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Walsh v. Disciglio

August 19, 2008

MAUREEN WALSH, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
MICHAEL J. DISCIGLIO, M.D., DEFENDANT, AND GEORGE CONSTANTINOPOULOS, M.D., DEFENDANT-RESPONDENT/CROSS-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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