature, and he thought the follow-up was routine. He did not recall making any attempt to contact the hospital doctors about Michael.

II

At trial, each side presented the testimony of an expert in neonatology and in pediatric ophthalmology, who rendered conflicting opinions regarding the applicable standard of care and deviations from the standard. Dr. Graham Quinn, a pediatric ophthalmologist, testified on behalf of plaintiffs. He agreed with Bernstein's order for a follow-up visit in two weeks after July 22, 1993. He also described the cryotherapy treatment that was available and reasonably effective for ROP in 1993. Quinn opined that Shen's July 30, 1993 discharge letter to Finkel did not alert the reader as to when to schedule the next ROP screening examination.

According to Quinn, Mimms, who met with plaintiffs on the night of Michael's discharge from the hospital, had an obligation to tell plaintiffs of the need and time for follow-up because of the risk of ROP and blindness. Quinn opined that if Mimms had been practicing in accordance with accepted standards of medical practice on July 30, 1993, he would have advised plaintiffs that Michael had been examined on July 22, 1993, and that follow-up in two weeks was recommended and important because ROP could lead to "serious problems" or blindness. Although Quinn felt that the hospital doctors first needed to advise the parents of the need for follow-up, he also advised that it was a good "fall back position" to advise the pediatrician as well. Overall, Quinn opined that the hospital should have had a system in place that was uniformly followed by each of the neonatologists for instructing the parents about the risks of ROP and the need for follow-up eye exams.

Quinn opined that the failure to instruct the parents of the need for the follow-up eye examinations deprived them of the opportunity to obtain the appropriate treatment and cure and that this deviation from accepted standards of medical practice by Mimms was a "significant factor to the child's retinal detachment and permanent blindness." Cryotherapy was available at Wills Eye Hospital in 1993 and could have been an option for Michael if the ROP had been identified in time.

Dr. Marcus C. Hermansen, a neonatologist, also testified on plaintiffs' behalf. Hermansen opined that the hospital met the accepted standard of care when it ordered the eye examination, and he agreed with Bernstein's initial report that Michael's eyes were not yet mature and that he was still at risk for ROP. According to Hermansen, once Bernstein recommended the two-week follow-up appointment, the four neonatologists were responsible for seeing that the follow-up happened, either by scheduling it, communicating clearly with the pediatrician or emphasizing the importance with the family.

Hermansen testified that if Michael had been treated in accordance with accepted standards of medical practice, the follow-up appointment with Bernstein would have been scheduled prior to the discharge, or clear instructions would have been given to the family and pediatrician about the importance and timing of the appointment and the seriousness of the need. However, Michael's progress chart did not show that the follow-up had been scheduled prior to discharge or that anyone called Finkel or advised the parents of the need for the follow-up exam.

Hermansen opined that the hospital did not seem to have a uniform system for identifying and screening babies at risk for ROP, and without such a system, a child could "fall through the cracks." He also opined that the act of sending the discharge letter to Finkel did not, by itself, satisfy the neonatologists' responsibility because it did not advise Finkel of the critical timing for the exam nor the seriousness of the need. Hermansen's opinion was that the staff neonatologists deviated from accepted standards of medical practice when they let Michael "fall through the cracks without a follow-up examination" and that this deviation "directly caused the blindness." Hermansen opined that Michael probably would have had functional vision if he had been treated according to the proper standards.

The defense presented Dr. Jeffrey A. Whitsett, a neonatologist. Whitsett opined that the hospital had a "very clear system in place, and it was followed very accurately, and that it led to an appropriate referral for this patient." He pointed out that the neonatologists here spoke directly with the parents in arranging the discharge and conveyed in writing to Finkel the need for ophthalmologic follow-up. In Whitsett's view, Michael "was transferred to the care of a pediatrician who should have all knowledge of the needs of a child who's at risk for ROP, for the necessity of that follow-up, and [the neonatologists] went in some ways beyond the call of duty in both -- in writing and verbally discussing the issue with Dr. Finkel."

Whitsett opined that if Mimms met with the parents and advised them to schedule the follow-up appointment with Bernstein after discharge, he met the required standard of care. He admitted, however, that if the information about the need for the follow-up eye exam was not conveyed to plaintiffs by someone in the NICU, it would have been a deviation from the accepted standards of medical practice.

Whitsett also felt that the "normal sequencing of repeat eye examinations when screening a baby for ROP" was common knowledge in the pediatric community in 1993, and that the letter to Finkel "contain[ed] all the information a trained pediatrician" would need to know to schedule appropriate follow-up for the baby in his care. Whitsett thus placed the blame on Finkel for not recognizing the risks and need for Michael to have an immediate follow-up eye examination. He also placed blame on Bernstein, contending he assumed the care for ophthalmology follow-up and did not follow through with his patient. However, Whitsett admitted that Skolnick did not check off the box on the consultation request that said "Assume Primary Care of the Patient."

The defense also presented Dr. James Reynolds, a pediatric ophthalmologist. In his opinion, Mimms and his fellow neonatologists conformed to medical standards of care because they appropriately acted on Bernstein's request for a follow-up by phoning the selected pediatrician, sending the July 30, 1993 letter and conducting a discharge conference with the parents. Reynolds conceded that if Mimms did not tell the parents of the need for the follow-up exam with Bernstein and "[i]f that was the only mechanism to ensure an ophthalmologic follow-up exam," then "Dr. Mimms deviated from accepted standards of medical practice."

Reynolds opined that the July 30, 1993 letter conveyed the important clinical data for Finkel to know that Michael was at risk for ROP, namely the birth date, birth weight and gestational age, and that even without the special instructions regarding the "ophtho outpatient follow-up," and even without a specific date for the exam, Finkel should have known about the need and timing for a follow-up eye exam. He also opined that it was reasonable for the neonatologists to rely on the pediatrician to be knowledgeable about the risks, and that it would have been unreasonable for the neonatologists to have put ROP as a diagnosis because that had not yet been determined at the time of discharge.

Reynolds testified that Finkel did not meet the standard of care expected of a pediatrician who accepts premature babies because he did not demonstrate a familiarity with the risk parameters of ROP and the need for follow-up eye examinations, and that this deviation denied Michael the "opportunity of salvaging his vision."

III

Mimms and the hospital (defendants) argue that the trial court abused its discretion when it determined that Mimms failed to establish a routine practice under N.J.R.E. 406 with respect to what was said at the discharge meeting with the parents, what records Mimms reviewed prior to and during the meeting, and the phone call to the pediatrician after the discharge. Defendants contend that Michael's discharge was not unusual merely because it occurred in the evening or because Shen prepared the discharge letter, but Mimms met with the parents, and therefore the jury should have had the opportunity to weigh Mimms' credibility on those issues.

According to defendants, this error requires a new trial because Mimms was denied the right to defend himself. This is because plaintiffs testified, based upon their specific recollection of the event, that Mimms did not discuss with them any need for an ophthalmologic follow-up, let alone that it be done immediately. Mimms, on the other hand, who conducted numerous such discharge interviews over the years had no specific recollection of this case, which occurred some nine years prior to trial, and in which, admittedly, no entries in the hospital records memorialized that he gave any particular advice to plaintiffs on the subject. Thus, he contends he was deprived of an opportunity to refute the parents' contentions.

To resolve whether Mimms could testify as to what, in accordance with a usual practice or custom of his in 1993, he would have told plaintiffs at the discharge meeting, the judge conducted an N.J.R.E. 104 hearing. When asked what his usual practice was in these circumstances, Mimms said he would start by asking the parents what Dr. Bernstein had told them "and then from that answer you often get a feel for how -- how the parents understood the information . . . ." If the parents seemed to understand the seriousness of the problem and knew that a follow-up exam was necessary in a certain timeframe, he would say "great," and remind the parents to call Bernstein to make an appointment. On the other hand, with some parents "you can tell they're not clear about the information or they're -- they're -- they -- they don't understand, so then I usually give some description of retinopathy of -- of prematurity and talk about how when babies are born prematurely . . . ." (emphasis added). In those cases, he would tell the parents that although "Dr. Bernstein didn't see any scar tissue . . . he -- he wants to see it again in a week until the eyes fully matured."

Further, when asked how, in situations such as this, where he did not perform the discharge examination, he would know about any evaluation performed by Bernstein and the status of the eyes, he said he would "always" get the medical chart and look at the actual consult note. However, in his deposition testimony he was asked:

But when you're just going to talk to the parents, and you're not preparing this form [the discharge letter to the pediatrician], and you are going to just talk to the parents . . . do you review the medical records to ensure that this form is proper before you talk to the parents?

He answered:

Not routinely. Again, we function as a group of doctors. We take care of all kids. We don't really have one physician who takes care of one.

Likewise, with respect to his procedure for mailing the discharge letter to the pediatrician and calling the pediatrician, variations in practice emerged. For example, although he said he kept the letter on his desk as a reminder and reference to making the call to the pediatrician and then mailed it after the call was completed, he further said that he sometimes makes a copy of the letter and has it mailed or faxed to the pediatrician before the call is completed. He testified that when one physician prepares the letter but a different physician conducts the discharge meeting, it is the latter who mails the letter. Yet, in answers to interrogatories, he stated that Shen "forwarded a letter to Dr. Finkel dated July 30, 1993." Although those were his words in the interrogatory answers, at the N.J.R.E. 104 hearing, he attempted to explain that he meant Dr. Shen prepared and signed the letter, but it was he who forwarded it to Finkel.

Although Mimms testified there was no need for one neonatologist to check up on another regarding the accuracy of the information written into the form discharge letter, we note in this case that Shen expressed his "surprise" that he failed to include in the letter the date by which the follow-up eye exam should be conducted. Obviously, in this case, that was the most critical aspect of the information being conveyed by the neonatologists to the pediatrician in the course of transferring the care of this patient.

After the N.J.R.E. 104 hearing, Judge Dumont ruled that testimony about what Mimms told the parents at the time of the discharge regarding outpatient care, and the mailing of the letter and phone call to Finkel would not be permitted because Mimms did not establish a habit and custom for this situation. The court determined that there were "just too many variables here" and that, if a routine existed at the hospital, it was not followed in this case. Judge Dumont found that, according to the usual practice, the daytime doctor who prepared the discharge letter would meet with the parents because "most babies were discharged during the day" and the same doctor would then make sure to call the pediatrician and mail the letter. However, this case was a "rare" or "unusual" occasion because the baby was discharged at night and the doctor who prepared the discharge letter was not the one who met with the parents.

Judge Dumont also found that there were too many unknowns about who called Finkel and when, and whether the letter was sent prior to the phone call or after. Judge Dumont did allow Mimms to testify that it was his routine to mention ophthalmologic follow-up because it was written on the discharge letter. Beyond that, however, he determined that Mimms did not establish a specific and uniform response that was semi-automatic in nature and more than a mere tendency.

Defendants argue on appeal that the judge erred in excluding the proffered testimony about his customary practice and in denying his new trial motion based on that error.

Evidentiary rulings are reviewed under an abuse of discretion standard. Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2006). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

The standard applicable to a trial court's decision on a motion for a new trial is set out in R. 4:49-1(a), which provides that a party is entitled to a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "The standard governing an appellate tribunal's review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge." Dolson v. Anastasia, 55 N.J. 2, 7 (1969); R. 2:10-1.

Under N.J.R.E. 406(a), "[e]vidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice." "Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice." N.J.R.E. 406(b). N.J.R.E. 406 evidence has been allowed in medical malpractice cases to allow doctors to testify as to their habitual or routine practices. See Reaves v. Mandell, 209 N.J. Super. 465 (Law Div. 1986) (defendant doctor permitted to testify as to information he invariably gave patients who presented similar symptoms as plaintiff; the court found that the behavior was so consistent and uniform as to be considered a habit).

"Habit is defined in McCormick, Evidence, 162 (1954), as describing one's regular response to a repeated specific situation." Burd v. Vercruyssen, 142 N.J. Super. 344, 351 (App. Div.), certif. denied, 72 N.J. 459 (1976). "Evidence regarding a person's regular and routine practice traditionally has been admissible as probative of whether the person acted in conformity with his habit or custom in respect to the event in question." Reaves v. Mandell, supra, 209 N.J. Super. at 470. The evidence is normally "offered to allow the jury to infer, if it sees fit, that conduct on a specific occasion conformed to habit." Ibid. "'The party offering the evidence must establish the habitual nature of the alleged practice.'" Sharpe v. Bestop, Inc., 158 N.J. 329, 331 (1999) (quoting United States v. Newman, 982 F.2d 665, 668 (1st Cir. 1992), cert. denied, 510 U.S. 812, 114 S. Ct. 59, 126 L. Ed. 2d 28 (1993)).

In this case, the record supports the trial judge's conclusion that Mimms's testimony about his habits and routine was insufficient with respect to these plaintiffs. First, the discharge occurred at 8:00 p.m. on a Friday evening. Although there was testimony that the NICU "never closes" and does not have regular business hours, it was undisputed that "most" discharges took place during the day, and that Mimms met with Michael's parents because he was on call that evening.

Second, it was the hospital's practice that the doctor who prepared the discharge letter would normally meet with the parents to review the letter. In this case, Shen prepared the discharge letter but, again, Mimms met with the parents. In addition, Mimms' testimony about whether he would have, or did, review Michael's chart prior to meeting with the parents was conflicting; he testified that he would have reviewed Michael's chart prior to meeting with the parents but he admitted that he did not "routinely" check medical charts before a discharge meeting.

Next, it was undisputed that hospital practice dictated that whichever doctor conducted the discharge meeting would also call the patient's pediatrician. Mimms testified that it was his practice to call right from the NICU but that he would call "later" when the discharge occurred at night. However, he had no recollection of calling Finkel and had no idea when that call occurred. Mimms testified at trial that he had a practice, similar to Shen's, of leaving the discharge letter on his desk until he spoke to the pediatrician but he admitted that he made no mention of this practice in his answers to discovery. Mimms also testified that he always gave the letters to his secretary to mail after he spoke with the pediatrician, but he admitted that he said in answers to discovery that Shen had mailed Michael's discharge letter.

Finally, Mimms could identify no semi-automatic comment or response he would make in a specified situation. By his own description, his comments to the parents would depend on his assessment of their responses to him about their understanding of the subject. This is not the kind of evidence that fits within the boundaries of N.J.R.E. 406.

We find no error in Judge Dumont's ruling that Mimms did not meet his burden of establishing a habit, or a specific and uniform response that was semi-automatic in nature, for this situation. As such, it was not an abuse of discretion to limit Mimms' testimony. Although the ruling had the effect of limiting Mimms' available defenses, the exclusion was proper and it was not a miscarriage of justice to deny the motion for a new trial.

IV

We can dispose of defendants' remaining contentions rather summarily. Defendants contend that the trial court erred in denying their request for a hearing to mold the verdict because the jury award for lost earnings, future life care expenses, and extraordinary life care expenses constituted a "double recovery." This is so, according to defendants, because plaintiffs' expert in rehabilitation counseling did not take into account any collateral sources such as private health insurance benefits, Medicare and Medicaid benefits, and other social security benefits provided to Michael through government programs. Defendants submit that Michael's entitlement to benefits can be determined with a reasonable degree of certainty and is not speculative. They further argue that any possible lien could be avoided by the creation of a special needs trust. Plaintiffs did not seek reimbursement for past medical or life care expenses and submitted no evidence of those costs. The issue, therefore, is whether Michael's future entitlement to health insurance benefits and social security and similar government benefits should be deducted from the jury's award for lost wages and life care expenses.

N.J.S.A. 2A:15-97 requires deduction from a personal injury award of any benefits the injured party receives or is entitled to receive from a collateral source. The obvious purpose of the statute is to prevent a plaintiff from recovering cumulative, duplicative benefits. Adamson v. Chiovaro, 308 N.J. Super. 70, 78-79 (App. Div. 1998). However, with respect to governmental benefits, only those future benefits that are neither contingent nor speculative nor subject to change or modification may be included. Woodger v. Christ Hosp., 364 N.J. Super. 144, 151 (App. Div. 2003). "[F]uture collateral benefits are deductible only to the extent that they can be determined with a reasonable degree of certainty." Parker v. Esposito, 291 N.J. Super. 560, 567 (App. Div.) (citations omitted), certif. denied, 146 N.J. 566 (1996).

Judge Dumont denied defendants' request for a hearing because there was no evidence that plaintiffs' medical insurance was reasonably certain to continue because of the "problems with medical insurance, job loss, job change, [and] constant policy changes." As for social security and other governmental benefits, he found that "while it may be more certain that there will be Medicare and SSI in the future, neither one of those is fixed at this point and there's no indication, frankly, when those things will be fixed." Further, any Medicaid benefits may be subject to a lien or repayment.

We agree with the judge's conclusion that Michael's entitlement to future benefits, either from his parents' health insurance coverage or from governmental programs, was not immutable as of the date of judgment in his favor. Because his entitlement to future benefits was not determinable with a reasonable degree of certainty, they do not provide a basis for reduction of the award in this case.

Finally, defendants argue that the trial court erred in striking the testimony of its medical expert, Reynolds, expressing an opinion that if Michael had been timely treated, his chance of an unfavorable outcome would have been reduced from 62% to 44%. Defendants make the corresponding argument that the judge erred in failing to give a Scafidi charge. Finally in this regard, defendants contend the trial court's instruction that Michael's blindness could have been prevented with a timely diagnosis and treatment was an error and contrary to plaintiffs' evidence that even with timely treatment there was a possibility of "poor structural outcome."

The judge struck Reynolds' testimony regarding Michael's percentage chance of a favorable outcome because it was beyond the scope of Reynolds' expert report and contrary to his deposition testimony. In the absence of expert testimony to establish an apportionment of damages, a Scafidi charge was not warranted. Defense counsel recognized as much and informed the judge no Scafidi charge was requested.

Trial judges are granted broad discretion to preclude expert testimony on a subject not covered in the written report furnished in discovery. Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Here, not only did Reynolds not include the disputed opinion in his report, when he was deposed he opined that any effort to quantify by percentage the likelihood of a favorable outcome would be "pure conjecture." We find no abuse of discretion in the judge's striking of Reynolds' trial testimony on this point. Without that testimony, no Scafidi charge was warranted, and there was no error in failing to give it. Finally, the judge's comment in his charge that with timely diagnosis and treatment Michael's blindness "could" have been prevented was given without objection or exception at trial, was consistent with the evidence, and was not error.

V

In their cross-appeal, plaintiffs challenge the trial court's denial of their motion for a new trial on damages or request for an additur because the $2.5 million award for pain and suffering was "grossly inadequate and shocking to the [conscience]" and because the jury's failure to award the parents anything on their claim for loss of services, companionship and contributions after age twenty-one was inadequate.

Judge Dumont held that plaintiffs' request for an additur could not be considered unless and until a new trial was granted, and under R. 4:49-1(a), there was no basis for a new trial. The trial court reasoned that although the award of zero damages on one line item was "somewhat puzzling," the jury accepted plaintiffs' figures with respect to economic loss and the total judgment of $6,045,098 must be considered in context. Overall, the court did not find that it was an inconsistent verdict, and the pain and suffering award did not shock the court's judicial conscience.

A party is entitled to a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). "The standard governing an appellate tribunal's review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge." Dolson v. Anastasia, supra, 55 N.J. at 7; R. 2:10-1.

A jury's verdict in the area of damages awards "is entitled to very considerable respect." Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977). "[T]he trial judge should not interfere with the quantum of damages awarded by a jury unless it is so disproportionate to the injury and resulting disability as to shock his [or her] conscience and to convince him [or her] that to sustain the award would be manifestly unjust." Tonelli v. Khanna, 238 N.J. Super. 121, 131 (App. Div.), certif. denied, 121 N.J. 657 (1990). Accord Baxter v. Fairmont Food Co., supra, 74 N.J. at 596; Von Borstel v. Campan, 255 N.J. Super. 24, 28 (App. Div. 1992).

The "term additur is used to describe an order denying the plaintiff's application for a new trial on condition that the defendant consent to a specified increase in the jury's award." Fisch v. Manger, 24 N.J. 66, 72 (1957). "Whether to increase or decrease a verdict [through additur or remitter, respectively] or, alternatively, to grant a new trial as to all or part of the issues, is a matter within the discretion of the trial court, not to be disturbed by an appellate court except where the interests of justice manifestly so require." Epstein v. Grand Union Co., 43 N.J. 251, 252-53 (1964) (citation omitted). However, an additur "may be employed only in cases where a new trial as to damages is proper . . . ." Tonelli v. Khanna, supra, 238 N.J. Super. at 132.

The question on appeal then is whether the $6,045,098 damage award was so plainly inadequate that the interests of justice manifestly require this court to correct the trial court's putative error in denying plaintiffs' motion for a new trial on damages. We are persuaded that the trial court was correct in denying the motion.

"Generally, plaintiffs have the burden of proving damages." Caldwell v. Haynes, 136 N.J. 422, 436 (1994). Damages must be proven by preponderance of evidence. Ibid. It cannot be disputed that that blindness is a significant impairment that will affect Michael's entire life. However, the jury's award of $2.5 million for pain and suffering is a substantial judgment and is not "clearly and convincingly" a miscarriage of justice. R. 4:49-1(a). We agree with Judge Dumont that the amount was not so shockingly low as to require a new trial.

Plaintiffs also moved for an additur or new trial on damages because the jury awarded $500,000 in damages for loss or diminution of services, companionship and contributions before age twenty-one, but zero for after age twenty-one. Plaintiffs argued that skipping one element of damages to which the parents were entitled was "clearly and convincingly a miscarriage of justice under the law" and there was no factual basis in the record to support that finding.

The defense argued that the verdict must be examined in context and that the jury likely considered that Michael will receive adequate support services that will allow him to make contributions and companionship and the like. Judge Dumont agreed with the defense that the award must be looked at in context, and the "per quad [sic] loss of the parents was not a significant issue in this case." The court found that "Michael will be with his parents and there will be companionship" and the monies awarded will compensate for the loss of services.

The jury charge included the following:

[T]he law recognizes that even after a child reaches majority or in this case, age 21, he may still perform services for his parents. He may still provide valuable companionship and care for his parents as they get older and may make monetary contributions to the parents; therefore, they have a claim, both during his minority, as well as his majority, and that this claim derives from the injuries sustained.

Parents who are awarded a verdict are entitled to fair and reasonable compensation for a loss or decrease of the child's earnings, services, companionship, or contributions before he reaches his majority, age 21, and any loss or impairment of the child's services . . . .

After age 21, they still have that claim but not for loss of earnings, but rather for a loss or decrease in their child's services, companionship, or contributions as the case may be.

With this instruction, the judge appropriately advised the jury that the law allows for an award to the parents for the loss of services, companionship or contributions after age twenty-one.

Plaintiffs argued that the parents are not entitled to Michael's earnings so the award of future lost earnings cannot be used to compensate the parents for the loss of companionship and contributions after age twenty-one. The jury may have thought that the award of lost earnings could be used as Michael's future financial contributions to his parents after age twenty-one, but this does not account for the parents' loss of services and companionship. The jurors may have concluded that in adulthood Michael will have learned to adapt to his blindness sufficiently so that there would be no significant diminution in his ability to provide care and companionship to his parents. Alternatively, the jurors may have concluded that plaintiffs failed to present sufficient proofs to support an award on this claim. In any event, we are not convinced that the verdict is inconsistent because the jury chose to award nothing to the parents for this one item.

Judge Dumont appropriately instructed the jury on the law, and the question as to "[w]hat sum of money will fairly and reasonably compensate . . . the parents of the infant plaintiff, for the loss or decrease of their son's services, companionship and contributions after age 21," was separately listed on the verdict sheet. The jurors chose to award nothing on this claim. On this record, and in the context of the entire jury award, the verdict was fair and not so insufficient as to "shock the conscience of the court or engender a sense of wrongness." Woodger v. Christ Hosp., supra, 364 N.J. Super. at 149. Therefore, we find no error in the trial court's decision to deny the motion for a new trial on damages or an additur.

 
Affirmed.

(continued)

(continued)

39

A-6385-03T1

January 20, 2006