On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication November 21, 1996. As Corrected December 9, 1996.
Before Judges Michels, Kleiner and Coburn. Coburn, J.s.c. (temporarily assigned).
The opinion of the court was delivered by: Coburn
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
This is a medical malpractice case. The jury returned a verdict of no cause of action in favor of defendants. Plaintiffs' subsequent motion for a new trial was denied. Plaintiffs appeal. While no judgment appears to have been entered reflecting the verdict, an order was filed indicating a denial of the motion. Since the matter has been fully briefed and argued as if a judgment had been entered, we will for purposes of this appeal treat the order as if it incorporated a judgment. We are satisfied that reversible error occurred in one respect: the trial court, as requested should have charged the jury to ignore defendants' allegation that plaintiff Margaret Hofstrom had been contributorily negligent. Therefore, we reverse and remand for a new trial.
On Monday, March 12, 1990, plaintiff Margaret Hofstrom, age 25, was treated by defendant Jerold M. Share, M.D., in the emergency room at West Jersey Hospital - Voorhees Division. Her chief complaints were abdominal pain, nausea, vomiting, and pain on urination. Her temperature was 99.6, although it had been as high as 101. Her vital signs were normal. Dr. Share's physical examination revealed normal bowel sounds in all four quadrants of the abdomen. He found that she had diffuse tenderness on palpation of the abdomen, but there was no mass present. She neither "guarded" against the palpating nor complained of pain after the palpating had stopped. She had "pronounced left-sided costovertebral angle tenderness" and jumped when that area was pressed. These findings suggested to Dr. Share that the plaintiff was most likely experiencing a disease process in her kidneys which was probably an infection of the upper urinary system. He had a urinalysis performed which indicated that the white blood cell count was "4-6" which meant that every field that was looked at had at least four and as much as six white blood cells. In his view, this test result was abnormal. Based on the test result, and his examination, and the history, he reached a differential diagnosis of urinary tract infection. He discussed the diagnosis with plaintiff and prescribed medication. He advised plaintiff to follow up with her own physician within two days. He further advised her to return to the emergency room if her condition worsened in any respect.
At around 2:00 a.m. on Wednesday, March 14, 1990, Mrs. Hofstrom awoke with chills and a fever. Later that morning, her pain worsened. She was brought to the hospital. She was diagnosed as having appendicitis. During the ensuing surgery, it was determined that plaintiff had diverticulitis, an inflammation of the colon, and a perforated bowel which required a temporary colostomy for about five months. Plaintiff suffered extensive scarring as a result of the surgery and complained at trial of continuing abdominal pain.
Plaintiff's medical expert, Dr. David Befeler, testified that Dr. Share deviated from accepted medical standards. In his opinion, Dr. Share failed to appreciate that the urinalysis results were normal and did not indicate urinary tract infection. Consequently, Dr. Share was further negligent in not ordering a urine culture and a complete blood count and in discharging the patient without having the results of those tests. Dr. Befeler admitted, however, that diverticulitis was a highly unlikely diagnosis considering plaintiff's history and the results of the physical examination. He further conceded that it was reasonable for Dr. Share to consider urinary tract infection, especially since diverticulitis is unusual in young people. He agreed that the plaintiff's condition at the emergency room on Monday did not indicate a need for surgery. Finally, he testified that, in accordance with Dr. Share's discharge instructions, plaintiff should have returned to the emergency room as soon as she experienced a deterioration of her condition Wednesday morning.
In support of Dr. Befeler's testimony, plaintiff presented Dr. John C. Baylis, Chairman of the Pathology Department and Director of the medical laboratory at West Jersey Hospital. He said that the plaintiff's urinalysis test results were essentially normal.
The defense presented the testimony of Dr. Share and Dr. Julius Kaplan, a board certified specialist in emergency medicine.
Dr. Share explained the reasons for his diagnosis of urinary tract infection and why he did not perceive this as a case of diverticulitis. He explained that diverticulitis is "exceedingly rare" in women of 25 years of age and that 90 to 99% of women who are 25 years old and present with urinary complaints have an infection of the urinary tract. He noted that pain on urination is uncommon with diverticulitis and that nausea and vomiting occur in only 20% of diverticulitis cases. Plaintiff's normal and active bowel sounds, the lack of change in bowel habits, and the absence of a previous history of diverticulitis, all indicated to him an absence of that illness. Diverticulitis usually is reflected by pain located in the abdomen's lower left quadrant, whereas plaintiff had diffuse pain. Additionally, plaintiff had pronounced pain in the left side of her back (near her kidneys) which indicated an infection in the upper urinary tract. He thought the urinalysis confirmed his leading diagnosis because each analyzed field had at least four white cells, which he believed was abnormal.
Dr. Share further explained that he did not order a urine culture because it would not have changed his management of the patient since he believed it took 48 to 72 hours to get the results back. He testified that a culture is not normally ordered for a younger patient and that he would have ordered it later if she had returned with no improvement. He further explained that his treatment was not complete and that his instructions to follow up with her primary physician within two days and to return earlier if increased pain or fever occurred were related to his differential diagnosis. In Dr. Share's view, a complete blood count would have been inappropriate because the outcomes would have been either "normal," "slightly elevated," or "very elevated." The first two possibilities, he said, would not have changed his treatment and would not have helped with the diagnosis. A "very elevated" reading would have meant that a severe illness was present which was entirely inconsistent with plaintiff's condition as he observed it.
Dr. Julius Kaplan, defendant's expert witness, stated that diverticulitis is uncommon in people under age 50, rare in those under 40, and extremely rare for people under 30. He stated that the symptoms for diverticulitis consist of localized abdominal pain in the lower left side, fever, and decreased bowel sounds. Urinary tract infection, on the other hand is indicated by pain or urination, pain in the lower abdomen, low grade fever, some nausea and vomiting ...