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Borngesser v. Jersey Shore Medical Center

May 14, 2001

WAYNE BORNGESSER, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF IRENE BORNGESSER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
JERSEY SHORE MEDICAL CENTER, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-3084-96.

Before Judges Skillman, Conley and Wecker.

The opinion of the court was delivered by: Conley, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2001 –

Plaintiff, deaf since the age of four, appeals a jury verdict in favor of defendant on his claims brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and § 794(a) (commonly referred to as § 504) of the Federal Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701 to 796. The verdict was based upon the jury's findings that defendant had not failed to provide reasonable accommodation to plaintiff or his wife Irene during her hospitalizations and that defendant had not failed to "ensure effective communication with, and . . . provide . . . equal opportunity to participate in and understand" the medical care given to plaintiff's wife by defendant and its medical staff. We affirm in part, reverse in part, and remand for a new trial. As to defendant's cross-appeal, we affirm without further opinion. R. 2:11-3(e)(1)(E).

I.

The genesis for this litigation arises from the two hospitalizations of Irene in March/April 1995 and May 1995. Upon initial admission, Irene's heart had stopped as a result of ventricular tachycardia, which is an abnormally rapid heartbeat. Her heart was restarted through electroshock treatments but a number of her organs had failed, including her kidneys. During her first hospitalization, a catheterization and, subsequently, a defibrillator procedure were performed. When Irene developed an infection shortly after being released, she was returned to the hospital. During this second hospitalization, Irene, then thirty-eight years old, died.

There is no issue in this case of medical malpractice or of inadequate care. The underlying premise for both the LAD and § 504 causes of action is that throughout the hospitalizations the hospital's efforts to accommodate plaintiff's and Irene's handicap were inadequate and resulted in ineffective communication with the various treating doctors and nurses and, therefore, prevented plaintiff and Irene from participating in Irene's own course of care and treatment in the same manner as non-handicapped persons would have been able to. Specifically, plaintiff claims that he and Irene required a sign interpreter fluent in American Sign Language (ASL), which the hospital should have provided.

The primary form of communication engaged in by doctors and nurses with their patients is, of course, verbal. As we have said, plaintiff has been deaf since his youth. Irene was deaf since birth. Both obtained their education in a school for the deaf and socialized with others who also were deaf, communicating primarily in ASL.

Their daughter Melissa, seventeen at the time of Irene's hospitalizations, is not deaf and in some instances has assisted them in communicating with the nondeaf. Melissa is not a trained ASL interpreter.*fn1 Moreover, there is a fairly substantial dispute in the trial record concerning her involvement in the efforts of the doctors and hospital staff to communicate with Irene and plaintiff. Both through testimony of the doctors and nurses and through notes in the medical records, the hospital has asserted that Melissa was present during the times that critical medical information was conveyed to plaintiff and Irene and that through her interpretative efforts there was effective communication. Melissa denied during the trial that she was present during these times.

The medical records recording contemporaneous nurses' and doctors' notes reflect the communication barrier. A May 9, 1995, note includes the comment "Patient deaf and dumb and difficult to assess." In another note under Critical Care Problems, a nurse wrote "sensory deficit hearing impaired," and further states "difficult to communicate." Admissions history notes dated May 7, 1995, state "non-English speaking, dif[ficult] to understa[nd], speech impediment." Next to mental status on an admission "History and Physical" form is printed "unable to assess." A progress note dated March 20, 1995, states "[patient] is also a deaf mute so communication is poor." Another progress note observes "unable to speak but by impression she looks better." Under neurologic, Dr. Lamarche wrote in his consultation report dictated March 20, 1995, "difficult to examine . . . the patient is deaf." A "patient flowsheet" dated March 21, 1995, states "[patient] is a deaf mute able to communicate by writing things down on paper but some of translation get[s] lost . . . [patient] can't tell me the names of meds, she pointed to her heart and to her arm indicating high b/p meds." Another comment on the "patient flowsheet" also dated March 21, 1995, states "admission [information] is incomplete [due to] to the lack of communicating, hard to get across your full idea."

The difficulty in communicating with both plaintiff and Irene was also reflected by the testimony of several of the doctors who treated Irene. Dr. Strauss examined Irene on March 20, 1995, in connection with her renal failure. He could not communicate with her and could only obtain a limited history because she was deaf. He further testified that he was unable to do a "review of systems," which involves a series of general questions, and admitted that, because of her handicap, he could not tell Irene that she had acute renal failure.

Dr. Doyle, Irene's family physician, testified that although he felt communication was adequate to treat her, the communication was limited and difficult. He admitted that Irene could not ask questions of him and that rarely, if ever, did she or plaintiff write notes to him. He also testified that the extent of the conversation with Irene was to let her know that she was very sick and to pat her on the head or shoulder. Dr. Doyle, however, did not feel he needed an interpreter as he felt he could communicate through Melissa. In essence, plaintiff presented proof from which a reasonable juror could have concluded that throughout the course of Irene's hospitalizations neither she nor plaintiff was able to effectively communicate with the doctors and staff, at least when they attempted to discuss her medical condition and the care and treatment that the doctors determined were required.

On the other hand, defendants provided evidence from which a reasonable juror could have rejected much of plaintiff's and his daughter's testimony as to plaintiff's and Irene's limited ability to communicate and Melissa's disavowel of any involvement in the communication with the doctors. For instance, at trial, both nurses and doctors testified that their communication with plaintiff and Irene was adequate and that both understood the medical staff. Although denied by plaintiff, there was ample evidence presented to the jury that they both could lip-read, write notes and read simple printed material. Dr. Doyle, for instance, testified that he and the hospital staff communicated extensively with Irene and plaintiff through written notes, hand signals, and by using Melissa and Irene's pastor as interpreters. Nurse Vadas also testified that although she had noted on the hospital chart that there was a communication barrier, she considered that the problem had been solved through the use of written notes.*fn2

II.

On appeal, plaintiff contends in points I, II and III that the judge erred in denying plaintiff's pretrial motion for summary judgment and in denying his trial motion for directed verdict on liability. The motion record and the trial record are not significantly different except that testimony was provided through witnesses during the trial as opposed to submission of deposition testimony. Both records clearly present disputes of material issues of fact such that both the motion for summary judgment and the motion for directed verdict were properly denied. We have considered plaintiff's contentions raised in points I, II and III and conclude they do not require further discussion. R. 2:11-3(e)(1)(E). Equally so, we are convinced plaintiff's contention in point IV that the trial judge abused her discretion in excluding four of plaintiff's non-party deaf witnesses is without merit and does not require further discussion. R. 2:11-3(e)(1)(E).

III.

a. Points V and VI – The Weight of the Evidence and Jury Charge

In points V, plaintiff contends the verdict was against the weight of the evidence and the judge, therefore, erroneously denied his motion for a new trial. In point VI, he contends that the jury charge was erroneous in certain respects. As to the latter, we do not find merit to plaintiff's precise claims of error. We observe in this respect that the charge was extensively discussed during a recorded two day charge conference, and that it was a product of much of plaintiff's requests. The aspects of the charge now claimed to be error were not objected to below. Nonetheless, our consideration of the evidence here in the context of our new trial scope of review convinces us that a miscarriage of justice occurred and that certain deficiencies in the charge, not raised by counsel but perceived by us, are the culprits.

As to the new trial motion, neither the trial judge, nor we in our review thereof, are to act as a thirteenth juror. A trial judge should not overturn a jury verdict as against the weight of the evidence unless, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The trial judge must canvass the record, not to balance the persuasiveness of the evidence on one side as against the other but, rather, to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). We are reminded, though, that our review is not limited to a determination of whether the trial court committed an abuse of discretion but, rather, we must make our own determination as to whether or not there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record -- such as witness credibility, demeanor and the feel of the case. Id. at 6-7; R. 2:10-1.

In denying plaintiff's motion for a new trial here, the trial judge said:

The record has things both pro and con on ability to communicate. . . .

The court's belief is that you have to look from the perspective of the hospital whether or not they were able to communicate with Ms. Borngesser and that it was up to the jury to make that decision.

The defendant had argued and the plaintiffs themselves had made an overarching issue of credibility whether or not the plaintiffs had asked for an interpreter. It was counsel for plaintiff's position that there's no obligation for the Borngessers to have asked for an interpreter and that is no doubt correct.

The problem is that at every moment the plaintiffs were saying that they had asked for an interpreter and that no one ever got them an interpreter. And there's no notes that reflect ...


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