On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-202-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court November 3, 2008.
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, 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 ...