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Flood v. Aluri-Vallabhaneni

Superior Court of New Jersey, Appellate Division

June 13, 2013

JAMES FLOOD, Individually and as Administrator of the ESTATE OF KEISHA FLOOD, Plaintiff-Appellant/ Cross-Respondent,
v.
BHANU ALURI-VALLABHANENI, M.D. and IMAGING SUBSPECIALISTS OF NORTH JERSEY, LLC, Defendants-Respondents/ Cross-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 29, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4424-08.

Daniel A. Levy argued the cause for appellant/cross-respondent (Raff & Raff, LLP, attorneys; Mr. Levy, on the brief).

Heather M. LaBombardi argued the cause for respondents/cross-appellants (Giblin & Combs, LLC, attorneys; Ms. LaBombardi and Craig S. Combs, on the brief).

Before Judges Messano, Lihotz and Kennedy.

OPINION

MESSANO, P.J.A.D.

Plaintiff, James Flood, is the father of Keisha Flood and the administrator of her estate. On November 4, 2006, Keisha was evaluated at St. Joseph's Hospital (St. Joseph), after complaining of abdominal pain, and released.[1] Two days later, Keisha returned with similar complaints and underwent evaluation by emergency room doctors before her admission. A CT scan was conducted on the morning of November 7, 2006, and read by defendant Dr. Bhanu Aluri-Vallabhaneni (Aluri), a radiologist.

It was alleged that Aluri issued two reports that morning, one transcribed at 7:38 a.m., a second at 7:39 a.m. It was further alleged that Aluri did not contact anyone with the results and that this was a deviation from accepted medical standards. Later that day, at approximately 1:50 p.m., Keisha went into cardiac arrest and was pronounced dead at 2:24 p.m. For purposes of this appeal only, we accept plaintiff's contention that Keisha died of cardiac arrest following sepsis resulting from a "small bowel obstruction."

Plaintiff filed suit alleging medical malpractice against St. Joseph and numerous physicians that attended Keisha. In a second amended complaint, filed more than four years after Keisha's death on February 18, 2011, plaintiff for the first time named Aluri and her employer, defendant Imaging Subspecialists of North Jersey, LLC (Imaging), as defendants. On April 4, defendants filed their answer and subsequently moved to dismiss the wrongful death claims, contending the statute of limitations had expired. The trial judge denied defendants' motion.

During trial, several of the originally-named defendants settled with plaintiff, and two others were dismissed from the case.[2] Ultimately, the case proceeded to the jury only as to Aluri.[3]

We have not been provided with any transcript of the charge conference, which the judge conducted off the record with the attorneys. We do not condone such practice. See R. 1:8-7(a) ("The court shall, on the record, rule on the requests prior to closing arguments to the jury. A verbatim record shall be made of any charge conference the court holds.").

However, in their briefs, the parties have set forth what transpired during this initial conference, and there appears to be little dispute. The judge indicated his intention to charge the jury utilizing Model Jury Charge (Civil) 5.50E "Pre-existing Condition — Increased Risk/Loss of Chance — Proximate Cause, " (May 2010). The proposed verdict sheet initially prepared by the court incorporated the first two interrogatories appended to the model charge, i.e., the jury was asked to consider whether plaintiff proved Aluri deviated from accepted medical standards and whether that deviation increased the risk of harm posed by Keisha's "pre-existing condition."

As to each settling defendant, the court's proposed interrogatories then asked whether Aluri had proven that the doctor deviated from acceptable medical standards and if that doctor's deviation increased the risk of harm posed by Keisha's pre-existing condition. Question 11 then asked the jury to state "whether the increased risk was a substantial factor in causing Keisha['s] . . . death by stating in percentages, what portion of the death [was] a result from . . . the pre-existing condition, " Aluri's "deviation from the standard of care, " and deviation of each of settling doctor. The jury was instructed that "[t]he total must equal 100%[, ]" and "[i]f 100% of the damages [were] determined to be due to the pre-existing condition, then return your verdict for [Aluri]. If any percentages of the damages [were] a result of . . . Aluri's deviation, then proceed to question #12." Question 12 was the damages question, as to Keisha's pain and suffering, and question 13 asked the jury to determine the pecuniary damages associated with Keisha's wrongful death.

It is undisputed that defense counsel submitted a different set of jury interrogatories. We gather from the parties' briefs, defendant contended that because several doctors had settled, the jury interrogatories should specifically ask: 1) whether Aluri deviated from accepted medical standards; 2) whether that deviation increased the risk of harm from Keisha's pre-existing condition, i.e., her bowel obstruction; and 3) whether the increased risk was a "substantial factor" in causing Keisha's death. Defense counsel submitted interrogatories that asked the jury to consider those three questions first.

Defendant contended that only if the jury answered those three questions affirmatively should it then consider whether Aluri had proven as to each of the settling doctors whether that doctor deviated from accepted medical standards, whether those deviations similarly increased the risk of harm to Keisha and whether the increased risk from each particular settling doctors' deviation was a substantial factor in causing Keisha's death. The ultimate apportionment question -- the extent to which Keisha's death resulted from her pre-existing condition and to what extent it resulted from each doctor's negligence --would abide the results of the jury's answers as to Aluri and each settling doctor.

On the record, plaintiff objected to defendant's proposed interrogatories, noting that the third question proposed by Aluri did not conform to those appended to the model charge and would "lead[] to confusion." The judge overruled the objection and agreed to submit the interrogatories proposed by defendants. As a result, the judge submitted a verdict sheet that asked the following three questions first:

1.Has the plaintiff proven by preponderance of the evidence that Dr. Aluri deviated from accepted standards of medical practice?
(Please circle your answer) Yes No Record your vote: ___
If you answered "Yes" to question #1, go to question #2. If you answered "No" to question #1[, ] cease deliberations.
2. Has the plaintiff proven that Dr. Aluri's deviation increased the risk of harm posed by the plaintiff's pre-existing condition?
(Please circle your answer) Yes No Record your vote: ___
If you answered "Yes" to question #2[, ] go to question #3. If you answered "No" to question #2[, ] cease deliberations[.]
3. Was the increased risk a substantial factor in causing the decedent's death?
(Please circle your answer) Yes No Record your vote: ___
If you answered "Yes" to question #[3, ] go to question #[4]. If you answered "No" to question #3[, ] cease deliberations[.]

The ten-person jury deliberated and returned a verdict in favor of defendant. It found, by a vote of 8-2, that Aluri had "deviated from accepted standards of medical practice." It found by a similar vote that the "deviation increased the risk of harm posed by [Keisha's] pre-existing condition." However, by a vote of 10-0, the jury concluded that the "increased risk was not a substantial factor in causing [Keisha's] death." The judge entered judgment in favor of Aluri, and plaintiff now appeals.

Before us, plaintiff raises the following issues for our consideration:

Point 1: This court should review the trial court's ruling de novo and remand for a new trial because the error was not harmless
Point 2: The trial judge committed reversible error by departing from Model Charge 5.50E and the Model Jury Interrogatories
A) The trial judge should have used the Model Interrogatories, which conform to the case law, rather than changing, deleting, and adding new questions
B) The jury was confused when they were incorrectly told to answer a yes/no question about substantial factor
C) The error was amplified since the jury was never given instructions on the minimum percentage of fault that would constitute ...

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