Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
This is a medical malpractice action brought under the Death Act, N.J.S. 2A:31-1 et seq. Defendant Boffman appeals from a judgment of $78,000 entered in favor of the plaintiff in the Law Division on a jury verdict.
Plaintiff's complaint also named Dr. Samuel L. Goldstein and Doctors Hospital, Inc., as defendants, charging each with negligence which contributed to the decedent's death. However, motions for judgments of involuntary dismissal
made by those defendants at the close of plaintiff's case were granted. The motion in behalf of Doctors Hospital, Inc. was unopposed; plaintiff does not appeal from the judgment entered in favor of Dr. Goldstein.
In submitting the case against Dr. Boffman to the jury, the trial court, for the purpose of clarity, separated plaintiff's cause of action into two separate and distinct claims, and charged:
"If you find that Dr. Boffman failed to exercise the proper standard of care of the medical profession in failing to arrange for a Caesarean operation prior to the delivery date and that such failure was the proximate cause of the decedent's death, then you will find for the plaintiff as to claim number one."
"* * * if you find that Dr. Boffman on July 31, 1957 had the decedent's consent and failed to exercise the proper standard of care of the medical profession, that is, in failing to arrange for a Caesarean within a reasonable time, and that such failure was a proximate cause of the decedent's death, then you will find for the plaintiff as to claim number two."
When the verdict was announced, the foreman stated that the vote of the jury was eleven to one in plaintiff's favor as to claim number one, and that the jury was unanimous in its finding of liability on claim number two.
Subsequently, defendant moved for a new trial. In a letter opinion, the trial judge granted defendant's motion as to claim number one, holding that "the evidence leads irresistibly to the conclusion that there was no negligence by Dr. Boffman in this regard. It does not appear to the Court that the minds of reasonable men could differ as to this, * * *." This, in effect, was a finding that plaintiff had failed to sustain the burden of proof as to claim number one, as a matter of law. The court denied the motion as to claim number two, holding that there was "ample evidence from which the jury could find that Dr. Boffman deviated from accepted practice of the medical profession on the evening of July 31, 1957,
although there were sharp factual disputes." The court also rejected defendant's argument that the verdict was excessive in amount.
This appeal followed. Plaintiff does not cross-appeal (see R.R. 1:2-6), but suggests that since the defendant's notice of appeal states that appeal is taken "from the whole of the final judgment entered in the above entitled action in favor of plaintiff-respondent," it thereby opened "in the Plaintiff's favor that part referable to claim #1 as an additional ground on which the judgment may be affirmed." Plaintiff cites us no authority in support of this contention, nor is the impropriety of the court's disposition of claim number one on the motion for a new trial set down in plaintiff's brief as a question involved in the present proceeding.
Lastly, plaintiff does not argue in his brief that the trial court erred in holding that the proofs did not raise a jury question of defendant's liability on claim number one. See R.R. 1:7-1(c).
Consequently, we will concern ourselves only with the adjudication of claim number two, and with the subsidiary points raised by the defendant which relate to such determination.
In December 1956 decedent, then thirty-three years of age, accompanied by her husband, plaintiff herein, consulted Dr. Goldstein with reference to a suspected pregnancy. The doctor had previously delivered her of a child by Caesarean section. His examination disclosed that decedent was pregnant and he told the couple that a Caesarean would again be necessary.
The Parkers consulted Dr. Goldstein twice thereafter. On the second occasion the doctor told them that he "was kind of ill, that he would have to go away for a rest," and then introduced them to Dr. Boffman who took over the case. They saw Dr. Boffman twice after that. During the second of these visits, according to plaintiff, the doctor told him that he would let plaintiff know when he should bring Mrs. Parker back. They did not return to Dr. Boffman's office thereafter,
and did not attempt to communicate with him again until July 31, 1957.
Plaintiff testified that during the afternoon of that day his wife awakened him and complained of pain. He said that he then telephoned the defendant and could get no answer. He dressed his two children and again telephoned but received no response. He then took Mrs. ...