BARBARA L. JAQUETT v. KENNETH HANN-KIM UNG M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0070-14T4

BARBARA L. JAQUETT,

Plaintiff-Appellant,

v.

KENNETH HANN-KIM UNG, M.D.

and LANNIECE F. HALL, M.D.,

Defendants-Respondents,

and

DONALD DENNY, M.D., JOHN GHAZI,

M.D., JORY GOLDBERG, M.D., JASON

D. SMITH, R.N., and UNIVERSITY

MEDICAL CENTER AT PRINCETON,

Defendants.

_____________________________________

October 7, 2015

Argued September 21, 2015 Decided

Before Judges Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1086-10.

Bruce O. Matthews argued the cause for appellant (Gregory V. Sharkey, P.C., attorneys; Mr. Matthews, on the brief).

Sharon K. Galpern argued the cause for respondents (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff appeals from a July 21, 2014 order dismissing her complaint and entering judgment for Dr. Kenneth Hann-Kim Ung and Dr. Lanniece F. Hall (collectively defendants) following a jury verdict of no cause of action.1 We affirm.

We discern the following facts from the evidence adduced at the trial. Plaintiff had a history of bleeding problems relating to her uterus. She sought treatment from Dr. Ung, who is an obstetrician and gynecologist (OB/GYN). Dr. Ung examined her and plaintiff elected to undergo a supracervical laparoscopic hysterectomy.

Dr. Ung performed the operation and Dr. Hall, who is also an OB/GYN, assisted. Plaintiff's expert, Dr. Richard Luciani, did not criticize how defendants performed the hysterectomy. His criticism focused on the end of the procedure, when defendants visualized the bowel, detected no evidence of bleeding, and closed the incision. He opined that defendants missed a perforation of the bowel.

A day after defendants completed the hysterectomy, plaintiff complained of pain. Dr. Ung then consulted with a general surgeon about plaintiff's post-operative complaints. The general surgeon performed exploratory surgery and discovered the perforation located in the intestine near the abdomen.

The issue at trial was whether defendants deviated from accepted medical standards before they closed the incision at the end of the surgery. Dr. Luciani testified that the standard of care for detecting injuries to the intestine after completing a laparoscopic hysterectomy required defendants to run the bowel. Dr. Luciani testified that running the bowel is a medical phrase which means to perform a "thorough exploration of the bowel." Dr. Luciani opined that the only way to properly inspect the bowel at the end of the hysterectomy for evidence of injury was to run the bowel.

Defendants' expert, Dr. Anthony Quartell, opined that OB/GYNs are not trained to run the bowel. Dr. Quartell explained that if an OB/GYN sees bleeding at the end of the hysterectomy, then the OB/GYN should call a general surgeon, who would then decide whether to run the bowel. Because there was no evidence of plaintiff bleeding when defendants finished the hysterectomy, Dr. Quartell testified that it was unnecessary to call a specialist. The jury agreed with Dr. Quartell.

On appeal, plaintiff argues that the judge used a flawed verdict sheet and gave a poor jury charge. She maintains that the judge inaccurately summarized Dr. Luciani's testimony in the final jury charge. Plaintiff asserts that the questions on the verdict sheet pertaining to the standard of care were too narrow. As a result, plaintiff contends that she received an unfair trial.

I.

We turn first to plaintiff's argument regarding the adequacy of the jury instructions. We acknowledge that proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). The failure to provide clear and correct jury charges may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

"Because plaintiff did not object to the charge at trial, we consider whether in the interests of justice we should recognize plain error. See R. 2:10-2. We must determine whether any error in the charge had the clear capacity to produce an unjust result." R. 2:10-2. Toto v. Ensuar, 196 N.J. 134, 148 (2008). Failure to object to the jury charge at trial raises the presumption that the instructions were adequate, see State v. Macon, 57 N.J. 325, 333 (1971), and importantly that trial counsel perceived no prejudice affecting the plaintiff's substantial rights. State v. Wilbely, 63 N.J. 420, 422 (1973).

Applying these principles, we have reviewed the charge in its entirety and see no error, let alone plain error.

Plaintiff's counsel erroneously suggests Dr. Luciani opined that defendants deviated from accepted medical standards by not only failing to run the bowel, but also by not inspecting the bowel. As a result, plaintiff argues that the judge erred in the jury charge when he stated

The plaintiff alleges the defendants deviated from the standard of care in failing to perform a proper inspection by running the bowel at the end of the laparoscopic hysterectomy.

The judge's charge, however, comported with Dr. Luciani's trial testimony regarding the standard of care. Dr. Luciani gave the following testimony

Q: Doctor, are you -- uh, are you aware of any other way to, uh, inspect a bowel, other than to run it?

A: [W]hen you are in a large operative field, which we have in this case, right from the belly button down to the pelvis, and there's a whole lot of intestine sitting in that field, small bowel, large bowel, the only way that you could adequately look at that bowel in a case like this would be to run the bowel, exactly the way [the general surgeon] did when she went back into the operating room on the second surgical procedure. That's the only way you could see that there was no injury to the bowel.

[(Emphasis added).]

Dr. Luciani therefore explained that the accepted medical standard required defendants to inspect the bowel solely by running it. And the final jury charge comported with that testimony.

II.

We now turn to the appropriateness of the verdict sheet. A reviewing court applies the same standard when evaluating the adequacy of jury interrogatories or a verdict sheet as it does for jury instructions. Wade, supra, 172 N.J. at 341. Jury interrogatories and verdict sheets are meant to serve particular purposes: "to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968).

"[I]n reviewing [the verdict sheet] for reversible error, [appellate courts] should consider it in the context of the charge as a whole." Ponzo v. Pelle, 166 N.J. 481, 491 (2001). If the court's oral instructions "were sufficient to convey an understanding of the elements [of the cause of action] to the jury, and . . . the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless." State v. Gandhi, 201 N.J. 161, 197 (2010). Indeed, generally a verdict sheet is not grounds for reversal unless it was "misleading, confusing, or ambiguous." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).

Applying these standards of review, we conclude plaintiff's argument, that the judge used a flawed verdict sheet, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief remarks.

The verdict sheet contained the following interrogatories which the jury answered in the negative

1. Has the plaintiff proven that Dr. Ung was negligent in failing to perform a proper inspection by running the bowel at the end of the procedure?

. . . .

3. Has the plaintiff proven that Dr. Hall was negligent in failing to perform a proper inspection by running the bowel at the end of the procedure?

In addition to these two questions, plaintiff argues that the verdict sheet should have asked whether defendants failed to perform an inspection at the end of the procedure. The verdict sheet, however, considered in the context of the jury charge as a whole, was not "misleading, confusing, or ambiguous." Sons of Thunder, 148 N.J. 396 at 418. It too comported with Dr. Luciani's testimony.

Affirmed.

1 Plaintiff's claims against the other parties have been dismissed and they do not participate in this appeal.