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D'Aries v. Schell

Decided: June 28, 1994.


On appeal from Superior Court, Law Division, Essex County.

Before Judges J.h. Coleman, Muir, Jr., and Levy.


The opinion of the court was delivered by COLEMAN, P.J.A.D.

The significant issues raised in this medical malpractice case are whether plain error occurred when the trial Judge failed to instruct the jury (1) the defendant bore the burden of proving plaintiff Larry D'Aries's comparative fault and (2) that the evidence respecting plaintiff's health habits and failure to follow medical advice before and after the alleged malpractice could not be considered as evidence of the patient's fault under comparative

negligence principles. We hold both constitute plain error requiring a reversal.

The malpractice against defendant Jerome M. Schell, a doctor of podiatric medicine, is alleged to have occurred between January 2, 1986, and March 3, 1986, during his treatment of plaintiff's left big toe. Based on plaintiff's health habits and failure to follow medical advice, Schell contended plaintiff's comparative fault should preclude a recovery. A jury concluded that plaintiff and Schell were sixty percent and forty percent negligent respectively, requiring the entry of judgment for Schell. This appeal follows the denial of a new trial motion.


Plaintiff was diagnosed in the mid to late 1960s as having diabetes mellitus. When plaintiff first consulted with Dr. Schell in 1978, he was taking insulin daily to control diabetes. It is widely recognized that diabetes adversely affects the circulatory system in general and the lower extremities in particular. Plaintiff visited Dr. Schell because Everett O. Bauman, M.D., plaintiff's treating physician for the diabetes in 1978, recommended that plaintiff see a podiatrist. Over the next seven to eight years, plaintiff did not consult with a physician concerning his diabetes.

Plaintiff first saw Dr. Schell in April 1978 complaining of a toe infection. He treated the condition with Keflex, a broad spectrum antibiotic. Plaintiff also saw Schell on May 18, 1981, August 12, 1983, May 4, 1984 and March 5, 1985, for various toe infections which were treated with antibiotics. Those treatments are not involved in this case.

On March 7, 1985, plaintiff was apparently injured in an automobile accident and sought treatment from an internist, Dr. Joseph Salese. In addition to treating the accident injuries, Salese advised plaintiff that he needed to monitor his blood-sugar levels and control his weight because of his diabetes. Salese also ordered various medical tests including non-invasive "Doppler studies" of plaintiff's legs and feet to detect any circulatory

problems. Either Salese or Schell referred plaintiff to Dr. H. Stephen Fletcher, a vascular surgeon, for the Doppler studies.

Three Doppler studies were performed by Dr. Fletcher on April 16, 1985, and they indicated the need for an arteriogram to reveal the condition of plaintiff's circulatory system in his lower extremities. The arteriogram was performed on April 23, 1985, and it revealed plaintiff had a partial blockage of the femoral artery in his left leg between the groin and knee.

Armed with the result of plaintiff's arteriogram, Fletcher informed Salese that he recommended plaintiff undergo bypass surgery to improve blood circulation to his lower left leg. When plaintiff requested a second opinion, he was referred to defendant Franklyn N. Gerard, M.D., a vascular surgeon.

Gerard examined plaintiff on April 30, 1985. After studying x-rays and the arteriogram, he concluded plaintiff's arteries in both legs were significantly calcified and narrowed as a result of diabetes. However, he concluded bypass surgery was unnecessary at that point because plaintiff's chief complaints - leg pain and shortness of breath - could be eliminated by weight loss. This opinion was not involved in the claim against Gerard.

On May 14, 1985, plaintiff visited Salese again in connection with the diabetes who ordered additional blood tests and a stress test. Plaintiff, however, "didn't like Dr. Salese" so plaintiff did not show up for either of the tests. He also refused to be treated by Salese again. This no-show prompted Salese to advise plaintiff by letter that he was withdrawing as plaintiff's diabetes physician. He recommended that plaintiff quickly seek the care of another physician. The letter stated it was plaintiff's persistent refusal to follow Salese's medical advice and course of treatment for his diabetes that caused Salese to withdraw from the case. Following the withdrawal of Salese, plaintiff was once again without a diabetes doctor.

On September 5, 1985, plaintiff kept a scheduled appointment with defendant Gerard. Gerard conducted some non-invasive

tests of the circulation in plaintiff's legs and concluded the results were unchanged from the earlier tests. Consequently, Gerard reaffirmed his opinion that there was no present need for bypass surgery. Notably, when Gerard learned that Salese was no longer treating plaintiff for diabetes, he strongly recommended that plaintiff go to another physician to monitor his diabetic condition.

On November 4, 1985, plaintiff visited Dr. Ernest DeFazio, an internist, seeking treatment for his diabetes. DeFazio examined plaintiff but conducted no tests. DeFazio did, however, recommend diet and exercise to control plaintiff's weight. The record does not indicate whether DeFazio scheduled another appointment for plaintiff. It is certain, however, that DeFazio did not see plaintiff again until early March 1986, when plaintiff was admitted to a hospital.

In the meantime, on January 2, 1986, plaintiff went to Schell for treatment of an infection of the big toe on his left foot. Because Schell was unable to extract any fluid from the infected toe, he was unable to obtain a culture for testing to determine the most appropriate antibiotic to treat the infection. Schell did not apply a vaseline-based topical antibiotic ointment to the infected toe for fear that it would interfere with any possible fluid drainage. Instead, he treated the toe with an antiseptic solution and bandaged it. He also prescribed Keflex to combat the infection. There was a dispute as to when the next visit was scheduled.

Schell testified that it was his office practice to schedule follow-up appointments within a week when a patient has an infection. He testified that he must have scheduled such an appointment for plaintiff, but that plaintiff must have canceled it by telephone. Schell's appointment book, however, did not reflect the canceled appointment. For his part, plaintiff testified that Schell had not scheduled him to appear for a follow-up visit until twenty-six days later, January 28, 1986.

Schell also testified that plaintiff telephoned him on the evening of January 2, 1986, and angrily complained that he had spoken to another doctor who had ...

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