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Russell v. Rutgers Community Health Plan

March 29, 1995

JESSE E. RUSSELL, AS ADMINISTRATOR AD PROSEQUENDUM FOR THE HEIR-AT-LAW OF CHERYL W. RUSSELL, DECEASED, AS GENERAL ADMINISTRATOR OF THE ESTATE OF CHERYL W. RUSSELL, AND INDIVIDUALLY; WILLIAM E. RUSSELL, AN INFANT BY HIS GUARDIAN AD LITEM, ROSHA MCGILL, PLAINTIFFS-APPELLANTS,
v.
RUTGERS COMMUNITY HEALTH PLAN, INC.; JAMES M. LUCIANO, M.D.; CENTRAL NEW JERSEY MEDICAL GROUP; AND JULIA LADD SMITH, M.D., DEFENDANTS-RESPONDENTS, AND S. AIELLI; MARY ANN MULLEN, A/K/A MARY ANN MUELLER; MARY ROE, NAME BEING FICTITIOUS; AND RICHARD ROE, NAME BEING FICTITIOUS, DEFENDANTS.



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

Approved for Publication March 29, 1995.

Before Judges Shebell, Wallace and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

SHEBELL, P.J.A.D.

Plaintiffs appeal from a jury verdict of no cause of action in favor of defendants in this medical malpractice action in which survival and wrongful death damages were sought. Plaintiffs, African-Americans, urge that defense counsel improperly used race as a criterion for removing the only African-American prospective juror from the panel; that the trial Judge erred in denying the request of plaintiffs' counsel for additional peremptory challenges, and that the Judge erroneously excluded testimony by the decedent's mother regarding statements made by decedent's sister. We affirm.

Decedent, Cheryl Russell, became ill on Wednesday morning, March 12, 1986. When she did not feel better by the next morning, her husband, Jesse, asked her parents to come take care of her so that he could go to work. When Mr. Russell got home that evening, Cheryl told him that she had made an appointment to be seen the following day by a doctor at Rutgers Community Health Plan (RCHP).

Defendant, Dr. James P. Luciano, M.D., saw Cheryl at 2:30 p.m. on Friday, March 14, 1986, at RCHP. She complained of shakiness, the chills, a fever, dizziness, fatigue, and muscle aches, but she did not have a sore throat, ear pain, vomiting, diarrhea, nasal congestion, or cough sputum. Upon examining Cheryl, Dr. Luciano found that her lungs were clear, that she was not in respiratory distress, and that there was no indication of mucus, congestion, or wheezing. It was Dr. Luciano's opinion that Cheryl had the flu. He told her to drink lots of fluids, to rest for a few days, to take aspirin for the aches, and to call if she did not improve, if she got worse, or if she developed new symptoms.

According to Mr. Russell, his wife's condition did not improve over the weekend. On Saturday and Sunday, she remained tired, feverish, and weak and just laid in bed. By the time he left for work on Monday, she was barely able to talk. Decedent's mother testified that Cheryl's breathing was shallow and her voice was barely audible. She called RCHP some time that morning and although she told the nurse that her daughter was too sick to do so, she was told that Cheryl had to come in to be seen by a doctor.

According to defendant Julia Ladd Smith, M.D., she had received information from the nurse regarding Cheryl's call, but Dr. Smith did not speak to the patient or her mother. Dr. Smith, through her nurse, advised Cheryl to increase her fluids and bed rest and to take aspirin for the aches. She prescribed medication for the dizziness and recommended that the patient make an appointment if her temperature persisted. A nurse spoke to Cheryl or her mother later that morning and made a note that the patient was short of breath.

Later that day, decedent's mother spoke to Cheryl's sister by telephone and discussed Cheryl's condition. Based on that conversation, the mother called the emergency squad. Cheryl was taken to the hospital emergency room and later admitted. Unfortunately, she went into cardiac arrest, and two days later, she died. Her cause of death was respiratory failure and sepsis from a streptococcus pneumonia organism that was in her bloodstream and her lungs, which had developed on top of her previous influenza. The pneumonia was irreversible by the time she had arrived at the hospital.

Plaintiffs' expert opined that Dr. Luciano had deviated from accepted standards of medical care when, on Friday, March 14, he failed to give Cheryl more detailed and specific instructions regarding the potential complications of flu and what she should do if these complications developed. Dr. Smith, he opined, had deviated by not personally examining Cheryl on Monday, March 17, and by not doing more than telling a very sick patient that she needed to make an appointment.

The jury returned a verdict finding that neither doctor had deviated from accepted standards of medical care in their treatment. Plaintiff's motion for a new trial was denied.

On appeal, plaintiffs contend that the trial Judge erroneously denied their motion for a mistrial when defense counsel for Dr. Luciano used a peremptory challenge to remove the only African-American on the jury panel. Defendants respond that plaintiffs failed to make a prima facie showing of an improper reason for the challenge, and that, in any event, defense counsel for Dr. Luciano articulated valid and non-race based reasons for striking this juror.

During jury selection, only one African-American person was in the panel of twenty-nine potential jurors. After several jurors were excused for cause and after several rounds of peremptory challenges, this juror was called into the box. He stated that he was forty-nine years old, divorced, and had four children, ages twenty-six, twenty-seven, twenty-eight and twenty-nine. He worked at Sunshine Biscuit, in the sugar wafer department as a relief person for five ...


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