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Maccarone v. Edison Metuchen Orthopedic Group

October 31, 2008


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2956-03.

Per curiam.


Argued September 16, 2008

Before Judges Wefing, Parker and LeWinn.

Plaintiff Guiseppe Maccarone*fn1 appeals from a judgment entered on July 17, 2007 after a jury rendered a verdict of no cause for action. We affirm.

Plaintiff was employed by Pepsi Cola and was delivering cases to Maggie's Deli in Jersey City in June 2000 when he slipped and fell. He testified that, as he descended a stairway into the deli's basement, his "foot just gave way." He immediately felt pain in his lower back and knee.

After seeing several physicians recommended by the employer's workers' compensation carrier, he saw defendant, Dr. Matthew Garfinkel of the Edison Metuchen Orthopedic Group, in February 2001. Dr. Garfinkel recommended arthroscopic surgery to repair plaintiff's damaged knee. Plaintiff underwent the procedure on February 12, 2001.

Plaintiff testified that after the surgery he experienced a great deal of pain and returned to defendant's office to discuss it. Defendant told plaintiff that he was "doing fine" and recommended physical therapy. Plaintiff endured physical therapy, experiencing pain, which he described as "the worst possible stabbing." During this time, plaintiff also experienced pain in his back "on and off."

Two months to ten weeks after the first surgery, defendant recommended another arthroscopic procedure, known as an osteochondro autograft transplantation (OATS). Defendant testified that he recommended the OATS procedure because plaintiff was not improving. Nevertheless, defendant continued "conservative treatment with some physical therapy, . . . Celebrex, which is an anti-inflammatory medication, . . . therapy and follow up in two weeks." By May 17, 2001, plaintiff was more than three months post-surgery and had not improved significantly. Defendant again discussed the OATS procedure with plaintiff and explained the procedure and its risks. On May 23, 2001, defendant performed the OATS procedure arthroscopically on plaintiff's left knee.

Plaintiff testified that after the OATS surgery, he felt "horrible" and experienced "excruciating pain" while driving home. He testified further that defendant told him "to stay off [his] leg for approximately six to eight weeks, absolutely no weight bearing." His leg was fitted with a straight leg brace from the upper thigh to the ankle.

Defendant testified that he saw plaintiff a week after the surgery and that the incision "was clean, dry and intact which means the incision was healing nicely, no evidence of any problems with the incision, no evidence of any infection. The left lower extremity [was] neurovascularly intact. So no evidence of any nerve or circulation problems in the left lower extremity." Nor, did defendant find any evidence of a blood clot in the lower leg.

On June 12, 2001, however, plaintiff was admitted to the hospital because he had a fever and there was concern about infection inside the knee joint. Two of defendant's partners examined plaintiff and undertook tests to determine whether, in fact, plaintiff did have an infection in the knee joint. The tests indicated no infection. The doctors also found no evidence of a blood clot.

Plaintiff testified that he went to the hospital because he was in pain. He met with one of defendant's associates, who admitted him because of concern about infection. When he saw defendant a few days later, defendant told him "everything was fine." Although plaintiff indicated he had been trying to reach defendant before he went to the hospital, defendant's records did not reflect any attempts by plaintiff to contact him. Defendant saw plaintiff in the hospital and consulted with the infectious disease specialist who was treating plaintiff for the fever. Defendant discharged plaintiff from the hospital with instructions for home physical therapy to start the next day and for a continuous passive motion machine (CPM) to be used at home. The CMP machine slowly and continuously moves the leg between a straight to bent position.

Defendant next saw plaintiff on June 26, 2001, when defendant noted that plaintiff had been doing the CPM machine at home and was "compliant and non-weightbearing." Plaintiff had no fever, no redness or warmth about the knee and no drainage from the incision. Defendant took X-rays that day and the X-rays showed that the graft "was now fitting and ...

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