On appeal from Superior Court of New Jersey, Law Division, Civil Part, Camden County, Docket No. L-1918-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Graves and Grall.
This is a medical malpractice and wrongful death action. In a complaint filed on March 31, 2004, plaintiff Donna Boylan alleged on behalf of herself and her husband's estate that defendants failed to properly diagnose and treat her husband's pulmonary embolism. Robert Boylan died on November 13, 2002, at the age of fifty-eight.
Prior to trial, the cardiology defendants*fn1 settled with plaintiff. In addition, plaintiff voluntarily dismissed her claims against Dr. Michael Rogers and Underwood Memorial Hospital. The trial commenced on October 3, 2006, and concluded on October 23, 2006, with a verdict in favor of plaintiff. The jury found that Dr. Meagan Vermeulen was not negligent. However, it returned a verdict against Dr. B. Dawson Shoemaker and Dr. Joseph Szgalsky, awarding pain and suffering damages in the amount of $368,750 and wrongful death damages in the amount of $400,000. The jury allocated sixty-five percent of the fault to Dr. Shoemaker, thirty percent of the fault to Dr. Szgalsky, and it found that Mr. Boylan's pre-existing medical condition was a five percent contributing factor. Judgment was entered against the doctors and in the full amount of the liability of both doctors against Woodbury Family Practice Associates, P.A. (Woodbury Family Practice).
On appeal, Dr. Shoemaker, Dr. Szgalsky, and Woodbury Family Practice (defendants) challenge several decisions by the trial court; an order for final judgment entered on November 13, 2006; an order denying their motion for a new trial or remittitur entered on January 3, 2007; and an order granting counsel fees and costs to plaintiff in the amount of $345,510.40 under Rule 4:58-2, the offer of judgment rule. We affirm.
Dr. Shoemaker, a family physician and partner with Dr. Szgalsky in Woodbury Family Practice, began treating Robert Boylan in 1986. During his initial examination, Dr. Shoemaker recommended that Mr. Boylan, who was approximately five-feet eight-inches tall, should "diet to 190 pounds." In addition, Dr. Shoemaker advised Mr. Boylan to lower his salt intake because his blood pressure was elevated.
Two years later, in 1988, Mr. Boylan underwent triple bypass surgery after he experienced a myocardial infarction. During the surgery, the cardiologist discovered a blood clot and removed it. Following his surgery, Mr. Boylan began treating with the cardiology defendants, but he also continued seeing Dr. Shoemaker.
In March 2002, Mr. Boylan was hospitalized and treated by Dr. Shoemaker for a blood clot in his left leg. Dr. Shoemaker testified that Heparin, an anticoagulant, was initially administered intravenously "to prevent further clot formation and, hopefully, to prevent a braking-off of clots." In addition, Mr. Boylan was given a second blood thinner called Coumadin. Dr. Shoemaker explained that Heparin can only be given intravenously and that once it is effective, a patient can be discharged from the hospital on Coumadin. Mr. Boylan was discharged from the hospital on March 5, 2002, and Dr. Shoemaker testified that his plan was to continue Mr. Boylan on Coumadin for "at least six months" and possibly longer.
Throughout the next few months Dr. Shoemaker examined Mr. Boylan periodically, and adjusted his dose of Coumadin in accordance with blood test results. During these visits Dr. Shoemaker found no evidence of a clot, although he noted that Mr. Boylan suffered from occasional recurrent swelling of his left leg. Dr. Shoemaker claimed that Mr. Boylan told him on several occasions that he did not like taking Coumadin, and did not like going to the lab for blood tests. On June 12, 2002, Dr. Shoemaker refilled Mr. Boylan's prescription for Coumadin for six months.
When Dr. Shoemaker examined Mr. Boylan on September 26, 2002, Mr. Boylan was complaining of swelling in his left leg and itching. Dr. Shoemaker testified that Mr. Boylan stated he had stopped taking Coumadin and Dr. Shoemaker wrote "Off Coumadin times two weeks" on Mr. Boylan's chart. According to Dr. Shoemaker, Mr. Boylan told him "on more than one occasion that he did not like taking Coumadin," and Dr. Shoemaker told Mr. Boylan "on several occasions" why he needed to continue to take Coumadin. Dr. Shoemaker attributed the swelling in Mr. Boylan's left leg to the fact that he "was working and he was on his feet." Dr. Shoemaker advised Mr. Boylan "to consider getting a pressure stocking and to elevate the leg" to remove the swelling.
The next entry on Mr. Boylan's chart is a nurse's note indicating that Mr. Boylan telephoned Dr. Shoemaker's office on September 27, 2002. The note reads: "Patient needs salve for legs, swollen, blood clots." During an office visit on October 16, 2002, Dr. Shoemaker observed that Mr. Boylan's left leg was slightly swollen, and Dr. Shoemaker again advised Mr. Boylan to elevate the leg and to use a compression stocking. Dr. Shoemaker testified that he asked Mr. Boylan "to return to the office in four months which is a way of saying he seemed to be stable."
On October 30, 2002, Mr. Boylan was admitted to the Emergency Room at Underwood Memorial Hospital complaining of shortness of breath and chest tightness. The diagnosis of the emergency room physician was "unstable angina pectoris," a symptom of an impending heart attack. Mr. Boylan was admitted to the hospital by Dr. Rogers, a family physician who was covering for Dr. Shoemaker that day. Dr. Rogers ordered a series of tests, and consultations with defendant cardiologists and a urologist.
Defendant cardiologists recommended that Mr. Boylan undergo a ventilation perfusion (VQ) scan, a test to rule out the presence of blood clots in the lungs, if Mr. Boylan had a negative stress test result and he continued to have a low level of oxygen saturation. However, Dr. Shoemaker testified that a VQ scan was not performed because those two conditions were never met.
Various tests were conducted at the hospital, including a chest x-ray, which revealed that Mr. Boylan had a depressed diaphragm and hyperinflation of the lungs, and blood tests, which revealed he had low hemoglobin and hematocrit counts. An EKG showed a "right bundle branch block," or an abnormality in the right ventricle commonly caused by arteriosclerosis, but sometimes caused by a pulmonary embolism. Mr. Boylan also had a rapid heart rate, and he was unable to complete a stress test due to shortness of breath and fatigue.
On October 31, 2002, Dr. Shoemaker examined Mr. Boylan at the hospital. After reviewing the test results and consulting with defendant cardiologists, Dr. Shoemaker concluded that Mr. Boylan's "shortness of breath and chest pain were not due to an acute coronary process."
An echocardiogram performed on November 1, 2002, the day before Mr. Boylan was discharged from the hospital, revealed that Mr. Boylan had right-sided heart strain and severe tricuspid regurgitation (leaking heart valves), results consistent with the presence of a pulmonary embolism. Dr. Owens transcribed the echocardiogram report on November 2, 2002, but did not approve the transcription until November 4, 2002, after Dr. Shoemaker had discharged Mr. Boylan from the hospital. Dr. Shoemaker testified he did not receive the written echocardiogram report prior to Mr. Boylan's death on November 13, 2002. But he also admitted that he would have treated Mr. Boylan for pulmonary embolism if he had been aware of the echocardiogram results.
During the trial, Dr. Shoemaker was asked why he didn't do an evaluation following Mr. Boylan's hospitalization on October 30, 2002, to determine if Mr. Boylan was suffering from pulmonary embolism. Dr. Shoemaker testified as follows:
[W]ell, first of all, when he was admitted, he was admitted by Dr. Rogers who initiated the work up. I came on the case on the first hospital day, and the signs and symptoms of that patient at that time with the history that I was aware of, which I might state I was aware that he had had a complication of his coronary surgery.
He had had a pulmonary embolus which was treated appropriately for a several-week period. That is --