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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 ...

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