On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5383-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Fasciale.
Defendants, Hudson County Correctional Center (Center), Hudson County Department of Corrections, Alice Mammaril and Editha Resureccion, appeal from a jury verdict awarding plaintiff, Mary L. Williams, damages on her survivorship and civil rights claims stemming from the death of her son, forty-four-year-old Derrick R. Williams (Williams), who was an inmate at the Center at the time of his death. Defendants also appeal from the trial court order awarding counsel fees and costs to plaintiff as a prevailing party on her civil rights claim. The jury found defendants were negligent and violated Williams's civil rights. We affirm.
Williams was arrested on narcotics charges on November 30, 2004 and admitted to the Center. Dr. Graciano Zara performed a physical and neurological examination upon defendant during which he told the doctor that he used drugs. The examination was unremarkable except for a slightly raised pulse, which the doctor believed may have been attributed to prison anxiety. Williams's weight, upon admission, was 150 pounds. Dr. Zara prescribed a three-day supply of withdrawal medications. Williams's infirmary chart indicated that he picked up medication for one day.
At approximately 4:30 p.m. on December 6, Williams approached officers at their glass-enclosed station and, using sign language that was apparently commonly known within the Center, asked for medical help. He banged on the glass, but the correction officers did not respond. Fellow inmate Anthony Vega saw Williams draw an "M" in the air, which meant that Williams wanted to go to the infirmary. He also saw Williams cross his arms over his stomach, which meant that he was in pain, and place his fist in his mouth to indicate he was vomiting. The officers still did not respond. Williams appeared too weak to continue his efforts and another inmate took a chair over to him so that Williams could be seated while Vega also banged on the glass to get the officers' attention. Despite these efforts, Williams was not taken to the infirmary for medical care. Rather, he was returned to his cell around 10:30 p.m. and locked in.
Other inmates continued to try to get help for Williams by banging on their cell doors. At 12:35 a.m., Correction Officer Nathaniel Glover escorted Williams to the infirmary. He testified that Williams walked well and required no assistance. Vega, however, who was watching from his cell, disputed Officer Glover's observations. According to Vega, Williams walked slowly while bent over and holding his stomach. He also saw that the seat of Williams's pants was wet.
While walking to the infirmary, Glover testified that Williams told him he was "kicking," a term for withdrawing from heroin usage, and wanted some methadone. Williams was at the infirmary for approximately five minutes. There is no record of what, if any, treatment was administered to Williams at that time, and Glover was unable to say whether Williams received any treatment.
At 5:30 a.m. on December 7, Glover took Williams back to the infirmary because he realized that Williams had a problem. Once again, Williams's visit was brief and undocumented. Glover returned Williams to his cell and testified that he did not see any facial injuries on Williams at that time. Around 9:20 p.m., Williams told Theresa Brokow, the nurse who was administering medications to inmates, that he was experiencing withdrawal symptoms, could not "move," and did not "feel good." Williams appeared very weak and possibly dehydrated to her, and when she saw that he was unable to get up from the floor, she called a code white, alerting Center personnel that there was a medical emergency.
Correction officers placed Williams on a stretcher and removed him to the infirmary where he remained throughout the night. Nurse Brokow did not do a physical assessment of Williams before he was taken to the infirmary, assuming that he would be examined once he was admitted to the infirmary.
Nurse Editha Resureccion, who responded to the code white and accompanied Williams to the infirmary, checked his vital signs and found that Williams's pulse and blood pressure were significantly elevated. She left him on the stretcher in the medical waiting area for observation. She took no medical history from Williams and performed no further nursing assessment. In addition, she prescribed no medication and did not contact the on-call physician. Instead, at 10:30 p.m. she determined that since Williams did not appear to be in distress and was not voicing any complaints, he was more than likely experiencing withdrawal symptoms. Therefore, she believed that he could be returned to his cell. When Williams took a few steps towards the infirmary door, he collapsed, striking his head and face. Nurse Resureccion testified that Williams appeared dazed and was non-verbal, but she observed no visible injuries to Williams as a result of the fall. She admitted Williams to the infirmary, a measure taken only in cases of serious medical need. She did not physically examine Williams, check his vital signs, administer any medication, or contact Dr. Zara, the on-call physician. As the end of her shift approached, Nurse Resureccion did not check on Williams's condition or convey his history and condition to any nurse on the next shift. She wrote in Williams's chart that he had been brought to the infirmary on a code white, that he was suffering from withdrawal, and that he had taken a fall, from which he had suffered no ill effects.
Alice Mammaril, another nurse on duty that evening, had minimal contact with Williams. She checked on him at 1:00 a.m. to confirm that he was still breathing and she noticed around 5:00 a.m. that he had eaten some of his breakfast. She also wrote, at Williams's request, a note excusing him from a court appearance later that day. She did not perform a physical examination or any other nursing assessment upon Williams. She was aware, however, that something was wrong with Williams and wanted him to be seen by a doctor, although she did not take any action to ensure that he was seen by a physician. For the remaining six and one-half hours of her shift, she did not personally attend to Williams.
Correction Officer Shaler Jackson was on duty on December
8. He conducted rounds that included the infirmary. He recalled that around 9:30 a.m., he observed Williams seated on his bunk bed, and when he asked whether Williams had any laundry, Williams shook his head.
Dr. Zara arrived at the Center around 10:00 a.m. on December 8, and immediately began assisting Dr. Laurence Wynn, who had been covering for him while he attended a conference. Dr. Wynn, however, did not start his rounds in the infirmary. Instead, he commenced seeing inmates for sick call. Dr. Wynn testified that he was not made aware of Williams's presence in the infirmary or that he needed to be seen by a doctor. When Dr. Zara joined Dr. Wynn at sick call, he was unaware that infirmary rounds had not yet been made and was also unaware of Williams's overnight admission into the infirmary.
Later on the morning of December 8, around 11:15 a.m., an inmate worker notified Nurse Mammaril that Williams was "unresponsive." She immediately ran to Williams's infirmary cell and confirmed he had no pulse and was not breathing. She initiated CPR, to no avail. Dr. Wynn declared Williams dead at 11:35 a.m. Photographs taken of Williams shortly thereafter showed that his trousers were on backwards and inside out, there were stains on his undershirt, and there were no sheets or pillows on his mattress, which was lying on the cell floor.
An autopsy performed the next day revealed the cause of Williams's death as a perforated duodenal ulcer and peritonitis. His weight, at the time of his death, was reported as 136 pounds. His body also displayed several bloody cuts and scrapes around the left eye.
At trial, plaintiffs presented two nursing experts, Carmen Toca and Louella McIntosh, both of whom testified that the nursing care deviated from acceptable standards of nursing care and violated the Center's jail protocols for the nursing staff. Dr. Louis Roh, a forensic pathologist, testified that once Williams's ulcer perforated, bacteria-laden material and other digestive fluids leaked into his abdominal cavity, causing inflammation of the entire cavity or peritonitis. Dr. Roh explained that in response to this infection, Williams's body created one and one-half liters of pus, which eventually thickened, grew sticky, and caused the organs in his abdomen to adhere and ultimately shut down. He noted that Williams also experienced some fat necrosis or auto-digestion around his intestinal tract. Additionally, Williams choked on his own vomit, as evidenced by the digestive juices found in his lungs.
According to Dr. Roh, as a result of the initial perforation, Williams would have experienced a certain level of pain which would then intensify and ultimately become unbearable as a result of the inflammation, accumulation of pus and adhesions. Based upon the amount of pus and the adhesions in Williams's body, along with the occurrence of fat necrosis, Dr. Roh estimated that Williams suffered from peritonitis for at least twelve hours, with the initial perforation occurring twenty-four hours earlier. In total, Dr. Roh opined that Williams suffered for at least thirty-six hours. In addition, Dr. Roh testified that when Williams's intestines became immobilized, he would have experienced nausea, vomiting and diarrhea before going into shock and finally dying. He expressed disbelief that Williams could have been examined at 1:00 a.m. on December 8 and found to be perfectly normal.
Plaintiff also presented Dr. Edward Spector, a specialist in emergency medicine. In his opinion, it was "inconceivable" for medical professionals to mistake the symptoms of an acute abdomen with those of heroin withdrawal. He explained that a patient withdrawing from heroin is typically restless and agitated, with an intermittently crampy but soft abdomen, consistent bowel sounds and occasional diarrhea. By contrast, a patient with peritonitis is usually unwilling to move due to the immense pain emanating from his or her rigid abdomen from which no bowel sounds can be heard. Moreover, Dr. Spector testified that there was no reason for the nurses to have considered heroin withdrawal as a possible explanation for Williams's condition since, assuming Williams had a moderate four-bag-a-day heroin habit, his symptoms would have peaked three days after his last use of the drug, which Williams reported during his intake physical was November 30, the date of his arrest. Therefore, by December 6, when Williams first sought medical attention, Dr. Spector believed Williams's heroin withdrawal symptoms should have peaked and subsided. Further, Dr. Spector asserted that basing a diagnosis on information that was one-week old was not in accordance with the standard of care.
Dr. Spector opined that Williams's ulcer perforated at approximately 4:20 p.m. on December 6, when he first sought medical assistance. He further believed that Williams went into septic shock starting at 9:20 p.m. on December 7, when he mistakenly complained to Nurse Brokaw that he was experiencing drug withdrawal and collapsed to the ground. Dr. Spector stated that Williams had to have been in agony for hours, judging by the amount of pus in his abdomen.
Dr. Spector maintained that the seriousness of Williams's condition could have been readily detected and his death prevented had a proper examination of his abdomen been conducted and had his fluctuating vital signs been recorded, or if he had been sent to the hospital for a CAT scan after he fell and exhibited an altered mental state. He concluded the attending nurses failed to: (1) properly assess Williams's condition; (2) objectively rule out inappropriate diagnoses; (3) document Williams's symptoms and vital signs; (4) communicate with each other regarding Williams's condition and needs; (5) contact a doctor; and (6) send Williams to the hospital. Dr. Spector expressed the opinion that the nurses were totally insensitive to Williams's condition and essentially rendered no medical care to him. Because of this lack of care, he opined that Williams suffered from incredible pain as his situation gradually worsened.
Defendants presented an expert on damages only, Dr. Michael Disciglio, an internist, who testified that Williams did not experience any significant pain and suffering prior to his death. In his opinion, had Williams been in excruciating pain, he would not have been able to bang on his cell door, walk to the infirmary, eat breakfast, or sit up in bed, as had been the testimony of witnesses. Dr. Disciglio opined that the location of the perforated ulcer resulted in a "slow leak," which "smoldered" for many hours and caused Williams mild discomfort. Under cross-examination, however, he acknowledged that a perforated duodenal ulcer almost always presents with acute pain and that fat necrosis also causes pain.
The jury awarded a $600,000 verdict on plaintiff's survivorship claim, a $225,000 verdict on her civil rights claim, and the court awarded plaintiff $319,152 in counsel fees and costs. The court denied defendants' motion for a new trial, and the present appeal followed.
On appeal, defendants raise the following points for our consideration:
THE JURY VERDICT SHEET ERRONEOUSLY ALLOWED THE JURY TO ASSESS LIABILITY AGAINST THE DEFENDANT NURSES FOR THE SAME ACTS UNDER MUTUALLY EXCLUSIVE THEORIES.
A. THE TRIAL COURT MISAPPLIED THE DELIBERATE INDIFFERENCE AND SUBJECTIVE KNOWLEDGE STANDARD.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY BARRING DEFENSE COUNSEL FROM REFERENCING AND ELICITING TESTIMONY REGARDING DECEDENT'S COMPLAINTS ABOUT HIS HEROIN WITHDRAWAL. POINT III
PLAINTIFF FAILED TO PROVE PROXIMATE CAUSE.
A. PLAINTIFF FAILED TO PRODUCE EXPERT TESTIMONY DEMONSTRATING THAT THE COUNTY DEFENDANTS' NEGLIGENCE WAS THE PROXIMATE CAUSE OF DECEDENT'S PAIN AND SUFFERING.
B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PROXIMATE CAUSE WHEN A PRE-EXISTING CONDITION EXISTS.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY PERMITTING PLAINTIFF'S COUNSEL TO INCLUDE IMPROPER AND INFLAMMATORY COMMENTS THAT WERE OUTSIDE THE RECORD IN HER OPENING AND CLOSING STATEMENTS.
A. RACE AND ECONOMIC STATUS.
B. DECEDENT'S WEIGHT LOSS.
D. CONSPIRACY TO COVERUP DECEDENT'S DEATH.
E. PLAINTIFF'S COUNSEL CONFUSED THE JURY ABOUT CLAIMS AND ASKED THE JURORS TO IMPERMISSIBLY PERSONALIZE THE CASE.
F. THE TRIAL COURT'S FAILURE TO CURE THE ERRORS RESULTED IN UNFAIR PREJUDICE.
G. THE DAMAGE AWARD IN COMPARISON TO THE LENGTH OF TIME OF PURPORTED PAIN AND SUFFERING BY THE DECEDENT SHOWS THE JURY'S INTENT TO PUNISH THE ...