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Timothy W. Gonteski, As Administrator Ad Prosequendum of the Estate of v. Emergency Physician Associates

August 24, 2011


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1104-03.

Per curiam.


Argued March 30, 2011

Before Judges Axelrad, Lihotz and J. N. Harris.

Plaintiff Timothy Gonteski, who is the Administrator Ad Prosequendum of the Estate of Cheryl Gonteski, his deceased wife (decedent), filed this wrongful death action against defendant Emergency Physician Associates of South Jersey, P.C. (EPA) and others. Decedent sought treatment from a hospital emergency room (ER) operated by EPA. She was treated and released. Shortly thereafter she died.

Prior to trial, plaintiff settled his claims with the attending ER physician, Tarun Ganguly, D.O., who was employed by EPA, and other defendants, leaving EPA as the sole remaining defendant. Plaintiff called Dr. Ganguly as a witness and introduced the settlement agreement he executed, which admitted his negligence in failing to diagnose decedent's condition. On cross-examination, Dr. Ganguly was permitted to retract any belief that he had been negligent and explain why he executed the settlement that stated as such. The jury returned a verdict of no cause of action. Plaintiff appeals from the final order memorializing the verdict and the order denying his motion for a new trial.

Plaintiff argues Dr. Ganguly's stipulation addressing the issues of negligence and causation binds his employer, EPA, and EPA should have been barred from contesting that fact. In the alternative, plaintiff contends the court erred in allowing Dr. Ganguly's testimony that conflicted with and repudiated the written settlement. Finally, plaintiff challenges the form of the verdict sheet submitted to the jury.

We have reviewed the arguments presented on appeal in light of the record and the applicable law. We affirm.

These facts are found in the trial record. On April 19, 2001, decedent, who was age thirty, visited the Rancocas Hospital Emergency Room complaining of a severe headache. Decedent was attended to by Dr. Ganguly. Decedent told Dr. Ganguly she had experienced a headache, nausea, and neck pain for approximately six months and the symptoms had worsened on the day she sought treatment. She had been taking Flonase and Advil, which did not abate the pain, and expressed she had not experienced vomiting, fever, chills, or upper respiratory infection symptoms.

Dr. Ganguly performed a "head to toe" examination of decedent. He noted her eyes were equally round and reactive to light, her heart had a regular rate and rhythm, and her lungs were normal. Next, Dr. Ganguly performed a neurological examination, testing decedent's pupils, cranial nerves, her grip strength and ability to walk, smile, frown, and shrug her shoulders. All of decedent's test results were "[w]ithin normal limits."

Dr. Ganguly did not believe a CT scan was necessary, stating: "I didn't feel that it was necessary, based on my physical examination, based on her symptoms, based on the nonneurologic finding, and based on how she responded to my treatment." Dr. Ganguly's impression of decedent's symptoms was

She had a headache that was pretty benign.

I wanted to do some testing to make sure there [wa]s no acute infectious process going on. So I ordered some blood work .; that was my first priority, first differential was migraine, because it's the most common cause of headaches. So I gave her some medication to treat [] her migraines, and [gave] her some fluids for the possibility of [de]hydration causing headaches.

After medications were administered (Reglan and Toradol), decedent reported she was feeling better. As Dr. Ganguly observed decedent, she appeared awake, alert and oriented; therefore, he ordered her discharge. Defendant did not return to the emergency room or see her family physician.

On April 23, 2001, decedent began employment at a local delicatessen working with Donna Endicott, her husband's cousin. About an hour after Endicott began training, decedent complained of a headache, despite the fact that she had taken medicine. Five minutes later, decedent told Endicott she could not see. Endicott took her to the back room to allow her to sit down. Shortly thereafter, decedent became unresponsive and began vomiting.

Decedent was transported by ambulance to Rancocas Hospital and then to Thomas Jefferson University Hospital where an MRI of her brain revealed she suffered a bleeding in her brain which leaked into the subarachnoid space through the ventricle, destroying brain tissue and causing destructive changes in her brain functioning. Decedent's condition failed to improve and she passed away on May 3, 2001.

Plaintiff's initial action named ten defendants, many of whom were dismissed or settled plaintiff's claims. By 2009, the only defendants remaining were EPA and Dr. Ganguly. On May 11, 2009, plaintiff and Dr. Ganguly stipulated to the terms of settlement, which provided in pertinent part:

1. Plaintiff has been offered $675,000.00 in partial settlement of plaintiff's claim against [Dr. Ganguly] and such offer shall remain open until ...

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