Crego v. Carp

• Decision Date: 10 December 1996
• Citation: 685 A.2d 950,295 N.J.Super. 565
• Parties: Celinda CREGO, Plaintiff-Appellant, v. Lewis CARP, D.O. and John K. Mariani, D.O., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 565

295 N.J.Super. 565

685 A.2d 950

Celinda CREGO, Plaintiff-Appellant, v. Lewis CARP, D.O. and John K. Mariani, D.O., Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Oct. 29, 1996.

Decided Dec. 10, 1996.

Jeffrey M. Keiser. Haddonfield, for appellant.

Christopher J. Christie, Cranford, for respondent Lewis Carp, D.O. (Dughi and Hewit, attorneys; Mr. Christie, of counsel and on the brief).

Robert E. Paarz, Pleasantville, for respondent John K. Mariani, D.O. (Paarz, Master & Koernig, attorneys; Mr. Paarz, of counsel; Mary Ann C. O'Brien, on the brief).

Before Judges MICHELS, KLEINER and COBURN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Plaintiff Celinda Crego appeals from an order of the Law Division that denied her motion for a judgment against defendants Lewis Carp, D.O. (Dr. Carp) and John K. Mariani, D.O. (Dr. Mariani) notwithstanding the verdict entered in their favor, or alternatively, for a new trial in this medical malpractice action.

On May 1, 1988, plaintiff sustained an injury to her ankle in a volleyball game while at a picnic. Plaintiff felt there was something wrong with her ankle and immediately iced her ankle and later elevated her leg at home. The next day, May 2, 1988, plaintiff went to work despite pain and swelling of the ankle. Three days later, May 5, 1988, plaintiff saw the company nurse who wrapped plaintiff's ankle in an ace bandage and recommended that she seek the care of a physician. Later that day, plaintiff went to Dr. Carp, her family physician.

Dr. Carp, a board certified family practitioner, examined and x-rayed plaintiff's leg. Although the doctor palpated the back of plaintiff's foot and her Achilles tendon, he did not perform a Thompson test, a diagnostic test designed to detect injury to the Achilles tendon, because he did not believe that such a test was indicated by the nature of plaintiff's injury. Dr. Carp diagnosed plaintiff as having a sprained ankle and treated the injury with a Gibney boot to immobilize plaintiff's ankle. Dr. Carp estimated that it would take approximately six weeks for plaintiff's ankle to improve and advised plaintiff to return in one week.

On May 11, 1988, plaintiff returned to Dr. Carp's office. Since Dr. Carp was not available, plaintiff was seen by his associate, Dr. Saul Rose, also a family practitioner. On June 2, 1988, plaintiff again visited Dr. Carp, complaining of tenderness in the ankle. Dr. Carp recommended more aggressive treatment, prescribed Motrin for pain and to reduce the inflammation of plaintiff's ankle, and prescribed whirlpool treatment to increase circulation as well as to reduce the inflammation. Plaintiff was treated on six occasions between June 3, 1988, and June 15, 1988, by Mr. Herbert Laskin, a licensed physical therapist whom plaintiff had been referred to for the whirlpool treatment. Mr. Laskin palpated plaintiff's Achilles tendon and was of the opinion that plaintiff had a potential Achilles tendon injury. On June 16, 1988, plaintiff visited Dr. Carp and informed him that her pain had improved. However, because plaintiff's injury had not completely healed, Dr. Carp recommended an injection of cortisone. Plaintiff refused the injection. On June 30, 1988, plaintiff returned to Dr. Carp, still complaining of pain. Because of the lack of significant progress or improvement, Dr. Carp recommended that plaintiff consult an orthopedic surgeon and referred plaintiff to Dr. Mariani.

On July 6, 1988, plaintiff visited Dr. Mariani, who diagnosed plaintiff with a healing sprained ankle and asked plaintiff to return in six weeks for a follow-up evaluation. On August 8, 1988, plaintiff returned to Dr. Mariani because she still had pain in the ankle. Dr. Mariani performed a Thompson diagnostic test upon plaintiff's Achilles tendon. Although the results were not consistent with a complete ruptured Achilles tendon, Dr. Mariani was of the opinion that plaintiff had a partial tear of the Achilles tendon and immobilized plaintiff's ankle in a short leg cast and asked plaintiff to return in four weeks. On September 7, 1988, plaintiff returned to Dr. Mariani as requested. Dr. Mariani performed another Thompson test which was negative.

Unsatisfied with Dr. Mariani's explanation of her injury, plaintiff sought a second opinion from Dr. Arthur Bartolozzi, an orthopedic surgeon at the Rothman Institute in Philadelphia. On October 27, 1988, Dr. Bartolozzi diagnosed plaintiff as having a ruptured Achilles tendon and prescribed a program of physical therapy. According to plaintiff, Dr. Bartolozzi told her at his first examination that the time frame of her best chance for successful surgery was the first two weeks after the injury. Sometime between four and six months thereafter, plaintiff returned to Dr. Bartolozzi who referred plaintiff to Dr. Frederick C. Balduini for another opinion on surgery.

On March 9, 1989, plaintiff visited Dr. Balduini, who suggested an aggressive physical therapy regimen rather than surgery. However, because of a lack of improvement following the physical therapy, Dr. Balduini recommended reconstructive surgery. On June 14, 1989, Dr. Balduini performed the surgery at the Graduate Hospital in Philadelphia. Thereafter, plaintiff underwent more physical therapy and rehabilitation. After more than one year of such therapy and rehabilitation and even though plaintiff had less pain and obtained some improvement in her function, she still continued to have pain, discomfort, disability and loss of function.

Subsequently, plaintiff consulted Dr. Martin O'Malley in New York, who recommended that she consult Dr. Keith L. Wapner, an orthopedic surgeon, with a subspecialty in foot and ankle surgery. On January 26, 1994, Dr. Wapner performed tendon transplant surgery upon plaintiff at Jefferson Hospital in Philadelphia.

Plaintiff instituted this action against Drs. Carp and Mariani, claiming that they were guilty of medical malpractice. Plaintiff charged that Drs. Carp and Mariani deviated from accepted standards of medical care by failing to timely diagnose and treat an Achilles tendon rupture. Following a lengthy trial, the jury found in answers to special interrogatories that (1) Dr. Carp did not deviate from accepted standards of medical practice; (2) Dr. Mariani deviated from accepted standards of medical practice and (3) Dr. Mariani's deviation from accepted standards of medical practice increased the risk of harm posed by plaintiff's pre-existing condition; but (4) Dr. Mariani's deviation, which had increased the risk, was not a substantial factor in producing the ultimate injury sustained by plaintiff. The trial court thereupon molded the jury verdict and entered judgment of no cause for action in favor of Dr. Carp and Mariani. Plaintiff's motions for a judgment notwithstanding the verdict against both doctors or, alternatively, a new trial were denied and this appeal followed.

Plaintiff seeks a reversal of the order denying her motions for a judgment notwithstanding the verdict or, alternatively, a new trial. She contends generally that the evidence mandates that a judgment be entered in her favor and that the errors of law, at the very least, required a new trial with appropriate instructions as to the legal issues presented by the case. More specifically, plaintiff contends that (1) the use of the so-called "judgment" charge by the trial court was erroneous and misled the jury to an incorrect result; (2) the trial court erred in instructing the jury that Dr. Carp should be held to the standard of care of a general practitioner where, as here, he had undertaken to treat an injury that is generally treated by an orthopedic specialist; (3) Doctors Carp and Mariani should not have been permitted to withdraw and substitute experts and that she should not have been precluded from cross-examining the substituted experts regarding the inconsistent opinions of the withdrawn experts; (4) the trial court's charge was in error with respect to the definition of a "substantial factor" and the doctors' duty to make a diagnosis; (5) the doctors' argument that there was negligence on behalf of the therapist was improper and that the argument, together with the trial court's inadequate instructions, contributed to the incorrect result; (6) the trial court erred by not granting her motion for a judgment notwithstanding the verdict or, alternatively, a new trial as the verdict was clearly against the weight of the evidence; and finally, (7) the trial court's failure to give instructions regarding the probable negative influence of radio, television and print advertisement and commentary and a proper ruling on the collateral source rule and the multiple evidence rulings impacted upon her right to a fair trial.

We are satisfied from our study of the record and the arguments presented that the evidence in support of the jury verdict is not insufficient; that the determination of the trial court on plaintiff's motions for judgment notwithstanding the verdict or, alternatively, for a new trial does not constitute a manifest denial of justice; and that all of the issues of law raised are clearly without merit. R. 2:11-3(e)(1)(B), (C) and (E). However, further comment is appropriate with respect to some of plaintiff's arguments.

I.

Plaintiff contends essentially that the trial court erred by including in its instructions to the jury the so-called "judgment" charge, which is part of the Model Jury Charge on medical malpractice. Plaintiff argues that the charge is an incorrect statement of New Jersey law and prejudiced her ability to receive a fair trial. We disagree. The precise portion of the charge which plaintiff challenges on this appeal reads as follows:

Now in examining the conduct of a physician to determine whether there was a deviation from an accepted standard of care, that is whether he was negligent, you should understand that the law does recognize...