LINDA BINDHAMMER et al. v. KEN CUBELLI, M.D., and MORRIS COUNTY ORTHOPEDIC GROUP, P.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5307-05T3

0537-05T3

LINDA BINDHAMMER and

GEORGE BINDHAMMER,

Plaintiffs-Respondents,

v.

KEN CUBELLI, M.D., and

MORRIS COUNTY ORTHOPEDIC

GROUP, P.A.,

Defendants-Appellants,

and

FRANK CAPECCI, M.D.,

DONALD ALLEGRA, M.D.,

ID ASSOCIATES, P.A. and

ST. CLARE'S HOSPITAL,

Defendants.

__________________________________

 

Argued September 17, 2007 - Decided October 25, 2007

Before Judges Weissbard, S.L. Reisner and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, L-2909-02.

Robert T. Gunning argued the cause for appellants (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Keith G. Von Glahn, of counsel; Mr. Von Glahn, Mr. Gunning and Shari F. Keiser, on the brief).

Scott A. Parsons argued the cause for respondents (Parsons, Powell & Lane, attorneys; Mr. Parsons, of counsel; Jose D. Roman, on the brief).

PER CURIAM

Defendants Ken Cubelli, M.D. and Morris County Orthopedic Group, P.A. appeal from the denial of their motion for a new trial in a medical malpractice suit that resulted in a molded verdict of $1,600,000 in favor of plaintiff Linda Bindhammer. We affirm.

I

On May 19, 2001, following a fall at her home, plaintiff sustained a left tibial plateau fracture and a closed left shoulder fracture. After initial treatment at Dover General Hospital, she was transferred to St. Clare's Hospital. Dover was able to set plaintiff's shoulder; however, it did not have the facilities to perform surgery on her leg.

Dr. Cubelli treated plaintiff's leg fracture at St. Clare's after she was initially seen by Dr. Capecci, Dr. Cubelli's partner. On May 21, 2001, Dr. Cubelli performed an open reduction and set the fracture with internal fixators and bone grafting. Plaintiff was discharged from the hospital on May 25, 2001, and transported to the Troy Hills Center for Rehabilitation for the purpose of post-surgical rehabilitation. Dr. Cubelli continued to care for plaintiff throughout her initial stay at Troy Hills.

It was alleged that, while at Troy Hills, plaintiff's left leg had an open wound that showed signs of infection, including drainage and redness. According to plaintiff's expert, Dr. Cubelli failed to order an infectious disease consultation or a deep wound culture, as required by the relevant standard of care.

On July 22, 2001, plaintiff was readmitted to St. Clare's and diagnosed with a serious bone infection. At that time she was unable to walk and was in pain. Plaintiff's infectious disease specialist, Dr. Allegra, noted that plaintiff's wound had longstanding drainage, and he ordered a deep wound culture. The culture revealed a heavy growth of methicillin-resistant staphylococcus aureus, also known as MRSA. The delay in diagnosing the infection and plaintiff's subsequent development of osteomyelitis resulted in plaintiff undergoing numerous surgical procedures from July 24, 2001 to June 25, 2003. Initially, at St. Clare's from July 22, 2001 to August 7, 2001, the internal fixators were removed from her leg and she was placed on IV antibiotic treatment. She was readmitted to St. Clare's from November 14, 2001 to November 25, 2001, due to a flare-up of the infection and again placed on IV antibiotic treatment, followed by placement of an external fixator and multiple skin grafts. In addition, plaintiff underwent the following procedures to treat and eradicate the infection: (1) incision, drainage debridement of infected non-union on January 1, 2002; (2) irrigation and debridement, placement of external fixator, and placement of antibiotic bead patch on January 5, 2002; (3) irrigation and debridement and change of antibiotic beads on January 7, 2002; (4) irrigation and debridement, split thickness skin graft, gastroc rotation muscle flap on January 11, 2002; (5) irrigation and debridement of necrotic muscle flap on January 23, 2002; (6) revision of external fixator and debridement on January 24, 2002; (7) free latissimus dorsi muscle flap with a micro vascular anastomosis on January 25, 2002; (8) revision of venous anastomosis, exploration of proximal vein, evacuation of hematoma, repair of artery with vein patch, thrombectomy on January 27, 2002; (9) irrigation and debridement, excision of muscle flap on January 29, 2002; (10) revision of left tibial external fixator, rotation flap with rearrangement and irrigation and debridement split thickness skin graft on February 1, 2002; (11) inferior vena cava filter in February 2002; (12) revision of external fixator on February 13, 2002; (13) irrigation and debridement and open treatment of an allograft of tibial non-union on January 22, 2003; (14) irrigation and debridement with revision of external fixator on February 15, 2003; and (15) removal of the external fixator on June 25, 2003.

Plaintiff's liability expert, Dr. Dunn, concluded that if Dr. Cubelli had acted appropriately by obtaining an infectious disease consultation and deep wound culture on June 27, 2001, plaintiff would not have developed osteomyelitis and would not have required the numerous surgical procedures that followed. In addition, she would not have been left with a permanent disability.

Dr. Dunn examined plaintiff on February 16, 2005. At trial, he described large areas of scarring on her left leg due to her injury and the subsequent infection, as well as along her lower back and thigh due to skin and muscle grafts. Plaintiff does not have a full range of motion in her left ankle; she has hypersensitivity on the bottom of her foot; she has complaints of pain for which she has taken OxyCotin and Elavil; she has difficulty walking up and down stairs, carrying objects, kneeling, standing, sleeping and exercising; she also uses a cane for walking outside her home.

The defense experts testified that plaintiff did not exhibit signs of infection after her transfer to Troy Hills so as to require Dr. Cubelli to perform a deep wound culture and/or obtain an infectious disease consult. By its verdict, the jury obviously accepted the position advanced by plaintiff.

II

On appeal, defendants present the following arguments for our consideration:

POINT I: APPELLANTS ARE ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR DURING THE RESPONDENT'S OPENING STATEMENT AND DIRECT TESTIMONY.

POINT II: APPELLANTS ARE ENTITLED TO A NEW TRIAL BECAUSE THE TRIAL JUDGE IMPROPERLY DENIED THE DEFENDANT'S REQUEST FOR THE MEDICAL JUDGMENT CHARGE.

POINT III: IN THE ALTERNATIVE, APPELLANTS ARE ENTITLED TO A NEW TRIAL ON DAMAGES BECAUSE THE JURY'S $2 MILLION VERDICT IS A MISCARRIAGE OF JUSTICE AND MUST SHOCK THE COURT'S CONSCIENCE.

III

We conclude that defendant's argument in Point I is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The testimony, by way of biographical background, that plaintiff's husband had died of cancer while the suit was pending, was entirely appropriate, as was plaintiff's testimony that she had been laid off by her employer. As to the latter, there was no claim for loss of earnings. Neither of the items was of such a nature to prejudice defendants. We discern no error.

IV

Defendants contend that the jury's damage award of $2,000,000 molded to $1,600,000, was "outrageous[,] . . . clearly a miscarriage of justice and must shock the conscience of [this court], thereby necessitating a new trial on damages." Alternatively, defendants request a remittitur. We are not persuaded that either remedy is required.

In Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1997) (citing Sweeney v. Pruyne, 67 N.J. 314, 315 (1975)), the Court held

that 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. . . . [T]he basic criteria for appellate court intervention are not significantly different.

The judgment of the jury "is entitled to very considerable respect," id. at 597, and should only be overturned based on "a determination that there has been a manifest miscarriage of justice." Id. at 598. Appellate intervention is further constrained when the trial judge has based his decision on his "feel of the case." Id. at 600 (citing Fritsche v. Westington Electric Corp., 55 N.J. 332, 330 (1970)).

Here, in ruling on defendant's new trial motion, Judge Smith wrote:

The $2 million jury award does not shock the conscience. The jury verdict was driven by the circumstances of the case. Plaintiff underwent 14 surgical procedures, which included 4 muscle graft procedures, 5 external fixator revisions, 2 skin graft procedures, 11 blood transfusions and a 3 day chemically induced coma. Medical testimony predicts that it is probable that plaintiff will need future medical intervention and that the present condition will deteriorate and cause her further limitation, pain and suffering. The plaintiff has significant scarring and disfiguration which are permanent.

Our review of the record reveals no basis for intervention. The jury's verdict was commensurate with the injuries causally related to the malpractice.

V

Defendants argue that the trial judge erred in refusing their request to deliver a "medical judgment" charge, as embodied in Model Jury Charge (Civil) 5.36(g):

A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.

In Aiello v. Muhlenberg R. Med. Ctr., 159 N.J. 618, 632 (1999), the Court reviewed the appropriateness of the "medical judgment" instruction, and stated the following:

If the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a physician for "mistakes" would enable the physician to avoid responsibility for ordinary negligence. The "mistake" that inheres in negligence, that is, the failure to exercise reasonable care, is not the kind of mistake that is excusable. If, therefore, the physician's professional conduct implicates only the exercise of reasonable care in the performance of a medical procedure and not the exercise of medical judgment in selecting among acceptable and medically reasonable courses of treatment, the medical judgment rule should not be invoked. The doctor's conduct in performing the procedure must be evaluated according to the applicable professional standard of care that is required of a medical practitioner in the same field.

The Court revisited the issue in Velazquez v. Portadin, 163 N.J. 677, 690 (2000), instructing the trial courts to analyze the "testimony and theories in detail, on the record, to determine whether the [medical judgment] charge is applicable at all and, if so, to which specific issues." See also Das v. Thani, 171 N.J. 518, 527-30 (2002); Patton v. Amblo, 314 N.J. Super. 1, 8-10 (1998).

Here, Judge Smith performed the type of analysis called for by Velazquez, stating:

On the issue that was open yesterday, whether or not there would be a judgment charge, I have looked at the cases I guess that everyone has been referring to, Das v. Thani, which is 171 N.J. 518, 2002 case, and Velazquez v. Portadin. . . . I just had the slip sheet version on that, but that's also a 2000 case.

The language in Das tells us that to constitute a medical judgment, a medical decision must generally involve misdiagnosis or the selection of one, or two, or more generally-accepted courses of treatment.

The course of treatment must be an equally-acceptable approach in order not to be considered a deviation from the appropriate standard of care.

In our factual situation, the defense experts, Dr. Smith and Dr. D'Agostini essentially, at the end of the day, came to the same conclusion, that the, what was the word they used, the die was cast . . . as soon as this plate was put into the leg and the screws were put in place and that therefore no early intervention would have changed the outcome.

That is their essential position. . . . They also comment, as part of their expert opinion, in other areas, and that had to do with the appropriateness of whether to have an infectious disease consult or deep wound culture at a later point in the treatment.

I've reviewed the testimony of the doctors, and it seems to me that they are all in accord that if there is a sign, if there are signs of deep wound infection that the proper course of treatment is to get an infectious disease consult and do a deep wound culture.

No one disagrees with that. No one has taken the position that there should be prophylactic deep wound culture but one that is based on the facts as seen and appreciated by . . . the doctors.

So the real question before the jury is whether or not the wound showed signs of infection on the date that the defendant rendered treatment. If it did, it seems undisputed that the course of treatment is to do a deep wound culture. If it did not, then you proceed on with a more conservative treatment of the wound and see where that leads, essentially.

I find that . . . there are not two equally-acceptable paths for the doctors to take when there are the signs, signals, indications, whatever word you want to use, of deep wound infection, that the only path to take is to do a deep wound culture. And I think all of the experts agreed on that path.

The question then becomes a factual question as to whether there were the appropriate signs, signals, indications of that on the date that Dr. Cubelli rendered his treatment or not. So in my view, this is not a matter of judgment, it is a matter of standard of care.

As one of the cases points out, in Velazquez, in their particular factual situation the Court comments that although one or possibly a few judgment issues may have been implicated, the heart of the case was whether there was a deviation from the standard of care.

And I believe that to be the case here, and I will not include judgment in my charge.

In responding to defendant's new trial motion, the judge wrote:

The Court ruled during the trial that medical judgment was not at issue in this case. In other words, the Court held, prior to charging the jury, that the only issue which the jury was to decide was whether defendants' actions deviated from the acceptable standard of care. As such, it would not have been proper to charge the jury with respect to "medical judgment." The basis for the Court's decision is set forth in detail on the record.

We are in agreement with Judge Smith's determination. Despite defense counsel's repeated, indeed excessive, use of the word judgment in his questioning of the experts, the case did not involve a choice between equally "acceptable and medically reasonable courses of treatment." Aiello, supra, 159 N.J. at 632. Rather, the critical issue was whether Dr. Cubelli should have recognized plaintiff's infection. That factual issue was hotly contested and obviously resolved in favor of plaintiff. Once that determination was made, the experts were not in essential disagreement on the proper course of treatment, i.e., the necessity for a deep wound culture. Thus, no "medical judgment" was involved in the legal sense, and the judge's ruling was quite correct.

Affirmed.

(continued)

(continued)

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A-0537-05T3

October 25, 2007