On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2532-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2011 -
Before Judges Ashrafi and Fasciale.
In this medical malpractice case involving an alleged failure to diagnose a back infection, plaintiffs (Kay M. McKay, as General Executrix and Executrix ad Prosequendum of the Estate of Lawrence McKay, deceased, and Kay M. McKay, individually) appeal from a judgment of no cause of action, and an order denying their motion for a new trial. Plaintiffs argue that the judge prejudiced their case by (1) criticizing the summation of plaintiffs' counsel; (2) instructing the jury to disregard the diagnoses and testimony from a treating doctor; and (3) unfairly charging the jury concerning credibility of a defense expert. We disagree and affirm.
The events leading to the allegations of medical malpractice occurred in November and December 2004. On November 8, 2004, Lawrence McKay (Lawrence) -- a medical doctor --experienced back pain as a result of a rough plane landing. He complained to his wife Kay M. McKay (Kay) -- a nurse -- and he started taking Tylenol. The pain continued and on November 23, 2004, Lawrence sought medical treatment at Primary Care Associates (PCA). On November 29, 2004, defendant Dr. Robert Dubow, an internist and staff physician at PCA, observed tenderness on Lawrence's back. On Friday, December 10, 2004, Dubow and Lawrence communicated by phone, and the next day, Lawrence had a blood test at PCA. On Monday, December 13, 2004, Dubow learned that Lawrence had seen an orthopedist and planned to see a chiropractor.
Plaintiffs contended that Dubow learned on December 13 that Lawrence suffered from an abnormal liver, lost twenty-four pounds during the preceding ten days, and showed signs of vertebral osteomyelitis. Plaintiffs' theory was that Dubow failed to order an emergency MRI, which would have revealed the condition, which plaintiffs argued was treatable with antibiotics. Instead, Lawrence was admitted into the hospital on December 17, 2004, suffered acute renal failure, and died on November 14, 2005.
Dubow's primary defense was that Lawrence refused to follow Dubow's request to return for an examination. Dubow testified that he called Lawrence on December 13, talked to Kay, informed her about the abnormal blood test, and requested that Lawrence return to his office. At trial, Dubow contended that Lawrence was overmedicated and resisted treatment.
The nine-day trial occurred in September 2010. Plaintiffs produced three expert witnesses, a treating gastroenterologist, and three lay witnesses. Dubow testified and produced two expert witness, including Dr. Chester Robert Smialowicz, a forensic expert in infectious disease and internal medicine.
Smialowicz opined that Dubow appropriately requested Lawrence to return to his office on December 13, 2004. Smialowicz explained that a doctor cannot diagnose a condition without an office visit.
On cross-examination, Smialowicz testified that he has taught other doctors how to avoid being sued "by being careful." Smialowicz stated, for example, that doctors at Deborah Hospital asked him to teach on the subject of "how to be a successful defendant." He testified that the doctors at Deborah Hospital chose him because he has experience testifying for both patients and physicians. In describing what he taught, Smialowicz explained:
[The doctors] need me to teach them pitfalls in infectious disease that they have to be careful of, as far as patients being transferred from another hospital that had blood cultures done at the other hospital. Pick up the phone and call the microlab at the other hospital, don't wait for stuff to be sent to you, so you can find out what's going on. That type of thing. That's what I try to teach them.
In his summation, plaintiffs' attorney stated:
I suggest that what Smialowicz really tells doctors [is] . . . [t]his is what you have to do after you're sued, say whatever you have to say, do whatever you have to do. Hey, Smialowicz is a perfect example of it. . . . . His opinions don't change at all because he will say whatever has to be said and do whatever has to be done so that [Smialowicz] can help other doctors be, quote/unquote, ...