On appeal from Superior Court of New Jersey, Law Division, Essex County.
Antell, J.h. Coleman and Simpson, JJ. Simpson, J.A.D., concurring in part and dissenting in part.
[206 NJSuper Page 488] In this medical malpractice case, plaintiff was working as manager of Cardinal Wine and Liquors Co., Bergen Street,
Newark on January 29, 1979, when he was shot in the chest, abdomen and left arm with a shotgun during the course of a robbery. Plaintiff was taken to College Hospital and admitted through the emergency room. He came under the immediate care of Surgical Team A, consisting of defendants. Dr. Blackwood was the attending physician. Dr. Tischler was the chief surgical resident. Dr. Boss was the senior surgical resident. Surgery was performed on plaintiff's chest, abdomen and left arm; only the left arm is involved in this appeal.
Plaintiff instituted the present action against Doctors Blackwood, Tischler and Boss and College Hospital, a division of the College of Medicine and Dentistry of the State of New Jersey, on February 3, 1979. By stipulation, the action against College Hospital was dismissed because of problems related to the notice provision of the Tort Claims Act. Even though the three defendant doctors were employed by College Hospital, late notice defenses with respect to them were waived. Plaintiff's theory of liability is that defendants either failed to diagnose and properly treat a severed or lacerated median nerve in the left arm which was caused by the shot gun explosion, or they severed or lacerated the median nerve during the operative procedure. The case was tried to a jury which found only Dr. Blackwood negligent and awarded plaintiff $300,000 in damages. The trial judge entered a judgment n.o.v. and denied plaintiff's motion for a new trial as to all defendants. Plaintiff has appealed.
Plaintiff first contends that the judgment n.o.v. was improper. He argues that (1) the jury was presented with evidence from which it could conclude that Dr. Blackwood was negligent, and (2) since defendant Blackwood did not move for a directed verdict at the close of all the evidence, a judgment n.o.v. was precluded. The test for determining whether to grant a judgment n.o.v. is whether upon viewing the evidence and reasonable inferences most favorably to the opponent, reasonable minds could differ as to whether malpractice was established.
Viewing the evidence in a light most favorable to plaintiff, it becomes readily apparent that plaintiff did not prove that defendant Blackwood deviated from accepted medical standards. Plaintiff attempted to establish the standard of care owed and deviation therefrom through the testimony of the defendants and Dr. Lieberman, who was plaintiff's expert. At the motion for judgment n.o.v. and at the oral argument before us, plaintiff's attorney was asked to specify the alleged negligence of defendant Blackwood. He stated that as the attending surgeon, Dr. Blackwood was obligated to have been in the operating room making observations and that he should have detected the lacerated nerve. As the trial judge correctly concluded, no expert testified that plaintiff's assertion was the standard of care owed. While all three defendants acknowledged that Dr. Blackwood, as the attending surgeon, was the overall supervisor and had the authority to modify or veto any surgical procedures, no one said he was required to be in the operating room at any time in order to fulfill his supervisory responsibility. Since the evidence convincingly demonstrated that defendant Blackwood did not scrub for the surgery and probably was not even in the operating room at all, the judge correctly concluded that the evidence was not sufficient to establish that Dr. Blackwood had deviated from the accepted medical standard as attending surgeon. It is not a matter of common knowledge that the attending surgeon was supposed to be in the operating room.
Plaintiff further argues that the judgment n.o.v. was inappropriate since defendant did not move for a directed verdict at the end of all the evidence. The record shows that at the end of plaintiff's case, counsel for all defendants moved for a directed verdict asserting that Dr. Lieberman's testimony was based on medical possibilities rather than medical probabilities. The judge correctly denied the motion for the reason stated
because counsel was incorrect in her characterization of the testimony. It is clear that Dr. Lieberman was aware of the difference and followed the correct standard. Even though the motion for a directed verdict was made at only the end of plaintiff's case and it urged a very narrow ground, the judge's reasons for denial of the motion included his belief that the evidence was sufficient to permit the jury to find each defendant liable. The judge granted the judgment n.o.v. because he was incorrect when he allowed the jury to deliberate on the negligence of Dr. Blackwood. Where a motion is made at the end of plaintiff's case or at the end of all the evidence seeking a directed verdict which is denied and the judge decides in a post-judgment hearing that his prior ruling was incorrect, he is free to correct his mistake. Hoke v. Pioneer State Bank, 167 N.J. Super. 410 (App.Div.1979), certif. den. 81 N.J. 290 (1979); Logan v. Tp. of No. Brunswick, 129 N.J. Super. 105 (App.Div.1974), certif. den. 66 N.J. 328 (1974). We therefore conclude that the judgment n.o.v. was properly granted.
Next we consider whether the trial judge erred in denying plaintiff's motion for a new trial. As we previously noted, the jury found defendants Tischler and Boss not negligent and it found defendant Blackwood negligent which proximately contributed to plaintiff's condition. We do not know the basis for its decision since the jury was not asked to specify which theory of negligence it relied upon in its verdict. The record does not disclose the reasoning of the judge for denying the motion for a new trial. The order dated October 4, 1983 provided "It Is Further Ordered that Plaintiff's Motion seeking a new trial as to all issues and all Defendants pursuant to R. 4:40-2(c) be, and hereby is, denied; . . . ."
A trial court is required to grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). Our analysis of whether plaintiff is entitled to a new trial begins with the opening statement. Plaintiff's counsel
informed the jury without objection that Team A performed the surgery on the plaintiff and that Dr. Blackwood was "the captain of the team. He was the captain of the ship. He was overall in charge of the operating unit." Dr. Tischler testified that as the chief surgical resident he made the decisions pertaining to the management and care of the patient including the diagnosis and proposed treatment. He further stated that his functions were carried out under the supervision of the attending surgeon, Dr. Blackwood. He said it was Dr. Blackwood's responsibility to either approve, modify or reject any proposed plan. He further explained that if the attending physician was present during the surgery, but the attending physician was not required to be present, he had the authority to stop any procedure. He said Dr. Blackwood was in "overall control." Dr. Boss also testified that Dr. Blackwood was the chief man of the team. He was the senior overall physician for the team. Dr. Blackwood testified that he was employed as a faculty member from the University College of Medicine and Dentistry and that he worked at the hospital as the attending surgeon for Team A. He was in charge of Team A. Dr. Blackwood further stated that it was his responsibility to be at the hospital on January 19, 1979 for purposes of supervising the activities of Team A. and that he was at the hospital.
Throughout the trial, when both Doctors Boss and Tischler were asked to explain how certain procedures were conducted during the operation, they always responded by indicating what "we had done," rather than specifying what each individual had done. It was in this same connection that plaintiff's counsel sought to have the court instruct the jury that a team effort was involved rather than that of individuals. Plaintiff's counsel prepared questions for the jury which were consistent with the manner in which he had conducted the trial. Those questions requested the jury to consider the doctors as a unit rather than as individuals. He wanted ...