Graham v. Mehta, L-1087-09; Law Division, Middlesex County; opinion by Rea, J.S.C.; decided June 5, 2013; approved for publication September 10, 2013. DDS No. 29-3-1294 [5 pp.]

The issue presented in this medical negligence case is whether the sole defendant at trial, Dr. Nehal Mehta, would be entitled to a credit against any verdict returned against him in an amount equivalent to the aggregate for which the other named defendants settled prior to the commencement of trial.

Plaintiff has been in a vegetative state since Jan. 2, 2008. On that date, she underwent surgery to correct certain complications related to two prior surgeries. These surgeries all took place at Somerset Medical Center. On the afternoon of Jan. 2, 2008, within an hour or two after coming out of surgery, defendant, the attending critical care/pulmonologist physician allegedly ordered and/or allowed the administration of a 5 mg dose of Lopressor (i.e., Metoprolol), which is a beta blocker designed to reduce an abnormally fast heart rate, a condition known as tachycardia. The administration of the Lopressor to plaintiff occurred at 6 p.m., via intravenous push. Shortly after 6:30 p.m., a code blue was called as plaintiff had gone into cardiac arrest. During the time between the administration of the Lopressor and the subsequent cardiac arrest, plaintiff's heart rate steadily declined. Plaintiff was revived by the code blue team, however, not before she suffered irreversible anoxic encephalopathy.

The theory of plaintiff's case is that the Lopressor should not have been given at the time it was and that it caused plaintiff's heart rate to drop too low to the point that she went into cardiac arrest. Plaintiff's expert, a pulmonologist and critical-care physician, testified that plaintiff's elevated heart rate at 6 p.m. on Jan. 2, 2008, was natural and compensatory and should not have been treated at that time with a beta blocker such as Lopressor.

All of the defendants with the exception of Dr. Mehta settled with the plaintiff immediately prior to trial in the aggregate sum of $2.73 million. Defendant is taking the position that he will be entitled to a credit of $2.73 million in the event a verdict is returned against him in an amount greater than that figure.

Held: The sole defendant at trial is not entitled to a credit against any verdict returned against him in an amount equivalent to the aggregate for which the other named defendants settled prior to the commencement of trial. Because defendant will be the only defendant for which the jury will determine liability, defendant is not entitled to such credit.

In support of his position that he will be entitled to a credit of $2.73 million in the event a verdict is returned against him in an amount greater than that figure, defendant relies on Clark v. University Hospital-UMDNJ, Mitchell v. Charles P. Procini, D.D.S., P.A., and Ciluffo v. Middlesex General Hospital.

Plaintiff contends that the aggregate settlement amount negotiated between plaintiff and the other defendants will have no effect on any verdict against defendant. Plaintiff relies on Johnson v. American Homestead Mortgage Corporation and Rogers v. Spady.

Defendant contends that the Johnson decision is at odds with Ciluffo and Clark. According to defense counsel, those who practice in the medical-malpractice arena take note of this inconsistency and reconcile it as an exception in the law that is unique to medical-malpractice cases.

The court does not concur that Johnson is inconsistent with Ciluffo and Clark. In both Ciluffo and Clark, the jury considered and rendered a verdict as to the missing co-defendant that settled prior to trial. The same was not so in Johnson and is not so in this case.

In order for a defendant to be entitled to a credit, the jury's verdict must provide sufficient information to discern the liability of the settling co-defendant or antecedent tortfeasor. The jury could provide a total damage figure and a damage figure for the health-care provider. Alternatively, a jury could determine damages due from the settling co-defendant (or antecedent tortfeasor) and damages due from the health-care provider who went to trial. In either scenario, a jury must have evidence pertaining to the tort committed by the settling co-defendants. Without this evidence, it is not possible for a jury to determine total damages because they are missing a major component of the same. This is why defendant's reliance on Mitchell is misplaced.

In this case, as in Johnson, no evidence was presented during trial alleging any negligence by the settling co-defendants. Defendant chose not to put on a case against his co-defendants. As such, the rationale of Johnson applies. The Comparative Negligence Law replaced the former pro rata liability of joint tortfeasors under the Joint Tortfeasors Contribution Law with the obligation of each tortfeasor to pay damages in accordance with its own adjudicated percentage of fault. A necessary corollary of this scheme is to deny to comparative-negligence joint tortfeasors a reduction of their liability based on a plaintiff's pretrial settlement with a defendant who is never found to be liable. Thus, under the comparative-negligence scheme a plaintiff is entitled to retain the proceeds of the pretrial settlement as well as the full jury verdict as allocated among all other defendants.

According to defendant's logic, in order for him to be entitled to a credit of $2.73 million, the jury would necessarily have to return a verdict of no cause of action against the settling co-defendants. That obviously cannot and will not happen in this case simply because the settling co-defendants will not be adjudicated tortfeasors.

Therefore, because there will be no adjudication as to the settling co-defendants, defendant will be the only defendant for which the jury will determine liability. In the event a verdict is returned against defendant, he will not be entitled to any apportionment or pro tanto credit vis-à-vis the pretrial settlement of his co-defendants. Likewise, in accord with this ruling, no settling co-defendant charge shall be given to the jury.

For plaintiffs — Richard Galex and Matthew A. Schiappa (Lomurro, Davison, Eastman & Munoz). For defendant — David C. Donohue (Farkas & Donohue).