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Bieniek v. Keir


April 23, 2008


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2087-04.

Per curiam.


Argued January 24, 2008

Before Judges Axelrad, Payne and Sapp-Peterson.

In this medical malpractice action, plaintiffs, Daniel Bieniek and his wife Peggy Bieniek,*fn2 appeal from the trial court's order denying plaintiff's motion for a new trial following a jury verdict in favor of defendant Donald Keir, M.D. Plaintiff claims (1) the verdict was inconsistent with the jury's finding that defendant deviated from accepted standards of medical practice when he failed to order a chest x-ray and (2) that the court erred when it denied his motion for a new trial based upon defense counsel's repeated inappropriate and prejudicial remarks during closing arguments. We affirm.

On November 6, 2003, plaintiff went to the emergency department of the Virtua Memorial Hospital (Virtua) located in Burlington County because he was experiencing pain in the left side of his chest. Plaintiff was initially evaluated by a triage*fn3 nurse and then by a physician's assistant. He was then seen by defendant, who reviewed the notes from the triage nurse and physician's assistant and then proceeded to obtain a history from plaintiff and to personally examine him. During the examination, plaintiff told defendant that he was in the emergency department because of pain in the left side of his chest that began after he had engaged in heavy yard work, which included pulling fence posts out of the ground. Plaintiff informed him that at night, he experienced sharp pain in the left side of his chest, accompanied with shortness of breath, but that when he took some Advil and sat up, the shortness of breath resolved. He also reported that he had been experiencing the pain for the previous two weeks but that it had worsened the previous evening.

Defendant examined plaintiff's heart, lungs, stomach and, in particular, the abdominal area where plaintiff was experiencing pain. The results of the physical examination were all normal with no irregularities or abnormalities found. Defendant's diagnosis was that plaintiff's chest pain resulted from chest wall discomfort related to the physical activities that plaintiff had engaged in over the two-week period before he came to the emergency department and viral syndrome. Defendant noted in the medical chart that plaintiff did not have shortness of breath and he clarified during trial that this meant that plaintiff "wasn't coughing and he wasn't short of breath, but that the pain made him feel short of breath when he had the pain, but overall [he] was not short of breath. He wasn't having any short[ness] of breath process per se." Defendant's discharge instructions to plaintiff directed plaintiff to make an appointment to be examined by his family doctor within two days of the visit to the emergency department.

Plaintiff did not immediately follow up with his personal physician, as instructed. Rather, four days later, plaintiff returned to Virtua and was admitted. Plaintiff was examined by a different doctor, Dr. Philip Varner (Varner), who noted that plaintiff was suffering from respiratory distress, chest pain, shortness of breath, difficulty breathing, and coughing. Dr. Varner's diagnosis at that time was pneumonia with possible empyema (an infusion of infected fluid into the chest wall cavity). Efforts to treat plaintiff's condition through thoracentesis, the process of using a needle to draw out the fluid, were unsuccessful. Consequently, plaintiff underwent surgical intervention to empty the empyema. Following the surgery, plaintiff remained hospitalized for eight days.

At trial, plaintiff produced Dr. Angelo Scotti (Scotti) as an expert witness. Dr. Scotti testified that in his opinion, defendant deviated from the standard of care by not ordering a chest x-ray to rule out pneumonia when plaintiff initially came into the emergency room on November 6, 2003. He opined that plaintiff was already suffering from bacterial pneumonia when he came into the emergency room, since plaintiff complained of chest pain on one side of his chest, and that an x-ray would have either confirmed or disproved this condition. He indicated that the standard of care required defendant to perform a chest x-ray on November 6, 2003, and defendant's failure to do so increased plaintiff's risk of harm from the underlying bacterial pneumonia. Dr. Scotti also opined that plaintiff's condition evolved from a pneumonia (an infection in the air spaces of the lung), to pneumonia with effusion (the presence of fluid in the space between the lung and chest wall), to pneumonia with empyema (the presence of pus in that space between the lung the chest wall). He testified that pneumonia with empyema can only develop from a bacterial pneumonia, not from a viral pneumonia. He did however concede that a bacterial infection can superimpose itself on a viral illness.

When defendant was asked at trial why he did not believe that plaintiff might have had pneumonia, defendant responded:

Well, the timing of the symptoms, the symptoms had been going for two weeks. It's very unusual to have a pneumonia process for that length of time without being gravely ill, no cough, no short[ness] of breath, no sputum production and normal exam -- lung exam.

I felt it seemed unlikely given his normal oxygenation respiratory status, heart rate.

It seemed unlikely.

When questioned as to why he did not order a chest x-ray for plaintiff, defendant continued, "I didn't think he had pneumonia or an acute lung process that would be found on an xray. . . . Given his presenting symptoms and his examination, this didn't sound consistent with it." Defendant explained further that in order for him to have ordered an x-ray for plaintiff, he would have expected to find "[d]ecreased or absent breath sounds, wheezing, bronchi, which is kind of a crunching sound, and . . . asymmetry between the two sides[.]" He indicated he did not find any of those symptoms in plaintiff's case.

Defendant called two doctors, Michael Chansky (Chansky) and Harold Palevsky (Palevsky), as expert witnesses. Dr. Chansky testified that in his opinion, defendant met the standard of care in diagnosing plaintiff with a viral infection on November 6, 2003, since plaintiff was not coughing, producing sputum, did not have abnormal breath sounds, did not have an increased heart rate, and was not experiencing shortness of breath when he came into the emergency department. He therefore opined that given plaintiff's history and physical exam, there was no standard of care in emergency medicine requiring defendant to perform a chest x-ray during plaintiff's initial visit to the emergency department on November 6, 2003. He also confirmed that it was possible for a patient to suffer from a virus on November 6, 2003, that would progress to a viral pneumonia, and have a bacterial infection superimposed on it by November 10, 2003. Dr. Palevsky testified that in his opinion, plaintiff was suffering from a viral illness, not a bacterial pneumonia on November 6, 2003, when he came into the emergency department for examination.

Prior to closing arguments, the court ruled that the question of any comparative fault on the part of plaintiff was not at issue because defendant did not meet "his burden on the apportionment argument." The court advised counsel that it would "not allow the jury to offset any damages by an apportionment argument from the defendant through any fault of [plaintiff] in failing to return for a subsequent exam." Notwithstanding this ruling, in summation, defense counsel told the jury that Dr. Scotti testified that there was an eighty percent plus chance of cure with antibiotics in the early phase of a bacterial pneumonia. Plaintiff's counsel immediately objected and the court held an inaudible side bar conference. Following that side bar, defense counsel stated to the jury, "The experts told us that if you have fluid in your lungs or in the pleural space, that that is something that you can discern on clinical examination. And the expert has told us that the way you treat that is with something called a fine needle aspiration." Once again, following an objection by plaintiff's counsel, a side bar occurred in which the judge instructed defense counsel:

What you can't say is because he didn't go back to the doctor, you know, that -- your argument is that he had to suffer a thoracotomy rather than a fine needle aspiration or treatment by antibiotic because of his own fault. And that's the way it's going to be interpreted.

The court did not, at that point, give a curative instruction to the jury. As part of its charge to the jury, however, the court instructed the jury as follows:

[T]the actions of [plaintiff], once he left the emergency room on Thursday, November 6, 2003, are not legally relevant on the issue of whether [defendant] deviated from the accepted standards of medical practice. Therefore, I instruct you that the actions of [plaintiff] in this case, that is, whether or not he properly followed medical instructions to attend a subsequent medical examination, shall not be considered by you on any issue of liability or proximate cause which you must determine in this case.

The jurors deliberated for two days before reaching a verdict. In interrogatories submitted to the jury, they were first asked whether defendant "deviat[ed] from accepted standards of medical practice by failing to order a chest X-Ray in the emergency room on November 6, 2003[.]" By a vote of eight to zero, the jury answered "Yes." They were then asked whether defendant's "deviation increase[d] the risk of harm posed by the plaintiff's pre-existing condition as reflected by the symptoms Mr. Bieniek reported in the emergency room on November 6, 2003[.]" By a vote of seven to one, the jury answered "No."

Plaintiff filed a motion for a new trial, urging that the "verdict was inconsistent, compromised, and improperly influenced by defense counsel's repeated prejudicial remarks during closing [arguments]." During oral argument on the motion, the court agreed that despite the fact that the court and counsel spent "a significant amount of time trying to craft [the interrogatories] to yield the best possible result and to avoid any confusion," the court queried whether the interrogatories "could have been drafted in another way which would've avoided the . . . contest we have before us today." Nonetheless, the court denied the motion, ruling,

Having said that, I am not convinced that the jury, having had the benefit of seven or eight days of testimony -- possibly five, but it was a significant amount of time. They heard from, I think, four different experts and . . . were very versed in the issues of the viral vers[u]s bacterial pneumonia, the reasons for the X-rays, what the diagnostic tests are required in a condition such as this.

And I think that they spent -- we did spend a significant amount of time on the charge. I think that the charge was as clear as could be. And I understand there are a great number of subtleties that flow from these increased risk type cases when there are defenses available as to varying interpretations of the illness that has befallen the plaintiff.

Having said that, I am persuaded to let the verdict stand. I think that the jury had an adequate opportunity to understand what their obligation was and I think that the verdict sheet, although I have some questions as [I had] indicated, as in a perfect world, it may have been drafted in a different fashion.

But I don't think it's sufficient enough to divest the jury of their . . . privilege of making a determination in this case.

And I'm [going to] deny the motion and allow the verdict to stand.

On appeal, plaintiff raises the following issues:




Plaintiff principally argues that the court erred in denying his motion for a new trial because, given the jury's unanimous finding that defendant deviated from accepted standards of medical practice when he failed to order the chest x-ray, the verdict was inconsistent and without a rational basis. He urges that this inconsistency was doubtless the result of defense counsel's repeated comments, both direct and indirect, pointing to plaintiff's failure to follow up with his personal physician as defendant instructed at the time of plaintiff's discharge from the emergency room. We disagree and find both verdicts reconcilable and amply supported by the evidence, irrespective of defense counsel's closing remarks that alluded to plaintiff's comparative fault.

A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). A jury's evaluation of factual issues must be afforded "the utmost regard . . . ." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Nonetheless, "[i]nconsistent and irreconcilable verdicts are fatally defective and should normally be set aside." Mercedes-Benz Credit Corp. v. Lotito, 328 N.J. Super. 491, 508 (App. Div.) (quoting Brendel v. Pub. Serv. Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953)), certif. denied, 165 N.J. 137 (2000). The underlying reason for vacating the verdict in such instances is usually that the jury failed to comprehend the issues involved in the trial and demonstrated, through the verdict, their unfitness to decide the rights and obligations of the parties. Mercedes-Benz Credit Corp., supra, 328 N.J. Super. at 508. See Zuidema v. Pedicano, 373 N.J. Super. 135, 148 (App. Div. 2004) (claim was of an intentional act and thus jury verdict finding "medical negligence" was fatally inconsistent), certif. denied, 183 N.J. 215 (2005); JMB Enters. v. Atl. Employers Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (inconsistency indicates jury mistake or confusion).

Here, we discern no irreconcilable inconsistency in the verdicts returned. The jury could have reasonably found, by properly accepting portions of the dueling experts' conclusions, see State v. Nesbitt, 185 N.J. 504, 513-15 (2006) (a jury can accept all, part, or none of an expert's testimony), that given plaintiff's complaints at the time he presented to the emergency room, standard acceptable medical practice required that defendant order a chest x-ray. Conversely, the jury could have reasonably found, from the proofs, that the deviation did not increase the risk of harm posed by plaintiff's pre-existing conditions that he had reportedly experienced the previous two weeks before he presented to the emergency room at Virtua on November 6, 2003. Both of defendant's expert witnesses, Drs. Chansky and Palevsky, as well as plaintiff's expert witness, Dr. Scotti, all agreed that the symptoms plaintiff reported were also consistent with a viral illness. They also all agreed that it was possible for a bacterial infection to superimpose itself on a viral illness. Further, Dr. Scotti also agreed that a complaint of fever and/or chills may be consistent with a viral illness, with or without pneumonia. From this evidence, we are satisfied that reasonable minds could differ as to whether defendant's failure to order the chest x-ray increased the risk of harm to plaintiff. Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997). As such, the jury's verdict did not constitute a clear miscarriage of justice that required that the trial judge grant plaintiff's motion for a new trial. Ibid.


Additionally, plaintiff argues that his motion for a new trial should have been granted because defense counsel's remarks during summation mentioned plaintiff's failure to follow up with further medical treatment. Plaintiff argues that defense counsel's "unwarranted prejudicial remarks had the clear capacity to taint the entire verdict, especially in light of the fact that the jury found the defendant negligent, but did not find that his negligence increased the risk of harm of plaintiff's pneumonia being resolved sooner."

In response, defendant contends that the statements referred to by plaintiff were merely an attempt by defense counsel to compare and contrast all of the opinions of the expert witnesses. Defendant further argues that "any prejudice which may have been generated by counsel's comments during summation was cured by the [c]court's instruction to the jury with respect to plaintiff's post care conduct."

It is well established that "when counsel deliberately seeks to inject into a cause an element which has, and is designed to have, the effect of prejudicing the rights of [another litigant,] it is the duty of the judge to guard against such effect, either by arresting the trial in limine . . . or by guarding against the pernicious results through proper instruction to the jury." Patterson v. Surpless, 107 N.J.L. 305, 308 (E. & A. 1930) (citing Bashaw v. Eichenberger, 100 N.J.L. 153, 155 (E. & A. 1924)).

Our decision in Hofstrom v. Share, 295 N.J. Super. 186, 192 (App. Div. 1996) presented a similar fact pattern. There, the plaintiff brought a medical malpractice action against the emergency room doctor who treated the plaintiff. The plaintiff claimed the defendant failed to properly diagnose her appendicitis. In opening remarks and in questioning the witnesses, including the plaintiff and the expert witnesses, defense counsel advanced the theory that the plaintiff failed to follow instructions she received from the defendant. Ibid. Plaintiff's counsel requested that the jury be charged that the plaintiff's actions or inactions related to the defendant's instructions were irrelevant.

The trial judge refused to do so because he indicated that he did not intend to give any indication to the jury that they should consider plaintiff's negligence. Ibid. Citing Johnson v. Makita U.S.A., Inc., 128 N.J. 86 (1932), we held the trial judge erred when he refused to instruct the jury that the plaintiff's comparative negligence was irrelevant because the defense counsel repeatedly stressed plaintiff's comparative negligence throughout the trial. Id. at 193.

Here, unlike the defense attorney in Hofstrom, supra, defense counsel did not stress plaintiff's comparative fault throughout the trial. Moreover, even during defense counsel's closing, he did not directly raise the issue of plaintiff's comparative negligence. Although defense counsel twice attempted to allude to plaintiff's comparative negligence in discussing Dr. Scotti's testimony, plaintiff's counsel immediately objected before defense counsel could complete the point. The first sidebar colloquy between the court and counsel was inaudible. Hence, we have no way to determine the nature and clarity of the court's ruling at that time. However, after the second objection, the judge's ruling as to what defense counsel could and could not say during summation was clear. Defense counsel did not make any further attempt, directly or indirectly, to reference plaintiff's comparative negligence. Moreover, unlike the trial judge in Hofstrom, the trial judge here specifically addressed the issue through cautionary instructions in his jury charge:

During the course of this case, [defendant] has introduced [plaintiff]'s conduct, specifically, that [plaintiff] failed to properly follow the discharge instructions issued to him by [defendant], which directed the plaintiff to attend a follow-up medical examination within two days. Moreover, the defendant has brought forth testimony regarding [plaintiff]'s failure to comply with the directions given to [plaintiff] on the soccer field by Dr. Buck. Specifically, that [plaintiff] should go to the emergency room.

However, the actions of [plaintiff], once he left the emergency room on Thursday, November 6, 2003, are not legally relevant on the issue of whether [defendant] deviated from the accepted standards of medical practice. Therefore, I instruct you that the actions of [plaintiff] in this case, that is, whether or not he properly followed medical instructions to attend a subsequent medical examination, shall not be considered by you on any issue of liability or proximate cause which you must determine in this case.

During the hearing on the motion for a new trial, the trial judge considered plaintiff's arguments and concluded that the cautionary instructions he gave the jury were sufficient and that the level of harm was not enough to warrant overturning the jury verdict. We are satisfied that the trial judge took appropriate action to ensure that the comments would not taint the jury's verdict by including cautionary instructions in the jury charge. Hofstrom, supra, 295 N.J. Super. at 193. We presume the jury followed those instructions. See State v. Burris, 145 N.J. 509, 531 (1996); see also State v. Manley, 54 N.J. 259, 270 (1960). Therefore, the trial judge did not err when he denied plaintiff's motion for a new trial because of defense counsel's comments. Hofstrom, supra, 295 N.J. Super. at 186.


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