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Sulprizio v. Atlantic City Medical Center


June 20, 2007


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATL-L-1110-03.

Per curiam.


Telephonically argued March 7, 2007

Before Judges Fuentes and Baxter.

Defendants Dr. Yatish Merchant and the Mainland Heart Consultants appeal from a jury verdict awarding plaintiff Rita Sulprizio $300,000 as compensatory damages in this medical malpractice case.*fn1 Defendants argue that the trial court committed reversible error by: (1) directing plaintiff's counsel to redact a portion of Dr. Merchant's deposition testimony; (2) failing to charge the jury on comparative negligence; and (3) failing to set aside the verdict award.

We reject these arguments and affirm. After reviewing the record before us, and in light of prevailing legal standards, we are satisfied that the evidence presented to the jury was sufficient to sustain the verdict, as to both liability and damages. Although the trial court's decision to redact Dr. Merchant's deposition testimony may have been questionable, any error committed does not warrant overruling the jury's judgment.

Plaintiff is a sixty-three-year-old woman, who has smoked cigarettes for the past thirty-nine years. On May 26, 2001, plaintiff reported to the Atlantic City Medical Center emergency room complaining of heart palpitations with dyspnea (difficult or labored breathing), dizziness, and nausea. She was initially diagnosed with the onset of atrial fibrillation. According to plaintiff, she did not have any history of cardiac problems.

Dr. Merchant, a cardiologist with staff privileges at Atlantic City Medical Center, attended to plaintiff while she was at the emergency room. He prescribed Procainamide, a medication intended to treat atrial fibrillation. Plaintiff was hospitalized for five days. Plaintiff remained under Dr. Merchant's care until her discharge from the Hospital on May 31, 2001.

Plaintiff had a follow-up visit with Dr. Merchant sometime at the end of June 2001. At this appointment, Dr. Merchant gave her a prescription for a one-year supply of Procainamide. Although the evidence shows that plaintiff was told to schedule a follow-up visit, plaintiff alleged that Dr. Merchant did not schedule any follow-up appointments, and failed to contact her thereafter to arrange for a such a visit.

In her malpractice cause of action, plaintiff alleged that Dr. Merchant did not inform her of any of the known side effects of Procainamide. Most notably, she averred that Dr. Merchant did not advise her of the known risks associated with long-term use of the medication, including drug-induced Lupus syndrome. Had she known of these risks, she would not have taken Procainamide for an extended period of time, and would have explored alternative treatments.

Plaintiff also claimed that Dr. Merchant deviated from the applicable standard of care by failing to monitor the effects of Procainamide through the use of medically-accepted blood tests. Thus, as a proximate cause of such deviation, plaintiff developed drug-induced Lupus, which not only compromised her health, but has caused her great emotional and psychological trauma.

At trial, Dr. Merchant testified as part of plaintiff's case in chief that the applicable standard of care for a patient taking Procainamide in the manner prescribed to plaintiff included regular blood monitoring, through a procedure called an antinuclear antibody test or ANA. For a physician to order such testing, it is necessary to first see the patient in a clinical setting, such as an office visit.

Despite this indisputable standard of care, Dr. Merchant admitted that he did not monitor plaintiff immediately after he prescribed the long-term use of the medication. After he issued the prescription for a one-year supply of Procainamide, Dr. Merchant next saw plaintiff less than one year later, on February 28, 2002. At this visit, an x-ray of plaintiff's chest showed "a small left-sided pleural effusion," a condition consistent with lupus syndrome.

Plaintiff's expert, Dr. Blumenfeld, testified that Dr. Merchant deviated from the standard of care applicable to cardiologists, by failing to monitor plaintiff through regular office visits and ANA testing. Defendant's expert, Dr. Jacobson, gave the jury a different version of the standard of care. He opined that Dr. Merchant's failure to monitor plaintiff after prescribing Procainamide was not a deviation. Despite this testimony, the expert conceded that it was probable that follow-up visits would have revealed the lupus symptoms earlier.

We are satisfied that this evidence is sufficient to sustain the jury's verdict, notwithstanding any alleged error committed by the trial judge in the redaction of defendant's deposition testimony. The jury here received the evidence we have outlined directly from Dr. Merchant himself, as he testified at trial. Given our standard of review, we discern no basis to disturb the trial court's evidential ruling. Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006).

We will next address defendant's challenge to the trial judge's refusal to instruct the jury on the question of plaintiff's conduct, as it relates to comparative negligence. Defendant argues that the jury should have considered plaintiff's decision to continue smoking. We disagree. As noted by Judge Perskie, there was no evidence before the jury to support a rational link between smoking and pleural thickening of plaintiff's lungs; or that her condition was exacerbated by her smoking. Such a ruling by Judge Perskie is entirely consistent with the Supreme Court's holding in Ostrowski v. Azzara, 111 N.J. 429, 439 (1988).

Defendant also argues that he was entitled to a charge of comparative negligence because of plaintiff's alleged failure to schedule follow-up appointments. Once again the record does not support this contention. As Judge Perskie found, plaintiff did return to Dr. Merchant's office on a number of occasions. There is no record, however, that Dr. Merchant, as the physician with the superior understanding of the medical ramifications of monitoring, made any effort to insure that such monitoring occurred.

Finally, we reject defendant's argument with respect to the quantum of damages awarded by the jury. The standard for reviewing this argument is well-settled. "Unless a jury's award of damages is so disproportionate to the injury and resulting disability the trial judge should not disturb the award." McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002). Here, in addition to her own description of her condition, plaintiff presented expert testimony that she would need care from a rheumatologist for the rest of her life. The jury had before it evidence that, as a result of defendant's negligence, plaintiff has a reduced life expectancy; she suffers from lung pain; and her physical activities have been significantly diminished. In this light, we see no basis to reverse the trial court's ruling.


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