SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6144-94T5
CELINDA CREGO,
Plaintiff-Appellant,
v.
LEWIS CARP, D.O. and
JOHN K. MARIANI, D.O.,
Defendants-Respondents.
_________________________________________________________________
Argued: October 29, 1996 - Decided: December 10, 1996
Before Judges Michels, Kleiner and Coburn.
On appeal from the Superior Court of New
Jersey, Law Division, Gloucester County.
Jeffrey M. Keiser argued the cause for
appellant.
Christopher J. Christie argued the cause
for respondent Lewis Carp, D.O. (Dughi and
Hewit, attorneys; Mr. Christie, of counsel
and on the brief).
Robert E. Paarz argued the cause for
respondent John K. Mariani, D.O. (Paarz,
Master & Koernig, attorneys; Mr. Paarz,
of counsel; Mary Ann C. O'Brien, on the
brief).
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.
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 that the practice of medicine is not an exact
science. Therefore, the law recognizes that
the practice of medicine according to
acceptable medical standards will not prevent
a poor or unanticipated result. If a
physician has applied the required knowledge,
the required skill and care in a diagnosis
and treatment of a patient he is not
negligent simply because a bad result has
occurred. Likewise, where according to
accepted medical practice the manner in which
diagnosis and/or treatment is conducted is a
matter subject to the judgment of the
physician. The physician must be allowed to
exercise that judgment. The physician cannot
be held liable if in the exercise of judgment
he has never the less made a mistake. Where
judgment must be exercised, the law does not
require of the doctor infallible judgment.
Thus, a physician cannot be found negligent
so long as he employs such judgment as is
allowed by accepted medical standards. If in
fact in the exercise of his judgment a doctor
selects one of two or more courses of action,
each of which in the circumstances has
substantial support or proper practice by the
medical profession, the doctor cannot be
found negligent if the course chosen produces
a poor result. On the other hand, a doctor
who departs from standard medical practice
where no judgment is permitted cannot excuse
himself from the consequences by saying that
it was an exercise of his judgment. Or, to
state in a different way, if the exercise of
a doctor's judgment causes him to do that
which standard medical practice forbids, the
doctor would be negligent. Similarly, a
doctor whose judgment causes him to omit
doing something which is required by standard
medical practice is also negligent.
It is interesting to note that plaintiff raised no objection
to the so-called "judgment" charge at the charge conference and
only objected after the charge was given to the jury.
The standard for assessing "the soundness of instructions
is, not what the ingenuity of counsel can, at leisure, work out
the instructions to mean, but how and in what sense, under the
evidence before them, and the circumstances of the trial, would
ordinary men and jurors understand the instructions as a whole."
Davidson v. Fornicola,
38 N.J. Super. 365, 371 (App. Div. 1955)
(citing Kargman v. Carlo,
85 N.J.L. 632 (E. & A. 1914)), certif.
denied,
20 N.J. 467 (1956); see State v. Marshall,
123 N.J. 1,
135 (1991); see also Eden v. Conrail,
175 N.J. Super. 263, 278
(App. Div. 1980), modified,
87 N.J. 467 (1981). As stated by the
New Jersey Supreme Court, "[s]ufficiency of a charge . . . should
be measured by determining whether or not jurors, in light of all
the facts, would misunderstand or be confused." Board of Educ.
of Asbury Park v. Hoek,
38 N.J. 213, 228 (1962).
It also is firmly settled in this State that "[t]he science
of medicine is not an exact science." Clark v. Wichman,
72 N.J.
Super. 486, 495 (App. Div. 1962). "A doctor is not an insurer of
his patient's recovery. He is not a guarantor." Ibid. (citing
Young v. Stevens,
132 N.J.L. 124, 129 (E. & A. 1944)). "He is
not liable for honest mistakes of judgment." Ibid. In Schueler
v. Strelinger,
43 N.J. 330, 344-45 (1964) (citations omitted),
our Supreme Court set forth in clear and precise language the
standard of care that is owed by a physician, stating:
[t]he fact that a good result may occur with
poor treatment, and that a good treatment
will not necessarily prevent a poor result
must be recognized. So, if the doctor has
brought the requisite degree of care and
skill to his patient, he is not liable simply
because of failure to cure or for bad results
that may follow. Nor in such case is he
liable for an honest mistake in diagnosis or
in judgment as to the course of treatment
taken. A physician must be allowed a wide
range in the reasonable exercise of judgment.
He is not guilty of malpractice so long as he
employs such judgment, and that judgment does
not represent a departure from the
requirements of accepted medical practice, or
does not result in failure to do something
accepted medical practice obligates him to
do, or in the doing of something he should
not do measured by the standard stated above.
It is important to emphasize the basic principle that the
practice of medicine
imposes upon [the doctor] the duty to
exercise in the treatment of his patient the
degree of care, knowledge and skill
ordinarily possessed and exercised in similar
situations by the average member of the
profession practicing in [the] field.
Failure to have and to use such skill and
care toward the patient as a result of which
injury or damage results constitutes
negligence.
[Id. at 344.]
And, of course, the plaintiff bears the burden of establishing
the doctor's deviation from the medical standard. See id. at
345. See also Buckelew v. Grossbard,
87 N.J. 512, 525 (1981).
The charge, including the language of the so-called
"judgment" charge, when read in its entirety, correctly
instructed the jury as to the applicable law of New Jersey
dealing with medical malpractice cases, including the duty that a
physician owes to his or her patient in a case of this kind. The
charge was delivered in clear and explicit language and properly
defined the duty of care that Dr. Carp and Dr. Mariani,
respectively, owed to plaintiff. The charge was neither
misleading nor confusing. It did not dilute in any respect the
doctors' duty to conform to the applicable accepted standards of
medical practice in treating plaintiff. As a matter of fact, the
charge tracked the Model Jury Charge on Medical Malpractice, see
Model Jury Charge, § 5.36A (Civil Charge) Medical Malpractice,
Duty and Negligence (October 1982), which is consistent with and
controlled by the principles enunciated by our Supreme Court in
Schueler v. Strelinger, supra. See also Walck v. Johns-Mansville
Products Corp.,
56 N.J. 533, 562 (1970); Ely v. Wilbur,
49 N.J.L. 685, 688 (E. & A. 1887). But see Morlino v. Medical Centers of
Ocean County, ___ N.J. Super. ___ (App. Div. 1996). In our view,
there is no judicial warrant or sound reason for us to depart
from the Model Jury Charge on Medical Malpractice, including the
so-called "judgment" charge.
Finally, we point out that the charge clearly addressed
plaintiff's concerns that "a doctor who departs from standard
medical practice where no judgment is permitted cannot excuse
himself from the consequences by saying that it was an exercise
of his judgment." Under the charge in this case, the treatment
of the concepts of (1) deviations from the standard of care, (2)
a doctor's exercise of judgment and (3) the skill and knowledge
level of practitioners in the field, are not unrelated and
sequential, as plaintiff claims, setting multiple burdens for
plaintiffs which protect defendant doctors. Rather, the charge
accurately ties these concepts together and plainly instructs
that a doctor may exercise his judgment in a case, but that his
exercise of such judgment is bounded by the skill and knowledge
level of similar practitioners in his field. The charge also
instructs that where a doctor makes a judgment which deviates
from the accepted standards of skill and knowledge for
practitioners in the field, the doctor is guilty of medical
malpractice.
Consequently, we are thoroughly satisfied that the medical
malpractice charge, including the so-called "judgment" charge,
given in this case was legally correct, entirely warranted and
had no capacity whatsoever to confuse the jury as to the standard
of care required of Dr. Carp and Dr. Mariani in their treatment
of plaintiff.
Plaintiff also claims that the trial court erred by instructing the jury regarding the duty of care owed by Dr. Carp to plaintiff because it held Dr. Carp to the standard of care of a general practitioner and not a specialist. Plaintiff argues that Dr. Carp should have been held to the standard of care of an orthopedic specialist because he "routinely treated people who suffered orthopedic injuries resulting from accidents." Again, we disagree.
The trial court instructed the jury concerning the standard of care to which Dr. Carp was held in this case as follows:
Now the defendant Doctor Carp in this case is a general practitioner. A person who is engaged in the general practice of medicine represents that he possesses and will have and employ the knowledge and skill normally possessed and used by the average physician practicing his profession as a general practitioner.
This charge conformed to the Model Jury Charge dealing with
a general practitioner. See Model Jury Charge § 5.36A (Civil
Charge) Medical Malpractice, Duty and Negligence, Option B:
General Practitioner (October 1982).
The law is firmly settled in this State as to when a
physician should be held to the standard of care of a general
practitioner and it turns on the concept of holding oneself out
as a specialist. For example, in Lewis v. Read,
80 N.J. Super. 148, 171 (App. Div.), certif. granted,
41 N.J. 121 (1963) we
stated:
[I]t is settled beyond question that "one who
holds himself out as a specialist must employ
not merely the skill of a general
practitioner, but also that special degree of
skill normally possessed by the average
physician who devotes special study and
attention to the particular organ or disease
or injury involved, having regard to the
present state of scientific knowledge."
Carbone v. Warburton,
22 N.J. Super. 5, 9
(App. Div. 1952), approvingly quoted by our
Supreme Court in Carbone v. Warburton, supra,
(11 N.J. at page 426).
See also Clark v. Wichman, supra, 72 N.J. Super. at 493; Coleman
v. Wilson,
85 N.J.L. 203, 207 (E. & A. 1913).
Dr. Carp was a board certified family practitioner....a
general practitioner....not an orthopedic specialist. He did not
hold himself out as an orthopedic specialist. There is no
evidence or even suggestion in the record that Dr. Carp presented
himself to plaintiff as a specialist in orthopedic injuries or
surgery or even that plaintiff was led to believe that Dr. Carp
was a specialist in orthopedics. On the contrary, the
uncontroverted proof established that Dr. Carp was known to
plaintiff as a general practitioner and as her "family doctor"
and that he held himself out as such.
Thus, the trial court properly instructed the jury
concerning the accepted standard of medical practice that Dr.
Carp owed to plaintiff in this case.
Finally, we are satisfied from our review of the record that the verdict was not against the weight of the evidence and, therefore, the trial court properly denied plaintiff's motion for a new trial.
It is settled that a trial court may grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). In Dolson v. Anastasia, 55 N.J. 2, 6 (1969), the Supreme Court described the process the trial court is to undertake in evaluating a motion for a new trial stating:
A process of evidence evaluation, ...."weighing"...., is involved, which is hard indeed to express in words. This is not a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury.
Furthermore, jury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of
clear injustice. See Goss v. American Cyanamid, Co.,
278 N.J.
Super. 227, 239 (App. Div. 1994). See also Fritsche v.
Westinghouse Elec. Corp.,
55 N.J. 322, 330 (1970); Hacker v.
Statman,
105 N.J. Super. 385, 395 (App. Div.), certif. denied,
54 N.J. 245 (1969); Budd v. Erie Lackawanna R.R. Co.,
98 N.J. Super. 47, 59 (App. Div. 1967), certif. denied,
51 N.J. 186 (1968);
Cabakov v. Thatcher,
37 N.J. Super. 249, 257 (App. Div. 1955).
"The standard for our setting aside a verdict already
sustained by the trial judge is high." Horn v. Village
Supermarkets, Inc.,
260 N.J. Super. 165, 178 (App. Div. 1992),
certif. denied,
133 N.J. 435 (1993). "Only when upon examination
the verdict is found to be so contrary to the weight of the
evidence as to give rise to the inescapable conclusion that it is
the result of mistake, passion, prejudice or partiality, may it
be disturbed." Aiello v. Myzie,
88 N.J. Super. 187, 194 (App.
Div.), certif. denied,
45 N.J. 594 (1965).
Kulbacki v. Sobchinsky,
38 N.J. 435, 444-45 (1962), also
makes clear that because reasonable people may disagree about
inferences which may be drawn from common facts, neither a trial
judge nor an appellate court may reweigh the evidence and impose
a new verdict simply because they disagree with the jury's
decision. See also Battista v. Olson,
213 N.J. Super. 137, 142
(App. Div. 1986); Amaru v. Stratton,
209 N.J. Super. 1, 20-21
(App. Div. 1985); Hacker v. Stratman, supra, 105 N.J. Super. at
395. Further, "since its scope of review [on a new trial motion]
has . . . inherent limitations, an appellate court must make
allowance for factors which were evident to the trial court and
jury but which cannot be gleaned from the written record."
Fritsche v. Westinghouse Elec. Corp., supra, 55 N.J. at 330
(citations omitted). Finally, the verdict must be considered in
the light most favorable to the prevailing party. See Taweel v.
Starn's Shoprite Supermarket,
58 N.J. 227, 236 (1971) (citation
omitted).
Armed with these principles, we have no hesitation in
finding from our review of the record that the jury's verdict was
not a miscarriage of justice under the law. On the contrary,
there was sufficient credible evidence present in the record as a
whole to support all aspects of the jury's verdict.
Turning first to the verdict in favor of Dr. Carp, the jury
found that Dr. Carp did not deviate from the accepted medical
standard of care required of him in treating plaintiff. Dr.
David Smith, M. D., plaintiff's liability expert, was of the
opinion that Dr. Carp should have been able to make the diagnosis
of her Achilles tendon rupture "over the period of time that he
examined her, . . . before he finally referred her away at the
end of June." In Dr. Smith's opinion, Dr. Carp's failure to do
so was a deviation from accepted standards of medical practice.
However, Dr. Smith's opinion was undercut to some degree by other
portions of his testimony which reasonably could be interpreted
or construed to suggest that Dr. Carp was not necessarily
negligent in his diagnosis of plaintiff's ankle injury. For
example, Dr. Smith, in part, also testified that:
I certainly think that all of those findings
would be compatible with an Achilles tendon
tear and that would be on your list of the
things that you're going to consider now.
Now some of those things might be with an
ankle sprain or whatever. And I think that
it's important to recognize that we're not
saying -- I don't think any orthopedic
surgeon says that you've got to be the genius
on every occasion and that you could never
miss a diagnosis; you look at everything, you
sort it out as best you can. But there are
certain things that are definite tipoffs and
you've got to perform the accurate
examination.
Now, if all of those things are related
to an ankle sprain, then you still ought to
be able to stand on your toe with an ankle
sprain. You certainly ought to be able to
feel that the Achilles tendon is intact with
an ankle sprain. And so I am saying that
when you come in, a lot of times the first
evaluation may be somewhat confusing and so
you're not expected to make the diagnosis
always. And we all miss that from time to
time.
[Emphasis added.]
Additionally, on cross-examination Dr. Smith admitted that
it was not a deviation from medical standards for Dr. Carp not to
have made a diagnosis of an Achilles tendon rupture on
plaintiff's first visit to him on May 5, 1988. Dr. Smith also
admitted on cross-examination that on Dr. Mariani's first
examination in July 1988, it was still not a deviation from
medical standards to have failed to diagnose the ruptured
Achilles tendon and to have accepted the sprained ankle
diagnosis.
In contradiction of plaintiff's medical experts' opinions,
there was testimony from competent medical experts that Dr. Carp
did not deviate from accepted standards of medical care in
treating plaintiff. For example, Dr. Harvey L. Kaufman, Dr.
Carp's medical expert, was of the opinion that (1) the symptoms
presented to Dr. Carp were consistent with a sprained ankle; (2)
a Thompson Test of plaintiff's Achilles tendon was not indicated;
(3) Dr. Carp complied with accepted standards of medical practice
with respect to each of plaintiff's visits; (4) a referral by Dr.
Carp to the orthopedic specialist after four to six weeks
conformed with the accepted standard of medical care; and (5) Dr.
Carp did not breach any standard of medical practice in treating
plaintiff. Thus, based on the proofs as a whole, the jury could
reasonably find that Dr. Carp did not deviate from accepted
standards of medical practice in not making a ruptured Achilles
tendon diagnosis and not referring plaintiff to an orthopedic
specialist earlier.
Regarding Dr. Mariani, the jury found that Dr. Mariani
deviated from the accepted standard of medical practice and that
his deviation increased the risk of harm imposed by plaintiff's
pre-existing condition, but that the increased risk was not a
substantial factor in plaintiff's ultimate injury. Evidence in
the record regarding the time when a surgical repair becomes less
effective supports these findings. The medical experts agreed
that as time passes following an orthopedic injury, surgery
becomes a less effective treatment modality, frequently making
the better treatment course in the late repair period one based
on conservative therapy designed to strengthen the affected area.
The medical experts disagreed about the division between the late
and the early repair periods. While it was Dr. Smith's belief
that the early repair period extends from four to eight weeks
after the accident, there was also evidence that a reputable
school of medical practitioners, including Dr. Balduini who
performed the first surgery on plaintiff, is of the opinion that
the early repair period terminates around four weeks. Here, Dr.
Mariani did not see plaintiff until July 6, 1988, nine weeks
after the injury.
Additionally, Dr. John J. McPhilemy was of the opinion that
by the time plaintiff consulted Dr. Mariani, her injury had
become chronic and could not be treated effectively with surgery.
Dr. McPhilemy testified that he does not recommend surgical
treatment for patients beyond four weeks. Rather, after that
time he favors a more conservative non-operative treatment.
Based on this record in the light of our scope of review, we
hold that the trial court properly denied plaintiff's motion for
a new trial.
Accordingly, the order denying plaintiff's motion for judgment notwithstanding the verdict in favor of defendants or, alternatively, a new trial is affirmed.