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Walsh v. Constantinopoulos


July 23, 2010


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-202-00.

Per curiam.


Argued May 27, 2008

Decided August 19, 2008

Remanded by Supreme Court November 3, 2008.

Reargued May 25, 2010

Before Judges Wefing and LeWinn.

This matter is here on remand from the Supreme Court pursuant to an order which directed us to amplify our reasons for granting plaintiff a new trial on the issue of compensatory damages. In our earlier opinion, we set forth the facts underlying plaintiff's claim of medical malpractice. We restate them here for convenience.

The facts relevant to this appeal are as follows. Beginning in November 1995, plaintiff visited her family doctor, Dr. Berger, about circulation problems in her toes. Dr. Berger referred plaintiff to a vascular specialist who[] she claimed told her that the condition was "consistent with [her] age". In May 1997, plaintiff returned to Dr. Berger, still complaining about her toes. Dr. Berger prescribed Procardia and Coumadin, but plaintiff requested a second opinion with respect to the Coumadin. She was referred to defendant, Dr. Michael J. Disciglio. Plaintiff testified that Dr. Disciglio informed her that she needed more than just pills. Between August and December 1997, plaintiff's discomfort increased to the point where she discontinued most of her activities and was unable to sleep. At that point, she saw Dr. Langer and he referred her to defendant, Dr. George Constantinopoulos.

Plaintiff saw Dr. Constantinopoulos on February 9, 1998. She testified that she was "in severe pain" at that time, that Dr. Constantinopoulos felt her pulse and told her that she should have an arteriogram and that Dr. Disciglio would arrange it for her. Dr. Constantinopoulos further told plaintiff that her condition should be dealt with "promptly." Dr. Constantinopoulos testified that he did not consider plaintiff's situation an emergency at the time because she was not taking pain medication, indicating to him that the pain was not severe enough. He further testified that he told plaintiff she should see a vascular surgeon in her health insurance plan because he was not a participant in her plan.

Dr. Disciglio scheduled an arteriogram for plaintiff on February 24, 1998. Plaintiff testified that she was in such severe pain after the arteriogram that she could not drive home from the hospital. Dr. Disciglio prescribed Demerol.

Plaintiff spoke to Dr. Constantinopoulos's partner, Dr. Lopyan, who informed her that she needed surgery. On March 3, 199[8], Dr. Lopyan did bypass surgery on plaintiff's toe and informed her that the veins in her leg were "like spaghetti," and in the future, her foot may have to be amputated. Plaintiff sought a second opinion which concurred with Dr. Lopyan's prognosis.

Plaintiff then contacted Dr. Finkelstein, who ultimately amputated plaintiff's foot. Several days later, Dr. Finkelstein advised plaintiff that the gangrene has moved further up her leg and he had to removed "another inch or two." While plaintiff was recovering, the leg began to turn colors and had to be amputated above the knee. In total, plaintiff had seven surgeries resulting in amputation of most of her leg.

At trial, Dr. Finkelstein testified as plaintiff's expert. In his opinion, plaintiff's condition was urgent at the time she saw Dr. Constantinopoulos and that he deviated from the standard of care by not treating her immediately.

[T]he jury returned a verdict awarding plaintiff $100,000 in damages for pain and suffering and $800,000 in economic damages. The jury found Dr. Constantinopoulos responsible for ten percent of plaintiff's damages.

[Walsh v. Constantinopoulos, No. A-0185-07T1 (App. Div. Aug. 19, 2008) (slip op. at 2-5).] Plaintiff sought a new trial, noting that the jury's award of compensatory damages for her pain and suffering translated to eight dollars per day and was grossly inadequate. The trial court disagreed and denied her motion for a new trial or additur. In doing so, it did not note any specific factors from the trial that led to this result but, rather, its overall deference to the jury's assessment. Both parties appealed, defendant contesting the finding with respect to liability, plaintiff seeking a new trial. In our earlier opinion, we affirmed the judgment in plaintiff's favor with respect to liability but reversed the trial court's denial of a new trial or additur.

We were, of course, cognizant, at the time of our initial opinion, that a jury's verdict with respect to damages "is entitled to very considerable respect," Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977), and "should not be disturbed unless it constitutes a manifest injustice that shocks the judicial conscience." Mahoney v. Podolnick, 168 N.J. 202, 229 (2001).

Here, our determination that plaintiff was entitled to a new trial on damages rested not on the per diem rate plaintiff had computed but on our overall assessment of the loss plaintiff had experienced, the impact of that loss upon her, and the future consequences she faced.

Part of plaintiff's claim related to the delays she experienced in receiving a diagnosis of her condition. She testified to the excruciating pain she suffered as she waited to be told what was the root of her problem and how it should be treated. She told the jury of the mounting pain she experienced during the days from February 24, when she had the arteriogram, until she had her initial surgery on March 3. That initial surgery was intended as a bypass procedure to provide more circulation to plaintiff's foot. After that bypass surgery, the doctor informed her that he would have to amputate her foot because of the deteriorated condition of her veins. On March 9, plaintiff's foot was amputated. After several days, as plaintiff's leg discolored, she underwent another surgery to remove an additional portion of her lower leg to prevent the spread of gangrene. Even that was not entirely sufficient, however, and plaintiff had to return to the operating room for further surgery in May, when her leg was amputated above the knee. In our judgment, the increasing dread plaintiff would naturally have experienced with each advancing surgery is a proper element to be considered in assessing the adequacy of the damage award. In addition, in between these amputational surgeries, she required additional surgical procedures debriding the surgical site. She had three months of hospitalization.

The jury heard the testimony of plaintiff's treating physiatrist, Heikki Uustal, M.D., who is board-certified in physical medicine and rehabilitation. Dr. Uustal is the director of the prosthetic and orthotic team at JFK Johnson Rehabilitation Institute. Dr. Uustal testified that plaintiff suffered delays in healing from the successive amputations and thus was delayed in receiving her prosthesis. He explained the difficulties patients have in learning to walk with a prosthesis and said that plaintiff suffered numerous falls as she learned to manipulate the device. Although she had mastered the use of a prosthesis by the time of trial, she remains at an increased risk for falling.

In addition, individuals using a prosthetic device are at increased risk for developing skin irritation and breakdown because of the constant rubbing of the plastic socket against the stump. Plaintiff is required to use particular care in cleaning and drying her stump as well as special creams to treat her stump to reduce that risk.

Dr. Uustal testified that plaintiff will be required to replace her prosthesis approximately every five years. This process requires new fittings and a process of adjustment on each occasion.

Dr. Uustal explained that an individual using a leg prosthesis cannot walk in a normal manner and as a result experiences biomechanical changes, with an increased risk of developing degenerative changes in other joints. He testified that the use of a prosthesis requires more energy than the use of a normal limb and that a person using such a device places extra strain on other body systems as a result.

He noted that plaintiff will require follow-up care for the remainder of her life and that her prosthesis will require periodic maintenance each year. On occasion, plaintiff will likely require either crutches or a wheelchair. He also testified that as plaintiff ages, the stress on her body from the use of her prosthesis will increase and that she will, at some point, be unable to use a prosthesis at all and be relegated to crutches and a wheelchair.

Dr. Uustal noted that individuals using a prosthesis can experience emotional difficulties as they confront, on a daily basis, the limitations with which they must deal. This was confirmed by plaintiff, who said her self-image has been affected and that when people look at her, she sees that they view her as a freak.

Plaintiff testified as to how her daily life had been changed in many small ways. She tires more easily and has difficulty carrying packages. In addition, the way in which plaintiff had chosen to live her life has been disrupted. Before her surgeries, plaintiff's elderly mother lived with her and plaintiff cared for her needs. Plaintiff could not continue to do that, and her mother now stays with her several months at a time and then goes to plaintiff's sister. When plaintiff is responsible for caring for her mother, she must, of course, attend to her own increased needs and be aware of her own physical limitations and risks.

At the time this matter was tried, plaintiff was fifty-six years old and had a projected life expectancy, according to the tables annexed to the court rules, of twenty-five years.

An award of compensatory damages for pain and suffering is intended to encompass not only an individual's physical suffering but the effect the injury has had on the daily life of the person. Here, plaintiff is confronted with a daily reminder of all that she has lost. There is never a moment when that loss is not experienced. One hundred thousand dollars is, in our judgment, a grossly inadequate amount to compensate plaintiff for all that she has undergone, all that she has lost and all that she will face in the future. Accordingly, we deemed the amount a "manifest denial of justice" to her. Baxter, supra, 74 N.J. at 597-98.


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