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Sommerer v. Dara

April 16, 2010

FRANK B. SOMMERER, INDIVIDUALLY AND AS GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF DOROTHY R. SOMMERER, DECEASED, PLAINTIFF-APPELLANT,
v.
PARVEZ DARA, M.D., DEFENDANT-RESPONDENT, AND DANTE B. MARTINEZ, M.D., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND LAWRENCE W. SILVERS, M.D., JOEL H. KURTZ, M.D., KARL R. BLUM, M.D., INDIVIDUALLY AND T/A OCEAN ORTHOPEDIC ASSOCIATES, VINAY SIKAND, M.D., DOUGLAS M. GIBBENS, M.D., LAWRENCE A. GAETANO, M.D., WIJE RAVINDRAN, M.D., RODOLFO AMPER, M.D., ROBERT D. SCOTT, M.D., IAN D. SAMSON, M.D., GREGORY NEUMANN, D.O., HAK JOO CHA, M.D., JOHN PETRILLO, M.D., INDIVIDUALLY AND T/A OCEAN ORTHOPEDIC ASSOCIATES, ARJUNA PONNAMBALAM, M.D., INDIVIDUALLY AND T/A OCEAN ORTHOPEDIC ASSOCIATES, DR. RAU, D. ERIN POLASH, R.N., M. BUCALEZ, R.N., AIDA VALERIO, R.N., NURSE I.C., MARYLOU WALLER, R.N., SHARON PELL, R.N., CATHERINE JOHNSON, R.N., CHRIS REYNOLDS, R.N., NANCY MCCLISTER, R.N., DARIA PEIFER, R.N., ANTOINETTE SUSSINO, R.N., LORI BOURQUE, R.N., EMILY MACSIMMS, R.N., R. CHAMBERLAIN, R.N., LISA PUGLISE, R.N., LAUREN RHATIGAN, R(D)N, ANNE COOGAN, R.N., BARBARA KELLY, R.N., THERESA DANDOLPH, R.N., MARGARET KUHLMAN, R.N., DEBBIE HOLDEN, R.N., MILDRED CALIGNO, R.N., ELLEN KAHN, R.N., TAMMY PANCOAST, R.N., CHERYL MCDONALD, CRT AND COMMUNITY MED CAL CENTER, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3100-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 25, 2010

Before Judges Axelrad, Fisher and Sapp-Peterson.

In this medical malpractice appeal, we examine, among other things, whether an alleged failure to turnover x-rays to plaintiff in discovery warrants a new trial. We find no merit in any of plaintiff's arguments and affirm.

The record reveals that, on September 13, 2000, sixty-one year old Dorothy R. Sommerer, who had a medical history that included Crohn's disease and chronic myelogenous leukemia, fell in her home and was transported by ambulance to Community Medical Center (the hospital) in Toms River. After arriving, Dorothy was diagnosed as having suffered a fractured hip. Surgery to repair the hip was delayed because Dorothy had a low potassium level. As her potassium level was stabilized, Dorothy developed a low grade fever and distended abdomen, causing her transfer to the intensive care unit. Her condition deteriorated, and she was diagnosed with a pulmonary embolism and sepsis. Doctors performed an exploratory laparotomy and removed a bowel obstruction. However, Dorothy's condition worsened, and she died on September 22, 2000.

Plaintiff, as the personal representative of Dorothy's estate, commenced this action against defendants. Some defendants, including the hospital, settled, and the matter eventually went to trial regarding the claims asserted by plaintiff against numerous defendant-physicians, including Parvez Dara, M.D., Dorothy's oncologist, and Dante B. Martinez, M.D., her gastroenterologist. Plaintiff's claims against Drs. Dara and Martinez -- the only respondents to this appeal -- were based on the theory that they deviated from the accepted standard of care by failing to closely monitor Dorothy's potassium levels during their ongoing treatment of her prior to the hospitalization for hip surgery. In essence, plaintiff asserted that the low potassium level caused the delay in hip surgery that resulted in the complications that followed, including the bowel obstruction and pulmonary embolus, which brought about her death.

At the conclusion of a lengthy trial, the jury rendered a verdict of no cause against all the defendants, including Drs. Dara and Martinez. Plaintiff moved for a new trial. He argued, among other things, there was an improper failure to produce certain x-rays in discovery that caused prejudice during the course of the trial. That motion was denied and plaintiff appealed, presenting the following arguments for our consideration:

I. PURSUANT TO R. 4:17-7, DEFENDANTS HAVE FAILED TO COMPLY WITH THE RULES OF DISCOVERY, AND THE APPROPRIATE REMEDY FOR THE NON-DISCLOSURES AND DISCOVERY VIOLATIONS ARE GRANTING THE PLAINTIFF A NEW TRIAL IN THIS MATTER.

II. THE ADMISSION OF THE "NEWLY RESURFACED" RADIOLOGICAL FILMS SEVERELY PREJUDICED PLAINTIFF, TAINTED PLAINTIFF'S ENTIRE CASE AND ULTIMATELY PROVED TO BE ERROR.

III. THE VERDICT AS TO DOCTORS DARA AND MARTINEZ WAS A MISCARRIAGE OF JUSTICE AS IT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

IV. THE SUBSTANTIAL FACTOR CHARGE WAS APPLIED INCORRECTLY AND SIMULTANEOUSLY, THE JURY WAS NOT PERMITTED TO CONSIDER OTHER POSSIBLE CAUSES OF DEATH.

V. BASED ON THE APPLICABLE COURT RULE AND CASE LAW, PLAINTIFF'S REQUEST FOR A NEW TRIAL SHOULD BE GRANTED.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).*fn1 We add only the following comments regarding Points I and II. Plaintiff's arguments in Points I and II are premised on the contention that the defendants remaining in the case at the time of trial had access to x-rays that were not available to plaintiff. In support of this contention, plaintiff alludes to the testimony of ...


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