On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2070-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
This appeal arises from a medical negligence action wherein plaintiff Catherine Molan, General Administrator and Administrator Ad Prosequendum of the Estate of Catherine Lawlor*fn1, deceased, suffered a burn to her knee caused by the negligence of defendant Joseph Benjamin McDivitt, a licensed physical therapist. Following a jury trial on damages only, plaintiff was awarded a verdict of $2,910 for economic damages and $7,500 for non-economic damages. Plaintiff moved for a new trial or additur, which was denied. Plaintiff now appeals, and we affirm.
The facts adduced at trial reveal that on June 22, 2003, plaintiff suffered injuries as a result of a motor vehicle accident. These injuries necessitated additional medical treatment including the physical therapy services provided by defendant.
Plaintiff had an extensive and unfortunate pre-accident medical history. In 1997, at age 73, she suffered a stroke resulting in right-side weakness and a limited ability to verbally communicate. In addition, she suffered from congestive heart failure, pulmonary edema, arteriosclerosis cardiovascular disease, peripheral vascular disease, anemia and hypertension. In addition, she had a history of diverticulitis, malnutrition, dehydration, respiratory insufficiency, pulmonary disease and peptic ulcer. She utilized both a walker and wheelchair.
As a result of the accident, plaintiff suffered soft tissue injuries, which required physical therapy, and she was referred by a treating physician to defendant for that therapy. In June 2004, while being treated with moist heat on her right knee, plaintiff developed a two-inch blister, which was diagnosed as a second-degree burn requiring topical and wound treatment. During this same period, plaintiff was hospitalized for osteomyelitis and other conditions unrelated to the blister. During this hospitalization, plaintiff underwent two debridements to the blister area.
Plaintiff began treatment with Thomas Steffe, M.D., a plastic surgeon in August 2004. During the course of treatment with Dr. Steffe, the wound was reduced in size from approximately two inches to one and one-half inches. Treatment included topical dressing and debridements ultimately resulting in a healing of the wound in February 2005, without the necessity of surgical intervention. During this period, plaintiff suffered a contracture of her right knee, a condition alleged by plaintiff to be related to the burn but challenged by defendant as being related to the stroke. Within one month of the wound being healed, plaintiff died, but her death was not related to the burn or its sequelae.
At the commencement of trial, the judge and counsel participated in a Rule 1:8-3 hearing to select a jury. Although the judge asked the jurors the standard questions required by Administrative Office of the Courts, Directive #21-06, Standards for Jury Selection (December 11, 2006) and Administrative Office of the Courts, Directive #04-07, Jury Selection -- Model Voir Dire Questions Promulgated by Directive #21-06 -- Revised Procedures and Questions (May 16, 2007). However, the judge did not ask any open-ended questions as mandated by Directive #04-07. Plaintiff's counsel participated fully in the voir dire process but did not raise any objection or offer any proposed questions.
Following jury selection, the trial commenced with plaintiff proffering plaintiff's son-in-law, Robert Molan, who indicated that he and his wife, Catherine, had devoted 1,466 hours caring for plaintiff as a result of the burn. Included in the services provided were wound care, administration of medications, transportation, coordination of medical services as well as providing routine household chores. From June 16, 2004 until March 14, 2005 (except for the brief interval of hospitalization), plaintiff resided with her daughter and was in her daughter's care. According to this witness, the impact of the burn changed plaintiff's happy life into one of "pain and suffering and misery." The market value of these services were estimated at $181,439, which formed the basis of plaintiff's economic claim.
Expert medical testimony submitted to the jury by plaintiff linked the osteomyelitis of the patella to the burn as well as the leg contracture. Similarly, there was constant debridement of necrotic tissue necessitating approximately sixteen office visits with Dr. Steffe as well as the need for mechanical aids and casting to promote healing and deal with the contractures.
Defendant's expert, Dr. Robert Ponzi joined the issue and opined that the contractures were related not to the burn but to the stroke that predated the burn accident. He also concluded that the burn wound was completely healed as of January 2005, and plaintiff showed no signs of persistent infection.
Following the jury verdict, plaintiff moved for a new trial or additur. That application was ...