KENNETH R. KOZIEL, et al. v. CHANGEBRIDGE MEDICAL ASSOCIATES, YVETTE X. ZHOU, M.D., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4486-04T24486-04T2

KENNETH R. KOZIEL, Individually

and as Administrator Ad Prosequendum

for the ESTATE OF MARYANNE KOZIEL,

Deceased,

Plaintiff-Appellant,

v.

CHANGEBRIDGE MEDICAL ASSOCIATES,

YVETTE X. ZHOU, M.D., and MARY JO

THOMSON, D.O.,

Defendants-Respondents.

_______________________________________________________________

 

Argued May 17, 2006 - Decided August 3, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Morris County,

Docket No. MRS-L-3363-01.

August R. Soltis argued the cause for

appellant (Iulo & Soltis, attorneys;

Kenneth D. Iulo, of counsel,; Mr. Soltis,

on the brief).

James B. Sharp argued the cause for

respondent Yvette X. Zhou, M.D. (Sharp & Brown,

attorneys; Mr. Sharp, of counsel; Mr. Sharp

and Arleen G. Richards, on the brief).

Thomas J. Pyle argued the cause for

respondent Mary Jo Thomson, D.O.; (Post,

Polak, Goodsell, MacNeill & Strauchler,

attorneys; Jay Scott MacNeill, of counsel;

Nancy Crosta Landale, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff Kenneth Koziel, individually and as administrator for the estate of his wife Maryanne, appeals from a March 23, 2005 jury verdict of no cause for action. We reverse and remand.

The facts giving rise to the claim are as follows. Thirty-eight-year-old Maryanne woke in the early morning hours of January 17, 2001 complaining of chills, fever, feeling "lousy" and pain in the right side of her ribcage while coughing. Maryanne told Kenneth that the pain felt like "pleurisy."

That morning, Kenneth telephoned defendant ChangeBridge Medical Associates (ChangeBridge) to make an appointment for Maryanne. She was seen at approximately 3:20 p.m. that afternoon by co-defendant Dr. Yvette X. Zhou. Maryanne reported that she had right-sided rib pain with increased movements and deep breaths, fever of 102.1, nausea, post-nasal drip, sinus pressure and a cough. She did not have the pain during the office visit, however. Dr. Zhou listened to Maryanne's lungs and found them clear. Maryanne was given a strep test, which was negative. She was diagnosed with the flu and given prescriptions for Tamiflu and Compazine. No chest x-rays were ordered.

Kenneth left on a business trip the next day, January 18. That day, Maryanne called the ChangeBridge office and spoke to co-defendant Dr. Mary Jo Thomson and reported that her fever was 104. Thomson told Maryanne to switch from Tylenol to Motrin to reduce the fever, but did not alert Dr. Zhou of the call. When Kenneth returned on January 20, Maryanne's color was "ashen," she was coughing and still had the pain in her right rib area. Kenneth called ChangeBridge twice on January 20 and indicated that Maryanne's condition was deteriorating, that she was coughing perpetually and holding her right side. Dr. Zhou told him to continue the medications prescribed on January 17.

On January 21, Kenneth took Maryanne to the emergency room at Chilton Memorial Hospital (Chilton), where an x-ray was ordered immediately. She was diagnosed with bilateral pneumonia and immediately placed on antibiotic therapy. Maryanne died almost two months later on March 12, 2001, never having recovered from the pneumonia.

At trial, plaintiff presented two experts. Dr. Joel Duberstein testified that if the x-ray had been ordered immediately on January 17 when plaintiff was initially seen by defendants, it would have disclosed the pneumonia and antibiotic therapy could have been initiated immediately. He opined that the failure to order the x-ray was a substantial factor in causing her death.

Dr. Leon Smith, plaintiff's second expert, testified that Dr. Zhou deviated from the standard of care by not ordering the x-ray on January 17 and that if she had ordered the x-ray and begun immediate antibiotic therapy, Maryanne would have had a 90% chance of survival.

Defendants presented three experts. Dr. Joseph Loeffler, a board certified internist, testified that in reviewing defendants' medical records, plaintiff did not complain of the rib pain when she was in the office on January 17, 2001, although she reported that she had experienced rib pain before coming to the office. In his opinion, Maryanne's symptoms on January 17 were inconsistent with the diagnosis of pneumonia because her respiratory rate was normal and she did not report a shortness of breath or phlegm with her cough. In Dr. Loeffler's opinion, if Maryanne had pneumonia on January 17, the rib pain would have been continuous and not intermittent. He did not believe a chest x-ray was indicated on January 17.

Dr. Franklin Fortunato, a board certified pulmonologist, testified for defendants and opined that on January 17 Maryanne presented with classic influenza symptoms and was appropriately treated with Tamiflu. He also noted that Maryanne developed "fulminant pneumonia," a more serious strain which often does not respond to antibiotics. Fulminant pneumonia most commonly occurs after a viral infection such as flu. "This is the most serious pneumonia. Very often [it] does not respond to antibiotics." In his opinion, Maryanne did not develop fulminant pneumonia until after January 17 because she would not have survived until she went to the emergency room on January 21 without antibiotic therapy.

Dr. Chester Smialowicz, an infectious disease specialist, testified on behalf of defendants that Maryanne tested positive for bacteremia and septicemia in the blood on January 21 at Chilton, which is an indication that the pneumonia had only recently developed.

Against this testimony, the jury found no cause for action against the defendants. In this appeal, plaintiff argues that the trial court erred (1) in charging the jury that the plaintiff had to prove that Maryanne had pneumonia on January 17 and 18 and in compelling the jury to answer jury interrogatories 1 and 2; (2) in charging the jury that Maryanne had a pre-existing condition; and (3) in not allowing plaintiff to cross-examine Dr. Smialowicz on the treatise, Hoeprich's textbook, Infectious Diseases.

With respect to the jury charge, plaintiff argues that the trial court erred in instructing the jury that plaintiff was required to prove that Maryanne had pneumonia on January 17 and 18, 2001. The trial judge gave the following charge:

The plaintiffs through their experts have contended that the decedent, Maryanne Koziel, had pneumonia on January 17th of 2001 and that it should have been diagnosed by way of x-ray on that date.

And that later on the 18th when she spoke again to the defendant doctor, that there should have been follow-up care based on the information that was given at that time and Dr. Thomson should have informed Dr. Zhou or brought the decedent into the office or into the emergency room.

The defendants have contended through their experts that the decedent did not have pneumonia on the 17th and that, therefore, . . . the care that was rendered by Dr. Zhou and Dr. Thomson was perfectly appropriate under the circumstances and that not having that pneumonia on that date certainly would not have led to her death but that it was a pneumonia that was developed later on in the series of events that you have heard some testimony about.

. . . .

Now in connection with the varying theories in the case, namely that the pneumonia was either present or not present on the 17th or the 18th of January, if you were to find that the pneumonia was present, it would be considered for the terms of your analysis a pre-existing condition.

And if you determine that the defendants or either one of them was negligent, then you must also decide what is the chance that the decedent would not have died of pneumonia had the defendant or either one of them not been negligent.

Thus, if you decide that the defendants or either one of them was negligent, then you must decide to what extent the plaintiff's injuries caused the pre-existing medical condition . . . and to what extent the injuries were caused by the defendant's negligence.

There is a factual question for you to resolve as to whether the plaintiff had a pneumonia when she came to the defendant, Dr. Zhou, or when she spoke to the defendant, Dr. Thomson. If you find that there was pneumonia that was an existing or pre-existing condition which by itself had a risk of causing the decedent's death.

However, the plaintiff claims that the defendant's negligence increased the risk of harm and contributed to that death.

. . . .

I'm going to hand out that questionnaire. Give one to the attorneys, also. I've handed you a verdict sheet which will guide you in your consideration of the issues in this case. This is not intended to replace the full instruction that I have just given you, but will lead you through the various questions which need to be answered.

The first question is do you find that Maryanne Koziel had pneumonia on January 17th of 2001. If you answer that question no, you have reached the verdict as far as Dr. Zhou is concerned because [if] she did not have pneumonia, then there was no negligence that led to damage on that date.

If you find that she did, you would then consider whether she had - well, apart and aside from that you would have to consider whether she had pneumonia on January 18th of 2001, and that is the day that Dr. Thomson was involved. If you find that she did not, that would be [the] end of your inquiry and represents a verdict in favor of Dr. Thomson since if there was no pneumonia, there could have been no negligence that led to her death.

"[A]n improper jury instruction is a poor candidate for application of the harmless error rule, and a charge which misleads a jury will require a reversal and a new trial." Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998). "'So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998). "Reversible error, however, will not be found 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." Fischer v. Canario, 143 N.J. 235, 254 (1996).

Plaintiff further argues that the trial court erred in providing the jury with interrogatories 1 and 2 because they imposed on plaintiff the burden of proving that Maryanne did, in fact, have pneumonia on January 17 and 18. The jury interrogatories posed the following questions:

1. Do you find that Maryanne Koziel had pneumonia on January 17, 2001?

Yes______ No______

Go to Question No. 2.

2. Do you find that Maryanne Koziel had pneumonia on January 18, 2001?

Yes______ No______

If "No" as to Question Nos. 1 and 2, you have reached a verdict. If "Yes" as to Question No. 1 or No. 2, or both, go to Question No. 3 or Question No. 7 as appropriate.

The plaintiff cannot be made to bear the burden of proving that Maryanne had pneumonia on January 17 and 18 when the only way he could have proven that fact was through x-rays that plaintiff alleged defendants were negligent in failing to order.

A complication is presented when a physician's deviation from the prevailing standard of care consists of the failure to perform a diagnostic test, because that very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed.

[Gardner v. Pawliw, 150 N.J. 359, 379-80 (1997).]

Requiring the jury to find whether plaintiff proved that Maryanne actually had pneumonia before they considered whether defendants were negligent in deviating from the standard of care is contrary to the standard articulated by the Supreme Court in Scafidi v. Seiler, 119 N.J. 93 (1990).

Because this modified standard of proximate causation is limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm -- as distinguished from cases in which the deviation alone is the cause of harm -- the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Assuming that the jury determines that the deviation increased the risk of harm from the preexistent condition, we use the "substantial factor" test of causation because of the inapplicability of "but for" causation to cases where the harm is produced by concurrent causes. The "substantial factor" standard requires the 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 108-9 (emphasis added) (citations omitted).]

The facts here are similar to Roses v. Feldman, 257 N.J. Super. 214 (App. Div. 1992), in which the plaintiff argued that the defendant was negligent in failing "to order chest x-rays when he treated plaintiff's decedent for cough; that the negligence delayed the diagnosis and treatment of lung cancer; and that this resulted in a lost chance of a better prognosis and, perhaps, survival." Id. at 215. The plaintiff's expert testified that "within a reasonable degree of medical probability, defendant's negligence in failing to take an x-ray increased the risk of harm posed by the existing malignancy." Id. at 218. We held that this was "sufficient to create a jury question whether the increased risk was a substantial factor in producing the ultimate result, . . . and, if accepted by the jury, to support the jury's verdict." Ibid.

In a case similar to this with respect to the allegations of failure to diagnose pneumonia in a patient who presented with flu-like symptoms, we held that the trial judge erred in giving a modified proximate cause charge rather than Model Jury Charge (Civil) 5.36E, "Medical Malpractice, Pre-Existing Condition -Increased Risk/Loss of Chance - Proximate Cause." Arenas v. Gari, 309 N.J. Super. 1, 24 (App. Div. 1998).

Here, there was no reason for the trial court to deviate from the model charge. If the jury believed that plaintiff did not have any symptoms of pneumonia at the time of her visit to Dr. Zhou, it would have found that she did not deviate from the accepted standards of medical practice in failing to order the chest x-ray. Or, as in Roses, supra, 257 N.J. Super. at 218, the issue would have been addressed by the jury when they decided "whether the increased risk was a substantial factor in producing the ultimate result." Asking the jury to decide first whether plaintiff had pneumonia, as the judge did here, substantially prejudiced plaintiff by misleading the jury into thinking that they could only find defendants negligent if plaintiff proved that Maryanne had pneumonia on January 17 or 18 - a fact impossible to prove without an x-ray.

Jury interrogatories are governed by R. 4:39-2 which allows the court to "submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict."

Ordinarily, "a trial court's interrogatories to a jury are not grounds for reversal unless they were misleading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418, 690 A.2d 575 (1997). Interrogatories 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, 245 A.2d 208 (App. Div.), certif. denied, 52 N.J. 493, 246 A.2d 452 (1968). "The framing of [jury] questions in clear and understandable language cannot be overemphasized." Benson v. Brown, 276 N.J. Super. 553, 565, 648 A.2d 499 (App. Div. 1994).

We are also mindful that in reviewing an interrogatory for reversible error, we should consider it in the context of the charge as a whole. Sons of Thunder, supra, 148 N.J. at 418, 690 A.2d 575. An accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory. Id. at 415-20, 690 A.2d 575; Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 470-71, 744 A.2d 1186 (2000). That is not the case here.

[Ponzo v. Pelle, 166 N.J. 481, 490-91 (2001).]

By asking the jury to find first whether plaintiff proved that Maryanne had pneumonia on January 17 and 18, before considering whether the doctors deviated from the standard of care, the trial court improperly shifted the burden to plaintiff to prove that she did not have pneumonia on those dates.

The error in the jury charge was repeated in the interrogatories, requiring reversal. Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 506-09 (App. Div.), certif. denied, 165 N.J. 137 (2000).

Having found reversible error in the jury charge and interrogatories, we need not consider plaintiff's remaining arguments.

Reversed and remanded for a new trial.

 

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A-4486-04T2

August 3, 2006