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McCann v. Lester

Decided: March 21, 1990.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Dreier, J.A.D.


Plaintiff, John McCann, appeals from the granting of defendant's new trial motion at the end of the first of two trials in this medical malpractice case. He also seeks to have the verdict in the second trial set aside due to various allegedly prejudicial and erroneous trial rulings. As we are reversing the initial granting of defendant's new trial motion, we will but briefly comment on the alleged errors in the second trial.

Through 1981, McCann, in his words, suffered from "severe pain on the right side of my head. . . . I was also having trouble with my eyesight and . . . was real irritable." Plaintiff further stated that at times the symptoms became so severe, "I could hardly function. I was dizzy, kept feeling as though I was going to pass out . . . I could barely get up." Seeking relief, McCann met with defendant Arthur I. Lester, M.D. After taking x-rays and hearing the symptoms, he diagnosed frontal sinusitis and recommended surgery. Of note in the plaintiff's history was his smoking habit since about the age of 16 (between one-half a pack and a pack per day), his use of marijuana throughout his youth, and later occasional use of cocaine. Although plaintiff admits only to a limited use of cocaine, some of the medical records suggest a possible serious substance abuse problem. Dr. Lester claims he advised McCann not to smoke, and not to use drugs.

In April 1981, Dr. Lester performed a trephination, a procedure whereby the sinus is drained. Following the procedure, McCann noticed a marked improvement in his condition. He also quit smoking for six months. However, about four weeks following the procedure, his earlier symptoms returned, and a second trephination was performed in May of 1981. This second procedure, however, provided no relief of plaintiff's symptoms.

Dr. Lester next proposed an operation, an osteoplastic flap, whereby fat was to be removed from the stomach and placed in the frontal sinus to prevent air from going into it. Dr. Lester,

then incapacitated due to an accident, was unable to perform the operation and McCann consulted defendant Mark Levy, M.D. Dr. Levy also proposed an osteoplastic flap, and while the patient was under anesthesia, elected to drill a hole from the right sinus into the left sinus in order to improve drainage. This operation also failed to relieve the plaintiff's symptoms, and in fact, after this operation, the swelling in his face increased.

McCann returned to Dr. Lester's care and on a subsequent readmittance to the hospital, had a new sinus trephination and an osteoplastic flap procedure. Thereafter, however, he still suffered from severe head pain and flu-like symptoms. About this time, McCann learned of the risk of osteomyelitis. According to plaintiff's expert, this is a disease "that involves now, not only the cavities of the sinuses but the thickness of the bone itself, all of the marrow . . . within the bones becomes diseased."

After numerous other hospital stays, in 1984 McCann was admitted to Mt. Sinai Hospital in New York City, where a sinus obliteration procedure was performed. In this procedure, a bone was removed from McCann's forehead. Although he has felt better after this procedure, between March 1982 and August 1984 McCann had 21 separate hospital stays for chronic sinusitis, osteomyelitis, depression and anxiety. He also spent nearly one month at Johns Hopkins for pain management and addiction to pain-killing drugs.*fn1

On February 3, 1986, McCann filed a complaint against Drs. Lester and Levy,*fn2 alleging malpractice. Plaintiff contended at his first trial that he had been misdiagnosed and negligently treated; he also hoped to show that his condition stemmed from allergies, perhaps to cigarette smoke, and that Dr. Lester failed to account for this. Although defendants made a motion for

the judge to charge the jury that plaintiff's taking drugs and smoking was wanton and willful conduct, barring plaintiff's claim, the motion was denied.

It is the polling of the jury, however, allegedly evincing a flaw in its deliberations, that constitutes one of two central issues in this controversy. After ...

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