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Kosiwczuk v. Laurente

Decided: February 25, 1991.

JULIE A. KOSIWCZUK, EXECUTRIX FOR THE ESTATE OF BARBARA KOSIWCZUK, DECEASED, PLAINTIFF-APPELLANT,
v.
ROMEO LAURENTE, M.D., DALE GOODE, M.D., AND HAMILTON HOSPITAL, AND FEROZ SAFDAR, M.D., DEFENDANTS, AND CHRISTETA LAURENTE, M.D., DEFENDANT-RESPONDENT



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

King, Long and Stern. The opinion of the court was delivered by King, P.J.A.D.

King

[246 NJSuper Page 290] In this medical malpractice death action the jury returned a verdict comprised of inconsistent answers to general verdict interrogatories and a special interrogatory. The verdict also included a damage award of $265,000 against Dr. Christeta Laurente only. The answer to the special interrogatory on the medical cause of death conflicted with the answers to the more general interrogatories on respondent's professional negligence

and its proximate causation to damages. In response to a post-trial motion, the judge entered a judgment in Dr. Laurente's favor notwithstanding the verdict (n.o.v.), R. 4:40-2(b). The plaintiff appeals.

Under R. 4:39-2*fn1 the judge had three choices in the circumstances. Under this rule he could: (1) direct the entry of judgment in accordance with the special interrogatory (as he did here), (2) return the matter to the jury for further consideration of its answers and a verdict, or (3) order a new trial. His ultimate ruling of a judgment n.o.v. was consistent with the answer to the special interrogatory which established that decedent's death was unrelated to any possible negligence on Dr. Christeta Laurente's part.

Where the answer to a special interrogatory is inconsistent with the general verdict, the judge may indeed direct entry of judgment in accordance with that answer, notwithstanding the general verdict but the judge does not have to do so. The purpose of this rule which allows use of special interrogatories is "to require the jury to specifically consider the essential issues in the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be

localized." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19, 245 A.2d 208 (App.Div.), certif. denied 52 N.J. 493, 246 A.2d 452 (1968); see Bleeker v. Trickolo, 89 N.J. Super. 502, 507, 215 A.2d 571 (App.Div.1965). This purpose is fulfilled by the jury's special answer.

What follows in the wake of inconsistent answers is our concern here. We conclude that in this case the judge should have fully explained the implications of the answer to the special interrogatory on the "medical cause of death" to the jury and asked the jury to resume deliberations. He never did this in either the main or the supplemental jury instruction. We thus conclude that the judge prematurely took the matter from the jury. We reverse and remand for a new trial on all issues.

In this action for wrongful death allegedly caused by Dr. Laurente's malpractice the conflict was sharp and clear.*fn2 The plaintiff claimed the decedent's (Barbara Kosiwczuk), death on May 3, 1984 was caused by negligent treatment of her edematous, thrombophlebitic left foot and leg which resulted in a massive, fatal pulmonary embolism. The defendant-respondent physician, Dr. Laurente contended that death was caused by disseminated intravascular coagulation secondary to septicemia which condition had nothing to do with her treatment of the patient. Indeed, nobody ever claimed that it did.

Plaintiff's experts, Dr. Slawek and Dr. Roberts, testified that Dr. Christeta Laurente (1) negligently treated her thrombophlebitis and (2) this resulted in the pulmonary embolism causing death. Defendant Dr. Laurente's experts, Dr. Rubin, Scotti, and Dixon, testified that the cause of death was "overwhelming bacterial septicemia" and that defendant Dr. Laurente's treatment had nothing to do with this condition or her death from it.

No autopsy was done so the cause of death could not be precisely established post mortem.

The judge gave the jury this verdict form when it retired to deliberate.

JURY VERDICT FORM

I Was defendant, Dale Goode, M.D., negligent, i.e., did his medical care of decedent, Barbara Kosiwczuk, deviate from accepted standards of medical practice for a specialist in emergency medical care?

YES ___ NO X

II If your answer to question I is "yes," was such negligence a proximate cause of the death of decedent, Barbara Kosiwczuk?

YES ___ NO ___

III Was defendant, Christeta Laurente, M.D., negligent, i.e., did her medical care of decedent, Barbara Kosiwczuk, deviate from accepted standards of medical practice for a specialist in internal medicine?

YES X NO ___

IV If your answer to question III is "yes," was such negligence a proximate cause of the death of decedent, Barbara Kosiwczuk?

YES X NO ___

V Was defendant, Feroz Safdar, M.D., negligent, i.e., did his medical care of decedent, Barbara Kosiwczuk, deviate from accepted standards of medical ...


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