ESTATE OF PHYLLIS DAVIS v. VINELAND OPERATIONS LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2950-11T4

ESTATE OF PHYLLIS DAVIS

Through its Administrator,

ANN DAVIS,

Plaintiff-Appellant/

Cross-Respondent,

v.

VINELAND OPERATIONS, LLC

d/b/a LINCOLN SPECIALTY

CARE CENTER,

Defendants-Respondents/

Cross-Appellants.

January 30, 2013

Argued October 23, 2012 - Decided

 
Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1273-05.

Robert Aaron Greenberg argued the cause for appellant/cross-respondent (Aronberg & Kouser, P.A., attorneys; Mr. Greenberg, of counsel and on the briefs).

Robert J. Logan argued the cause for respondent/cross-appellant (Vasios, Kelly & Strollo, P.A., attorneys; Mr. Logan, of counsel and on the brief; Scott A. Leaman, on the brief).

PER CURIAM

In this medical negligence action, plaintiff Estate of Phyllis Davis through its administrator, Ann Davis, appeals the January 20, 2012 denial of its motion seeking a new trial as to damages, or in the alternative, additur. Plaintiff also appeals the court's denial of her request for attorney's fees pursuant to the Nursing Home Residents' Rights Act, N.J.S.A. 30:13-8(a). Defendant Vineland Operations, LLC, doing business as Lincoln Specialty Care Center, cross-appeals the jury's award of $14,760 in medical expenses, which the trial judge molded on the return date of the motion to accord with the verdict. For the reasons that follow, we affirm.

Decedent in December 2003, suffered a stroke which caused the complete paralysis of all her voluntary muscles except her eyes. The condition is known as "Locked-in Syndrome." When on January 26, 2004, she was admitted to defendant's nursing home, she was suffering from a sacral decubitus ulcer, also known as a bed or pressure sore, at stage three. During her stay at defendant's facility, the ulcer progressed to the maximum level, stage four. Decedent passed away in 2008, while at another facility.

During the trial, plaintiff's nursing expert, Georgette Bieber, R.N., testified that defendant's nursing services did not meet the applicable standard of care. The jury was also shown the videotaped deposition of plaintiff's second expert, Janet McKee, R.D., who explained the alleged deviation from the standard of care with regard to defendant's dietary practices, particularly as related to decedent's diabetes. In sum, plaintiff contended that defendant's failure to provide adequate nursing care and nutrition prevented decedent's bed sore from healing, generally contributed to the deterioration of her health, and increased her pain and suffering as the bed sore progressed from level three to level four.

Defendant presented one expert witness, Mary Jo Conley, R.N. She testified that decedent's stroke-induced paralysis, as well as her diabetes, was the actual cause of the worsening of the bed sore. None of plaintiff's expert witnesses testified with regard to pain and suffering, although Bieber said that the progression of a bed sore results in the exposure of nerve endings.1

The jury's verdict attributed thirty percent of the injury to defendant's care, and as a result awarded plaintiff $49,200.11 for medical bills attributable just to treatment of the bed sore. The jury awarded "$0," however, for pain and suffering.

Plaintiff's motion for a new trial, or for additur, included a demand for counsel fees under N.J.S.A. 30:13-8(a). Defendant cross-moved to mold the verdict as to medical expenses to accord with the jury's attribution of thirty percent liability.

When the post-verdict motions were heard, defendant was silent as to the entry of judgment against it for medical bills. During the charge conference, however, defendant had objected to plaintiff's proof of the portion of decedent's total medical expenses while she was at defendant's facility attributable to the bed sore that amount which plaintiff reimbursed to Medicaid for the lien specific to treatment for the wound. Defendant contended that the number was pure hearsay, not subject to cross-examination, and was therefore inadmissible. Defendant suggested that in order to avoid that problem, the jury should merely be asked to pass on plaintiff's claim for reimbursement of medical bills without being given a precise number. There was some abbreviated discussion with regard to obtaining defendant's consent for the use of the reimbursement to Medicaid, but after reviewing the record, we can find no final resolution regarding the issue.

In charging the jury, the court said: "And the second component is medical bills, remembering that the cap or the limit on the medical bills in this case is $49,200.11." He went on to explain:

When you are determining the amount of damages to be awarded to the [p]laintiff, you should award the damages for all of [p]laintiff's injuries. The award should not be reduced by your allocation of harm. The adjustment of damages, which may be required, will be performed by the [c]ourt.

Let's talk about the medical expenses in this matter. A [p]laintiff who is awarded a verdict is entitled to payment for medical expenses, which were reasonably required for the examination, treatment or care of the injuries proximately caused by [d]efendant's negligence.

Medical expenses are the cost of doctor's services, hospital services, medicines, medical supplies and medical tests and any other charges for medical services.

The amount of payment is the fair and reasonable value of such medical expenses. In this case, Phyllis Davis is seeking the sum of $49,200.11 in medical expenses.

As a result, the upper limit of the award, which you may make for medical expenses, is $49,200.11, since you may not award more than the [p]laintiff is seeking.

When the judge rendered his decision from the bench denying plaintiff's motions, he noted that the jury was not presented with any evidence that decedent suffered from pain as a result of the worsening bed sore. He further observed that no one testified, in light of decedent's physical condition and disability, that she "would have experienced any such pain." As a result, the jury's verdict

does not shock the judicial . . . conscience, does not result in the [c]ourt concluding that there's an overriding sense of injustice, or that there is a certain and abiding belief that the jury's verdict, in light of the facts and the evidence, falls outside the relatively [w]ide range of one that is acceptable and appropriate.

The judge reasoned that just as it would be improper to grant the request for a new trial, it would be improper to "impose an additur." It was plaintiff's burden to prove damages, and that burden was not carried.

With regard to plaintiff's demand for counsel fees, the court interpreted the Nursing Home Bill of Rights, upon which plaintiff was relying for the fee demand, to exclude ordinary negligence cases. The judge found the statute protected nursing home residents from the loss of rights and privileges as enumerated in N.J.S.A. 30:13-5. Since ordinary negligence, as alleged here, was not mentioned in the statute, he denied counsel fees. This appeal followed.

I

A motion for a new trial will be granted only where a miscarriage of justice occurred and the jury's award shocks the judicial conscience. R. 2:10-1; He v. Miller, 207 N.J. 230, 249 (2011); Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521-22 (2011). In reviewing such decisions, deference is accorded to the trial court with respect to "intangibles" not transmitted by the record (e.g., credibility, demeanor, "feel of the case"), but ultimately we make an independent determination as to whether a miscarriage of justice has occurred. Borough of Harvey Cedars v. Karan, 425 N.J. Super. 155, 169 (App. Div.) (citing Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)), certif. granted, 210 N.J. 478 (2012); Romano v. Galaxy Toyota,, 399 N.J. Super. 470, 478 (App. Div.) (citing Carrino v. Novotny, 78 N.J. 355, 361 (1979)), certif. denied, 196 N.J. 344 (2008).

It was plaintiff's obligation to establish decedent's pain and suffering; the trial record is devoid of such proofs. For that same reason the trial court denied the motion for a new trial, a conclusion with which we cannot disagree.

Plaintiff's experts did not testify that decedent suffered, although Bieber explained that loss of tissue exposes nerve endings. But plaintiff introduced no proof whatsoever that the worsening of the bed sore, from a three to a four, caused decedent more pain. Indeed, defendant's expert testified to the contrary, that her review of the records revealed no indication that decedent suffered any pain from the bed sore.

Plaintiff's reliance upon Hudgins v. Serrano, 186 N.J. Super. 465 (App. Div. 1982), is misplaced. In that case, the issue was the percentage allocation for pain and suffering where its existence was not in dispute. In this case, however, pain and suffering were not proven. Thus the judge properly denied the motion for a new trial as no miscarriage of justice occurred.

II

The concept of additur reflects "'[t]he power of a court, on motion for a new trial due to inadequate damages rendered by jury verdict, to require the defendant to consent to an increase to a stipulated amount of the award as a condition for denial of the motion for a new trial.'" Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 n.2 (2001) (quoting S.T. Rayburn, Comment, Statutory Authorization of Additur and Remittitur, 43 Miss. L. J. 107 (1972)); see also Tronolone v. Palmer, 224 N.J. Super. 92, 97-98 (App. Div. 1988). The remedy is typically applied to personal injury cases where "the damage verdict is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust." Tronolone, supra, 224 N.J. Super. at 97. Additur may be inappropriate where the amount of damages is disputed or implicates consideration of complex and voluminous evidence. 58 Am. Jur. 2d New Trial 411 (2012).

When approaching additur, "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). Additionally, a trial 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." Dolson, supra, 55 N.J. at 6. However, "'a court should not hesitate to modify a verdict which is unsupported by credible evidence, overlooks or underevaluates crucial evidence, or otherwise shocks the conscience.'" Bishop v. Harski, 191 N.J. Super. 109, 112 (1983) (citation omitted) (quoting Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 38 (App. Div. 1980)). Appellate court intervention follows nearly the same criteria. Baxter, supra, 74 N.J. at 596.

Additur would be appropriate if the jury's verdict was not supported by adequate evidence in the record, thereby rendering the result one which was manifestly unjust. It follows as night the day that by failing to prove pain and suffering, plaintiff failed to establish a basis for an award of damages. No additur would be proper under these circumstances and the application was therefore properly denied.

III

On cross-appeal, defendant contends that the medical expenses were not sufficiently connected to the care it provided, as opposed to the care rendered at the facilities which treated plaintiff's decedent prior to her admission at defendant's nursing home. Before the trial judge, however, defendant only objected to the hearsay nature of the proofs plaintiff proposed to introduce in order to establish the amount of expenses. Later, immediately before closing arguments, defendant objected to the lack of expert testimony that defendant's negligent conduct rather than the treatment of the facility at which the bed sore originated caused plaintiff to incur medical expenses.

If we believed the submission of the issue to the jury resulted in an unjust verdict, we would consider the point. The jury found defendant to be thirty percent liable for these medical bills. And plaintiff did present expert testimony to the jury to the effect the bed sore worsened while decedent was in defendant's care. We therefore see no reason to disturb the jury's decision.

IV

Plaintiff's final contention is that defendant's treatment of decedent violated N.J.S.A. 30:13-5(j), thereby establishing the statutory basis for an award of counsel fees as permitted in another section of the statute. That statute guarantees nursing home residents will:

Have the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person's care consistent with sound nursing and medical practices.

[N.J.S.A. 30:13-5(j).]

N.J.S.A. 30:13-8(a) authorizes payment of reasonable attorney's fees to nursing home residents where their rights as enumerated in N.J.S.A. 30:13-5 are violated. As the trial judge observed, however, plaintiff did not assert "a violation of the statutory rights afforded by the [A]ct." Although plaintiff alleged some causes of action created by the Nursing Home Bill of Rights, the actual jury instructions, verdict sheet, and recovery were all based on theories of ordinary negligence and not on a violation of any patient rights.

We have previously allowed statutory fees when a nursing home patient was transferred on a nonemergent basis from one facility to another without appropriate notice, in violation of N.J.S.A. 30:13-6. Brehm v. Pine Acres Nursing Home, Inc., 190 N.J. Super. 103, 108 (App. Div. 1983). But in that case, the defendant nursing home violated a specific statutory provision of the Nursing Home Bill of Rights. In this case, the judge's denial stemmed from the fact no violation of the Nursing Home Bill of Rights occurred, a decision with which we can only concur. Hence N.J.S.A. 30:13-8(a) does not apply to this situation.

1 The trial judge in rendering his decision with regard to the motion being appealed stated that decedent's daughter did not testify as to any pain and suffering either.