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Shmukler v. Berkowitz


July 31, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5532-01.

Per curiam.


Argued May 29, 2008

Before Judges Stern, Sapp-Peterson and Messano.

Plaintiff, Natalya Shmukler, appeals from the order of the trial court denying her motion for a new trial, which followed the jury's no cause verdict. We reverse.

On November 19, 2001, plaintiff, as Executrix of the Estate of her deceased husband, Aleksandr Shmukler, filed a wrongful death action against defendant, Dr. Gregg Berkowitz, contending that Aleksandr's*fn1 death was the direct and proximate result of the negligent care and treatment rendered by defendant. The evidence presented at trial disclosed that on February 2, 2001, Aleksandr slipped on a patch of ice and fell, injuring his left leg. He was taken to CentraState Medical Center, where defendant, an orthopedic surgeon, treated him in the emergency room. Defendant diagnosed a fractured dislocation of his left ankle. Defendant recommended that he undergo open reduction internal fixation surgery to manipulate the fractured bones and stabilize them with "metal hardware." Defendant informed him of the risks of the surgery, including blood clots and deep vein thrombosis.*fn2 Aleksandr consented to the procedure and defendant performed the surgery the same day. He was discharged the following day, instructed to schedule a follow-up with defendant in two weeks, and prescribed Vicodin for pain.

Plaintiff testified that after Aleksandr's discharge from the hospital, he constantly complained of pain. On February 9, 2001, six days after his release from the hospital, she convinced him to call defendant because he remained very tired, had trouble sleeping and his leg hurt. Aleksandr called defendant's office that morning around 11:00 a.m.*fn3 She and a family friend, Igor Razhberg (Razhberg), were present when he spoke to someone who they believed was defendant. They only heard Aleksandr's side of the conversation. Aleksandr identified himself, and whoever initially picked up the phone put him on hold for about a minute or two. Someone came back to the phone and plaintiff heard Aleksandr introduce himself again saying, "[H]i doctor, I'm Alek Shmukler. You performed the surgery on me a week ago, you remember me[?]" He explained to the person on the other end of the phone that he had severe pain in his leg, was very tired and could not sleep at night. He then asked plaintiff to get him the bottle of Vicodin prescribed by defendant post-surgery. He told the person on the line how many pills remained in the container, as well as the name and phone number of the pharmacy on the label. According to plaintiff, the conversation lasted for about three to four minutes and, although she anticipated going to see defendant after the phone call was made, they never did.

The next day, she, Aleksandr, and Razhberg went to pick up the new prescription for Vicodin at the same pharmacy where the initial prescription had been filled. In the days that followed, Aleksandr slept a great deal and was lethargic when awake. On February 12, he became dizzy and had trouble breathing. Although he initially refused to go the hospital, he went after his condition worsened, and later that same day was pronounced dead. The autopsy listed the cause of death as pulmonary embolism, resulting from a deep vein thrombosis that developed after his surgery.

Razhberg testified he was present at plaintiff's home on February 9, having arrived at the residence between ten and eleven o'clock that morning. He recalled that Aleksandr called his doctor's office around 10:20 a.m. or 10:30 a.m. He heard Aleksandr identify himself and request to speak with defendant. After being placed on hold, he heard Aleksandr identify defendant by name during the telephone conversation.

Dr. Paul Feller, a pharmacist, testified that defendant's office called in a Vicodin prescription for Aleksandr on February 3 and again on February 9. His records indicated that the February 9 prescription was filled around 1:15 p.m. that day. He explained that there was an approximate thirty-minute time lapse between receiving a call to fill a prescription and filling the actual prescription. He also acknowledged that the wrong Drug Enforcement Agency (DEA) number was typed on both of Aleksandr's prescriptions. In an apparent effort to explain this error, Dr. Feller testified that an OBGYN doctor had called in a prescription immediately after Aleksandr's original prescription had been called into the pharmacy on February 3.

Defendant testified that he never received a phone call from Aleksandr on February 9, 2001, and that he left his office that day around noon. He indicated that he did not learn of the new prescription until two and one-half years later at his deposition. Defendant additionally denied that any of his clerical staff relayed a message to him on February 9. At the time Aleksandr came under defendant's care, defendant was an employee of New Jersey Orthopedic Associates (NJOA), a clinical, community-based orthopedic practice, which he owned with two other doctors in the office. NJOA consisted of three physician employees and a number of non-physician employees such as clerical staff and medical and x-ray technicians. Defendant described the clerical staff as "[m]y girls, my office staff[.]" With regard to patients who called the office to report postoperative problems, defendant testified, "number one, my staff knows if there's any question, they can just put them in. And number two, I can instruct them to bring the patient in." He clarified, however, that "they know they can put people in, but they don't have the power to tell somebody they can't come."

In addition to defendant, Katherine Dyroff, NJOA's co-manager, who had worked with defendant for twenty-six years, testified. Dyroff had no specific recollection of Aleksandr but was familiar with the office's policies and procedures for taking patients' telephone calls. She testified that if a patient, post-operatively, called the office complaining of severe pain, swelling of the leg, the person taking the call would obtain the pertinent information, name, phone number and reason for the call, and the patient's chart would be pulled or a note written and placed on the doctor's desk for review. Once the doctor reviewed the information, "[t]he messages are then picked up periodically off the desks, and are distributed back to the girls who took them. They're usually initialed, or they should be initialed, so that they go back to that person to reply to that and address it as necessary." She indicated that defendant was very thorough and reviewed messages between patients. She also testified that if a doctor is in the office seeing patients, once the doctor approves a medication prescription or refill, "the girls are instructed how to contact a pharmacist" and any call to the pharmacy is usually documented in the computer or the patient's chart.

Portions of the deposition testimony of other NJOA employees, Kim Arsenhault, Marilyn Crain, Marion DeMatteo, and May Chung, were read into the record. Their testimony regarding the office procedures and policies for taking phone calls from patients was fairly consistent with Dyroff's testimony, except that Kim Arsenhault, a secretary, admitted that at some point she must have spoken to Aleksandr, as she initialed his follow-up appointment in the schedule. There was, however, no evidence to indicate when that appointment was made and, according to Dyroff, that information would not be documented in the file.

Arsenhault also testified that she regarded defendant as her superior and that she and the other secretaries "answered to" all of the doctors. The other secretaries had similar views of their employment relationship with the doctors.

Dr. Manuel Banzon, a colleague of defendant, was the only other doctor on duty February 9. In the portion of his deposition read to the jury, he testified that he saw patients that day "from [1:00] to sometime after [4:00]" and he never spoke with Aleksandr nor authorized the new prescription.

Both experts, Dr. Roger Dee, on behalf of plaintiff, and Dr. David M. Smith, on behalf of defendant, testified that the standard of care for a patient one-week post leg surgery who contacts his treating physician's office complaining of increased leg pain and swelling, is to see the patient. They both agreed that if Aleksandr called defendant's office on February 9, complaining of increased pain and swelling and requested to see defendant that day but defendant, instead, instructed him to make an appointment for the following week and then prescribed pain medication, such conduct would have been a deviation from accepted standards of medical care.

Midway through the trial defense counsel addressed plaintiff's counsel's intention to read to the jury portions of defendant's testimony related to the structure of NJOA. Defense counsel objected to the readings on the basis of relevancy. Plaintiff's counsel responded that he had no objection to withdrawing the proffered readings as long as defense counsel did not intend to argue, "if the secretary took the phone call and gave the information to the doctor and then got instructions back from the doctor which was related to the patient, then the doctor is not responsible." Defense counsel indicated that he had no intention of making the argument. When the court pressed the issue further by asking defense counsel "[y]ou're not arguing that if he got it, the secretary brought him the information and he said, see you in two weeks, renew the prescription[,]" defense counsel responded, "[t]hat would be a deviation." Thus, plaintiff's counsel withdrew his request for the proffered readings on the structure of NJOA.

However, during summation, defense counsel stated on four occasions that the jury had to find that defendant and Aleksandr had a direct conversation in order to find defendant liable. Plaintiff objected and asked the court to either charge the jury that the comments were inappropriate or charge the jury that defendant could be held liable if he received the information indirectly. The court ruled that the comment was appropriate:

I have, during the argument just now, reviewed my notes of the testimony. [Defense counsel] is correct. Mrs. Shmukler testified on 8/21/07, that on 2/9/01 she told her husband to call the Doctor at 11 a.m. Igor and she were present. Her husband said his name, said he wants to speak to the Doctor, the defendant. He was put on hold for one to two minutes. Then her husband said, hi Doctor, you operated on me. Remember me?

Igor Razhberg testified, on 2/9/01 he was at their house. The call was made between 10:30 and 10:40. Mr. Shmukler said he wants to talk to the defendant Doctor. Waited. And then Mr. Shmukler said he had pain, he wanted to go to the doctor.

So, that's exactly what the plaintiff has contended, that's what the evidence shows. I have no notes of anyone saying they spoke to the nurse, they gave all the information to the nurse, the nurse said I'll give it to the Doctor and I'll come back. None of that. So I think the comments were appropriate. And therefore your application's denied.

After the jury returned a no cause verdict, plaintiff moved for a new trial. Plaintiff's motion focused almost exclusively on a stipulation that she believed the court mischaracterized. However, plaintiff also raised the issue of agency and defense counsel's allegedly improper statements related to the law of agency. The trial court denied plaintiff's motion for a new trial reasoning, I'm not going to substitute my views for that of the jury, especially because I could have gone either way myself. So not only was it not a miscarriage of justice, clearly and convincingly appears to be a miscarriage of justice, I don't think it was. The evidence justified a verdict on either side. This case could have gone either way.

Certainly I'm not the 13th, or in this case the 7th juror.

And therefore, based upon the rule, Rule 4:49-1 and Dolson [v.] Anastasia, [55 N.J. 2 (1969)], I do not find there were --I indicated I didn't find there were any errors as suggested by the movant, and therefore the motion is denied.

The ensuing appeal followed.

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







We have considered the points raised in light of the record, the arguments of counsel and applicable principles of law, and conclude that a new trial is warranted because the court, by permitting defense counsel to argue that defendant's liability could only be established if plaintiff proved that Aleksandr spoke directly to defendant on February 9, 2001, improperly narrowed the jury's fact-finding function and, in doing so, we are convinced a miscarriage of justice occurred.

Under Rule 4:49-1, the standard for granting a motion for a new trial requires a trial court to determine, after giving due regard to the opportunity of the jury to pass upon the credibility of the witnesses, whether the record clearly and convincingly demonstrates a miscarriage of justice under the law. "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Doe v. Arts, 360 N.J. Super. 492, 502 (App. Div. 2003) (quoting Feldman v. Lederle Laboratories, 97 N.J. 429, 463 (1984)). Thus, we accord deference to a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 7 (1969). Moreover, "[w]here the issue does not involve the trial court's fact-finding role, but rather its exercise of discretion, [we] will not interfere unless the trial judge has 'pursue[d] a manifestly unjust course.'" Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 36-37, (App. Div. 1998) (quoting Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528, (App. Div.), certif. denied, 144 N.J. 174 (1996)). Turning to plaintiff's contention that the court improperly permitted defense counsel to argue that liability could only be established with proof that Aleksandr spoke directly to defendant on February 9, 2001, the evidence presented to the jury could have reasonably led it to reach a number of distinct factual conclusions before arriving at its determination whether plaintiff sustained her burden of proof in establishing defendant's negligence. The jury could have decided, as it apparently did in reaching a no cause verdict, that Aleksandr never spoke directly to defendant on February 9. The jury could also have concluded that Aleksandr called the office but spoke to someone other than defendant and that person relayed his complaints to defendant personally, if defendant was still at the office, or telephonically, if defendant had left, and defendant then ordered the Vicodin prescription. Another scenario implicated by the facts could have been that either Aleksandr or an office employee spoke to another doctor from the office, who in turn authorized the prescription. By allowing defense counsel, in his summation, to limit the factual determination to whether Aleksandr spoke directly to defendant, the trial court removed from the jury's fact-finding any consideration of Alexsandr's indirect communication with defendant.

In our view this error was particularly problematic in light of the circumstantial evidence in the record from which the jury could have inferred that Aleksandr spoke indirectly to defendant on February 9, 2001. Although there was no record of Aleksandr's call to defendant in Alexsandr's medical records maintained at defendant's office, there was evidence, according to the testimony of the pharmacist, Dr. Feller, that his pharmacy filled a prescription for Aleksandr on February 9, at defendant's request. Not only was the prescription filled on that date, but Dr. Feller testified that the prescription was filled around 1:15 p.m. and that there is usually a thirty-minute lag time between receiving a call from a doctor's office and filling a prescription. Such testimony is corroborative of a telephone call to defendant's office, whether at 11:00 a.m., as plaintiff testified, or around 1:00 p.m., as she stated in her answers to interrogatories. Consequently, the jury could have reasonably inferred that defendant ordered a prescription of Vicodin sometime during the morning or early afternoon of February 9.

Moreover, there is no dispute that the prescription was a new prescription rather than a refill, removing any doubt that the prescription was filled solely at the request of Alexsandr. Therefore, the jury could have found that plaintiff and Razhberg were mistaken in their belief that Aleksandr spoke directly to defendant. Nonetheless, they could have also found that Aleksandr spoke with someone from defendant's office who, at the direction of defendant or another doctor in the practice, called in a new prescription rather than, based upon Aleksandr's complaints, directing him to come into the office or to an emergency room.

We reject the position advanced at argument before us that NJOA was the employer and that defendant was a co-employee of the secretaries and other office staff, thus negating any liability imposed against him for their conduct. Whether defendant was their employer or co-worker is not the critical inquiry. Defendant's liability is premised upon the degree of control he exercised over his co-employees. All that is required is that the defendant "directs or participates in" the conduct. See Restatement (Third) of Agency, § 7.01, comment d (2006); see also, Miller v. Muscarelle, 67 N.J. Super. 305, 329-31 (App. Div.), certif. denied, 36 N.J. 140 (1961), superseded on other grounds in Millison v. E. I. Du Pont de Nemours & Co., 101 N.J. 161, 185 (1985).

In Miller, supra, we stated that "[w]here by clear implication of fact the duty of protecting others has been placed on the supervisory employee by the common employer, generally found where the defendant directs the employee to do the specific dangerous act or is working directly with him, liability is, of course, found." 67 N.J. Super. at 332. Alternatively we stated that liability may be imposed when a defendant assumes personal control of an operation, but does so negligently. Id. at 332-33. The difference in phrasing here is illuminating. It is not the employment relationship that is decisive, but the exercise of control over the tortious activity.

Accordingly, the appropriate standard for judging defendant's liability when he acts as a non-supervisory co-employee is the same as that used when he acts as a supervising co-employee, namely, whether, as a co-employee defendant directly controlled or supervised the activity. Illustrative of this point is the Supreme Court decision in Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994), and our decision in Diakamopoulos, supra, 312 N.J. Super. 20.

In Tobia, the Court found that a physician with supervisory duties may be liable for the medical negligence of those under his supervision at the time the accident occurred. Supra, 136 N.J at 346. Tobia was heard, in part, as an appeal following the jury's dismissal of the plaintiff's vicarious liability claims against senior physicians at a hospital. Id. at 345.

The senior defendants had failed to instruct a medical student in relevant safety policies. Id. at 346. The Court held that liability was not "imposed on the doctors merely because they were attending physicians on duty at the time of plaintiff's injury, but rather because the jury could find they had specific duties to train and supervise the other employees on duty." Ibid.

In Diakamopoulos, supra, a doctor who was employed by the defendant hospital allegedly refused to provide care to the plaintiff's seriously ill infant, who died two days later. 312 N.J. Super. at 24-25. The plaintiff claimed that the doctor refused to treat her child. The doctor denied this allegation and instead alleged that the clerical staff erred in putting the child's name on the patient list, as evidenced by the fact that the child's chart had never been pulled, a circumstance contrary to hospital procedures, which require that patient charts be pulled before a doctor sees a patient. Id. at 25. At trial, the plaintiff's attorney repeatedly used the term "captain of the ship" as a basis for imposing liability upon the doctor arising out of any clerical mistakes. Id. at 33. The Court noted that "[a] critical issue in this case was whether [the] plaintiff had made an appointment for Basilica . . . if so, with whom, and whether such information was communicated to [the] defendant by the hospital staff." Id. at 35. The Court remanded for a new trial because the administrative staff was not under the doctor's direct supervision. The Court noted the affirmative obligation of a trial judge "'to make certain that the jury [is] not misled by legal doctrines not urged as a proper basis for liability.'" Ibid. (quoting Whitfield v. Blackwood, 206 N.J. Super. 487, 493-94 (App. Div. 1985)) (alteration in original).

As these cases illustrate, defendant's liability may be established if the jury was satisfied that Aleksandr spoke to someone other than defendant on February 9, 2001, and that person, at the direction of defendant called in a prescription for Vicodin rather than directing Aleksandr to come into the office or to go to an emergency room. Under these circumstances the jury could have found that defendant was exercising control over the actions of the particular employee, who, according to the testimony of Dyroff, the co-office manager, and the deposition readings from the secretaries, exercised no discretion in managing any patient's care. Tobia, supra, 136 N.J. at 346.

Despite conceding that a deviation could be established based upon evidence that Alexsandr communicated his complaints to defendant indirectly through a secretary, and defendant or an office associate then prescribed medication rather than directing Aleksandr to come to the office or go to a hospital, on four separate occasions defense counsel suggested to the jury that they needed to find that defendant had spoken directly with decedent in order for liability to ensue:

It really boils down to one issue and one issue only. Did Mr. Shmuckler call Dr. Berkowitz at his office at 11 a.m.? Did he actually speak with Dr. Berkowitz during his office hours?

So the issue is, did plaintiff prove that Mr. Shmuckler, on February 9th, picked up that phone, spoke directly to Dr. Berkowitz and told him what you've heard.

If you believe that that telephone call occurred at 11 o'clock, that Mr. Shmuckler got literally on the phone with this Doctor during his office hours . . . . If you do not believe that that's how this happened . . . then you're done your deliberations.

Dr. Berkowitz did not deviate if you find he didn't get a telephone call with the plaintiff.

When the trial judge refused plaintiff's proposed curative instruction, the judge erred in his duty to ensure that the jury was not improperly influenced by inaccurate statements of the law. Diakamopoulos, supra, 312 N.J. Super at 35. We are therefore constrained to reverse and to order a new trial.

In light of our reversal and remand for a new trial we need not consider plaintiff's arguments that the verdict was against the weight of the evidence or that the defense expert's testimony exceeded the scope of his report. Both issues are rendered moot by a new trial. As to the remaining issues raised by plaintiff, we have carefully reviewed the record and conclude that such arguments are without merit. R. 2:11-3(e)(1)(E).

Reversed and remanded for a new trial. We do not retain jurisdiction.

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