CHRISTOPHER CALBI v. KENNETH CARTAXO, M.D.


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0294-09T3


CHRISTOPHER CALBI, Individually

and as General Administrator

and Administrator Ad Prosequendum

of the ESTATE OF MATTHEW CALBI,

DECEASED,


Plaintiff-Respondent,


v.


KENNETH CARTAXO, M.D. and PASCACK

EMERGENCY SERVICES, P.A.,


Defendants-Appellants/

Third-Party Plaintiffs,


and


ROXANA G. KLINE, M.D.,


Defendant-Respondent/

Third-Party Plaintiff,


and


STEVEN SCHREIBER, M.D., THE

MOSS AND GEUDER SURGICAL

GROUP, P.A. and PASCACK VALLEY

HOSPITAL,


Defendants/Third Party

Plaintiffs,


v.


LINDA CALBI,


Third-Party Defendant.

___________________________________________

A

November 15, 2011

rgued February 3, 2011 - Decided


Before Judges Axelrad, R. B. Coleman and Harris.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4963-05.


Gary L. Riveles argued the cause for appellants Kenneth Cartaxo, M.D. and Pascack Emergency Services, P.A. (Dughi & Hewit, attorneys; Mr. Riveles, on the briefs).


Lewis Stein argued the cause for respondent Christopher Calbi (Nusbaum, Stein, Goldstein, Bronstein & Kron, P.A., attorneys; Mr. Stein, on the brief).


Christina M. Scarpia argued the cause for respondent Roxanna G. Kline, M.D. (Giblin & Combs, attorneys; E. Burke Giblin, of counsel and on the brief; Ms. Scarpia, on the brief).


PER CURIAM

In this medical malpractice action,defendants Dr. Kenneth Cartaxo and Pascack Emergency Services, P.A. (PES) appeal from a judgment entered in accordance with a jury verdict returned in favor of plaintiff Christopher Calbi, individually and as administrator of the estate of the decedent, Matthew Calbi, and from the denial of defendants' motion for a new trial and/or remittitur. We affirm.

We discern the following factual and procedural history from the record. Fourteen-year old Matthew Calbi (Matthew) arrived at Pascack Valley Hospital's emergency room at 1:10 p.m. on August 17, 2003, and was immediately seen by a triage nurse. Matthew told the nurse that he had been kicked by his mother in the face earlier that day and was experiencing sharp pain on the right side of his face and his right shoulder. He rated his level of pain as ten on a ten-point scale (ten being most painful) and indicated that the pain began that day. The nurse classified his case as "non-urgent," the lowest of three triage scores.

When a different nurse, Josephine Drew, evaluated Matthew at 2:30 p.m., she found no discoloration in Matthew's neck and only slight swelling. Matthew did not appear to her to be in visible pain or distress. Matthew vomited in nurse Drew's presence at 2:30 p.m., but she did not bring that fact to Dr. Cartaxo's attention.

Dr. Cartaxo, the only emergency room doctor working the 7:00 a.m. to 7:00 p.m. shift, first examined Matthew at 3:30 p.m. According to Dr. Cartaxo's testimony, he was told that "there was some kind of scuffle between [Matthew's mother and him]" and that "when he was on the floor his neck was turned and all of a sudden he felt this pain." Upon examining Matthew, Dr. Cartaxo found "a significant swelling of his neck, which was . . . pretty alarming[,]" but Matthew's vital signs were stable, he appeared comfortable, and his skin was warm and dry. His face, neck, shoulders, and chest were free of redness or bruising and the only sign of trauma was a "small little hemorrhage in the white part of his eye." Dr. Cartaxo was baffled because Matthew's lack of bruising or associated injuries did not give an explanation as to the significant swelling in his neck. He felt Matthew's neck and found that it was not pulsatile i.e., it did not throb with the beating of Matthew's heart which meant that the injury was less likely to be an arterial aneurism or bleed. Dr. Cartaxo believed that Matthew appeared "pretty comfortable" at that time and was not in extreme pain.

After the 3:30 p.m. examination, Dr. Cartaxo made a "differential diagnosis"1 that identified four possible causes for the "sudden onset of swelling" to Matthew's neck. The four possible causes listed in Dr. Cartaxo's differential diagnosis were: (1) paratonsillar abscess (a collection of pus near the tonsils caused by infection); (2) posterior pharyngeal abscess (a collection of pus in the wall of the pharynx); (3) vascular injury (an injury to an artery or vein); and (4) thoracic aneurysm (a ballooning of the wall of an artery or vein in the thorax, or upper part of the trunk).

Dr. Cartaxo ordered a soft tissue x-ray to determine whether Matthew's airway was obstructed by the swelling. Matthew vomited again while in the x-ray room. Dr. Cartaxo read the x-ray and found that "there was a lot of soft tissue swelling pushing the trachea . . . out of position." Dr. Cartaxo re-examined Matthew at 4:30 p.m. and felt that at that point Matthew "remained stable" and looked "relatively comfortable."

Dr. Cartaxo decided to discuss Matthew's case with a head and neck surgeon, Dr. Steckowych. He called Dr. Steckowych at 4:32 p.m. and asked her to come in and examine the patient. Dr. Steckowych advised Dr. Cartaxo that Matthew should undergo a CAT scan and to call her with the results.

At 5:00 p.m., Dr. Cartaxo administered two milligrams of morphine sulfate to help ease Matthew's pain. Nurse Drew observed at 5:30 p.m. that Matthew's "color was good," that he was "active" and "not asleep." Matthew received an additional one-milligram dose of morphine sulfate at 6:30 p.m. Nurse Drew did not observe that the swelling of Matthew's neck increased beyond a "minimal" level or changed color throughout her shift, which, like Dr. Cartaxo, ended at 7:00 p.m. A requisition for a CAT scan of Matthew's neck was placed at 5:16 p.m. and a requisition for a CAT scan of Matthew's chest was placed at 5:35 p.m. The CAT scan of Matthew's neck was performed at 5:47 p.m. and the CAT scan of his chest was performed at 5:55 p.m. Dr. Steckowych arrived in the emergency room at about 6:16 p.m.

Matthew was hooked up to a monitor at 6:26 p.m. He had been admitted to the emergency room with a heart rate of eighty-two beats per minute, but by 6:26 p.m., his heart rate had climbed to 118 beats per minute, which meant that he was undergoing tachycardia, or a faster-than-normal heart rate. Tachycardia is often caused by low blood volume, but Dr. Cartaxo believed that this was not an indication of a serious problem, and he maintained that Matthew's vital signs remained stable during the time he waited for the results of the CAT scan.

Dr. Anna Kelly, the radiologist on call working remotely at home, received a call at 6:19 p.m. from the technologist who administered the CAT scans. The technologist had attempted to send the digital films to Dr. Kelly at 6:09 p.m., but the transmission failed. The second transmission, sent from the hospital at 6:21 p.m., was successful. Dr. Kelly read the images and spoke briefly to Dr. Cartaxo to obtain more clinical information about the patient. According to Dr. Kelly, Dr. Cartaxo told her that the patient history was "somewhat unclear." Dr. Kelly found extensive soft tissue mass encasing and compressing the right jugular vein, and suspected that Matthew was suffering from a "jugular injury with venous hemorrhage." Dr. Cartaxo received Dr. Kelly's report at 6:46 p.m. Dr. Kelly then left her house to attend a wake, not knowing that there were additional CAT scan images of Matthew's chest that she had not read.

Because the neck CAT scan results confirmed that Matthew was suffering from a vascular injury, Dr. Cartaxo called the vascular surgeon on call, Dr. Roxana G. Kline, whom he reached at 6:50 p.m. Dr. Kline, a co-defendant at trial, recognized that she did not have the training to do what was required to stem the bleeding: to perform a median sternotomy, a procedure in which the surgeon opens the patient's sternum, makes an excision into the neck, and removes a part of the collarbone. Only a thoracic surgeon could perform such an operation. Dr. Cartaxo called Dr. Ignatius Zairis, the thoracic surgeon on call, at 7:07 p.m. but he did not come to the hospital or return several calls placed by doctors in the emergency room in the next hour.

Dr. Cartaxo's shift ended at 7:00 p.m., and Dr. Steven Schreiber, who settled his liability with plaintiff before trial, began his shift as the emergency room doctor. By 7:15 p.m., Dr. Schreiber had assumed care of Matthew, and Dr. Cartaxo remained in the hospital until about 7:30 p.m. finishing his charts. Dr. Cartaxo's final understanding of Matthew's case when he left the hospital was that "there was a venous injury that . . . would need a vascular surgeon" and that "the vascular surgeon was on her way in and the thoracic surgeon had also been notified."

At 7:15 p.m., Matthew described his pain as ten-out-of-ten. Matthew's blood work specimens were collected at 7:20 p.m. Dr. Cartaxo recalled that he ordered blood work at about the same time as the x-ray and specified that it be completed as quickly as possible. He did not know why Matthew's blood was not taken until several hours later. Matthew's blood count showed a hemoglobin level of 11.7, which, according to one expert, was far below normal and indicated that Matthew had already lost two or more pints of blood. Dr. Kline testified, however, that Matthew's hemoglobin was not far from the low normal of 12.5.

Dr. Kline first examined Matthew at about 7:50 p.m. She testified that at about that time, she considered Matthew's blood pressure normal, but his heart rate "seemed on the high side." Dr. Kline found no evidence of trauma to the head, but a blood spot on the right eye and swelling at the top of the chest and bottom of the neck.

Dr. Kelly called the emergency room at 7:48 p.m. and spoke with Dr. Kline. She told Dr. Kline that she had found another series of images that she had not considered in her initial diagnosis; the second set of images showed that an artery was bleeding in addition to the venous bleeding she observed in her first report. Dr. Kelly faxed a second report to the hospital at 7:57 p.m. containing her amended findings. At that point, Dr. Kline recognized Matthew's situation as life-threatening.

Dr. Zairis, the thoracic surgeon, called the emergency room at 8:10 p.m. and spoke with Dr. Kline. Dr. Kline testified that she provided Dr. Zairis with "the information [she] had gathered from the blood test, the X rays, the CAT scan, [and] Dr. Kelly's conversation about the updated CAT scan" in which she noted there was "active bleeding from [the] right subclavian artery[.]" She told him about Matthew's 11.7 hemoglobin level. Dr. Zairis's memory of that conversation differed somewhat; he testified that his conversation with Dr. Kline gave him the impression that there was no active bleeding and led him to believe that Matthew was in stable condition, with no tachycardia.

The doctors agreed that Matthew would have a better outcome if transferred to Westchester Medical Center (Westchester), a level-one trauma center, where he could be treated by a pediatric thoracic surgeon and pediatric residents. According to Dr. Kline, Dr. Zairis told her that he could not perform the surgery at Pascack Valley Hospital because he did not have the team or equipment to do so there. At 8:30 p.m., Dr. Kline spoke with plaintiff and obtained consent to transfer Matthew to Westchester. The transfer to Westchester was not completed because Matthew's condition began to deteriorate at around 9:45 p.m.

Between 9:46 p.m. to 10:01 p.m., Matthew's heart rate climbed from 135 to 176 beats per minute. He began "screaming out" in pain at roughly 10:00 p.m. and quantified his pain as fifteen out of ten at that time. By 10:02 p.m., his blood pressure had dropped to 43/28. "Total cardiovascular collapse" occurred at 10:20 p.m. The medical experts believed that at some time around 10:00 p.m., Matthew's pleura gave way, allowing blood to flow freely into Matthew's chest cavity.

Dr. Zairis received another call from the hospital at about 10:48 p.m.; he was told that Matthew was in shock and was de-compensating; in other words, his heart was failing to maintain adequate circulation due to loss of blood. Dr. Zairis went to the hospital and examined Matthew at 11:15 p.m. He made his first incision at 11:30 p.m.

When Dr. Zairis opened Matthew's chest, he found "massive venous bleeding coming from the internal jugular vein as well as from the subclavian vein." Matthew's pericardium was filled with 200 cubic centimeters of venous blood, while his pleural cavity was filled with two-and-a-half liters of arterial blood. Dr. Zairis's operative report stated that he was able to control the venous bleeding by repairing the internal jugular vein and subclavian vein with sutures. Dr. Zairis also repaired the tear in Matthew's subclavian artery, but only after he had gone into cardiac arrest, and a cardiac massage was performed. Matthew was pronounced dead on the operating room table at 12:50 a.m.

Plaintiff's expert, Dr. Marc Borenstein, the chairman of emergency medicine at Newark Beth Israel Medical Center, was certified as an expert in emergency medicine and testified concerning whether Dr. Cartaxo met the standard of care for an emergency room doctor. Dr. Borenstein concluded that Dr. Cartaxo's failure to diagnose and treat Matthew's injury in a timely manner increased the risk of harm to Matthew and caused his death. Dr. Borenstein examined the x-ray of Matthew's neck before the jury and noted that the windpipe was being pushed out of its normal position to a "dramatic" degree. Dr. Borenstein opined that, given the sudden swelling of the neck following a physical altercation, "the only thing that can [cause that kind of swelling] in this kind of setting is blood." He dismissed the other potential causes for the swelling listed in Dr. Cartaxo's differential diagnosis as unsupported by Matthew's history or physical exam. Dr. Borenstein further stated that it should have been clear that Matthew's situation was "a major emergency" after the x-ray was read, and that Dr. Cartaxo should have immediately sprung into action to treat the internal bleeding as quickly as possible.

Dr. Borenstein further testified that the standard of care required an emergency room physician, after viewing Matthew's x-ray, to immediately: (1) order a CAT scan to determine with clarity the extent of the bleeding, (2) order a consultation for vascular surgery to stop the internal bleeding that is pushing the airway out of place, (3) consult an ENT doctor regarding the airway, (4) start monitoring the patient's pulse and blood pressure because pulse measurement is "helpful in determining how much bleeding is going on", (5) gain IV access to the patient's bloodstream for intravenous medications or a blood transfusion, and (6) order laboratory work on the patient's blood in case a blood transfusion is necessary.

Specifically, Dr. Borenstein opined that Dr. Cartaxo failed to meet the standard of care by: (1) not sending the patient's blood for lab work until 7:20 p.m., (2) not gaining intravenous access to the patient's bloodstream until 5:00 p.m., (3) not starting blood pressure monitoring until 6:26 p.m., and (4) not ensuring that the CAT scan was completed sooner than 6:15 p.m. Additionally, Dr. Borenstein found significant that Dr. Cartaxo did not page a vascular surgeon until 6:53 p.m., whereas he should have called one as soon as he received the x-ray results. Dr. Borenstein testified that Matthew was "salvageable" until 10:30 p.m.

On cross-examination, Dr. Borenstein admitted that Matthew's injury a tear of the subclavian artery and two venous bleeds was uncommon, given the absence of observable high-force trauma. Nevertheless, Dr. Borenstein maintained that the x-ray definitively demonstrated a life-threatening bleed into Matthew's neck, an injury that is usually, but not always, caused by dramatically visible trauma. Dr. Borenstein emphasized that Matthew reported to the triage nurse that he had been kicked in the face, and that the kick certainly could have been violent, even if the physical signs were not very apparent.

In cross-examining Dr. Borenstein, defense counsel cited an article published in the Journal of Vascular Surgery to show that vascular injury is typically accompanied by signs of extreme trauma. Dr. Borenstein agreed that the article demonstrated, in defense counsel's words, that "none of the [167] patients in the study had just a tear in [the] subclavian artery, they all had some other physical external damage." That same article was used to imply that Matthew could have been saved by timely treatment.

Dr. James A. Espinosa, a board-certified emergency room physician and associate professor of emergency room medicine at the University of Medicine and Dentistry of New Jersey, was qualified as an expert in emergency medicine. Dr. Espinosa testified that Dr. Cartaxo's care of Matthew was "absolutely appropriate." Dr. Espinosa cited with approval the actions taken by Dr. Cartaxo between 3:30 p.m. and 7:00 p.m. and opined that Matthew's injury was "an extraordinarily rare unusual injury" that was "very difficult to diagnose." Dr. Espinosa further stated that to get a patient from first consultation to a CAT scan in two hours, as Dr. Cartaxo did, actually exceeded the standard of care. He believed that "the timing of the CAT scan was consistent with someone who's being moved as an urgent or beginnings of an emergent kind of a patient." Dr. Espinosa "absolutely disagree[d]" with Dr. Borenstein's contention that the x-ray should have alerted Dr. Cartaxo to the strong likelihood that Matthew was bleeding internally from the neck. He would have expected a patient with a vascular injury to be "in . . . shock [and] lethargic and deteriorating from it" or to be exhibiting a "history of penetrating trauma" such as a gunshot or stab wound, or to have a fracture of the clavicle or ribs or alteration of anatomy. Matthew was not even bruised.

Dr. Espinosa also stated that the mass that displaced Matthew's trachea in the x-ray could possibly have been a tumor that was growing unnoticed but only became painful after Matthew's fight with his mother, or could have been an abscess filled with infectious fluid. At that point, it was "a hundred to a thousand times more likely" that the mass was an abscess rather than the type of bleeding that actually killed Matthew. Thus, it would have been premature to call a vascular surgeon before receiving the CAT scan results. With regard to Matthew's elevated heart rate at 6:26 p.m., Dr. Espinosa opined that a doctor acting within the standard of care could have attributed it to the anxiety of being in a "hectic environment" in the emergency room. A heart rate of 118 beats per minute would not itself indicate that Matthew was suffering from an active bleed.

Dr. John K. Edoga was qualified as an expert in vascular surgery and testified that in thirty-five years of practice, he had performed operations to repair injuries to the subclavian artery caused by blunt trauma three times. Dr. Edoga testified that Matthew would have survived if operated upon by 8:00 p.m. In his opinion, Matthew's case contained "no special conditions" or "difficult maneuvers" that would have precluded a positive outcome.

Dr. Zairis agreed that had he been called to perform surgery on a subclavian artery at Pascack Valley Hospital he would have had the instruments and equipment necessary to complete the surgery. He was extremely surprised when he witnessed the extent of Matthew's internal injuries. Dr. Zairis had not seen an injury like Matthew's in twenty years performing thoracic surgery at Pascack Valley Hospital.

Dr. Jerry Scott Bergman, a board-certified practicing pediatric surgeon and former director of pediatric trauma at Morristown Memorial Hospital, was qualified as an expert in pediatric trauma and surgery. Dr. Bergman reviewed the autopsy and operative report and provided an expert opinion regarding the severity of Matthew's injuries. Dr. Bergman concluded that even if a CAT scan had been ordered at 3:30 p.m. and read shortly thereafter, Matthew's injuries were so grave and complex that earlier diagnosis and treatment would not have changed Matthew's fate.

According to Dr. Bergman, the injury was exceedingly rare; he had never seen, read, or heard of such an injury in his years of practice. He explained that Matthew actually suffered "four separate injuries, two to the arteries and two to the veins." He believed that the article from the Journal of Vascular Surgery was inapplicable to Matthew's case because the injuries described there were single injuries further away from the aorta with limited associated venous injury.

Dr. Raymond S. Wojtalik was qualified as an expert witness in peripheral vascular surgery and opined that Matthew would have died even if surgery was attempted at Pascack Valley Hospital at 8:00 p.m. or shortly thereafter. He reached that opinion because Pascack Valley lacked (1) a surgeon with experience operating on major chest trauma; (2) a "cell saver," which is an instrument that allows red blood cells lost by the patient to be processed and put back into the patient's blood stream; (3) the ability to put Matthew on bypass, so that his circulation could be controlled without using the heart; and (4) the ability to use a covered stent to control the arterial bleeding. Dr. Wojtalik explained that while the chances of a patient recovering from a single injury to the subclavian artery or vein was roughly eighty-five percent, Matthew's multiple internal arterial and venous injuries would have killed him even if surgery had been performed earlier.

Christina Calbi, Matthew's cousin, testified with regard to Matthew's observable pain and suffering. She arrived at the hospital at about 5:30 p.m. and saw Matthew in his hospital bed approximately fifteen minutes later. When she saw Matthew, she "thought his clavicle was broken" because his neck was extremely swollen. Before Christina left the hospital at 7:50 p.m., she observed that Matthew was becoming "more and more agitated and . . . in more pain and his condition was deteriorating very rapidly, it seemed[.]" She further testified "he was squirming around, he couldn't get comfortable, he . . . would lay back, sit up, you know, he would ask for a soda, but he couldn't drink it[.]" He kept asking questions such as "[A]m I gonna be okay"? "[W]hen can I go home"? and "[A]m I gonna die"? Christina also observed that Matthew's "coloring was terrible[.]" He did not get out of bed while she was there.

Dr. Matityahu Marcus, a retired professor of economics, was qualified as an expert in calculation of loss of services. Dr. Marcus testified that the value of Matthew's services to plaintiff could reasonably be expected to be worth $19 to $55 per hour the lower sum representing basic services such as meal preparation and cleaning, and the higher sum representing time spent on guidance and advice in financial, personal, and health issues. Dr. Marcus told the jury to calculate a yearly value based on reasonable assumptions, and then to multiply the yearly loss by plaintiff's remaining life expectancy of 23.6 years. On cross-examination, defense counsel elicited a calculation Dr. Marcus made in his report, assuming that Matthew would have provided six hours of services per week until plaintiff's sixty-fifth birthday, and then twelve hours per week thereafter; that calculation yielded a value in the range of $224,120 to $648,768.

The matter was initiated by filing a complaint in July 2005 naming Dr. Cartaxo, PES, Dr. Roxana G. Kline, The Moss and Geuder Surgical Group and Pascack Valley Hospital. After two years of litigation, on October 28, 2007, defendants Dr. Cartaxo, PES, and Dr. Schreiber filed a third-party complaint against Linda Calbi, Matthew's mother. Plaintiff, thereafter, filed a motion to sever the third-party complaint against Linda Calbi. Plaintiff's motion was denied. We granted leave to appeal to determine whether the trial judge was in error in denying plaintiff's motion to sever the medical malpractice claim from defendants' third-party indemnification action against Linda Calbi. In an unpublished opinion decided January 30, 2009, we found no error in the trial court's refusal to sever the claims. Calbi v. Moss & Geuder Surgical Group, P.A., No. A-5330-07T1 (App. Div. January 30, 2009) (slip op. at 12).

On February 13, 2009, Dr. Cartaxo and PES filed a motion for summary judgment against Linda Calbi on their indemnification claims against her. Dr. Kline filed a separate motion for summary judgment seeking indemnification. On March 11, 2009, Judge Elijah L. Miller, Jr., granted summary judgment to Dr. Cartaxo, PES, and Dr. Kline on all indemnification claims against Linda Calbi. That ruling is not challenged in this appeal.

Judge Robert L. Polifroni presided over the jury trial,2 which began on April 13, 2009, and ended on May 14, 2009. On May 14, 2009, the jury returned an unanimous verdict finding that Dr. Cartaxo deviated from accepted standards of medical practice, that his deviation increased the risk of harm posed by the decedent's pre-existing condition, and that Dr. Cartaxo failed to prove, by a preponderance of the credible evidence, that a portion of the plaintiff's "ultimate injury would have occurred, even if the defendants' treatment was proper." The jury unanimously found that Dr. Kline had not been negligent in caring for Matthew. The jury apportioned damages of $2,100,000 for pain and suffering and $287,500 in pecuniary losses for wrongful death.

Defendants moved for a new trial or, in the alternative, for remittitur, as to which Judge Polifroni entertained oral arguments on July 21, 2009. On August 3, 2009, Judge Polifroni denied plaintiff's decedent's motion in a comprehensive oral decision from the bench. Defendants Dr. Cartaxo and PES appealed. Dr. Kline filed a brief in response urging the court to uphold the jury's verdict of no cause for action rendered in her favor.

I.

Appellants first argue that the verdict was against the weight of the evidence since plaintiff failed to establish causation and the jury failed to apportion any damages to the pre-existing condition. We reject both arguments.

Rule 4:49-1(a) provides that a court shall grant a motion for 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." On appeal, the standard of review is substantially the same. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008). We "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Ibid. (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).

A plaintiff seeking damages in a medical malpractice action must establish, by way of expert testimony, "(1) the applicable standard of care, (2) a deviation from that standard of care, and (3) that the deviation proximately caused the injury." Gonzalez v. Silver, 407 N.J. Super. 576, 586 (App. Div. 2009). Where the plaintiff suffered from a pre-existing condition at the time of the allegedly negligent care, proximate causation is governed by a two-part substantial factor analysis. Ibid. The substantial factor analysis asks "'whether the defendant's deviation from standard medical practice increased [the] patient's risk of harm or diminished [the] patient's chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm.'" Id. at 587-88 (quoting Verdicchio v. Ricca, 179 N.J. 1, 24 (2004)). In Verdicchio, the Supreme Court explained:

Conduct is a substantial factor if it would "lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense. Under the 'substantial factor' test, the defendant's negligence need not be the sole or primary factor producing the injury; it need only be a substantial factor. Thus the test covers the situation where there may be several substantial factors contributing to the same result."


[Verdicchio, supra, 179 N.J. at 24-25 (quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation 4.03, 4-4 (West Group 2002)).]

To be a substantial factor, the "defendant's negligent conduct cannot be a remote or an inconsequential contributing factor. It must play a role that is both relevant and significant in bringing about the ultimate injury." Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). It is ultimately for the jury to decide "[w]hat is 'sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause[.]'" Id. at 283 (quoting Scafidi v. Seiler, 119 N.J. 93, 109 (1990)).

In Verdicchio, the plaintiff presented expert testimony stating that the defendant doctor deviated from the standard of care by failing to diagnose the decedent's cancer during a consultation. Id. at 31. The expert opined that the passage of time following that consultation had made the cancer less remediable when it was eventually discovered and that, as a result of the doctor's negligence, the decedent's chance of survival had been reduced. Id. at 31-32. The Court held that the plaintiff was not required to assert specific facts establishing the decedent's prognosis at the time of the failed diagnosis; it was enough to establish, by way of expert testimony, that the increased risk to which the decedent was exposed by the defendant's negligence was a substantial factor in producing the ultimate harm of death. Id. at 31-33.

In the present case, there was adequate evidence supporting the jury's finding of proximate cause. As recounted above, Dr. Borenstein opined that Dr. Cartaxo failed to meet the standard of care for an emergency room physician because he should have recognized that Matthew was suffering a massive internal bleed at about 4:00 p.m. when he read the x-ray that revealed significant displacement of Matthew's trachea. In Dr. Borenstein's opinion, the standard of care required Dr. Cartaxo to have immediately started treating Matthew for that condition by organizing the personnel necessary to conduct surgery to repair the bleeding. Because he did not do so, Matthew was not seen by a vascular surgeon until 7:30 p.m. and a thoracic surgeon was not even telephonically briefed on Matthew's case until 8:10 p.m. In fact, Dr. Cartaxo spoke to Dr. Zairis, at 7:07 p.m., but nothing else was explained about the contents of that conversation. The jury reasonably could have inferred that Dr. Cartaxo had an opportunity to convey the extent of the emergency to Dr. Zairis and failed to do so. Thus, Dr. Cartaxo's negligence resulted in a lost opportunity to operate on Matthew before 8:00 p.m.

Meanwhile, Dr. Edoga testified that Matthew could have been saved if he had gone into surgery by 8:00 p.m. On the other hand, Dr. Wojtalik, testified that it became impossible to perform life-saving surgery on Matthew at Pascack Valley Hospital at 8:00 p.m. or shortly thereafter. The jury therefore was capable of finding that Dr. Cartaxo's failure to adhere to the standard of care caused a delay that prevented appropriate specialists from becoming meaningfully involved in Matthew's case until after the window of opportunity to save him had closed.

Though Dr. Borenstein never explicitly stated that Dr. Cartaxo could have arranged for surgery to have commenced before 8:00 p.m., it is fairly inferable that that would have been the case had Dr. Cartaxo taken the steps that Dr. Borenstein testified were demanded by the standard of care. Plaintiff's experts presented facts and opinions establishing a causational link: Dr. Cartaxo's negligence delayed surgery, and timely surgery could have saved Matthew by stopping his bleeding.

We also find no merit in appellants' argument that the jury's lack of apportionment of damages to the pre-existing injury demonstrates a misunderstanding on the jury's part. Where a doctor's negligence exacerbates a pre-existing condition, damages are limited "to the value of the lost chance of recovery attributable to defendant's negligence." Scafidi, supra, 119 N.J. at 97. However, the defendant, not the plaintiff, bears the burden of proving that the damages are capable of reasonable apportionment. Verdicchio, supra, 179 N.J. at 37. Where a defendant fails to prove that damages should be apportioned, he may be held one-hundred percent liable for the plaintiff's losses. Id. at 38.

In charging the jury, the judge explained that Matthew came to Pascack Valley Hospital with "a pre-existing condition, i.e., various injuries to his arteries and veins, which by themselves had a risk of causing the plaintiff the harm he ultimately experienced in this case." The judge properly instructed that plaintiff bore the burden of proving that Dr. Cartaxo was negligent, that the negligence increased the risk of harm posed by the pre-existing condition, and that the increased risk must have been a substantial factor in bringing about the ultimate harm or injury. The judge then explained that "[i]n cases where the defendants' negligence accelerated or worsened the plaintiff's condition, the defendants are responsible for all the plaintiff's injuries, unless the defendants are able to reasonably apportion damages." The judge thereafter clarified how the defendants may meet that burden:

If the defendants can prove that an apportionment can be reasonably made separating those injuries the plaintiff would have suffered anyway, even with appropriate and/or timely examination, assessment, and treatment, [from] those injuries the plaintiff suffered due to the failure to perform appropriate and/or timely examination, assessment, and treatment, then the defendants are only liable for that portion or percentage of the injuries the defendants prove are related to the plaintiff's original condition.

On the other hand, if you find that the defendants have not met the burden of proving that plaintiff's injuries can be reasonably apportioned, then the defendants are responsible for all of the plaintiff's harm or injury.


Thus, the instructions specifically permitted the jury to apportion one-hundred percent of the damages to Dr. Cartaxo if it found that defendant failed to prove that Matthew's injuries could be reasonably apportioned to his pre-existing injury.

Dr. Edoga testified that earlier surgery could have saved Matthew's life, while Dr. Borenstein testified that Dr. Cartaxo's failure to arrange for surgery in a timely manner was a breach of the standard of care. Testimony was also presented supporting the conclusion that none of the other doctors were negligent in caring for Matthew. From the evidence presented, the jury could have found that timely surgery could have reduced Matthew's injury from death to no injury beyond his condition upon arrival.

II.


Next, appellants argue that the size of the jury's award "bespeaks an obvious intention to punish the defendant, Dr. Cartaxo, rather than compensate plaintiff for injuries," and requires a new trial in which the verdict is not tainted by such improper motivation. In Fertile v. St. Michael's Medical Center, 169 N.J. 481, 498 (2001), the Supreme Court held that "there is no logical reason why the size of a damages award, standing alone, should invalidate an otherwise sound liability verdict." The Court found "[t]o justify a new trial on all issues, what is required is trial error, attorney misconduct or some other indicia of bias, passion or prejudice, impacting on the liability verdict." Id. at 499.

Appellants contend that "the failure of the plaintiff to establish proximate causation and of the jury to allocate liability to the pre-existing condition" constitute indicia of bias, passion, or prejudice that call into question the jury's liability verdict. For the reasons stated above, however, appellants have not established that plaintiff failed to establish causation or that there was error in the jury's decision not to allocate liability to Matthew's pre-existing condition. The jury's verdict on liability therefore will not be disturbed.

III.

Appellants argue that even if not entitled to a new trial on liability, they are entitled to a new trial on damages, or, in the alternative, remittitur "of a substantial amount." Juries, not courts, are entrusted with the task of apportioning the amount of damages awarded in negligence actions. Johnson v. Scaccetti, 192 N.J. 256, 279-80 (2007).

Our civil system of justice places trust in ordinary men and women of varying experiences and backgrounds, who serve as jurors, to render judgments concerning liability and damages. Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion. That is so because there is no neat formula for translating pain and suffering into monetary compensation. Although the measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances, reasonable people may differ on what is fair compensation in any particular case. The "reasonable person" standard, however objective it might be, can be illusory.


[Ibid. (internal citation and quotations omitted).]


In reviewing a jury verdict for excessiveness, our role "is to assure that compensatory damages awarded to a plaintiff 'encompass no more than the amount that will make the plaintiff whole, that is, the actual loss.'" Jastram, supra, 197 N.J. at 228 (quoting Caldwell v. Haynes, 136 N.J. 422, 433 (1994)). Our "authority to set aside damages awards on grounds of excessiveness is 'limited.'" Ibid. (quoting Carey v. Lovett, 132 N.J. 44, 66 (1993). We may only disturb a jury's calculation of damages in "clear cases," Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970), and only "upon the predicate of a determination that there has been a manifest miscarriage of justice," Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977).

"[T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, '[t]he verdict must be "wide of the mark" and pervaded by a sense of wrongness.'" Jastram, supra, 197 N.J. at 229 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Even if generous, a jury award should not be disturbed as long as it is reasonably supported by the record. Id. at 230. A "'judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror.'" Baxter, supra, 74 N.J. at 598 (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

If a jury's damage award is excessive, but its liability determination is supported by the record, courts should invoke the remittitur procedure wherever possible to avoid the "unnecessary expense and delay of a new trial." Fertile, supra, 169 N.J. at 492. Remittitur allows a court to "'require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion'" where damages are excessive and the defendant has moved for a new trial. Jastram, supra, 197 N.J. at 228 (quoting Fertile, supra, 169 N.J. at 491). As in the case of a remand for new trial on damages, a court may disturb a jury's damages award by way of the remittitur procedure only if the jury's award "constitutes a manifest denial of justice." Fertile, supra, 169 N.J. at 500. Because appellants cannot establish that the jury's award constituted a "manifest denial" or "miscarriage" of justice, they are entitled neither to a new trial on damages nor to remittitur. Id. at 500; Baxter, supra, 74 N.J. at 598.

Appellants' argument regarding the amount of damages awarded is essentially that three to six-and-a-half hours, the maximum amount of time Matthew experienced pain and suffering attributable to Dr. Cartaxo's conduct, "can no way be compensated in the amount of $2.1 million." "'No case of personal injuries is ever an exact and binding precedent for another upon the question of excessiveness of a verdict even where there is a close parallelism of facts and circumstances[.]'" Thalman v. Owens-Corning Fiberglas Corp., 290 N.J. Super. 676, 682-83 (App. Div. 1996) (quoting Moore v. Pub. Serv. Coordinated Transp., 15 N.J. Super. 499, 512 (App. Div. 1951)). In denying appellants' motion for a new trial and/or remittitur, the trial court ruled as follows:

Viewing the evidence in the light most favorable to the plaintiff as required pursuant to [Jastram], the jury was free to accept the testimony of the experts that immediate action would have resulted in arrangements for emergency surgery or urgent transport. If that had happened on a timely basis, the jury could reasonably infer from the evidence that the child would have been anesthetized and his pain and suffering would have been limited as would have been his emotional distress and his anxiety that he would die on the emergency room gurney. Although the child would have had pain and suffering up to the point of anesthesia and reasonably could have had some anxiety and even fear of death, the timeframe would have been compacted and the reality of the abbreviated timeframe would have lessened the hours of pain and suffering and anxiety. All of these findings and all of the inferences drawn from these findings were supported by the evidence and the testimony of plaintiff's witnesses.


We are satisfied the jury's calculation of damages for pain and suffering was reasonable, and certainly are not so grossly disproportionate that they constitute a miscarriage of justice. Accordingly, there is no reason to grant appellants' request to order a new trial on all issues or to remit the jury award.

IV.


Finally, we address appellants' argument that Linda Calbi should have been deemed a joint tortfeasor subject to allocation on the jury verdict sheet. In particular, they contend that the failure of the trial court to place Linda Calbi on the jury verdict sheet contravenes Judge Miller's pretrial order.

In the interlocutory appeal that preceded the present appeal, we determined that "[a]ssuming for present purposes the truth of defendants' factual allegations that the fourteen-year-old Matthew arrived at the emergency room with injuries sustained as a result of being kicked in the neck by his mother defendants and Linda Calbi cannot be deemed joint tortfeasors." Appellants argue that "the alleged torts were not separate in nature and this court should not have concluded, as a matter of law, that these claims were separate in nature and time when the facts clearly indicated otherwise." We have previously held that one who brings about an original injury and a negligent doctor who fails to diagnose or negligently treats the existing injury are successive, and not joint tortfeasors. See, e.g., Lawlor v. Cloverleaf Mem'l Park, Inc., 106 N.J. Super. 374, 389-90 (App. Div. 1969), rev'd on other grounds, 56 N.J. 326 (1970), and New Milford Bd. of Educ. v. Juliano, 219 N.J. Super. 182, 185 (App. Div. 1987).

Despite appellants' contention to the contrary, there is no factual evidence in the record to support their allegation that the medical providers were anything but successive tortfeasors after Linda Calbi committed the original tort. Appellants claim that because Linda Calbi refused to answer deposition questions, "the Court must assume that Linda Calbi withheld key information at the hospital from the medical providers which clearly contributed to plaintiff's allegation that there was a delay in treatment." Even assuming Linda Calbi did not candidly disclose that she assaulted her son, the doctor and the hospital personnel were aware of that possible cause of Matthew's injury. Accordingly, we deem that contention is so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The trial court properly instructed the jurors that they could apportion damages to Matthew's pre-existing injuries. There is no merit in appellants' argument that that the failure of Judge Polifroni to place Linda Calbi on the jury sheet contravened Judge Miller's order because Judge Miller "clearly anticipated that Linda Calbi would be on the verdict sheet." Appellants do not cite to any specific language suggesting that Judge Miller considered or intended Linda Calbi's name to be on the verdict sheet.

Affirmed.







1 Differential diagnosis is defined as "the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering, by a systematic comparison and contrasting of the clinical findings." Stedman's Medical Dictionary 769 (26th ed. 1995).

2 Dr. Schreiber, the Moss & Geuder Surgical Group, and Pascack Valley Hospital were dismissed from the matter prior to trial. Dr. Schreiber was dismissed pursuant to a settlement with plaintiff.