On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff appeals from an adverse jury verdict rendered in this medical malpractice action. Plaintiff struck his head when diving into shallow water at an ocean beach. He was immediately taken to the Jersey Shore Medical Center, and defendant, Dr. Lau, treated plaintiff at the emergency room. After reviewing plaintiff's x-rays, Dr. Lau failed to diagnose a fractured vertebra. However, the doctor did prescribe a soft cervical collar. Hours later plaintiff became light-headed; he felt numbness in his arms and legs and severe overall pain and discomfort. He was transported to another hospital where new x-rays were taken, but they also were read as negative. However, a CAT scan taken the next day revealed that plaintiff had suffered a stroke, and that one of his vertebra was fractured.
At trial, plaintiff asserted that the doctor's negligence was the proximate cause of his disabilities. Defendant, however, contended that an arterial injury, present since the accident, caused the problem and his failure to diagnose the fractured vertebra was not a proximate cause of plaintiff's eventual
stroke-related injuries. In fact, he claimed that had the fractured vertebra been noticed, the plaintiff would have received the same treatment that he was given after the CAT scan revealed the fracture.
The problem in the case and the sole issue on appeal is a narrow one. It arises from the polling of the jury when the verdict was taken on the proximate cause issue. The verdict was reported to be unanimous on the issue of negligence, but five to one on proximate cause.
When the verdict was returned, the acting foreman of the jury misread the verdict sheet and initially reported that the jurors had unanimously voted on question 1(a) that there was no negligence on the part of Dr. Lau. Another juror stated "that is an error look at that sheet, please." The acting foreman then apologized for reading it wrong and stated that the jury had unanimously determined that Dr. Lau was negligent. The judge then addressed question 1(b), and the acting foreman reported that the jurors had determined by a five to one vote that Dr. Lau's negligence was not a proximate cause of plaintiff's stroke. The following then transpired:
THE COURT: All right. Now, members of the jury, on question 1(b) since your vote was not unanimous I have to do what we call polling, poll you and what that means is I have to make certain that there's no misunderstanding between you and Mr. Hughes and me, so I'm going to read the question again and tell you how I understand you voted on that question. Then, I am going to ask each one of you individually if I have correctly stated the jury verdict, and if I have, you say yes. If I've somehow misstated it or misunderstood it, you say no, okay?
The question is this: If so, that is, if there was negligence on the part of Doctor Lau, was that negligence a proximate cause of Mr. Ragusa's stroke?
As I understand what your foreman announced you voted no by a five to one vote.
Mr. Ebert, did I correctly state the ...