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Braime v. Popovitch

November 6, 2009


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1968-04.

Per curiam.


Argued March 24, 2009

Before Judges Skillman, Graves and Espinosa.

In this legal malpractice action, defendant Frederick E. Popovitch and his law firm, Popovitch & Popovitch, LLC, appeal from an order of the Law Division dated January 18, 2008, denying their motion for reconsideration of an amended judgment in favor of their former client, plaintiff Yvonne Braime, in the sum of $359,035.37. Defendants also challenge several earlier trial court orders. The amended judgment, which was entered following a proof hearing, included an award of damages in the amount of $275,000, plus prejudgment interest of $31,453.20, and counsel fees and costs totaling $52,582.17. We affirm.

The facts are relatively straightforward. Plaintiff, who was born in 1968, sustained two work-related injuries to her left knee in 1993 and injured her right shoulder while at work in 1994.*fn1 After Dr. Steven Nahmer operated on plaintiff's left knee, he referred her to Dr. Toufic Boucherit, an anesthesiologist at Overlook Hospital in Summit, New Jersey.

Dr. Boucherit recommended a series of epidural injections to ease the pain in plaintiff's left knee. Between May 21 and August 27, 1996, Dr. Boucherit administered four epidural nerve blocks, which relieved some of plaintiff's pain. However, after the fifth and final injection, which took place under general anesthesia on September 19, 1996, plaintiff experienced "excruciating" pain in her back, she was unable to urinate, and later had blood in her urine. Dr. Boucherit advised plaintiff to see her gynecologist because her symptoms were not side effects of the epidural injection, and he prescribed a Duragesic patch for plaintiff's back pain.

Plaintiff continued to experience severe back pain, and she eventually spoke with defendant Frederick Popovitch (Popovitch), an attorney, regarding a potential medical malpractice claim. Popovitch referred plaintiff to Dr. Raphael Cilento, a neurologist, who prepared an expert report on August 8, 1998. After examining plaintiff and reviewing her medical records, Dr. Cilento concluded that Dr. Boucherit had damaged plaintiff's kidney during the nerve block procedure on September 19, 1996. In his initial five-page report, Dr. Cilento stated:

FORENSIC OPINION: On the basis of my evaluation of the patient and the documents concerned, it is my opinion that with a reasonable degree of medical certainty, this patient suffers from a departure from the standard of medical care in that her kidney was perforated. Also, that she had a number of epidural blocks that have not performed any useful function except to cause greater irritation and probable damage to the nerve roots.

SPECIAL NOTE: The epidural block procedure is now being classified as being not effective, and this has been published in the New England Journal of Medicine and substantiated by other reliable medical bodies, and this procedure is no longer done.

Dr. Cilento also stated that plaintiff was "totally and permanently disabled," and that the epidural injections performed by Dr. Boucherit "were the proximate cause of her problems."

In September 1998, Popovitch filed a medical malpractice action on plaintiff's behalf against Dr. Boucherit and several other defendants. According to plaintiff, Popovitch initially contacted her "on a regular basis," but after a while the "contact kind of dropped off," and he did not return her calls. On June 11, 1999, plaintiff's complaint was "dismissed without prejudice for failure to answer interrogatories"; on November 5, 1999, plaintiff's complaint was "dismissed with prejudice for continued failure to answer interrogatories"; and on December 17, 1999, plaintiff's motion for reconsideration was denied.

Popovitch did not inform plaintiff of these developments. Therefore, plaintiff was unaware that the court had dismissed her medical malpractice case until she contacted court personnel regarding the status of her case. After learning that her case had been dismissed, she made several telephone calls to Popovitch's office, but she was never able to speak with him. On January 31, 2000, Popovitch filed a notice of appeal on plaintiff's behalf, however, the appeal was dismissed for lack of prosecution.

On April 30, 2004, plaintiff filed the present action against Popovitch and his law firm, alleging legal malpractice in her underlying medical malpractice case. Defendants filed their answer to plaintiff's complaint on August 20, 2004. On February 8, 2005, the court granted plaintiff's motion to suppress defendants' answer without prejudice based upon defendants' failure to provide discovery. Plaintiff's motion was unopposed. In a subsequent order dated June 15, ...

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