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Scott v. Salem County Memorial Hospital

Decided: June 3, 1971.


Lewis, Matthews and Mintz. The opinion of the court was delivered by Lewis, P.J.A.D.


Plaintiffs Lois Scott (herein plaintiff) and William Scott, her husband, appeal from an adverse judgment of the Law Division entered upon a jury verdict of no cause for action in favor of defendants, Medical Doctors Jerome Cotler and Basil Ingemi, from the denial of their motions for a new trial and from the denial of their application to take additional testimony from defendant Cotler and the wife and the sister-in-law of the jury foreman, James Beck, in connection with a charge of improper communications with the jury. The Salem County Memorial Hospital (hospital) was also a party defendant, and in a bifurcated trial on the issue of liability, the jury returned a verdict against it in favor of plaintiffs. The hospital did not appeal.

We recite only the essential facts that appear in the record. About 6 P.M. on July 16, 1966, plaintiff, a 42-year-old woman, was accidentally knocked down by a boy carrying a football. She was immediately taken to the hospital where she was examined by Dr. Cotler, the Chief of Orthopedics of the Medical Staff. He recalled that plaintiff related that there was an "audible snap" and that she experienced "painful deformity of the right lower leg, inability to aright or ambulate." He diagnosed her condition as a "closed comminuted fracture right tibia and fibula" with marked displacement. The doctor treated her fractures by a closed reduction and applied a "snug, long leg" plaster cast extending from plaintiff's groin to the toes of her right foot.

On the following day, Sunday, July 17, plaintiff complained to her husband, her roommate and the hospital nurses that the cast was tight and uncomfortable and that she wanted relief. By 3 P.M. she could not move her toes. Although two "house physicians" (neither of whom was licensed as a medical doctor by the State of New Jersey) viewed her leg and conferred about it, they did nothing to relieve her. That night, plaintiff's husband spoke to the

desk nurse and was informed that neither Dr. Cotler nor his partner, Dr. Ingemi, was immediately available.

Prior to leaving plaintiff on Saturday, July 16, Dr. Cotler left instructions on the hospital chart that he was to be notified if any problems developed. The doctor was on call Sunday, but neither he nor Dr. Ingemi visited plaintiff that day. On Monday, July 18, Dr. Cotler left on a vacation and, by pre-arrangement, his partner, Dr. Ingemi, assumed the care of all their patients, including plaintiff, whose medical status he had previously discussed with Dr. Cotler.

On Monday morning, Dr. Ingemi received a telephone call from a hospital nurse concerning plaintiff's condition, which had so deteriorated that there was no motion or sensation in her toes. The doctor ordered the cast to be split to the mid-tibia and the immediate administration of medication. Later that day, Dr. Ingemi personally attended plaintiff; the cast was then split to the knee and further medication was administered.

Subsequently, following a consultation with Dr. John Reinhardt, the Chief of Surgery of the hospital, plaintiff's right leg, which had developed gangrene, was amputated below the knee.

At the trial, plaintiffs' experts, Doctors Raymond Tronzo and Robert Tuby, testified that the critical day in the treatment of plaintiff was Sunday, July 17, and that the loss of plaintiff's leg was attributable to the defendants' failure to timely bivalve the cast to release the pressure created by edema and the failure to remove the cast or its top portion promptly upon the initial manifestation of circulatory embarrassment. Dr. Tronzo opined that the most propitious time for relieving plaintiff was on Sunday. He and Dr. Tuby agreed that plaintiff's condition was irreversible after the expiration of a 12 to 16-hour period without blood circulation and that defendants were negligent in failing to examine their patient on Sunday and Monday morning.

Defendants disputed this ascription of negligence. However, when Dr. Ingemi was questioned as to why he did not ask another doctor to look at plaintiff's foot in order to determine whether his telephonic direction of Monday morning to bivalve the cast to the mid-tibia was sufficient, he replied, "it was my responsibility." It is also noteworthy that defendants conceded that a tight cast could have caused gangrene. Nevertheless, they took the position that plaintiff's problem was occasioned by an injury to the nerves or vascular system at the time of her accident. Significantly, however, Dr. Cotler's initial examination of plaintiff revealed no evidence of such injury.

Plaintiffs predicate their appeal on the following grounds: (1) the trial court failed to deliver a charge to the jury, as requested, on the law of concurrent negligence; (2) the verdicts were inconsistent and against the weight of the evidence; (3) there were improper, irregular, direct and indirect communications to and within the jury, and the refusal of the trial judge to allow a more extensive inquiry with regard to these communications constituted prejudicial and reversible error; (4) the trial court erred in ordering a bifurcated trial; (5) there was an abuse of judicial discretion in not allowing counsel to conduct voir dire and in deleting proposed questions to prospective jurors; (6) substantial prejudice resulted from the manner in which the jury was selected, and (7) the trial judge erred in disallowing rebuttal evidence respecting expert testimony.

We are satisfied that justice mandates a retrial of this case. In the circumstances, the instructions to the jury should have included, as requested, a charge with respect to concurrent negligence. The mere statement by the court that all defendants might be jointly liable could have easily been understood by the jury to mean that all defendants were to be held liable if the negligence of each could have or did produce the injury by itself. "The law of negligence recognizes that there may be two or more concurrent and directly cooperative and efficient proximate causes of injury."

Menth v. Breeze Corporation, Inc. , 4 N.J. 428, 442 (1950). Nevertheless, these acts need not of themselves, be capable of producing the injury; it is enough if they are "a substantial factor" in bringing it about. See Rappaport v. Nichols , 31 N.J. 188, 203 (1959), quoted with approval in Titus v. Lindberg , 49 N.J. 66, 76 (1967). Also see Robbins v. Thies , 117 N.J.L. 389, 394 (E. & A. 1937), and Peer v. Newark , 71 N.J. Super. 12, 28 (App. Div. 1961), certif. den. 36 N.J. 300 (1962).

Tne trial judge also erred in unduly restricting the cross-examination of Dr. Cotler by plaintiffs' counsel with respect to a treatise entitled Watson-Jones on Fractures and Injuries which the doctor had indicated was a recognized, standard authority on the subject. See Ruth v. Fenchel , 21 N.J. 171, 176-79 (1956); Swank v. Halivopoulos , 108 N.J. Super. 120, 125 (App. Div. 1969), certif. den. 55 N.J. 444 (1970).

The record reveals that after the trial, Mrs. Nolan, a juror, informed the trial court, in substance, that (1) upon the jury's commencement of deliberation, the jury foreman, James Beck, said that "[t]he judge would be very angry if we brought back a quick, you know, disposition of this case"; (2) a newspaper clipping or clippings were read and discussed in the jury room; (3) juror Newhard, who has a brother-in-law who is a doctor and two sisters who are nurses, suggested that malpractice insurance rates were rising because of "cases like this"; (4) a court attendant told the jury to "hurry up"; (5) the heat in the jury room was so oppressive that one juror fainted, and (6) Beck received a communication from his sister-in-law, who was a patient of Dr. Cotler, that the doctor advised him to be strong-willed. Parenthetically, at this juncture, we note that the ...

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