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Marzano v. Han

April 16, 2008

JAMES MARZANO, PLAINTIFF-RESPONDENT,
v.
KI HYUN HAN, M.D., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3385-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 5, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Defendant Dr. Ki Hyun Han appeals from a judgment entered after an August 25, 2006, jury finding of liability for medical negligence. The jury found that defendant had (1) deviated from the accepted standards of medical practice and (2) failed to obtain from plaintiff James Marzano the appropriate informed consent. As a result of defendant's acts and omissions, the jury found the risk of harm posed by plaintiff's pre-existing condition was increased. Thus, it awarded plaintiff damages in the amount of $1,800,000. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was a musician who first visited Dr. Han for medical treatment in 1990, concerning problems with his right ear. After one follow-up visit in 1990, defendant did not treat plaintiff again until 1998. At that time, plaintiff continued to complain of pain in his ear and of hearing loss. The patient returned to defendant's office in July 2000. At that time, plaintiff's eardrum was severely retracted and red. Eventually, a discharge began to emanate from the ear. After a November 21, 2000 visit, defendant ordered a Computed Tomography (CT) Scan. That scan revealed a possible cholesteatoma, an ingrowth of skin near the eardrum. Despite the findings of the CT Scan, defendant did not recommend surgery.

Plaintiff returned to Dr. Han in 2002 with his ear still discharging fluids. When the patient saw Dr. Han in 2003, his ear was filled with debris and was covered in red granulated tissue. On March 13, 2003, Dr. Han ordered another CT Scan. For the first time, on March 18, 2003, defendant discussed with plaintiff a surgical option. Prior to surgery, the doctor discussed the complications related to a mastoid surgery, namely "[p]ossible injury to the facial tissue, possible injury to brain, recurrence of disease, hearing may have gotten worse, and dizziness." Plaintiff accepted the surgical option, and the procedure was performed on April 3, 2003. During the surgery, defendant found a cholesteatoma. Post surgery, plaintiff returned to the doctor with "slight weakness of his right face."

On April 20, 2004, plaintiff filed a complaint against defendant. In that complaint, plaintiff alleged that the delay in diagnosis resulted in almost complete deafness in his right ear, loss of balance, tinnitus and facial weakness. As a musician, he claimed these injuries were particularly debilitating. In his answer, defendant denied liability to plaintiff and maintained that at all times he acted reasonably and within the standard of care.

On November 23, 2005, the trial court entered a consent order extending discovery. Under that order, plaintiff's expert report was due on or before December 5, 2005 and defendant's expert report was due on or before January 20, 2006. The new discovery end date was February 28, 2006. According to a certification from counsel for defendant, plaintiff served his expert's report on November 7, 2005, and defendant served expert reports on February 27 and 28, 2006; however, defendant then moved to extend the time for discovery and plaintiff cross-moved to bar defendant's expert's reports. On March 17, 2006, the court granted plaintiff's cross-motion and barred the testimony of defendant's expert, Dr. James Cinberg, because the court found the report constituted a net opinion.

On March 29, 2006, defendant served an amended expert report, which plaintiff moved to bar due to late service. By order on May 1, 2006, the court barred the amended expert report proposed by defendant as out of time; that order also specifically provided that the expert, Dr. Cinberg, could not testify at the time of trial. A motion by defendant for reconsideration of this matter was likewise denied by the court on June 9, 2006.

The trial date had first been set for June 6, 2006, but the matter did not proceed to trial until August 21, 2006. On plaintiff's in limine motion, made in anticipation of defendant taking the stand, the court ruled that Dr. Han could not testify as to the applicable standard of care. After hearing all the proofs, the jury returned its verdict in favor of plaintiff, which the court memorialized by its final judgment on September 13, 2006. Defendant filed a motion for a new trial and stay of the judgment. On October 13, 2006, the trial court denied the motion for a new trial, but issued an order staying execution of the judgment pending the results of this appeal, which was filed on November 8, 2006.

On appeal, defendant asserts the following points for our consideration:

POINT I: THE TRIAL COURT IMPROPERLY PRECLUDED DEFENDANT FROM TESTIFYING ON HIS OWN BEHALF AS TO THE STANDARD OF CARE REQUIRING A NEW TRIAL.

POINT II: THE TRIAL COURT IMPROPERLY PRECLUDED DR. CINBERG'S TESTIMONY AT TRIAL, REQUIRING A NEW TRIAL ON ALL ISSUES.

POINT III: THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO HEAR TESTIMONY REGARDING PLAINTIFF'S INABILITY TO PLAY AND PERFORM MUSICAL INSTRUMENTS AND TO EARN A LIVING THEREFROM IN THE ABSENCE OF EXPERT TESTIMONY PROVIDING A FACTUAL BASIS FOR THAT DETERMINATION.

POINT IV: A NEW TRIAL ON ALL ISSUES IS WARRANTED.

Because those points do not address the jury's finding of lack of informed consent, plaintiff contended in his respondent's brief that defendant had entirely waived his right to appeal the jury verdict. To answer that contention, defendant asserted the following additional point in his reply brief:

POINT V: INFORMED CONSENT DOES NOT SERVE AS AN INDEPENDENT BASIS OF LIABILITY TO JUSTIFY THE JURY'S VERDICT.

Generally, where an issue is not briefed, it is deemed waived by the party. See Jefferson Loan Co., Inc. v Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008). This court is "not obliged to search for legal authority [to] support" a position not articulated by appellant. See Seacoast Builders Corp. v. Rutgers, the State Univ., 358 N.J. Super. 524, 554 (App. Div. 2003). However, even if an issue is not expressly mentioned in an appellant's point headings, we may still rule on an argument discussed within a brief. See Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div. 2002). Also, we may address an unbriefed issue if it will avoid an unjust result. See Otto v. Prudential Prop. and Cas. Ins. Co., 278 N.J. Super. 176, 181 (App. Div. 1994) (the court chose to rule on an issue not mentioned in appellate briefs where the issue was part of the record and plaintiff was due to receive an unfair windfall if the court considered the issue as waived), superceded by statute, N.J.S.A. 39:6A-4.3, as recognized in, David v. Gov't Employees Ins. Co., 360 N.J. Super. 127, 136 (App. Div. 2003).

This action was filed, citing separate concepts of liability of medical malpractice: deviation from a standard of care and lack of informed consent. The jury questionnaire, as agreed by counsel for both parties, asked the jury four questions. First, "[d]id the defendant, Dr. Han, deviate from accepted standards of medical practice?" Second, "[d]id Dr. Han fail to adequately advise Mr. Marzano of surgery as an option for the treatment of his cholesteatoma prior to March 2003." Third, the jurors were instructed if they answered either or both of the first two questions in the affirmative, they were to determine if "Dr. Han's[] deviation increase[d] the risk of harm posed by plaintiff's pre-existing condition." Finally, they were asked to assign damages related to each of four ...


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