SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6902-94T5
MARGARET HOFSTROM
and RONALD HOFSTROM,
Plaintiffs-Appellants,
v.
JEROLD M. SHARE, M.D., EMERGENCY
ROOM PHYSICIANS ASSOCIATION and
WEST JERSEY HEALTH SYSTEMS -
VOORHEES DIVISION,
Defendants-Respondents.
____________________________________
Argued October 29, 1996 - Decided November 19, 1996
Before Judges Michels, Kleiner and Coburn.
On appeal from Superior Court of New Jersey, Law
Division, Camden County.
Gary D. Ginsberg argued the cause for appellants (Law
Offices of Gary D. Ginsberg, attorneys; Brian P.
O'Connor, on the brief).
Robert E. Paarz argued the cause for respondents (Paarz,
Master & Koernig, attorneys; Mary Ann C. O'Brien, on the
brief).
COBURN, J.S.C. (temporarily assigned).
This is a medical malpractice case. The jury returned a verdict of no cause of action in favor of defendants. Plaintiffs' subsequent motion for a new trial was denied. Plaintiffs appeal. While no judgment appears to have been entered reflecting the
verdict, an order was filed indicating a denial of the motion.
Since the matter has been fully briefed and argued as if a judgment
had been entered, we will for purposes of this appeal treat the
order as if it incorporated a judgment. We are satisfied that
reversible error occurred in one respect: the trial court, as
requested should have charged the jury to ignore defendants'
allegation that plaintiff Margaret Hofstrom had been contributorily
negligent. Therefore, we reverse and remand for a new trial.
On Monday, March 12, 1990, plaintiff Margaret Hofstrom, age
25, was treated by defendant Jerold M. Share, M.D., in the
emergency room at West Jersey Hospital - Voorhees Division. Her
chief complaints were abdominal pain, nausea, vomiting, and pain on
urination. Her temperature was 99.6, although it had been as high
as 101. Her vital signs were normal. Dr. Share's physical
examination revealed normal bowel sounds in all four quadrants of
the abdomen. He found that she had diffuse tenderness on palpation
of the abdomen, but there was no mass present. She neither
"guarded" against the palpating nor complained of pain after the
palpating had stopped. She had "pronounced left-sided
costovertebral angle tenderness" and jumped when that area was
pressed. These findings suggested to Dr. Share that the plaintiff
was most likely experiencing a disease process in her kidneys which
was probably an infection of the upper urinary system. He had a
urinalysis performed which indicated that the white blood cell
count was "4-6" which meant that every field that was looked at had
at least four and as much as six white blood cells. In his view,
this test result was abnormal. Based on the test result, and his
examination, and the history, he reached a differential diagnosis
of urinary tract infection. He discussed the diagnosis with
plaintiff and prescribed medication. He advised plaintiff to
follow up with her own physician within two days. He further
advised her to return to the emergency room if her condition
worsened in any respect.
At around 2:00 a.m. on Wednesday, March 14, 1990, Mrs.
Hofstrom awoke with chills and a fever. Later that morning, her
pain worsened. She was brought to the hospital. She was diagnosed
as having appendicitis. During the ensuing surgery, it was
determined that plaintiff had diverticulitis, an inflammation of
the colon, and a perforated bowel which required a temporary
colostomy for about five months. Plaintiff suffered extensive
scarring as a result of the surgery and complained at trial of
continuing abdominal pain.
Plaintiff's medical expert, Dr. David Befeler, testified that
Dr. Share deviated from accepted medical standards. In his
opinion, Dr. Share failed to appreciate that the urinalysis results
were normal and did not indicate urinary tract infection.
Consequently, Dr. Share was further negligent in not ordering a
urine culture and a complete blood count and in discharging the
patient without having the results of those tests. Dr. Befeler
admitted, however, that diverticulitis was a highly unlikely
diagnosis considering plaintiff's history and the results of the
physical examination. He further conceded that it was reasonable
for Dr. Share to consider urinary tract infection, especially since
diverticulitis is unusual in young people. He agreed that the
plaintiff's condition at the emergency room on Monday did not
indicate a need for surgery. Finally, he testified that, in
accordance with Dr. Share's discharge instructions, plaintiff
should have returned to the emergency room as soon as she
experienced a deterioration of her condition Wednesday morning.
In support of Dr. Befeler's testimony, plaintiff presented Dr.
John C. Baylis, Chairman of the Pathology Department and Director
of the medical laboratory at West Jersey Hospital. He said that
the plaintiff's urinalysis test results were essentially normal.
The defense presented the testimony of Dr. Share and Dr.
Julius Kaplan, a board certified specialist in emergency medicine.
Dr. Share explained the reasons for his diagnosis of urinary
tract infection and why he did not perceive this as a case of
diverticulitis. He explained that diverticulitis is "exceedingly
rare" in women of 25 years of age and that 90 to 99" of women who
are 25 years old and present with urinary complaints have an
infection of the urinary tract. He noted that pain on urination is
uncommon with diverticulitis and that nausea and vomiting occur in
only 20" of diverticulitis cases. Plaintiff's normal and active
bowel sounds, the lack of change in bowel habits, and the absence
of a previous history of diverticulitis, all indicated to him an
absence of that illness. Diverticulitis usually is reflected by
pain located in the abdomen's lower left quadrant, whereas
plaintiff had diffuse pain. Additionally, plaintiff had pronounced
pain in the left side of her back (near her kidneys) which
indicated an infection in the upper urinary tract. He thought the
urinalysis confirmed his leading diagnosis because each analyzed
field had at least four white cells, which he believed was
abnormal.
Dr. Share further explained that he did not order a urine
culture because it would not have changed his management of the
patient since he believed it took 48 to 72 hours to get the results
back. He testified that a culture is not normally ordered for a
younger patient and that he would have ordered it later if she had
returned with no improvement. He further explained that his
treatment was not complete and that his instructions to follow up
with her primary physician within two days and to return earlier if
increased pain or fever occurred were related to his differential
diagnosis. In Dr. Share's view, a complete blood count would have
been inappropriate because the outcomes would have been either
"normal," "slightly elevated," or "very elevated." The first two
possibilities, he said, would not have changed his treatment and
would not have helped with the diagnosis. A "very elevated"
reading would have meant that a severe illness was present which
was entirely inconsistent with plaintiff's condition as he observed
it.
Dr. Julius Kaplan, defendant's expert witness, stated that
diverticulitis is uncommon in people under age 50, rare in those
under 40, and extremely rare for people under 30. He stated that
the symptoms for diverticulitis consist of localized abdominal pain
in the lower left side, fever, and decreased bowel sounds. Urinary
tract infection, on the other hand is indicated by pain or
urination, pain in the lower abdomen, low grade fever, some nausea
and vomiting with no change in bowel habits, precisely the
conditions indicated by the plaintiff's history and physical
examination.
Dr. Kaplan defined the standard of care of an emergency
physician to include taking an appropriate history, performing a
physical examination, ordering and interpreting the appropriate
tests, and making an appropriate diagnosis. In his view, an
emergency room physician would not have considered diverticulitis
as a differential diagnosis in the circumstances of this case.
The urinalysis was properly ordered because of the history of
painful urination and tenderness. Even though the lab report
listed 0-5 as normal for the lab, since there were white cells in
every field, that indicated an abnormal condition. He believed the
urinalysis gave credence to Dr. Share's diagnostic impression.
Dr. Kaplan further stated that the standard of care did not
require a urine culture since it takes at least 48 hours to grow
the culture and, thus, could not have influenced the treatment at
the time of the initial examination. A blood count would not have
affected the doctor's diagnosis and treatment since the count was
minimally elevated on March 14 and was probably normal when Dr.
Share examined plaintiff.
In short, it was Dr. Kaplan's view that Dr. Share did not
deviate from accepted medical standards in his diagnosis and
treatment of plaintiff Margaret Hofstrom.
Defense counsel introduced as a major theme in this trial the negligence of plaintiff Margaret Hofstrom in failing to adhere to the instructions she received from Dr. Share. He stressed this theme in his opening remarks, he addressed it in his cross-examination of plaintiffs' expert witness, Dr. Befeler, and he thoroughly explored it during his cross-examination and recross-examination of Mrs. Hofstrom. Lest there be any question about the importance of this subject from his point of view, we note that prior to summations he specifically requested the trial court to charge the jury pursuant to his understanding of Ostrowski v. Azzara, 111 N.J. 429 (1988), on the effects of Mrs. Hofstrom's contributory fault.
The trial court properly rejected defense counsel's request to charge under Ostrowski, a point no longer in issue in this case. However, the trial court went on to reject the following request to charge submitted by plaintiff:
During the course of this case the [defendant] has alleged that the [plaintiff] Maggie Hofstrom was negligent in that she failed to properly follow the discharge instructions issued to her by Dr. Share. However, the [defendant] has presented no evidence concerning whether that conduct by the [plaintiff] caused any damages, nor is there any evidence in this case upon which you could make such an assessment. Therefore, I instruct you that the actions of the [plaintiff] in this case, that is whether or
not she properly followed Dr. Share's
discharge instructions shall not be considered
by you on any issue of liability, proximate
cause or damages which you must determine in
this case.
The trial court rejected the proposed charge "because in my charge
to the jury, I'm not giving them any indication at all that they
should consider the negligence of the plaintiff. It's not in this
case."
Plaintiffs contend that the aforesaid action of the trial
court was reversible error. Defendants argue that the proposed
charge was not required for the reason given by the trial court;
and that, even if it was, plaintiffs were not prejudiced by its
absence since the jury resolved the case by finding Dr. Share was
not negligent. Implicitly, defendants concede that error would
have been present if the jury had gone on to consider proximate
cause or damages since in that context the jurors might have
considered Mrs. Hofstrom fault as relevant. We believe plaintiffs'
position is correct.
In Johansen v. Makita U.S.A, Inc.,
128 N.J. 86 (1992), a
products liability case, the Court "consider[ed] whether the trial
court erred in not informing the jury that comparative negligence
was not an issue in the case, and in not explaining the limited
relevance of plaintiff's conduct." Id. at 99. The Court noted the
particularly acute danger of the jury giving undue attention to
plaintiff's alleged fault since, as here, it had been a primary
defense theme throughout the trial, Id. at 102, and concluded by
saying:
We hold that the trial court committed
plain error in failing to instruct the jury on
the limited purpose for which it could
consider evidence of plaintiff's negligent
operation of the saw. On this record, the
absence of a limiting instruction clearly had
the capacity to mislead the jury in its
application of the risk-utility factors,
particularly in view of the extent to which
defendant's proofs emphasized plaintiff's lack
of due care. The trial court should have
instructed the jury, in accordance with its
earlier ruling, that evidence of plaintiff's
method of operating the saw was neither a
defense to plaintiff's strict-products-liability claim nor relevant to the jury's
application of the fifth factor of the risk-utility analysis. Such evidence could have
been considered, however, in determining
whether the specific manner in which plaintiff
had operated the saw had been the sole cause
of the accident.
In the instant case, the trial court had correctly ruled under
Ostrowski, supra, that plaintiff Margaret Hofstrom's alleged
comparative fault, which was repeatedly stressed by defense
counsel, was entirely irrelevant. Consequently, the failure to
explain this to the jury was even more egregious than what occurred
in Johansen where the evidence had at least some limited relevance.
What occurred here is analogous to the situation where an
attorney persists in making unwarranted prejudicial appeals to a
jury which taint the verdict. In such circumstances, we have often
held that a reversal is in order. See, e.g., Haid v. Loderstedt,
45 N.J. Super. 547, 551 (App. Div. 1957); Dalton v. Gesser,
72 N.J.
Super. 100, 106-07 (App. Div. 1962); Tomeo v. Northern Valley Swim
Club,
201 N.J. Super. 416, 420-421 (App. Div. 1985); Henker v.
Preybylowski,
216 N.J. Super. 513, 520 (App. Div. 1987).
Plaintiffs complain of two evidentiary rulings made by the trial court. The first ruling relates to the testimony of Dr. Bayles, the director of the Hospital's laboratory. He had been permitted to testify that a 4-6 white blood cell count resulting from an urinalysis test was essentially normal. That testimony buttressed the opinion of Dr. Befeler and contradicted the defense witnesses. However, he was not permitted to indicate what the values would be for an abnormal test result when the patient was suffering from a urinary tract infection. The objections raised by defense counsel were that the lab request-to-test slips do not indicate the suspected diagnosis when the test is requested and that Dr. Bayles was being asked for an opinion when he had not been listed as an expert witness. The trial court said: "Certainly we can ask this witness what's normal and abnormal but when you're trying to tie it in with a urinary tract infection, I guess there is some merit to his [defense counsel's] suggestion."
Since Dr. Bayles was permitted, without objection, to testify as to what a normal white blood count was, we fail to see why he should not have been permitted to testify as to what the laboratory considered an abnormal count, assuming that was not already implicit as a result of his indicating what was considered to be within the range of normal. Certainly, neither defense counsel nor the trial court set forth a legal reason for excluding that
testimony. We do not exclude the possibility that such a reason
may appear on retrial.
Next plaintiffs contend the court erred in prohibiting cross-examination of Dr. Share by reference to a laboratory report on a
urine culture that indicated a return of the results within 24
hours. The report was prepared with respect to Mrs. Hofstrom at
some time after she returned to the hospital for her surgery.
Plaintiffs wished to introduce the document to counter Dr. Share's
testimony that urine cultures ordered from the emergency room took
48 to 72 hours. The trial court sustained defendants' objection
which was based on plaintiffs' failure to prove the circumstances
under which that culture had been ordered. We perceive no error in
that ruling since there may well be differences between the
handling of requests for urine cultures with respect to admitted
patients and patients treated in the emergency room. In short,
plaintiffs failed to lay a proper foundation for the admissibility
of the document in question.
Plaintiffs contend the trial court erred by including in the instructions to the jury that portion of the Model Jury Charge which discusses the relation of a physician's use of judgment to the question whether there has been a deviation for accepted medical practice. The point is without merit. Schueler v. Strelinger, 43 N.J. 330, 344-45 (1964); Walck v. Johns-Mansville Products Corp., 56 N.J. 533, 562 (1970); Lanzet v. Greenberg, 243 N.J. Super. 218, 224 (App. Div. 1990), rev'd on other grounds, 126 N.J. 168 (1991).
IV
Last, plaintiffs contend the verdict was against the weight of the evidence, and that, therefore, their motion for a new trial should have been granted. In light of our determination of point I in plaintiffs' favor, discussion of this point is unwarranted. Reversed and remanded for further proceedings.