On appeal from and on certification to the Superior Court, Appellate Division, whose opinions are reported at 206 N.J. Super. 487 (1985).
For affirmance -- Justices Clifford, Pollock, Garibaldi and Stein. For reversal -- Chief Justice Wilentz, and Justices Handler and O'Hern. Clifford; J., concurring. O'Hern, J., dissenting.
The judgment as to defendant Dr. Blackwood is affirmed, substantially for the reasons expressed in the opinions below.
The judgment as to defendants Drs. Tischler and Boss is reversed, and the order of the Law Division denying a new trial is reinstated, substantially for the reasons expressed in the concurring and dissenting opinion of Judge Simpson, reported at 206 N.J. Super. 487.
CLIFFORD, J., concurring.
Although I admire the creativity behind the dissenters' proposal to give plaintiff yet another bite of this thoroughly-chewed apple, I record separately my disagreement with their votes (1) to reinstate plaintiff's claim against Dr. Blackwood -- a claim that every judge at the trial and appellate levels who has scrutinized it, including our dissenting colleagues, has held to have been unwarranted by the evidence -- and (2) to send back
for retrial the case against Drs. Boss and Tischler, in whose favor the jury returned a verdict that plaintiff never challenged on appeal. The route to that result converts us from the Court of last resort, see N.J. Const. of 1947 art. VI, to some sort of super rescue-mission.
As the dissent points out,
[t]he theory of plaintiff's case was that one or more members of the team failed to exercise that degree of care expected of them as medical professionals either by (1) not detecting the severed nerve, or (2) actually cutting it in the course of treating the underlying gunshot wound.
That is of course accurate, as far as it goes. What should be emphasized, however, is that the liability asserted against these physicians was based on the notion that they were a team -- indeed, within the hospital they were designated as Surgical Team "A" -- that they functioned as a team, and that Dr. Blackwood was "captain of the ship." As to Blackwood there was no evidence from which a fact-finder could conclude that he deviated from accepted medical standards. No expert testified to Blackwood's breach of professional responsibility. Any jury finding of Blackwood's culpability would have had to have been based on the theory that he was somehow "responsible" for plaintiff's injury because of what went on in the operating room at the hands of the operating surgeons. But the jury found, on contested evidence, that the operating surgeons were not liable; hence, in the absence of violation of some independent duty by Dr. Blackwood, as to which the record is barren, a verdict against him simply could not stand. It was a mistake. That is one of the reasons we have, and have always had, a provision in our Rules for judgment n.o.v. -- to afford the trial court the opportunity to correct jury error.
Our dissenting colleagues, having reached the conclusion -- a mistaken one, I submit -- that the case should be retried as to Boss and Tischler, then heap error on error by putting to Dr. Blackwood as well the task of rerunning a course that the dissenters agree took him to the right finish line in the first
place -- this because of what they perceive to have been an "unreal scenario" in the trial. That approach, however, completely overlooks the fact that whatever confusion may have beclouded this trial originated with plaintiff's attorney, not with defendants' attorney or with the trial court. Plaintiff proceeded from beginning to end, or almost the end -- I will get to that in a minute -- on the theory that all defendants were jointly liable for the alleged malpractice. He pursued that theory single-mindedly, doggedly, through the trial, including his summation to the jury.
At that point, or immediately thereafter, the attorney must have been stricken with a revelation of sorts. Here is how the scenario was played out, according to Judge Simpson's dissent below:
Just prior to summations the judge reviewed the charge he planned to deliver, and counsel agreed to the three questions on a verdict form that lumped the three doctors together as to negligence, proximate cause and damages. Neither counsel's summation attempted to separate the possible liability of the three defendants. The next day, immediately prior to the judge's charge, plaintiff's attorney requested separate questions as to possible negligence and proximate cause of the three defendants, advising the court:
MR. GERN: Judge, yesterday I did not get much of a chance to look at the questions and study them. In studying them overnight, my ...