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D'Aries v. Schell6/28/1994
The opinion of the court was delivered by COLEMAN, P.J.A.D.
The significant issues raised in this medical malpractice case are whether plain error occurred when the trial Judge failed to instruct the jury (1) the defendant bore the burden of proving plaintiff Larry D'Aries's comparative fault and (2) that the evidence respecting plaintiff's health habits and failure to follow medical advice before and after the alleged malpractice could not be considered as evidence of the patient's fault under comparative
negligence principles. We hold both constitute plain error requiring a reversal.
The malpractice against defendant Jerome M. Schell, a doctor of podiatric medicine, is alleged to have occurred between January 2, 1986, and March 3, 1986, during his treatment of plaintiff's left big toe. Based on plaintiff's health habits and failure to follow medical advice, Schell contended plaintiff's comparative fault should preclude a recovery. A jury concluded that plaintiff and Schell were sixty percent and forty percent negligent respectively, requiring the entry of judgment for Schell. This appeal follows the denial of a new trial motion.
I
Plaintiff was diagnosed in the mid to late 1960s as having diabetes mellitus. When plaintiff first consulted with Dr. Schell in 1978, he was taking insulin daily to control diabetes. It is widely recognized that diabetes adversely affects the circulatory system in general and the lower extremities in particular. Plaintiff visited Dr. Schell because Everett O. Bauman, M.D., plaintiff's treating physician for the diabetes in 1978, recommended that plaintiff see a podiatrist. Over the next seven to eight years, plaintiff did not consult with a physician concerning his diabetes.
Plaintiff first saw Dr. Schell in April 1978 complaining of a toe infection. He treated the condition with Keflex, a broad spectrum antibiotic. Plaintiff also saw Schell on May 18, 1981, August 12, 1983, May 4, 1984 and March 5, 1985, for various toe infections which were treated with antibiotics. Those treatments are not involved in this case.
On March 7, 1985, plaintiff was apparently injured in an automobile accident and sought treatment from an internist, Dr. Joseph Salese. In addition to treating the accident injuries, Salese advised plaintiff that he needed to monitor his blood-sugar levels and control his weight because of his diabetes. Salese also ordered various medical tests including non-invasive "Doppler studies" of plaintiff's legs and feet to detect any circulatory
problems. Either Salese or Schell referred plaintiff to Dr. H. Stephen Fletcher, a vascular surgeon, for the Doppler studies.
Three Doppler studies were performed by Dr. Fletcher on April 16, 1985, and they indicated the need for an arteriogram to reveal the condition of plaintiff's circulatory system in his lower extremities. The arteriogram was performed on April 23, 1985, and it revealed plaintiff had a partial blockage of the femoral artery in his left leg between the groin and knee.
Armed with the result of plaintiff's arteriogram, Fletcher informed Salese that he recommended plaintiff undergo bypass surgery to improve blood circulation to his lower left leg. When plaintiff requested a second opinion, he was referred to defendant Franklyn N. Gerard, M.D., a vascular surgeon.
Gerard examined plaintiff on April 30, 1985. After studying x-rays and the arteriogram, he concluded plaintiff's arteries in both legs were significantly calcified and narrowed
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