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Mahoney v. Podolnick

January 31, 2001

MICHAEL MAHONEY, EXECUTOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ELAINE BROWN, DECEASED, AND MICHAEL MAHONEY, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
DR. MARVIN S. PODOLNICK AND DR. DAVID LANDSET, J/S/A., DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Stein, J.

Argued September 11, 2000

On certification to the Superior Court, Appellate Division.

This appeal concerns a medical malpractice cause of action in which the trial court vacated the verdict of a seven-member jury and ordered a second trial. We granted certification primarily to consider whether a jury verdict must be invalidated when one juror allegedly fails to answer two of twelve interrogatories on the verdict sheet.

In 1992, petitioner Michael Mahoney, Administrator ad Prosequendum of the estate of his mother Elaine Brown, filed a medical negligence action against respondents Marvin Podolnick, M.D., a radiologist, and David Landset, D.O., a gastroenterologist. The complaint alleged that respondents failed to treat and diagnose Brown's stomach cancer between July 1990 and April 1991, depriving her of the chance for a cure or longer survival. The first trial commenced in April 1997 and lasted for ten days. The jury deliberated for two days and found Podolnick and Landset negligent and that their negligence was a proximate cause of Brown's "loss of chance" of a cure or longer life. The jury awarded petitioner damages of $700,000, that was subsequently reduced to $455,000 based on the following apportionment of causative factors: Podolnick 15%; Landset 50%; Brown's pre-existing stomach cancer 35%. The net jury award also included $50,000 for pain and suffering.

Within ten days of the verdict, respondents moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court granted the new trial motion. Petitioner moved for leave to appeal but the Appellate Division denied the motion. The second jury also found respondents negligent and that their negligence was the proximate cause of Brown's pain and suffering. However, the jury reduced petitioner's damages to $100,000 because it did not find respondents responsible for Brown's "loss of chance" of a longer survival or cure.

Following the second trial, petitioner appealed and sought to reinstate the first jury verdict. The Appellate Division entered an order remanding the matter to the trial court for a more detailed statement of the reasons why the court vacated the first jury verdict. The Appellate Division explained that a fuller statement was necessary because at the first trial the court reporter failed to record the side-bar conferences. After reviewing the trial court's response, the Appellate Division in an unpublished opinion upheld the judgment vacating the initial verdict. That court stated that the most significant reason for granting a new trial was the failure of one juror "to deliberate on all issues." We now reverse the judgment of the Appellate Division and reinstate the first jury verdict in favor of petitioner.

I.

Podolnick began caring for Brown on July 17, 1990. At that time, Brown reported that she was experiencing pain in her stomach and that her medication was not working. She told Podolnick that the pain was on her left side and in the upper part of her stomach. During that visit, Podolnick performed a series of upper gastrointestinal x-rays of the esophagus, stomach, and small intestine (upper GI series). According to Brown, Podolnick told her that everything was fine, but recommended an endoscopy at her convenience.

At trial, petitioner's expert, Dr. David Befeler, explained that the July 17, 1990 x-rays showed a potential cancerous growth. According to Befeler, the x-rays showed a "persistent defect" of enlarged folds at the greater curvature of Brown's stomach. Befeler concluded that the x-rays revealed a serious condition, and that Podolnick deviated from the standard of care because he failed to recommend immediate endoscopy, surgery, or both.

On September 4, 1990, Brown, still complaining of pain, went to see Dr. David Landset. Landset performed an endoscopy to determine the cause of Brown's abdominal pain and melena (blood in the stool). Landset testified that he never reviewed Podolnick's upper GI report or the stomach x-rays that Podolnick took on July 17, 1990. According to Befeler, Landset's failure to review Podolnick's x-rays and report was a deviation from the standard of care. Befeler also concluded that Landset acted improperly because he failed to examine endoscopically the greater curvature in Brown's stomach, take biopsies from that area, and recommend immediate surgical consultation.

On December 28, 1990, Podolnick performed a second upper GI series on Brown because she was still complaining of severe stomach pain. At trial, Podolnick was asked to compare that x- ray to the x-rays from the first GI series that he administered five months earlier. Podolnick maintained that he did not see any progressive change in Brown's condition. However, Befeler testified that Podolnick was wrong because there was clearly a progressive enlargement of the stomach area.

On January 28, 1991, Brown was still complaining of severe abdominal pain and, in an effort to determine the cause of her pain, Landset performed a second endoscopy and took biopsies from the greater curvature. Landset saw irregularities but neither concluded nor informed Brown that she might have stomach cancer. In view of the noticeable irregularities, and that cancer had not been ruled out, Befeler asserted that Landset should have recommended immediate surgery. Two months later, Landset performed a third and final endoscopy on Brown. Following that procedure, Landset diagnosed Brown with an inflammatory stomach condition. Landset never diagnosed Brown as having stomach cancer, nor did he ever inform Brown of the possibility of cancer.

After two upper GI series, three endoscopies and nine months of severe pain, Brown was still seeking relief. On April 5, 1991, she went to Philadelphia, Pennsylvania to meet with Dr. Dominick DeLaurentis. DeLaurentis examined Brown and reviewed the July and December 1990 x-rays. At trial he testified that he recognized the abnormalities as cancer. Five days after seeing Brown, DeLaurentis operated and removed Brown's stomach, omentum and spleen. DeLaurentis testified that soon after surgery Brown's condition improved dramatically, and that she was able to enjoy three relatively comfortable remaining years. Brown died on March 21, 1994 at age fifty-six.

Defendants' expert oncologist, Dr. Paul Engstrom, agreed that both the July and December 1990 x-rays showed an abnormality in Brown's stomach. Engstrom also agreed that the best evidence of whether Brown's cancer had spread before July 1990 would have been revealed if surgery had been performed in July 1990 and the surrounding lymph nodes examined. Engstrom acknowledged further that between July 1990 and April 1991 the cancerous tumor grew and the disease spread. However, Engstrom testified that even though defendants had not diagnosed Brown's cancer, by July 1990, Brown's cancer had already penetrated the wall of her stomach, likely spread to her lymph nodes, and was incurable.

The case was tried to a seven member jury.*fn1 At the end of the trial, the jurors were provided with a verdict sheet that read as follows:

1. Did defendant Dr. Podolnick deviate from the accepted standards of medical practice? Yes_____ No_____ Vote_____

If yes, go on to the next question; if no, skip to question 4.

2. Did defendant Dr. Podolnick's deviation increase the risk of harm posed by Elaine Brown's stomach cancer? Yes_____No_____ Vote_____

If yes, go on to the next questions; if no skip to question 4.

3. Was the increased risk a substantial factor in reducing Elaine Brown's life expectancy? Yes_____ No_____ Vote_____

Go on to next question.

4. Did defendant Dr. Landset deviate from accepted standards of medical practice? Yes_____ No_____ Vote_____

If yes, go on to next question; if no, and if you have answered no to 1, 2 or 3 you may cease your deliberations.

5. Did defendant Dr. Landset['s] deviation increase the risk of harm posed by Elaine Brown's stomach cancer? Yes_____No_____ Vote_____

If yes, go on to next question; if no, and if you have answered no to 1, 2 or 3 you may cease your deliberations.

6. Was the increased risk a substantial factor in reducing Elaine Brown's life expectancy? Yes_____ No_____ Vote_____

If yes, go on to next question; if no, and if you have answered no to 1, 2 or 3 you may cease your deliberations.

7. State in percentages that portion of the reduction of Elaine Brown's life expectancy which resulted from:

A. Her pre-existing stomach cancer _____

B. Dr. Podolnick's negligence _____ (The loss of chance)

C. Dr. Landset's negligence _____ (The loss of chance)

Vote _____

Go on to the next question.

8. Set forth the amount of money, expressed in a lump sum, which would reasonably compensate the Estate of Elaine Brown for her reduced life expectancy.

Vote_____

Go on to the next question.

THE FOLLOWING SECTION PERTAINS TO THE CLAIM FOR PAIN AND SUFFERING FOR THE PERIOD BETWEEN JULY 17, 1990, AND APRIL 5, 1991. ANSWER THE FOLLOWING QUESTIONS ONLY IF YOU HAVE ANSWERED YES TO QUESTION 1 OR QUESTION 4, OR BOTH.

9. If you have found that Dr. Podolnick was negligent, i.e. you have answered yes to question 1, was Dr. Podolnick's negligence a proximate cause of Elaine Brown's pain and suffering for any portion of the period of time between July 17, 1990 and April 5, 1991?

Yes_____ No_____ Vote_____

Go on to the next question.

10. If you have found that Dr. Landset was negligent, i.e. you have answered yes to question 4, was Dr. Landset's negligence a proximate cause of Elaine Brown's pain and suffering for any portion of the period of time between September 4, 1990 and April 5, 1991?

Yes_____ No_____ Vote_____

If you have answered yes and if you have also answered yes to question 9, go on to the next question; if you have answered no to both questions, cease your deliberations; if you have answered yes to either question 9 or 10 skip to question 11.

11. State in percentages your allocation as to each defendant for Elaine Brown's pain and suffering:

A. Dr. Podolnick ____%

B. Dr. Landset ____%

Vote _____

Go on to the next question.

12. Set forth that amount of money, expressed in a lump sum, which would reasonably compensate the Estate of Elaine Brown for her pain and suffering. $____

Vote _____

When the jury initially returned with a verdict, the jury foreperson reported to the court that the jury answered "yes" to questions one and two by a 6-1 vote; answered "yes" to questions four, five, and six by a 7-0 vote; and answered "no" on question three by a 7-0 vote. Regarding the applicable percentages of liability for question seven, the jury foreperson stated "A, 35 percent; B, 15 percent; C, 50 percent, and that vote was six to one." The jury foreperson reported that on question eight the jury answered 7-0 that Brown should receive $700,000 to compensate her for her reduced life expectancy. The jury foreperson reported further that the jury answered "yes" to question nine by a 7-0 vote; answered "yes" to question ten by a 7-0 vote; answered question eleven by a 7-0 vote finding that Podolnick was 20% liable and Landset 80% liable for Brown's pain and suffering; answered question twelve 7-0 compensating Brown with $50,000 for her pain and suffering.

The trial court compared the jury's "no" vote on question number three with the apportionment of liability set forth in question number seven and expressed concern. The court held a side bar conference, and then told the jury that

"there's an inconsistency in the verdict. In number seven you attributed a percentage to Dr. Podolnick, and if you remember I told you, if it's not in the instructions, not written in the instruction, that you could assess a percentage on that question only if you had answered yes to all three in each grouping, that is, one, two and three about Dr. Podolnick or four, five and six for Dr. Landset. So you allocated 15 percent to Dr. Podolnick on the one hand while – on the one hand by virtue of your answer to question number three you determined that Dr. Podolnick was not responsible for reducing Elaine Brown's increased life expectancy, but then on the other hand on seven B you allocated a percentage of responsibility for that, so those two are inconsistent, so you can't do it that way."

The foreperson responded: "I think we – that was the question that we were debating for quite a while. I think we might have misinterpreted it, and the way you said it now I think maybe it's a lot clearer."

The following exchange then took place:

THE COURT: Okay. Well, I have to send you back to the Juryroom to straighten that out, which I presume would mean changing around the allocation of percentages on question number ...


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