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Walsh v. Disciglio


August 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-202-00.

Per curiam.


Argued telephonically May 27, 2008

Before Judges Wefing, Parker and Koblitz.

In these cross-appeals, both parties appeal from an order entered on September 7, 2007, denying both parties' motions for a new trial. Plaintiff, Maureen Walsh, moved for a new trial on pain and suffering damages or, alternatively, for an additur to those damages. Defendant, George Constantinopoulos, moved for a new trial on all issues.

The facts relevant to this appeal are as follows. Beginning in November 1995, plaintiff visited her family doctor, Dr. Berger, about circulation problems in her toes. Dr. Berger referred plaintiff to a vascular specialist whom she claimed told her that the condition was "consistent with [her] age". In May 1997, plaintiff returned to Dr. Berger, still complaining about her toes. Dr. Berger prescribed Procardia and Coumadin, but plaintiff requested a second opinion with respect to the Coumadin. She was referred to defendant, Dr. Michael J. Disciglio. Plaintiff testified that Dr. Disciglio informed her that she needed more than just pills. Between August and December 1997, plaintiff's discomfort increased to the point where she discontinued most of her activities and was unable to sleep. At that point, she saw Dr. Langer and he referred her to defendant, Dr. George Constantinopoulous.

Plaintiff saw Dr. Constantinopoulos on February 9, 1998. She testified that she was "in severe pain" at that time, that Dr. Constantinopoulos felt her pulse and told her that she should have an arteriogram and that Dr. Disciglio would arrange it for her. Dr. Constantinopoulos further told plaintiff that her condition should be dealt with "promptly." Dr. Constantinopoulos testified that he did not consider plaintiff's situation an emergency at the time because she was not taking pain medication, indicating to him that the pain was not severe enough. He further testified that he told plaintiff she should see a vascular surgeon in her health insurance plan because he was not a participant in her plan.

Dr. Disciglio scheduled an arteriogram for plaintiff on February 24, 1998. Plaintiff testified that she was in such severe pain after the arteriogram that she could not drive home from the hospital. Dr. Disciglio prescribed Demerol.

Plaintiff spoke to Dr. Constantinopoulos's partner, Dr. Lopyan, who informed her that she needed surgery. On March 3, 1997, Dr. Lopyan did bypass surgery on plaintiff's toe and informed her that the veins in her leg were "like spaghetti," and in the future, her foot may have to be amputated. Plaintiff sought a second opinion which concurred with Dr. Lopyan's prognosis.

Plaintiff then contacted Dr. Finkelstein, who ultimately amputated plaintiff's foot. Several days later, Dr. Finkelstein advised plaintiff that the gangrene has moved further up her leg and he had to removed "another inch or two." While plaintiff was recovering, the leg began to turn colors and had to be amputated above the knee. In total, plaintiff had seven surgeries resulting in amputation of most of her leg.

At trial, Dr. Finkelstein testified as plaintiff's expert. In his opinion, plaintiff's condition was urgent at the time she saw Dr. Constantinopoulos and that he deviated from the standard of care by not treating her immediately.

Dr. William Suggs, Dr. Constantinopoulos's expert, testified that Dr. Constantinopoulos did not deviate from the standard of care because he could not order the arteriogram for plaintiff since he was not a participant in her health insurance plan. Moreover, Dr. Suggs disagreed with Dr. Finkelstein's assessment that when plaintiff saw Dr. Constantinopoulos on February 9, 1998, she presented with an emergency condition that required urgent care. Dr. Suggs testified that plaintiff obviously through time . . . she had symptoms of peripheral vascular disease.

And when I say that . . . she had pain with walking and stuff, really for at least the two years prior to this, and clearly those symptoms had gotten worse in -- in the months leading up to her having been seen by Dr. Constantinopoulos, but at the time of his exam, there was no reason to have him to send her to the emergency room or do something that -- she's not having an emergent problem, she had something that needed . . . attention, but it was not an emergency.

The court provided the jury with a set of interrogatories asking whether each of the defendant doctors deviated from the standard of care and, if so, were their deviations a proximate cause of plaintiff's injuries. The interrogatories further instructed the jury to determine the percentage of responsibility for each of the defendant doctors in the event they were both found responsible.

During deliberations, the jury asked the following question: "If we find Dr. Constantinopoulos liable X percent, then is plaintiff awarded X percent of the total compensation; that is, the total of Box 6?" "Box 6" referred to the jury interrogatory addressing the total amount of compensation for plaintiff. The trial judge answered the jury's question, "yes." Shortly thereafter, the jury returned a verdict awarding plaintiff $100,000 in damages for pain and suffering and $800,000 in economic damages. The jury found Dr. Constantinopoulos responsible for ten percent of plaintiff's damages.


In her appeal, plaintiff argues that the jury awarded $8.00 per day for the amputation of her leg, warranting a new trial on compensatory damages because the damages bear no relation to the nature of the injury and the consequences thereof. Plaintiff further argues that a new trial should be limited to compensatory damages. We agree.

Motions for a new trial may be granted if a jury awards insufficient or excessive damages. The trial court, however, "should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting in disability shown as to shock [the] conscience and to convince [the court] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977) (citing Sweeney v. Pruyne, 67 N.J. 314, 315 (1975)). A jury verdict should be set aside only if "the award is inadequate or excessive by viewing the evidence in the light most favorable to the non-moving party." Mahoney v. Podolnick, 168 N.J. 202, 229-30 (2001). A motion for a new trial "shall" be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1. Similarly, in assessing the adequacy of compensatory damages, we must view the evidence in the light most favorable to the non-moving party. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).

In Von Borstel v. Campan, 255 N.J. Super. 24, 26 (App. Div. 1992), the plaintiff suffered severe injuries after having been repeatedly struck in the head with a flashlight. The jury awarded only $50,000 in compensatory damages. Ibid. The plaintiff's medical costs were nearly $33,000 and he faced a lifetime dependent upon anti-convulsant medication to ward off seizures. Id. at 27. The trial court found the award "shockingly low" and concluded that it "resulted from prejudice and bias against plaintiff who was a convicted felon and alcohol and drug abuser." Ibid. We concluded that such bias required a re-trial on all issues, since the prejudice or bias present in the damages award "plainly tainted the liability verdict." Id. at 31.

Where the question of damages is "fairly separable" from the liability issues, "'the best interests of justice will be served by granting a partial new trial.'" Hendrikson v. Koppers Co., 11 N.J. 600, 608-09 (1953) (quoting Esposito v. Lazar, 2 N.J. 257, 259 (1949)). The Court noted, however, that "[o]nly in those cases where the verdict is clearly free from compromise should a new trial be limited to the question of damages only." Id. at 609.

In Barrie v. Central R.R. Co. of N.J., 71 N.J. Super. 587, 596 (App. Div.), certif. denied, 37 N.J. 87 (1962), we reversed a $50,000 verdict where the plaintiff's "life hung in the balance for weeks," and he faced months of additional hospitalization. In that case, we were persuaded that the trial court generally reached a "compromised" verdict because there was evidence suggesting that the plaintiff had jumped off of a moving train rather than fallen as he alleged. Id. at 591, 597.

In Petitto v. Sands Hotel & Casino, Inc., 288 N.J. Super. 304, 308 (App. Div.), certif. denied, 144 N.J. 589 (1996), we found the jury's award "grossly insufficient" and remanded for a new trial on damages. There, the jury awarded $50,000 to the plaintiff who had been involved in a one-car accident after she left the Sands Hotel, drunk and not wearing her seatbelt. Id. at 306. The plaintiff suffered a fractured skull, which could only be repaired through surgery and left her left eye droopy. Id. at 309-10. After three surgeries, to repair her face, the defendant's expert opined that scars were "amenable to further surgery" and that "obviously corrective surgery was still required on the left eye." Id. at 310. Under those circumstances, we found the $50,000 award to be a miscarriage of justice. Id. at 309.

Finally, in Tronolone v. Palmer, 224 N.J. Super. 92, 95 (App. Div. 1988), we remanded for a new trial on compensatory damages where a passenger in an automobile was injured in a collision with a utility pole. The plaintiff's face went through the windshield and he suffered scars which adversely affected his career as a sales person. Id. at 96. The jury awarded the plaintiff $750 and the trial court granted plaintiff's additur motion in the amount of $2,750. Ibid. We concluded that even the additur award was "an impermissible underevaluation of plaintiff's damages," and remanded for a new trial on damages. Id. at 104.

Here, after seven surgeries, plaintiff's leg was amputated above the knee. She experienced substantial pain and suffered permanent injury. Although she may learn to walk with a prosthesis, the evidence indicated she will ultimately be relegated to a wheelchair. As plaintiff has noted, the compensatory damages award, based upon plaintiff's life expectancy, amounts to $8.00 per day. We are convinced that the compensatory damages award is grossly insufficient and a miscarriage of justice. We are also persuaded that a recalculation of damages based upon the trial transcripts without having the opportunity to observe the witnesses would be a further miscarriage of justice. Accordingly, the matter is remanded for a new trial on the issue of compensatory damages.


In his cross-appeal, Dr. Constantinopoulos argues that the trial court erred in not granting a new trial on liability because (1) the jury's determination on liability was against the weight of the evidence; and (2) Dr. Constantinopoulos had not entered into a doctor-patient relationship with plaintiff.

Dr. Constantinopoulos maintains that he could not have ordered an arteriogram for plaintiff when he saw her on February 9, 1997 because he was not a member of her health insurance plan. He contends that plaintiff's expert's testimony that he deviated from the standard of care was based on an assumption that Dr. Constantinopoulos had agreed to provide continuing care for plaintiff. In fact, the evidence clearly indicated that Dr. Constantinopoulos advised plaintiff that he would not be providing continuing care for her because he was not a member of her health insurance plan.

Plaintiff's expert's testimony regarding Dr. Constantinopoulos's deviation from the standard of care was based upon the failure to recommend that plaintiff receive immediate care within a twenty-four to forty-eight hour period.

Dr. Constantinopoulos's letter dated February 11, 1997 to Dr. Disciglio indicated that plaintiff needed "prompt" treatment, which Dr. Constantinopolos defined in his deposition as "treatment within a couple of weeks."

In this case, the jury heard expert testimony from both parties and obviously agreed with plaintiff's expert, as it was entitled to do. Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48-49 (App. Div. 1990), mod. by, 125 N.J. 421 (1991).

Dr. Constantinopoulos further contends that he never entered into a physician-patient relationship with plaintiff to incur liability. Rather, he maintains that he examined plaintiff as a "courtesy" to a fellow physician. We disagree.

In Rainer v. Frieman, 294 N.J. Super. 182, 187 (App. Div. 1996), we rejected a physician's argument that a physician-patient relationship did not exist with the plaintiff because defendant examined plaintiff at the behest of a third party. We determined that "the existence of a duty was a question of law to be determined by the court as a matter of fairness and policy and by 'weighing the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.'" Id. at 189 (quoting Strachan v. John F. Kennedy Mem'l Hosp., 109 N.J. 523, 529 (1988)). We concluded that "as a matter of fairness and policy and considering the other relevant determinants of the existence of a duty, the . . . examining physician had a duty to the examinee . . . to make a professionally reasonable and competent diagnosis." Ibid. We noted that plaintiff "relied, both reasonably and forseeably, on the examining physician's diagnosis." Ibid.

In undertaking the examination of plaintiff, Dr. Constantinopoulos undertook a duty to meet the standard of care with respect to the examination and any recommendations as a result thereof. We are satisfied that there is no basis for ordering a new trial on the issue of liability.

Accordingly, we affirm the judgment with respect to liability and the award of economic damages. We reverse and remand, however, for a new trial on the issue of compensatory damages.

Affirmed in part; reversed and remanded in part.


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