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Dubak v. Burdette Tomlin Memorial Hospital

Decided: February 7, 1989.

JOHN DUBAK, JR., GENERAL ADMINISTRATOR OF THE ESTATE OF JOHN DUBAK, III, DECEASED, AND JOHN DUBAK, JR., ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF JOHN DUBAK, III, DECEASED, PLAINTIFF-RESPONDENT,
v.
BURDETTE TOMLIN MEMORIAL HOSPITAL, ET AL., AND H. SEZER KOKNAR, M.D. AND STEWART & BROWN, P.A., AND "Q" LOUNGE, INC., A CORP., A/K/A MARTINIQUE MOTEL AND "Q" LOUNGE, T/A MARTINIQUE CAFE, DEFENDANTS-APPELLANTS



On appeal from Superior Court of New Jersey, Law Division, Cape May County.

Deighan, Baime and D'Annunzio. The opinion of the court was delivered by Baime, J.A.D.

Baime

[233 NJSuper Page 444] Plaintiff John Dubak, Jr., general administrator and administrator ad prosequendum of the estate of his deceased son, John Dubak III, instituted a wrongful death and survivorship action against Burdette Tomlin Memorial Hospital, H. Sezer Koknar, M.D., Sanford Fineman, M.D., James Menapace, M.D., Burdette Tomlin Emergency Group, Stewart & Brown, P.A., and Wildwood Rescue Unit, alleging medical malpractice in their treatment of the decedent. Plaintiff filed a second complaint against David Vitale, "Q" Lounge, Inc. and various officers and employees of the corporation, alleging that "Q" Lounge, Inc. failed to provide adequate security for its patrons and that Vitale committed an assault and battery upon the decedent. By order of November 18, 1985, the complaints were consolidated for purposes of trial on the issue of damages. Because the decedent's negligence, if any, could be considered in the suit against Vitale and "Q" Lounge but could not be assessed in the medical malpractice action, the cases were to be tried separately on the question of liability. Although the record is not altogether clear, it would appear that the latter aspect of this order, requiring separate trials as to liability, was

subsequently modified. It was agreed that all liability issues would be determined in the same trial, but that special interrogatories would be propounded to the jury permitting it to assign fault separately, corresponding to the named defendants in each complaint. Plaintiff's claims against various defendants were dismissed and the case proceeded against Vitale, "Q" Lounge, its officers and employees, and Dr. Koknar. Vitale subsequently defaulted.

Following a protracted trial, the jury awarded $250,305.54 in compensatory and punitive damages. Of this amount, Vitale was assessed $50,000 in exemplary damages. In its verdict, the jury determined in the medical malpractice action that Vitale was 70% at fault, "Q" Lounge was 20% negligent and Dr. Koknar was 10% negligent. In the action against "Q" Lounge and its officers and employees, the jury found that Vitale was 60% at fault, "Q" Lounge was 20% negligent and the decedent was 10% negligent. After the defendants' motions for a new trial were denied, the court molded the verdict and entered judgment accordingly.

The extensive record reveals the following essential facts. In the early morning hours of July 16, 1983, the decedent was involved in a physical altercation with Vitale at the Martinique Cafe, a popular discotheque, located in Wildwood, New Jersey. The decedent and his companions, Thomas Duffy, Lisa Sheehan and Joseph Hooven, were seated at a table when Duffy decided to approach the dance floor. As Duffy leaned against a pole observing the dancers, Vitale, who was seated at a nearby table with several other individuals, demanded that he refrain from blocking his view. When Duffy complied and returned to his table, the decedent walked to the dance floor and assumed a position near the pole. At this point, Vitale, who was much taller and heavier than the diminutive decedent, approached him, resulting initially in an exchange of words.

Although the exact chronology of events that followed is in dispute and remains somewhat unclear, it would appear that

Vitale jumped across a table and struck the decedent in the face. The decedent apparently swung at Vitale with a glass of beer, opening a wound in the latter's face. At trial, there was conflicting testimony concerning whether the decedent spit at Vitale and, if so, when this occurred.

In any event, several "bouncers" immediately intervened. One bouncer accompanied the decedent to the door, while another escorted Vitale to the bathroom in order to administer first aid. While in the bathroom, an enraged Vitale indicated that he intended to seek revenge. Once outside the bar, Vitale attacked the decedent, who apparently was waiting on the sidewalk for his companions. Again, the bouncers interceded, physically restraining Vitale. When they released him, however, Vitale again assaulted the decedent. After this engagement, the bouncers, while restraining Vitale, again ordered the decedent to leave.

The decedent, accompanied by Duffy and Sheehan, left the Martinique and walked toward the adjacent parking lot, which was owned by "Q" Lounge and was generally used by its patrons. As they reached the decedent's automobile, Vitale "came running at full sprint." Sheehan returned to the tavern, seeking the assistance of the bouncers. The final confrontation occurred in the parking lot, where Vitale tackled the decedent and repeatedly kicked him in the midsection as he lay on the ground. Again, the bouncers appeared and forcibly restrained Vitale.

At this point, a Wildwood police officer, who happened to be patrolling the area, was apprised of the incident by a pedestrian. Noticing that Vitale was bleeding from a facial wound, the officer placed him in the patrol vehicle. The decedent, who was standing among several on-lookers, then collapsed. The Wildwood Rescue Unit was immediately summoned and an ambulance reached the scene within minutes.

The decedent's initial complaint to the rescue squad personnel was that of abdominal pain. He was then placed in the ambulance

and transported to the Wildwood Clinic. After a brief stop, the rescue squad personnel were told to proceed to the Burdette Tomlin Memorial Hospital. The decedent lost consciousness upon arrival at the emergency room, where he was admitted at 1:07 a.m.

Emergency room treatment was initiated by Dr. Menapace, the emergency room physician, who, based on his examination, found indications of internal injuries. He immediately summoned Dr. Koknar, who arrived at approximately 1:15 a.m.

Determining that the decedent was suffering from shock, Dr. Koknar introduced large amounts of fluid intravenously and administered various medications. At 1:50 a.m., the physician performed a peritoneal tap to determine if blood was present in the abdominal cavity. It is undisputed that this test revealed a massive intraperitoneal hemorrhage. In his trial testimony, Dr. Koknar conceded that "all medical signs" and symptoms pointed in the direction of bleeding from internal organs. A blood transfusion was ordered at 2:15 a.m. and was first administered at 2:30 a.m. Four additional transfusions were administered before 3:45 a.m., at which time the decedent was taken to the operating room, where he died at 4:35 a.m.

Dr. Donald Jason, a forensic pathologist, determined that death was caused by "internal bleeding into the abdomen, hemoperitoneum due to laceration of the liver and contusion of the pancreas," which was the result of a "blunt force injury." Plaintiff's expert in general surgery, Dr. Saul Weinstein, testified that the laceration of the decedent's liver was reparable, i.e., that it could have been "easily handled by customary surgical techniques." He concluded that Dr. Koknar's care and treatment of the decedent fell below the accepted standard of medical practice. More specifically, he testified that the peritoneal tap, blood transfusions and the surgery should have been started earlier, and that the failure to do so constituted a substantial factor in causing the decedent's death. Stated somewhat differently, Dr. Weinstein was of the view that the

decedent died by reason of Dr. Koknar's "failure to expeditiously diagnose and vigorously treat these injuries." According to the witness, the decedent would have survived had surgery been performed earlier.

It is against this factual backdrop that we consider the arguments advanced by defendants. Although we consolidated the separate appeals filed by Dr. Koknar and "Q" Lounge, the issues presented are entirely different. We proceed initially with the contentions of Dr. Koknar and then consider the questions raised by "Q" Lounge.

I.

In accordance with plaintiff's request, the trial court provided the jury with alternative charges on the question of causation. In its instructions, the court stated that, in order to find liability, the jury must determine that Dr. Koknar's negligence was "an efficient cause of the incident, a cause which necessarily set the other causes in motion, [that it] was a substantial factor in bringing about . . . the injuries complained of, . . . a cause which naturally and probably led to and might have been expected to produce [the decedent's death.]" The court further instructed the jury that it could find Dr. Koknar liable if, alternatively, "his negligence, if any, increased the risk of death" and such enhanced risk constituted "a substantial factor in causing the decedent's death." In the special interrogatories propounded to the jury, these alternative theories of causation were correspondingly given. Counsel for Dr. Koknar interposed timely objections to both the court's instructions and the special interrogatory options given to the jury. In its verdict, the jury found that Dr. Koknar's negligence did not "naturally and probably" lead to the decedent's death, but that it created an "increased risk," constituting a "substantial factor" resulting in the decedent's demise.

Dr. Koknar argues on appeal that an "increased risk" charge should be given only in cases involving ...


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