MARLA STEINHAUER et al. v. MARSHALL COOPER, D.P.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0096-04T50096-04T5

MARLA STEINHAUER and

JEFFREY STEINHAUER, her

husband, per quod,

Plaintiffs-Appellants/

Cross-Respondents,

v.

MARSHALL COOPER, D.P.M.,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 
Telephonically argued November 17, 2005 -

Decided March 28, 2006

Before Judges Stern, Fall and Parker.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-8085-00.

Jane S. Kelsey argued the cause for appellant/

cross-respondent (Lum, Danzis, Drasco & Positan,

attorneys; Ms. Kelsey and Dennis J. Drasco, of

counsel; Ms. Kelsey, Mr. Drasco, Kevin J. O'Connor

and Michael J. Plata, on the brief).

Joseph K. Cooney argued the cause for respondent/

cross-appellant (Widman, Cooney & Wilson, attorneys;

Mr. Cooney, of counsel; Colleen L. Brandt, on the

brief).

PER CURIAM

In this medical malpractice case, plaintiff Marla Steinhauer appeals from a judgment entered after the trial judge granted her motion for additur and applied the jury's apportionments. The jury awarded plaintiff $50,000 but attributed only twenty percent of plaintiff's "ultimate injury" to defendant's malpractice and apportioned fifty percent of her non-preexisting condition to her "avoidable consequences," resulting in a molded verdict of $5,848.56. Following plaintiff's motion for a new trial, the trial judge increased the verdict to $250,000, but denied plaintiff's motion to set aside the jury's apportionments. The apportionments were calculated on the $250,000 amount resulting in a final judgment awarding $25,000. Plaintiff appeals from that judgment.

Defendant, Dr. Marshall Cooper, is a podiatrist who treated plaintiff. The facts involving plaintiff's various foot conditions and medical history were hotly contested and focused on whether plaintiff had a preexisting condition of osteomyelitis in her left great toe several years before the events that led to this lawsuit. Plaintiff maintained that the osteomyelitis was a preexisting condition and defendant contended it was not.

Beginning in 1986, plaintiff was treated by another physician for infections in her left foot which led to several surgeries, treatments, doctors' visits and hospitalizations. The events giving rise to this complaint began on October 15, 1998, when plaintiff saw Cooper for treatment of athlete's foot. On October 26, 1998, plaintiff returned with a pain in her left great toe. Defendant diagnosed a fungal infection and suggested removal of the nail.

Plaintiff maintains that removing the nail "reactivated" the osteomyelitis and alleges that defendant failed to undertake appropriate diagnostic testing to determine whether the osteomyelitis had returned. After the nail was removed on November 11, 1998, the wound worsened and reddened with persistent drainage and pain. Defendant prescribed an antibiotic but no testing was done and no x-rays were taken. Plaintiff continued to have significant problems with the infected toe and defendant prescribed an oral antibiotic. Plaintiff did not tolerate the antibiotic well but continued the treatment until November 27, 1998, when she was hospitalized because of the infection in her toe. While she was hospitalized, defendant cultured the infection and found it to be staphylococcus. Nevertheless, he did not order a bone scan or perform a bone biopsy.

Plaintiff continued to take the antibiotic somewhat sporadically, but the infection worsened and she was re-hospitalized in December 1998. At that point, an x-ray indicated no bone infection. It was not until a bone scan was performed that the osteomyelitis was discovered. Defendant then amputated part of the toe to remove the infected bone. The amputation was apparently unsuccessful in stopping the infection, however, and plaintiff ultimately had the entire great toe removed in January 1999. By February 2, 1999, plaintiff was still suffering from the infection and was referred to an infectious disease specialist who placed her on an intravenous antibiotic which resulted in other difficulties with the intravenous administration. Defendant then performed a surgical debridement, which was unsuccessful and the infection persisted.

In May 1999, plaintiff was referred to an orthopedic surgeon in New York City who performed additional surgical procedures to remove the infected tissue. After that proceeding, the wound finally healed, but plaintiff was required to undergo ten additional surgical procedures on her left foot. At trial, plaintiff's expert testified that plaintiff remained at risk for further amputation and that she had a permanent deformity of the left foot that caused her constant pain.

In this appeal, plaintiff argues that the trial court erred in (1) giving a Scafidi/Fosgate jury charge; (2) charging the jury on avoidable consequences; and (3) granting an additur of only $200,000 because the amount was insufficient and against the weight of the evidence.

I

Plaintiff contends that although the case falls within the parameters of Scafidi v. Seiler, 119 N.J. 93 (1990), the trial judge erred by instructing the jury on Fosgate v. Corona, 66 N.J. 268 (1974), because defendant failed to establish that damages could be apportioned and failed to provide evidence of a specific percentage. Plaintiff concedes that she did not object to the charge at trial. She argues, however, that the trial judge committed plain error resulting in an arbitrary and unjust award.

In Scafidi, the Supreme Court held:

Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result.

[119 N.J. at 108 (citing Evers v. Dollinger, 95 N.J. 399, 417 (1984)).]

When presented with a Scafidi charge, a jury must undertake a two-prong analysis. First, "the evidence must permit a jury to find that defendant was negligent and that defendant's negligence increased plaintiff's risk of harm from an established preexistent condition." Anderson v. Picciotti, 144 N.J. 195, 206 (1996). If the first prong is satisfied, it is established that "there are concurrent causes of the harm to the plaintiff." Ibid. The jury must then apply the "substantial factor" standard of causation - not the typical "but for" causation test. Id. at 206-07.

"The 'substantial factor' standard directs a jury to determine whether the deviation in the context of the preexistent condition 'was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.'" Id. at 207 (quoting Scafidi, supra, 119 N.J. at 109). This standard is consistent with the notion that "a tortfeasor should be charged only with the value of the interest he [or she] destroyed." Scafidi, supra, 119 N.J. at 112 (quoting Joseph H. King, Jr., Causation, Valuation and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1356 (1981)). If the case falls within the Scafidi parameters, "then a plaintiff cannot avoid apportionment of damages." Anderson, supra, 144 N.J. at 211 (citing Scafidi, supra, 119 N.J. at 111).

In Fosgate, the Court recognized the general principle that "a defendant whose acts aggravate a plaintiff's preexisting condition is liable only for the amount of harm actually caused by the negligence."

[W]here the malpractice or other tortious act aggravates a preexisting disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are.

[Fosgate, supra, 66 N.J. at 272-73.]

Here, the trial court gave the Scafidi/Fosgate apportionment of damages instruction:

In this case the plaintiff Marla Steinhauer contends that she told the defendant Dr. Marshall Cooper that she had a preexisting condition osteomyelitis of her left toe which had been treated approximately 12 years prior to the problem for which she sought treatment with Dr. Cooper in 1998. . . . Defendant agrees that plaintiff did tell him of her treatment for osteomyelitis by other physicians in 1986 and 1987. Plaintiff contends that the defendant departed from the standard of care of a doctor of podiatric medicine by failing to take a proper medical history of plaintiff's past injuries, by removing the nail of her large toe instead of treating her infection with antibiotics, and by failing to remove all of the necrotic bone from her toe. If you determine that the defendant was negligent then you must decide what is the chance that the plaintiff would not have required the amputation of her great toe if the defendant had not been negligent? Thus, if you decide that the defendant doctor was negligent you must decide to what extent [were] plaintiff's injuries caused by a preexisting medical condition and to what extent were the injuries caused by the defendant's negligence.

When the plaintiff came to the defendant she had a preexisting condition known as osteomyelitis, which by itself had the risk of causing the plaintiff the harm to which she ultimately experienced in this case. However the plaintiff claims that the defendant's negligence increased the risk of harm . . . and contributed to the ultimate injury of an amputation of her great toe and subsequent infections and surgeries to her left foot. To establish that the defendant's negligence was a cause of her injuries or damages plaintiff must first prove that the defendant's negligence increased the risk of harm posed by the plaintiff's preexisting condition.

Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury.

If the negligent act is only remotely or insignificantly related to the ultimate harm or injury then the negligent act does not constitute a substantial factor. However, the defendant's negligence need not be the only cause nor even a primary cause of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury. Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the preexisting condition. If under all of the circumstances here, including the alleged failure to take a proper medical history performing a surgical removal of her toenail instead of treating her condition with antibiotics or failing to remove all the necrotic bone you find that the plaintiff may have suffered lesser injuries if the defendant was not negligent then the defendant is liable for the plaintiff's increased injuries.

On the other hand, if you find that the plaintiff would have suffered the same injuries even if the defendant was not negligent then the defendant is not liable to the plaintiff. If you find that the plaintiff has proven that the defendant was negligent the plaintiff is not required to quantify or put a percentage on the extent to which the defendant's negligence added to all of the plaintiff's final injuries. In cases where the defendant's negligence accelerated or worsened the plaintiff's preexisting condition the defendant is responsible for all of the plaintiff's injuries, unless the defendant is able to reasonably apportion the damages, and that's why I told you earlier when I said the burden of proof that there are certain things the defendant doesn't have to prove - doesn't have to have a burden of proving that he wasn't negligent. The defendant does have certain burdens, and here's one of them.

If the defendant claims that all or part of the plaintiff's injuries would have occurred anyway then the defendant and not the plaintiff has the burden of proving what percentage of the plaintiff's injuries would have occurred even if the defendant had not been negligent. If the injuries can be so apportioned then the defendant is responsible only for the amount of ultimate harm caused by his negligence. For example, if the defendant claims that the plaintiff was prone to infection and was resistant to treatment by antibiotics and would have suffered the loss of her great toe even if the defendant took a more detailed history and did not remove her infected nail, and if the defendant can prove that an apportionment can reasonably be made separating those injuries the plaintiff would have suffered anyway even with timely treatment then those injuries the plaintiff suffered due to the delay in treatment than the defendant is only liable for that portion or percentage of the injuries the defendant proves is related to the delay in treatment of the plaintiff's original condition.

. . . .

On the other hand, if you find that the defendant has not met the defendant's burden of proving that the plaintiff's injuries can be reasonably apportioned then the defendant is responsible for all of the plaintiff's harm or injury. When you determine the amount of damages to be awarded to the plaintiff if you so determine, and you can only determine that if you find that the plaintiff has met her burden of proving that the plaintiff was medically - that defendant was medically negligent and aggravated a preexisting condition or that he failed to give her proper informed consent you should award damages for all of the plaintiff's injuries. Your award will not be reduced by your allocation of harm, that adjustment in damages, which may be required will be performed by the Court. So if you find, for example, that the plaintiff was responsible for part of - part of her injuries would have occurred anyway and part were caused by the doctor you make that determination. If you get to the damages portion you just assess an amount of damages for the total injury, that amount would be reduced by whatever percentage you find was the responsibility of the plaintiff.

If you decide that the plaintiff is entitled to damages for her injuries you should then determine whether any of the plaintiff's injuries could have been avoided or alleviated by the plaintiff's exercise of reasonable care to protect her own health. This is called mitigation of damages. It is a general rule that a plaintiff injured by another's negligence or wrongdoing has a duty to exercise reasonable care to seek and submit to medical treatment in order to effect a cure and minimize damages. Failure or refusal to do so bars recovery for consequences which could have been avoided by the exercise of such care. In other words, damages that could have been prevented by the plaintiff's exercise [of] reasonable care are not the responsibility of the defendant.

Plaintiff maintains that the trial court erred in giving that charge because defendant presented no evidence on apportionment of damages and failed to meet his burden under Scafidi. Defendant responds that "[i]t was the plaintiff[ ] who presented substantial evidence that [she] had pre-existing osteomyelitis and that the defendant's negligent removal of the nail reactivated [the infection] resulting in plaintiff's injuries." Defendant points out that he refuted plaintiff's preexisting condition and maintained that the nail bed was appropriately removed and that all subsequent treatment was in accordance with accepted standards of care. Defendant argued throughout the trial that plaintiff's injuries were the result of "her unusual susceptibility to infection and inability to fight" it. Defendant notes that to require him to bear the burden of apportioning which damages are due to the deviation and which are due to the preexisting condition "flies in the face of fairness and common sense," in view of his "vehemently contest[ing] that the plaintiff even had a preexisting condition of osteomyelitis."

Plaintiff argues that we should apply the plain error standard here because the results were unjust. We will apply the plain error standard of review because plaintiff did not object to the charge at trial. Under that standard:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

We agree that defendant should not bear the burden of presenting evidence contrary to his consistent position at trial. In our view, the Scafidi/Fosgate charge given by the trial court adequately instructed the jury to make its determination based upon the evidence presented. The jury had the opportunity to hear both parties' experts, as well as the parties themselves. They had the opportunity to review all of the evidence and consider the apportionment issue fully and fairly. We are satisfied, therefore, that there was no plain error in the jury charge.

II

Plaintiff next argues that the trial court erred in instructing the jury on "avoidable consequences" over her objection. The avoidable consequences doctrine

proceeds on the theory that a plaintiff who has suffered an injury as the proximate result of a tort cannot recover for any portion of the harm that by the exercise of ordinary care he could have avoided. The injured person may not recover damages that do not result proximately from the defendant's breach of duty. Damages that might be avoidable or mitigated are, therefore, not recoverable.

[Bryant v. Calantone, 286 N.J. Super. 362, 368-69 (App. Div. 1996) (citations omitted).]

Under the doctrine, a claimant "is required to submit to treatment that is medically advisable; failure to do so may bar future recovery for a condition he could thereby have alleviated or avoided." Ostrowski v. Azzara, 111 N.J. 429, 438 (1988) (quoting Ayers v. Jackson Twp., 106 N.J. 557, 603 (1987)). Moreover, "'[t]he doctrine of avoidable consequences affects only the question of diminution of damages; it has no impact on comparative fault (liability) issues.'" Bryant, supra, 286 N.J. Super. at 368 (quoting D'Aries v. Schell, 274 N.J. Super. 349, 360 (App. Div. 1994)).

Defendant testified at trial that plaintiff's failure to take the prescribed antibiotics on a daily basis had disastrous consequences:

Well, it's . . . like a train, a locomotive. You take the train off, you start slowly building up steam and then your objective is to get from here to that wall. If that locomotive is building up steam, going faster, faster and all of a sudden you turn off the engine, you stop . . . to get going again you've got to turn on the engine[,] you've got to push it, and push it, and push it, and push it along. It's the same thing with antibiotics. You've got to stay on your antibiotics to kill those bacteria, because that bacteria grows so fast and so quickly if you don't keep up with it, stay on it, one dose maybe okay, two, fine, but a couple of doses . . . every few treatment weeks[,] it leads to a lot of problems. You have to stay on antibiotics to lower the infected rate. Get the infection - everyone has taken antibiotics. Those that when you take it it lowers the dose, lowers the infected process. So missing[,] for whatever reason[,] missing the doses was definitely detrimental to the healing process of Marla's problems.

We addressed a plaintiff's failure to take prescribed medication in Bryant. There the plaintiff had a heart murmur and was advised "that if he has any type of dental work performed he must be given antibiotics." 286 N.J. Super. at 365. When the plaintiff was treated by the defendant dentist, he "was aware of his medical condition and was advised that he needed to be given antibiotics both before and after dental treatments." Id. at 371. When the defendant failed "to provide post-procedure medication, plaintiff did not ask him about it, nor did he contact his cardiologist." Ibid. On appeal, we determined that

[a] reasonable jury could conclude that a patient who was told that he had to be medicated for one week both before and after his dental procedure, who was only medicated one hour prior thereto, could have mitigated his damages by inquiring of defendant or his cardiologist about the post-dental procedure medication in an effort to insure that he received proper care. A reasonable jury could conclude based on the evidence, with an appropriate jury instruction, that plaintiff's conduct serves to decrease the amount of his damage award.

[Id. at 371.]

Here, the evidence indicated that on two separate occasions, plaintiff stopped taking her antibiotics at least five times and on at least two occasions she did not seek treatment for her infection in a timely manner. We are satisfied, therefore, that the trial court properly overruled plaintiff's objection to the avoidable consequences jury charge.

III

With respect to the motion for a new trial, plaintiff argues that the trial court's grant of a $200,000 additur was an abuse of discretion and against the weight of the evidence. She contends that the court "compounded that error by refusing to set aside the jury's arbitrary apportionments." Defendant cross-appeals from the order granting the additur and seeks to have the jury verdict reinstated.

"[A] trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). In other words, "the judge cannot validly intrude unless 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49-1(a)).

Our standard of review is not significantly different:

The judgment of the initial factfinder . . . whether it be a jury . . . or a judge as in a non-jury case, is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. The process of "weighing" the evidence is not to encourage the judge to "evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates" and on that basis to decide upon disruption of the jury's finding. "[T]he 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."

. . . .

[W]e think the appellate court must be concerned with the same norm of decision, since that is basic to its ultimate conclusion as to whether justice has miscarried by dint of the trial judge's invasion of the jury's province, where he was not justified in doing so.

[Id. at 597-99 (citations omitted) (emphasis added).]

"Where the issue on the new trial motion is only as to the damages assessed, either by plaintiff claiming inadequacy or the defendant claiming excessiveness, and where the claimant's right to relief is clear and it appears that the verdict was not the result of compromise or otherwise tainted, the techniques of additur and remittitur should be attempted to be employed in order to avoid the unnecessary expense and delay of a new trial." Pressler, Current N.J. Court Rules, comment 1 on R. 4:49-1 (2006) (citing Verdicchio v. Ricca, 179 N.J. 1, 38-39 (2004)).

Here, after hearing oral argument, the trial judge rendered his decision on the record:

I'm aware of the standards under Rule 4:49-1 and I have to see if the jury's verdict was a clear error or mistake; Lancet versus Greenberg, 126, New Jersey 168. And, also, abide by the admonition of the Court in Baxter versus Fairmont Food, 64 New Jersey 588, 598, not to superimpose my judgment upon that of the jury.

This case was ably tried by 2 very well prepared and well organized and excellent counsel. And from my recollection of the record I believe that this jury had before it all of the facts and arguments necessary upon which to decide the apportionment issue and to decide the ultimate issue of medical malpractice, actual medical negligence. They - they were given the benefit by both examination of - and cross examination of all of the witnesses by defense, by defense witnesses and plaintiff's experts as well as by the plaintiff. I believe that they had a feel of exactly what it was that the doctor, Dr. Cooper, allegedly did not do that he should have done or which he allegedly did improperly, whether it was operating too close to an existing osteomyelitis condition or whether it was failing to remove all of the dead bone, I think he called it the necrotic bone, when the infection was surfacing after the operation. I think that the jury was presented by all of the experts in this case with a thorough understanding of the issues, a thorough understanding of the contentions of both parties as to what was the proximate cause of alleged damages suffered by the . . . plaintiff.

[I]f the verdict was so disproportionate to the injury and resulting disability shown as to shock his conscience and convince him that to sustain the award would be manifestly unjust. Frankly, my inclination is that the jury verdict is an appropriate - was an appropriate verdict under the circumstances, however in reviewing the arguments of counsel and the briefs cited - submitted by both sides it would appear that the jury in this case because of the peculiar facts in the case, that is that there was . . . an osteomyelitic condition which had been completely remediated many years, I think 12 years before this operation, this surgery for the nail removal, that the surgery for nail removal was ordinarily absolutely appropriate for cases of this kind, and . . . that the outcome, the continued infections although treated appropriately with antibiotics were inexplicable was something that the jury had before it and the jury might have determined that the medical negligence of the doctor wasn't the proximate cause of much of the plaintiff's sustained injuries. I don't really find much fault, and I can't find much fault with their apportionment. I believe they did have before them all of the information from the various experts on direct and cross examination to make that determination. And, likewise, with the - with the mitigation factors. However, I am persuaded by the argument that for an injury of this kind an award of $50,000 gross award does seem to be unsupported by the testimony of the plaintiff and her experts on the - on the effect of the injury. . . . [I]t would appear that the jury impermissibly apportioned the damages twice, Number 1, an 80 percent to the preexisting and then factored into the fact that there was a preexisting injury in arriving at a $50,000 judgment. I can't substitute myself for the feeling of the jurors, but based upon this jury verdict I believe that it is so disproportionately low to the nature of the injury that it does shock the conscience, and I'm going to order an additur in the amount of 200,000 for a gross award totaling 250,000, but leave the balance of the jury's verdict, the apportionment to preexisting and the failure to mitigate as they are, and the motion for a new trial is denied.

We have carefully considered the record before us, and we are satisfied that the jury's verdict of $50,000 "was a miscarriage of justice under the law." Baxter, supra, 74 N.J. at 596. We are satisfied further that the trial judge correctly increased the verdict to $250,000 and applied the jury's apportionments. We affirm essentially for the reasons stated by Judge Gelade on the record on August 6, 2004.

Affirmed.

 

Plaintiff Marla Steinhauer was the injured party and Jeffrey Steinhauer, her husband, was included as a plaintiff in a per quod claim. When we refer to plaintiff in the singular throughout this opinion, we refer to Marla.

Osteomyelitis is an acute or chronic bone infection usually caused by bacteria.

(continued)

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A-0096-04T5

March 28, 2006