06-09-09 ANTHONY GONZALEZ, JR. V. SETH SILVER, M.D., ET ALS.
A-2264-07T1
In this medical malpractice action, it was reversible error
to have charged the stricter "but for all-or-nothing" causation
test rather than the more relaxed "substantial factor" standard
where plaintiff was not claiming negligence in causing his elbow
to dislocate during surgery for a fractured wrist, but rather
that defendant physician did not timely diagnose the dislocation
because he failed to perform the recognized tests either through
post-surgery x-rays or at follow-up visits.
We also addressed two other issues capable of repetition at
retrial. One was evidential concerning the admission of
testimony of plaintiff's car surfing (standing on the roof of a
car) just before the accident, for credibility purposes given
plaintiff's contradictory accounts at time of deposition and
earlier to his physician. We held that since "car surfing" was
related to neither diagnosis nor treatment of the injury
plaintiff sustained, contradiction on such a marginal,
collateral matter was especially likely to have injected
prejudice into the proceeding and therefore under identical
circumstances on retrial, reference to car surfing should be
disallowed.
The other issue concerned the trial judge's conduct of voir
dire, which did not fully conform to AOC's Directives #21-06 and
#04-07 (Standards for Jury Selection), in that the court failed
to ask three open-ended questions of each prospective juror. In
this particular case, we found that plaintiff's counsel was
complicit in the procedure ultimately employed, but noted that,
as a general proposition, we consider it error not to have asked
the requisite open-ended questions until a juror answered the
initial voir dire question in the affirmative. Although in
civil matters a certain residual discretion resides in the trial
judge to accommodate the individual circumstances of each case
and the consensus views of counsel, we emphasized both the
importance of following the proper voir dire protocol as
provided in the Directives, which are intended as uniform
practices binding on all trial courts, and the need, on retrial,
to conform to those dictates.
Richard Sadowski
Assistant Editor
