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Koseoglu v. Wry

Superior Court of New Jersey, Appellate Division

June 4, 2013

OZLEM KOSEOGLU, as Administratrix of the Estate of MATT S. KOSEOGLU, deceased, as Administratrix ad Prosequendum for the heirs-at-law of MATT KOSEOGLU, deceased and individually, Plaintiff-Appellant/ Cross-Respondent,
v.
ANN WRY, M.D., Defendant-Respondent/ Cross-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued December 20, 2012

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2338-09.

John B. Collins argued the cause for appellant/cross-respondent (Bongiovanni, Collins & Warden, P.C., attorneys; Mr. Collins, on the brief).

Philip F. Mattia argued the cause for respondent/cross-appellant (Mattia & McBride, P.C., attorneys; Mr. Mattia, on the brief).

Before Judges Messano, Lihotz and Kennedy.

LIHOTZ, J.A.D.

The parties filed cross-appeals from the denial of their respective motions for judgment notwithstanding the verdict (JNOV) in this wrongful death action.[1] Plaintiff Ozlem Koseoglu, as administratrix and administratrix ad prosequendum for the estate of her late husband, Matt Koseoglu (decedent), appeals from the denial of her request to set aside as unsupported the jury's allocation of damages awarded on her professional negligence claims against defendant Ann Wry, M.D. Defendant argues the jury verdict must be set aside and the complaint dismissed because plaintiff failed to prove causation. After review of the parties' arguments, in light of the record and applicable law, we affirm the orders entered by Judge Rachelle L. Harz on September 9, 2011 denying the parties' motions. Consequently, the September 23, 2011 Amended Order for Judgment will not be disturbed.

I.

At trial, plaintiff related the facts and circumstances regarding decedent's condition prior to and on the date of his death. Decedent became ill on September 9, 2007, complaining he felt tired and had a fever. By September 12, his exhaustion persisted and his temperature had climbed to 103.6 degrees.

Decedent also noticed white spots on his throat, felt weak and had no appetite.

Concerned for her husband's condition, plaintiff called defendant, the family's physician, and left a voicemail message explaining decedent's symptoms. Nidia Bedoya, a secretary at defendant's office, returned plaintiff's call around 12:30 p.m. Plaintiff restated decedent's symptoms and, after being placed on hold, again spoke to Bedoya, who explained she "spoke with Dr. Wry, they pulled out [decedent]'s file, and [Dr. Wry] told me that because he had similar symptoms back in January . . . they were going to prescribe him antibiotics, and that he should take that . . . to make him feel better."

According to plaintiff, Bedoya rejected her request for an appointment with Dr. Wry to examine decedent, stating, "Dr. Wry was very busy and had no openings for the day, and that she couldn't see him that day." Plaintiff asked to speak with defendant directly, but was told "Dr. Wry was busy seeing patients and couldn't come to the phone." An authorization for a prescription for Augmentin was recorded on decedent's chart maintained by defendant's office; however, the chart includes no record of plaintiff's call or any notation of decedent's symptoms.

Later that afternoon, decedent felt more energetic. He picked up his children from school and stopped by the pharmacy. However, by the time he returned home, between 4:00 and 4:30 p.m., he was pale and weak. Decedent bathed, ate soup, took the Augmentin, and went to sleep around 6:00 p.m.

Plaintiff checked on decedent at 8:30 p.m., discovered his feet and lips were blotchy and blue, and he was unresponsive. She called 9-1-1 and began cardiopulmonary resuscitation. Decedent was transported via ambulance to Saint Joseph's Hospital in Paterson, where he was pronounced dead.

An autopsy revealed decedent's cause of death was cardiac arrhythmia due to focal myocarditis of the right ventricle. Myocarditis is an inflammation of the heart muscle known to cause cardiac arrhythmia, an electrical instability or abnormality of the heart. If a virus traveling in the bloodstream enters the heart muscle or myocardium, it can infect the heart, causing myocarditis. Typically, myocarditis is asymptomatic; sometimes, however, it is preceded by a viral syndrome, which may include body aches, fever, malaise, and fatigue, and may present symptoms such as chest pain, palpitations, tachycardia, arrhythmia, severe shortness of breath, and simple exhaustion. Focal myocarditis is limited to one, localized area of the heart, as contrasted with acute myocarditis, which is more widespread throughout the heart muscle.

The pathologist performing decedent's autopsy examined ten tissue samples from decedent's right heart ventricle and six from his left. Two samples from the right ventricle revealed limited inflammation causing focal necrosis, or "cell death." No inflammation was found on the left ventricle, supporting the pathologist's conclusion decedent suffered from focal myocarditis, rather than a widespread inflammation evincing diffuse myocarditis.

Bedoya's trial testimony explained the policy and practice of defendant's office. When patients called, they would be offered same-day appointments for sick visits, or "[i]f they couldn't be seen that day, they'd be offered an appointment for . . . the next day." Also, when a patient "start[ed] talking about their symptoms and going on, then they would be transferred to a nurse." Once a call was transferred to a nurse, Bedoya generally "wouldn't be involved." She also acknowledged defendant or a nurse would occasionally prescribe a medication over the phone without first examining the patient.

Bedoya had no recollection of this matter. She could not recall speaking with plaintiff, defendant, or a nurse on September 12, 2007, nor whether she had even worked on the day in question.

Defendant's testimony confirmed Bedoya's explanation of office policy regarding patient scheduling, and refuted any suggestion a patient requesting an office visit would be told time was unavailable. Defendant explained the facility "allotted time on a schedule" as a matter of practice, "in case someone called in that day" to schedule a sick visit. Defendant asserted a patient presenting with a very high fever, fatigue, and body aches "would have been told to come in for an appointment[.]" Further, she noted Wednesday was her "late night, " when she would stay "[a]nywhere from 6:30 to 7:30 [p.m.], occasionally, rarely, 8:00 [p.m., ]" thus allocating "even more time to accommodate sick visits" on that day of the week.

Defendant acknowledged decedent's file included a note written by Mary Patricia Donnalley, a nurse at the facility, which stated: "called [pharmacy for a] new [prescription] for Augmentin 875mg bid x 10 days #20 no refills per Dr. Wry/M. Donnalley RNBS." Defendant testified she would prescribe antibiotics without examining a sick patient only "if the patient asked and couldn't come in[, ]" when the patient was "going on a trip[, ]" or "as a favor" when "someone pleaded f[or] one[.]"

Both parties also presented extensive expert medical testimony.[2] Plaintiff two experts discussed her contention defendant was negligent in failing to examine decedent, obtain a history of his symptoms, or diagnose his heart condition, which warranted follow-up hospital care. Defendant's three experts refuted the suggestion defendant's conduct contributed to decedent's death.

Plaintiff first presented Lionel Grossbard, M.D., an internist, whose practice was devoted primarily to hematology and oncology, not cardiology, with approximately ten to twenty percent devoted to internal medicine. Defendant objected to Dr. Grossbard "giving opinions about myocarditis[, ] either its diagnosis or treatment[, ]" asserting he lacked expertise on the subject. The court overruled the objection, concluding Dr. Grossbard held qualifications and foundational knowledge as an expert in the field of internal medicine, and the extent of his familiarity with myocarditis could be explored during cross-examination.

After his review of the materials, Dr. Grossbard rejected the autopsy findings, instead concluding decedent died of viral myocarditis. Relying on plaintiff's description of events, he noted "patients with acute myocarditis in whom a myocarditis is due to a virus, there are several days of flulike symptoms[, ]" preceding the onset of the disease.

Dr. Grossbard opined defendant deviated from the standard of care for a physician practicing internal medicine when she "prescribed an antibiotic over the phone without any professional speaking to [decedent, ]" because the prescribed medication could "mask the underlying disease." Also, he opined defendant should have examined decedent in light of the expressed symptoms. Dr. Grossbard asserted a physical examination of decedent could have disclosed "certain abnormalities" pointing to a cardiac problem, such as an irregular heartbeat or rhythm, and possibly muffled sounds related to inflammation in the heart muscle. Once cardiac abnormalities were detected, a hospital referral for an electrocardiogram (EKG) and blood tests would follow and lead "to a diagnosis of a cardiac condition." Certain blood tests detect troponin, a chemical the heart releases when there is damage to the heart, which a "major hospital" will detect "generally in about 30 to 60 minutes[, ]" then admit "the patient to the cardiac care unit." Dr. Grossbard reasoned had defendant examined decedent, the chain of events would follow such that "there [was] a very good chance, significantly greater than 50 percent, " ...


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