THE ESTATE OF ROBERT BOYLAN v. B. DAWSON SHOEMAKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3121-06T33121-06T3

THE ESTATE OF ROBERT BOYLAN

by DONNA BOYLAN as

Administratrix and Administratrix

Ad Prosequendum and DONNA BOYLAN,

Individually,

Plaintiff-Respondent,

v.

B. DAWSON SHOEMAKER, M.D.,

DR. JOSEPH SZGALSKY,

WOODBURY FAMILY PRACTICE

ASSOCIATES, P.A.,

Defendants-Appellants,

and

JOHN S. OWENS,

OWENS VERGARI & UNWALA

CARDIOLOGY ASSOCIATES, P.A.,

UNDERWOOD MEMORIAL HOSPITAL,

UNDERWOOD MEMORIAL HOSPITAL-

HEART CENTER, DR. MICHAEL

ROGERS, DR. JOHN VERGARI,

DR. ALI UNWALA, DR. KURT

KAULBACH, and DR. MEAGAN

VERMEULEN,

Defendants.

_____________________________________________________________

 

Argued October 28, 2008 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Civil Part, Camden County,

Docket No. L-1918-04.

Stacy L. Moore, Jr. argued the cause for

appellants (Parker McCay P.A., attorneys;

Mr. Moore, on the brief).

John Mininno argued the cause for respondent,

(Mininno Law Office, attorneys; Mr. Mininno

and Laura Decencio, on the brief).

PER CURIAM

This is a medical malpractice and wrongful death action. In a complaint filed on March 31, 2004, plaintiff Donna Boylan alleged on behalf of herself and her husband's estate that defendants failed to properly diagnose and treat her husband's pulmonary embolism. Robert Boylan died on November 13, 2002, at the age of fifty-eight.

Prior to trial, the cardiology defendants settled with plaintiff. In addition, plaintiff voluntarily dismissed her claims against Dr. Michael Rogers and Underwood Memorial Hospital. The trial commenced on October 3, 2006, and concluded on October 23, 2006, with a verdict in favor of plaintiff. The jury found that Dr. Meagan Vermeulen was not negligent. However, it returned a verdict against Dr. B. Dawson Shoemaker and Dr. Joseph Szgalsky, awarding pain and suffering damages in the amount of $368,750 and wrongful death damages in the amount of $400,000. The jury allocated sixty-five percent of the fault to Dr. Shoemaker, thirty percent of the fault to Dr. Szgalsky, and it found that Mr. Boylan's preexisting medical condition was a five percent contributing factor. Judgment was entered against the doctors and in the full amount of the liability of both doctors against Woodbury Family Practice Associates, P.A. (Woodbury Family Practice).

On appeal, Dr. Shoemaker, Dr. Szgalsky, and Woodbury Family Practice (defendants) challenge several decisions by the trial court; an order for final judgment entered on November 13, 2006; an order denying their motion for a new trial or remittitur entered on January 3, 2007; and an order granting counsel fees and costs to plaintiff in the amount of $345,510.40 under Rule 4:58-2, the offer of judgment rule. We affirm.

Dr. Shoemaker, a family physician and partner with Dr. Szgalsky in Woodbury Family Practice, began treating Robert Boylan in 1986. During his initial examination, Dr. Shoemaker recommended that Mr. Boylan, who was approximately five-feet eight-inches tall, should "diet to 190 pounds." In addition, Dr. Shoemaker advised Mr. Boylan to lower his salt intake because his blood pressure was elevated.

Two years later, in 1988, Mr. Boylan underwent triple bypass surgery after he experienced a myocardial infarction. During the surgery, the cardiologist discovered a blood clot and removed it. Following his surgery, Mr. Boylan began treating with the cardiology defendants, but he also continued seeing Dr. Shoemaker.

In March 2002, Mr. Boylan was hospitalized and treated by Dr. Shoemaker for a blood clot in his left leg.
Dr. Shoemaker testified that Heparin, an anticoagulant, was initially administered intravenously "to prevent further clot formation and, hopefully, to prevent a braking-off of clots." In addition, Mr. Boylan was given a second blood thinner called Coumadin. Dr. Shoemaker explained that Heparin can only be given intravenously and that once it is effective, a patient can be discharged from the hospital on Coumadin. Mr. Boylan was discharged from the hospital on March 5, 2002, and Dr. Shoemaker testified that his plan was to continue Mr. Boylan on Coumadin for "at least six months" and possibly longer.

Throughout the next few months Dr. Shoemaker examined Mr. Boylan periodically, and adjusted his dose of Coumadin in accordance with blood test results. During these visits Dr. Shoemaker found no evidence of a clot, although he noted that Mr. Boylan suffered from occasional recurrent swelling of his left leg. Dr. Shoemaker claimed that Mr. Boylan told him on several occasions that he did not like taking Coumadin, and did not like going to the lab for blood tests. On June 12, 2002, Dr. Shoemaker refilled Mr. Boylan's prescription for Coumadin for six months.

When Dr. Shoemaker examined Mr. Boylan on September 26, 2002, Mr. Boylan was complaining of swelling in his left leg and itching. Dr. Shoemaker testified that Mr. Boylan stated he had stopped taking Coumadin and Dr. Shoemaker wrote "Off Coumadin times two weeks" on Mr. Boylan's chart. According to Dr. Shoemaker, Mr. Boylan told him "on more than one occasion that he did not like taking Coumadin," and Dr. Shoemaker told Mr. Boylan "on several occasions" why he needed to continue to take Coumadin. Dr. Shoemaker attributed the swelling in Mr. Boylan's left leg to the fact that he "was working and he was on his feet." Dr. Shoemaker advised Mr. Boylan "to consider getting a pressure stocking and to elevate the leg" to remove the swelling.

The next entry on Mr. Boylan's chart is a nurse's note indicating that Mr. Boylan telephoned Dr. Shoemaker's office on September 27, 2002. The note reads: "Patient needs salve for legs, swollen, blood clots." During an office visit on October 16, 2002, Dr. Shoemaker observed that Mr. Boylan's left leg was slightly swollen, and Dr. Shoemaker again advised Mr. Boylan to elevate the leg and to use a compression stocking. Dr. Shoemaker testified that he asked Mr. Boylan "to return to the office in four months which is a way of saying he seemed to be stable."

On October 30, 2002, Mr. Boylan was admitted to the Emergency Room at Underwood Memorial Hospital complaining of shortness of breath and chest tightness. The diagnosis of the emergency room physician was "unstable angina pectoris," a symptom of an impending heart attack. Mr. Boylan was admitted to the hospital by Dr. Rogers, a family physician who was covering for Dr. Shoemaker that day. Dr. Rogers ordered a series of tests, and consultations with defendant cardiologists and a urologist.

Defendant cardiologists recommended that Mr. Boylan undergo a ventilation perfusion (VQ) scan, a test to rule out the presence of blood clots in the lungs, if Mr. Boylan had a negative stress test result and he continued to have a low level of oxygen saturation. However, Dr. Shoemaker testified that a VQ scan was not performed because those two conditions were never met.

Various tests were conducted at the hospital, including a chest x-ray, which revealed that Mr. Boylan had a depressed diaphragm and hyperinflation of the lungs, and blood tests, which revealed he had low hemoglobin and hematocrit counts. An EKG showed a "right bundle branch block," or an abnormality in the right ventricle commonly caused by arteriosclerosis, but sometimes caused by a pulmonary embolism. Mr. Boylan also had a rapid heart rate, and he was unable to complete a stress test due to shortness of breath and fatigue.

On October 31, 2002, Dr. Shoemaker examined Mr. Boylan at the hospital. After reviewing the test results and consulting with defendant cardiologists, Dr. Shoemaker concluded that Mr. Boylan's "shortness of breath and chest pain were not due to an acute coronary process."

An echocardiogram performed on November 1, 2002, the day before Mr. Boylan was discharged from the hospital, revealed that Mr. Boylan had right-sided heart strain and severe tricuspid regurgitation (leaking heart valves), results consistent with the presence of a pulmonary embolism. Dr. Owens transcribed the echocardiogram report on November 2, 2002, but did not approve the transcription until November 4, 2002, after Dr. Shoemaker had discharged Mr. Boylan from the hospital. Dr. Shoemaker testified he did not receive the written echocardiogram report prior to Mr. Boylan's death on November 13, 2002. But he also admitted that he would have treated Mr. Boylan for pulmonary embolism if he had been aware of the echocardiogram results.

During the trial, Dr. Shoemaker was asked why he didn't do an evaluation following Mr. Boylan's hospitalization on October 30, 2002, to determine if Mr. Boylan was suffering from pulmonary embolism. Dr. Shoemaker testified as follows:

[W]ell, first of all, when he was admitted, he was admitted by Dr. Rogers who initiated the work up. I came on the case on the first hospital day, and the signs and symptoms of that patient at that time with the history that I was aware of, which I might state I was aware that he had had a complication of his coronary surgery.

He had had a pulmonary embolus which was treated appropriately for a several-week period. That is --

Q. That was back in '88?

A. That was back in 1988.

Q. Okay.

A. That is a complication of trauma or surgery or estrogen administration. I don't think Mr. Boylan was taking estrogen. However, at that history, really it was not a significant contributor to our thinking at that time, although it was in our thinking.

He was a smoker, he had X-ray signs of difficulty. So the pulmonary aspects of his illness were certainly there and had to be considered. Risk management, however, dictated that we rule out acute coronary disaster.

Following his discharge from the hospital on November 2, 2002, Mr. Boylan returned to work. However, during an office visit on November 8, 2002, Mr. Boylan was complaining of persistent shortness of breath and weakness. At that time, in accordance with the patient's discharge plan, Dr. Shoemaker gave Mr. Boylan a referral to see a pulmonologist.

Four days later, on November 12, 2002, Mr. Boylan was rushed to the hospital and a VQ scan showed "multiple bilateral segmental and subsegmental perfusion defects, highly consistent with pulmonary embolism." The emergency room physician placed Mr. Boylan on Heparin intravenously. At about 12:15 a.m., the emergency room physician telephoned Dr. Szgalsky, who was on-call, reporting that Mr. Boylan had multiple pulmonary emboli and was in respiratory distress.

Dr. Szgalsky admitted Mr. Boylan over the phone to the Progressive Care Unit (PCU) where his heart rate and pulse readings would be constantly monitored from a central location, and his vital signs would be taken every four hours. Dr. Szgalsky did not conduct a physical examination of Mr. Boylan that night, nor did he call in a pulmonary specialist.

At approximately 8:00 a.m., on November 13, 2002, Dr. Vermeulen, who was associated with Woodbury Family Practice, arrived at the hospital and found Mr. Boylan sitting in a chair wearing an oxygen mask. Dr. Vermeulen found that Mr. Boylan's respiratory rate was mildly elevated and he was in mild to moderate respiratory distress, but had a regular heart rate, had no swelling of his lower extremities, and was responsive.

About an hour later, a nurse reported that Mr. Boylan was complaining of nausea and increasing shortness of breath. At approximately 9:45 a.m., at Dr. Vermeulen's direction, an interventional radiologist placed a filter in Mr. Boylan's femoral vessel to block any additional embolisms from entering the lungs. Later that morning, Dr. Vermeulen twice reviewed Mr. Boylan's vital signs, which were stable, and she reviewed his oxygen saturation rate, which was at 100 percent.

But at 11:45 a.m., a physician in PCU called Dr. Vermeulen to report that Mr. Boylan's condition had quickly deteriorated. His respiratory rate was rapid, he was increasingly short of breath, his skin was clammy, and his oxygen saturation rate had fallen to 86%. Mr. Boylan was also sitting upright and leaning forward, a position that helps ease difficulty in breathing. Dr. Vermeulen testified that this was not a comfortable position for any patient. She ordered an immediate consult with a pulmonologist because Mr. Boylan's blood pressure and circulation status were becoming unstable. Dr. Vermeulen and the pulmonologist arrived in the PCU at approximately 11:50 a.m.

At 11:54 a.m., Mr. Boylan, who was unresponsive, suffered a cardiopulmonary arrest. Unfortunately, attempts to resuscitate him were unsuccessful, and he died at 12:19 p.m. on November 13, 2002. The cause of death was a pulmonary embolism.

Dr. Adriennene Kelly, plaintiff's expert in internal medicine, testified that Dr. Shoemaker deviated from the accepted standards of care in failing to perform a differential diagnosis on Mr. Boylan when he was first admitted to the hospital on October 30, 2002. Dr. Kelly explained that a differential diagnosis is simply a list of possible causes of a patient's complaints or symptoms. A physician should first rule out the most life-threatening conditions on the list, which in this case would have included both an acute coronary process and pulmonary embolism. Given Mr. Boylan's medical history, his symptoms, and the test results following his hospitalization on October 30, 2002, Dr. Kelley concluded that Dr. Shoemaker deviated from accepted standards of care in failing to order a VQ scan, which would have revealed whether Mr. Boylan was suffering from pulmonary embolism. Dr. Kelly found that Mr. Boylan satisfied both conditions for conducting the VQ scan because his oxygen saturation level was low, and he was too short of breath to complete the stress test. According to Dr. Kelly, Dr. Shoemaker also deviated from accepted standards of care in discharging Mr. Boylan from the hospital on November 2, 2002, before ruling out the possibility that he was suffering from a pulmonary embolism, and in failing to readmit Mr. Boylan to the hospital following the office visit on November 8, 2002.

With regard to Dr. Szgalsky, Dr. Kelly concluded that he deviated from accepted standards of care in failing to examine Mr. Boylan when he was admitted to Underwood Hospital on November 12, 2002, and in failing to admit Mr. Boylan to the Intensive Care Unit (ICU), where his vital signs would have been checked more frequently. Dr. Kelly also testified that Dr. Shoemaker and Dr. Szgalsky both deviated from accepted standards of care in failing to obtain a consultation with a pulmonary specialist. According to Dr. Kelly, if defendants had provided appropriate treatment, Mr. Boylan would have lived for at least another ten years, "if not more."

Dr. Michael Weiden, plaintiff's expert in the field of pulmonary medicine as it relates to causation, testified within a reasonable degree of medical certainty that Mr. Boylan was suffering from a pulmonary embolism on October 30, 2002, and if Dr. Shoemaker had properly tested for and diagnosed the condition, Mr. Boylan would have been treated with anticoagulants and would have survived. He explained that although shortness of breath and chest pain can be a symptom of either coronary artery disease or pulmonary embolism, Mr. Boylan had all three indicators of pulmonary embolism: a risk factor for clot formation; lower extremity symptoms; and respiratory symptoms.

Dr. Weiden testified that "patients who have had one clot are at markedly higher risk for another clot." He explained that a clot can damage the vessels in the leg, thereby causing the vessels to become ragged and creating a favorable climate for additional clot formation. According to Dr. Weiden, the testing performed following Mr. Boylan's hospitalization on October 30, 2002, ruled out coronary artery disease, and Dr. Shoemaker should have ordered a VQ scan, which would have revealed that he was suffering from pulmonary embolism.

Dr. Weiden testified that the treatment of blood clots with anticoagulants is highly effective, and if treated, Mr. Boylan's chance of death would have been less than five percent. Thus, he concluded that Dr. Shoemaker's failure to properly conduct a differential diagnosis and his failure to treat Mr. Boylan's pulmonary embolism, "[a]bsolutely" increased the risk of harm. According to Dr. Weiden, if Dr. Shoemaker "had done objective testing, he would have found the presence of the clot. That would have led to adequate anticoagulation and would have prevented [Mr. Boylan's] death."

With respect to Dr. Szgalsky, Dr. Weiden testified that he increased the risk of harm to Mr. Boylan on November 12, 2002, by failing to go to the hospital to evaluate him, by failing to admit him to the ICU, and by failing to initiate clot-busting therapy. Dr. Weiden explained that Mr. Boylan may have survived the pulmonary embolism if he had been admitted to the ICU where he would have been more closely monitored and the physicians would have received "earlier notice of the level of severe illness."

Dr. Shoemaker's expert in the field of internal medicine, Dr. Joseph Loeffler, testified that Dr. Shoemaker did not deviate from accepted standards of care by failing to conduct a differential diagnosis when Mr. Boylan was hospitalized on October 30, 2002, because Mr. Boylan was suffering from shortness of breath and chest pain, which Dr. Loeffler described as very "nonspecific symptoms." According to Dr. Loeffler, after it was determined that Mr. Boylan was not at risk for an imminent heart attack, Dr. Shoemaker and the defendant cardiologists considered whether Mr. Boylan might have been suffering from a pulmonary embolism, and the cardiologists recommended a VQ scan if certain conditions were met. However, Dr. Loeffler testified that Mr. Boylan did not meet either criteria for undergoing a VQ scan, because he was not hypoxic, and he had achieved seventy percent of the predicted results on the stress test. Although the results of the echocardiogram revealed some symptoms of a pulmonary embolism, Dr. Loeffler noted that Dr. Shoemaker did not receive the results of that test until after Mr. Boylan was discharged.

Dr. Loeffler did not specifically address the alleged deviations by Dr. Szgalsky. However, he generally stated that a PCU, or telemetry unit, "is focused on primarily cardiac and cardiopulmonary problems," and that patients are constantly monitored there.

Dr. Szgalsky testified that he did not have privileges to administer clot-buster therapy, which can only be done by a pulmonary specialist. In addition, based on the information provided by the emergency room physician, Dr. Szgalsky believed that Mr. Boylan was an appropriate patient for the PCU. Dr. Szgalsky also explained that he did not "call for a pulmonary consult" on November 12, 2002, because Mr. Boylan was "stable." Thus, Dr. Szgalsky and Dr. Shoemaker both claimed they had not deviated from accepted standards of care.

Plaintiff did not testify at trial. However, there was medical testimony that described Mr. Boylan's pain and suffering prior to his death. In addition, there was testimony from his forty-year-old son, Rodney Boylan, and his daughter, Betty Ann Boylan, regarding their parents' relationship. Rodney testified that his parents "were a couple. I mean . . . they really weren't two individuals. It was mom and dad in terms of social settings. They did things together. They each had their responsibilities in the house, but they did things together because they had many of the same interests." According to Rodney, his father was completely devoted to his mother and his father enjoyed giving his mother things "that she wanted and needed," and he was constantly doing things for her to make her life easier.

Similarly, Betty Ann Boylan testified that her parents functioned as a team and enjoyed taking care of each other. When she was asked to describe her parents' relationship, she testified:

They were like yin and yang. . . . [W]hatever wasn't taken care of on one end, the other one would do. Like days that my father . . . would be off, but my mom had to work, he would have dinner ready, the house cleaned, and once in awhile, he'd have a nice drink ready for her. He loved being a bartender. And pretty much if the kids had homework and she wasn't home, we had a question, he was there to ask.

Both children also testified about the final weeks prior to their father's death. Rodney noticed that his father appeared "gaunt," his energy level was down, and it was hard for his father to breath. Rodney's sister observed that her father was having a lot of problems breathing, he was constantly tired, and "he didn't interact as much as he usually did."

In addition to this factual testimony, the jury also heard expert testimony from Dawn Thomas, who was recognized as an expert in the field of geriatric care management, and Donna Flannery, who was recognized as an expert in the field of life care planning. Ms. Flannery estimated that the replacement cost for the services that Mr. Boylan would have provided to plaintiff if he had lived ranged from $909,277 to $976,300.

On appeal, defendants present the following arguments:

POINT I

THE TRIAL COURT WAS IN ERROR WHEN IT DENIED DEFENDANTS' REQUEST THAT THE JURY BE ALLOWED TO ANSWER SPECIAL INTERROGATORIES DIRECTED AT APPORTIONING FAULT AMONG ALL RESPONSIBLE PARTIES INCLUDING DECEDENT AND THE SETTLING DEFENDANT CARDIOLOGISTS; NEW JERSEY LAW FAVORS SUCH APPORTIONMENT.

POINT II

THE TRIAL COURT WAS IN ERROR WHEN IT DID NOT ALLOW INSTRUCTIONS AND SPECIAL INTERROGATORIES TO BE PRESENTED TO THE JURY IN REGARD TO DECEDENT'S ROLE IN CAUSING HIS PULMONARY EMBOLISM; THE PURPOSE OF SPECIAL JURY INTERROGATORIES IS TO ALLOW FOR A FAIR DETERMINATION BY THE TRIER OF FACT OF ALL RELEVANT ISSUES IN A TRIAL WHICH WAS PREVENTED BY THE TRIAL COURT AND RESULTED IN A CONFUSED AND INCONSISTENT VERDICT.

POINT III

THE TRIAL COURT WAS IN ERROR WHEN IT DID NOT PERMIT DEFENSE COUNSEL TO CROSS-EXAMINE PLAINTIFFS' EXPERTS ON OTHER OPINIONS IN THEIR REPORTS; A SIGNIFICANT CREDIBILITY ISSUE WAS PRESENT AND FURTHER CROSS-EXAMINATION SHOULD HAVE BEEN ALLOWED.

POINT IV

THE TRIAL COURT WAS IN ERROR WHEN IT DID NOT EXCLUDE CERTAIN DAMAGES FROM JURY CONSIDERATION WHEN PLAINTIFF DONNA BOYLAN CHOSE NOT TO TESTIFY; THERE WAS NO FACTUAL BASIS TO AWARD DAMAGES FOR PAIN AND SUFFERING, LOSS OF ENJOYMENT OF LIFE OR WRONGFUL DEATH DAMAGES INVOLVING ECONOMIC LOSS.

POINT V

THE TRIAL COURT WAS IN ERROR WHEN IT DID NOT ALLOW DEFENSE COUNSEL TO DEVELOP TESTIMONY CONCERNING THE DISCHARGE INSTRUCTIONS GIVEN TO THE PATIENT AFTER THE OCTOBER 30, 2002 HOSPITAL ADMISSION.

POINT VI

THE TRIAL COURT WAS IN ERROR WHEN IT DID NOT ALLOW DR. LOEFFLER TO TESTIFY IN REGARD TO THE CARE AND TREATMENT RENDERED BY DR. SZGALSKY, SINCE HIS REPORT ENCOMPASSES THE CARE AND TREATMENT RENDERED BY DR. SZGALSKY.

POINT VII

THE TRIAL COURT WAS IN ERROR WHEN IT DENIED DEFENDANTS' MOTION FOR A NEW TRIAL; THE CUMULATIVE EFFECT OF PLAINTIFFS' COUNSEL'S IMPROPER COMMENTS AND TECHNIQUES IN FRONT OF THE JURY CAUSED A MISCARRIAGE OF JUSTICE IN THIS CASE; THERE SHOULD BE A NEW TRIAL ON THE ISSUES OF BOTH LIABILITY AND DAMAGES.

POINT VIII

THE TRIAL COURT WAS IN ERROR WHEN IT DENIED DEFENDANTS' MOTION FOR A NEW TRIAL SINCE A MISCARRIAGE OF JUSTICE HAS OCCURRED; THE DAMAGE AWARD WAS EXCESSIVE AND UNSUPPORTED BY ADMISSIBLE EVIDENCE, REQUIRING A NEW TRIAL ON LIABILITY AND DAMAGES, OR IN THE ALTERNATIVE A REMITTITUR.

POINT IX

THE TRIAL COURT WAS IN ERROR WHEN IT AWARDED COUNSEL FEES AND COSTS TO PLAINTIFFS BASED UPON THE OFFER OF JUDGMENT RULE, R. 4:58-1 et seq.; EITHER THE CASE WAS SETTLED UNDER THE RULE PRIOR TO TRIAL OR THE RULE SHOULD NOT HAVE BEEN APPLIED POST-TRIAL.

POINT X

THE TRIAL COURT WAS IN ERROR IN AWARDING FEES AND COSTS TO PLAINTIFFS' COUNSEL IN THE REQUESTED AMOUNT.

After considering these contentions in light of the record, the written and oral arguments of the parties, and the applicable law, we conclude the order denying defendants' motion for a new trial or remittitur does not constitute a manifest denial of justice, Rule 2:11-3(e)(1)(c), and defendants' other arguments are clearly without merit. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

In their first point, defendants argue that the court erred in denying their application to include Mr. Boylan on the jury verdict sheet for purposes of allocating fault. We reject this argument for two reasons. First, it is well settled that the "pre-treatment health habits, conduct, or omissions of the patient should not be considered by a jury as evidence of fault under comparative negligence principles." D'Aries v. Schell, 274 N.J. Super. 349, 359 (App. Div. 1994). Because this case was tried on the theory that Dr. Shoemaker failed to diagnose and treat Mr. Boylan for a pulmonary embolism on October 30, and November 8, 2002, and that Dr. Szgalsky failed to properly treat him on November 12 and 13, 2002, Mr. Boylan's conduct in discontinuing Coumadin in September 2002 occurred pre-treatment and could not be considered by the jury in allocating fault. Additionally, even if Mr. Boylan's conduct in discontinuing Coumadin could be considered post-treatment conduct, and thus potentially relevant to the issue of damages, defendants failed to show this conduct was a significant cause of his resulting death from a pulmonary embolism. See Ostrowski v. Azzara, 111 N.J. 429, 447 (1988) ("[A] court should carefully scrutinize the evidence to see if there is a sound basis in the proofs for the assertion that the post-treatment conduct of the patient was indeed a significant cause of the increased damages.").

Defendants also contend that the defendant cardiologists should have been included on the verdict sheet for purposes of apportioning fault. Because plaintiff entered into a settlement with defendant cardiologists, her expert cardiologist did not testify at trial, and defendants did not retain an expert cardiologist. Instead, defendants unsuccessfully attempted to question plaintiff's experts, Dr. Kelly and Dr. Weiden, regarding the cardiologists' actions. Thus, there was no evidence that defendant cardiologists had deviated from an applicable standard of care and, as defendants' attorney acknowledged during the charge conference: "Based . . . on the rulings that have been made . . . the proofs on having the cardiologists on the verdict sheet have not been met." Accordingly, the trial court did not err in failing to include the settling defendants on the verdict sheet.

In point three, defendants argue that they are entitled to a new trial because the court did not permit defense counsel to question plaintiff's experts, Dr. Kelly and Dr. Weiden, regarding the conduct of the settling cardiologists. In response, plaintiff contends the trial court allowed defense counsel "wide latitude" during cross-examination and "merely prohibited questioning regarding the standard of care of a cardiologist."

The scope of cross-examination is governed by N.J.R.E. 611(b), which restricts it "to the subject matter of the direct examination and matters affecting the credibility of the witness." However, "[t]he court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." On appeal, a decision to limit cross-examination will not be disturbed "unless clear error and prejudice are shown." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000). In this case, neither of plaintiff's experts was a cardiologist and defense counsel was not permitted to question them regarding the standards of care applicable to cardiologists. This was not an unreasonable restriction, and we are satisfied that the trial court did not abuse its discretion in limiting defense counsel's cross-examination of plaintiff's experts.

In point nine, defendants argue that the court erred in awarding plaintiff counsel fees and costs under the offer of judgment rule. The purpose of the offer of judgment rule is "to encourage good-faith settlement offers that reflect the reasonable value of the claim." Schettino v. Roizman Dev., Inc., 158 N.J. 476, 486 (1999). In this case, given Mr. Boylan's preexisting medical problems, we are satisfied that plaintiff's offer to settle for $200,000 was entirely reasonable. Nevertheless, the offer was never accepted and the jury verdict subjected defendants to the fee-shifting consequences of Rule 4:58-2(a). This rule provides that when a pretrial offer to settle is not accepted and a plaintiff obtains a money judgment that exceeds 120 percent of the offer, the plaintiff is entitled to "all reasonable litigation expenses incurred following non-acceptance." R. 4:58-2(a). "The rule is cast in mandatory . . . terms, and, thus, accords judges no discretion regarding whether or not to award attorney's fees and costs of suit in an offer of judgment case." Wiese v. Dedhia, 188 N.J. 587, 592 (2006).

Plaintiff's counsel submitted a detailed certification in support of plaintiff's motion for counsel fees and costs under Rule 4:58-2(a), listing the date when services were performed, a description of the services, his hourly fee ($300), and the total hours expended (935.7). Counsel also provided an invoice itemizing all of "the out-of-pocket expenses and costs" associated with the case, together with a report from Michael Ferrara, Jr., a certified civil trial attorney, who concluded that the hourly rate for services ($300) was "extremely reasonable" and the total fee request was "more than reasonable." In response, defendants submitted a report by Robert Paarz, an experienced trial attorney, who stated that a fair hourly rate would be $200 to $225 per hour, and that a reasonable amount of time to have spend on the case was 300 to 350 hours.

On February 1, 2007, the court rendered an oral decision in which it detailed its reasons for awarding counsel fees and costs to plaintiff in the amount of $345,510.40. The trial court's findings are fully supported by the record, and we find no abuse of discretion in the award of fees and costs.

Affirmed.

These defendants have been identified as Dr. John S. Owens, Dr. John Vergari, Dr. Ali Unwala, Dr. Kurt Kaulbach, and Owens, Vergari, Unwala Cardiology Associates, P.A.

(continued)

(continued)

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A-3121-06T3

August 28, 2009