On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication January 6, 1996.
Before Judges Havey, D'Annunzio and Braithwaite. The opinion of the court was delivered by: Braithwaite, J.A.D.
The opinion of the court was delivered by: Braithwaite
The opinion of the court was delivered by: BRAITHWAITE, J.A.D.
In this dental malpractice case, defendant appeals from a judgment entered on a jury verdict awarding damages to plaintiffs. Plaintiff Clinton Bryant *fn1 was awarded $457,625 in damages. With pre-judgment interest of $76,548.29, the total award was $535,173.29. The jury awarded plaintiff Priscilla Bryant $5,250 on her per quod claim, and with pre-judgment interest the total award was $6,127.12. Defendant asserts several points on this appeal. Foremost, defendant contends that the trial Judge erred in failing to charge the jury on the doctrine of comparative negligence. We disagree. However, we are satisfied that the trial Judge erred in not charging the doctrine of avoidable consequences with respect to the issue of damages. Accordingly, we reverse and remand for a new trial on the issue of damages only.
For purposes of this appeal, we essentially accept the version of events as presented by plaintiff. Sometime in 1966, while a member of the armed services, plaintiff became aware that he had a heart murmur. In September of 1989, after suffering a chemical exposure at work, plaintiff was rushed to the hospital. There again, he was told of his heart murmur and advised to see a cardiologist.
Later that month, plaintiff saw Dr. Romeo Tiu, a cardiologist. Dr. Tiu advised plaintiff that if he has any type of dental work performed he must be given antibiotics. Plaintiff testified at trial that Dr. Tiu told him he was to be given antibiotics for a full week prior to the dental procedure and for a full week subsequent to the procedure. However, Dr. Tiu disputed plaintiff's testimony and testified that he told plaintiff he was to take three grams of amoxicillin (antibiotic) one hour before the dental procedure and one and one-half grams of amoxicillin six hours later.
Prior to 1989, plaintiff became a dental patient of defendant. Following plaintiff's visit with Dr. Tiu, defendant was advised that plaintiff had a heart murmur and would require antibiotic treatment with any dental procedure, including teeth cleaning.
On January 25, 1991, plaintiff had a five o'clock appointment with defendant to have his teeth cleaned and x-rayed. When plaintiff arrived for the appointment, he told defendant that the cleaning would not be possible that day. He advised defendant, in accordance with what he believed his cardiologist told him, that since he had not taken any antibiotics for the one week period prior to January 25, 1991, the procedure should be rescheduled. Defendant, however, advised plaintiff that he did not need antibiotics for such a period prior to the cleaning. Defendant then placed a dose of the medication in a cup and handed it to plaintiff. According to plaintiff, defendant said: "this is all you need." Plaintiff took the medication with a cup of water.
Approximately forty-five minutes to one hour later, defendant cleaned and x-rayed plaintiff's teeth. After the treatment, defendant told plaintiff that everything had gone well and that he had no cavities. Plaintiff testified that he paid the bill and left. He further testified that neither defendant, nor defendant's wife, who worked in the office, gave him any further medication to take, nor did they give him a prescription to obtain-medication. However, plaintiff did not ask defendant for any medication, nor did he ask defendant for a prescription. Plaintiff said he did not question defendant anymore because he trusted him and had confidence in him, despite the contrary medical advice he received from his cardiologist, Dr. Tiu. Furthermore, after leaving defendant's office, plaintiff did not contact Dr. Tiu concerning the treatment provided by defendant.
Within two weeks of plaintiff's dental treatment he became very ill. Plaintiff was diagnosed with bacterial endocarditis. As a result, plaintiff required an aortic valve replacement and subsequent surgeries to repair or replace the prosthetic heart valve. Plaintiff's heart surgeries were performed in both New Jersey and Texas.
As noted, defendant asserts that the trial Judge erred in not charging comparative negligence. Defendant opposed this suit claiming he had given plaintiff a prescription for amoxicillin to be taken six hours after the dosage administered in defendant's office. Originally, it was defendant's position that plaintiff was negligent in not filling the prescription that defendant provided for the post-treatment antibiotics. However, the jury rejected this position and found that defendant had deviated from accepted standards of dental practice in not providing plaintiff with the post-procedure antibiotics or a prescription for same.
However, on appeal, defendant alters his basis for a comparative negligence charge. Defendant now urges that in light of plaintiff's knowledge of his medical condition and the instructions given to him by his cardiologist, the jury should have been instructed to consider plaintiff's failure to say something to defendant about the lack of a post-treatment dosage of antibiotics and his failure to consult with his cardiologist about the lack of post-treatment medication. Defendant asserts that plaintiff's lack of action in this regard is comparative negligence. We agree with defendant that plaintiff's ...