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Clark v. University Hospital-UMDNJ

November 15, 2006

DOROTHY CLARK, AS ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM M. CLARK, PLAINTIFF-RESPONDENT,
v.
UNIVERSITY HOSPITAL-UMDNJ; RAQUEL FORSYTHE, M.D., THOMAS CHIODO, D.D.S., DEFENDANTS-APPELLANTS, AND KENNETH G. SWAN, M.D., KELLY MCLEAR, R.N., RON C. BAGLEY, R.N., MICHELLE HAYNES MINTZ, R.N., AND BEATRICE ADDO, R.N., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6668-02.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 5, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

Plaintiff decedent, William Clark, sustained serious injuries in an automobile accident and came under the care of defendants Dr. Raquel Forsythe and Dr. Thomas Chiodo, who were residents at defendant University Hospital - University of Medicine and Dentistry of New Jersey. According to plaintiff's expert, the doctors failed to properly drain the gastric contents from William Clark's stomach causing him to choke to death on his own vomit during a period of at least four minutes. Defendant doctors and the hospital appeal from an adverse jury verdict, which awarded plaintiff Dorothy Clark, William Clark's widow, $2 million for her husband's pain and suffering and $1 million for the wrongful death pecuniary losses she suffered.

Defendants advance the following arguments on their behalf:

(1) the trial judge, Stephen Bernstein, erred when he instructed the jury that the conduct of defendant residents should be "judged against a standard applicable to general practitioners;"

(2) the jury award for pain and suffering was "clearly excessive," the result of "passion and prejudice," and warrants a new trial;

(3) the trial court "improperly charged the jury" regarding the effect of plaintiffs' settlement of the automobile accident;

(4) the trial court erred by failing to provide a sufficient curative instruction when plaintiffs' counsel "improperly injected into the trial" an informed consent issue;

(5) the trial court erred when it permitted plaintiffs' counsel to "improperly read, paraphrase[] and misstate[]" the deposition of the medical examiner; and

(6) plaintiffs' counsel "improperly added a new theory of liability and causation" during summation.

We reject defendants' arguments (4)-(6) and find them to be without sufficient merit to warrant any discussion in a written decision. R. 2:11-3(e)(1)(E). Although we also reject defendants' arguments (1)-(3), these arguments have sufficient merit to warrant further discussion. Consequently, though we affirm the jury verdict and judgment, we discuss defendants' arguments (1)-(3) in turn. Because of the nature of the arguments advanced by defendants, we discuss the pertinent facts in conjunction with our analysis of each argument.

I. The Standard of Care

As a result of the automobile accident, William Clark suffered serious injuries that brought him to defendant hospital for medical care and treatment. As one consequence of these injuries, Mr. Clark's intestines failed to empty their contents and his stomach had to be decompressed and drained. To accomplish this result, a nasogastric ...


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