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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 ...

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