SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6758-95T2
JOHN POSTA,
Plaintiff/Appellant,
v.
HAROLD E. CHUNG-LOY, M.D.,
DAVID M. ROSENHECK, M.D.,
MARK W. WOLFMAN, M.D.,
and JOHN F. KENNEDY MEDICAL CENTERSee footnote 1
Defendants-Respondents.
___________________________________________________________________
Argued: October 21, 1997 - Decided: December 18, 1997
Before Judges Conley, Wallace and Carchman.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County.
Richard C. Swarbrick argued the cause for
appellant.
Jeremy P. Cooley argued the cause for respondent
Harold E. Chung-Loy, M.D. (Lenox, Socey, Wilgus,
Formidoni & Casey, attorneys; Mr. Cooley, of
counsel and on the brief; James J. Brelin, III,
on the brief).
No briefs were filed by respondents David M. Rosenheck,
M.D., Marc M. Wolfman, M.D., or John F. Kennedy Medical
Center.
The opinion of the court was delivered by
WALLACE, JR., J.A.D.
Plaintiff John Posta appeals from the involuntary dismissal of
his medical malpractice action against defendants, Harold E. Chung-Loy, M.D., David M. Rosenheck, M.D., Marc M. Wolfman, M.D., and the
John F. Kennedy Medical Center. Prior to trial, the judge granted
summary judgment in favor of defendants on the issues of
negligence, common knowledge, and res ipsa loquitur because
plaintiff had failed to produce any expert opinion on causation.
At trial, the judge dismissed plaintiff's case on the issue of
informed consent for failure to prove proximate cause. On appeal,
plaintiff challenges as error: (1) the trial court's case
management order dated March 18, 1996, (2) the grant of summary
judgment to defendants on the issues of res ipsa loquitur and
common knowledge, (3) involuntary dismissal on the issue of
informed consent at trial, and (4) denial of his motions for
reconsideration. In addition, plaintiff claims that the trial
court erred by denying his numerous motions for a mistrial. We
affirm.
Plaintiff filed a medical malpractice complaint against defendants contending that they deviated from accepted standards of care in treating him. The complaint alleged negligence, gross negligence, outrageous conduct, and failure to obtain informed consent, resulting in serious and permanent injury. During discovery, plaintiff responded to portions of interrogatories by stating that written reports of his expert would be supplied.
Thereafter, defendants made various motions and the motion judge
entered several orders compelling the production of plaintiff's
expert reports, but no such reports were produced. On July 8,
1994, the motion judge ordered plaintiff to provide an expert
liability report within ninety days or be barred from introducing
expert testimony at the time of trial. Plaintiff failed to submit
a report by the determined deadline.
On December 2, 1994, the motion judge granted Dr. Chung-Loy's
motion for partial summary judgment against plaintiff on the issues
of res ipsa loquitur and common knowledge. The judge further
ordered the exclusion of plaintiff's expert testimony on the issue
of liability, and noted that informed consent was the sole issue to
be tried.
On October 27, 1995, the judge entered an order compelling
plaintiff to provide fully responsive and more specific answers to
various interrogatories submitted by Dr. Chung-Loy. In February
1996, the judge, following a case management conference, ordered
that Dr. Chung-Loy appear for deposition and that discovery be
completed within thirty days of January 29, 1996.
On March 18, 1996, the judge entered another case management
order directing that: (1) defendant's expert, Dr. James Chandler,
appear for deposition; (2) plaintiff submit on or before April 8,
1996, any expert report responding only to Chandler's report, or be
barred from thereafter serving a responsive report; (3) plaintiff's
expert be produced for deposition between April 8 and 15, 1996, or
be deposed during trial; (4) trial begin on April 15, 1996; and (5)
videotaped depositions be taken of any witness unavailable for
trial. Again, plaintiff failed to submit an expert's report.
Dr. Chung-Loy's counsel requested that plaintiff pay $583.10
for Chandler's deposition taken by plaintiff on March 7, 1996.
Plaintiff refused to pay or respond to the request.
Trial commenced on April 30, 1996. Defendants David M.
Rosenheck, M.D., Marc M. Wolfman, M.D., and John F. Kennedy Medical
Center did not appear and were not represented at trial because
they were not involved in the informed consent issue.
The evidence presented at trial showed that in September 1990,
plaintiff began experiencing stomach problems and lost
approximately sixty pounds. He was working as an independent
engineering consultant at the time. On Christmas Eve 1990, he went
to the Kennedy Medical Center complaining of severe nausea,
vomiting, and a lack of appetite. He was treated and released.
Plaintiff's stomach problems increased over the next few
months. He became dehydrated, weak, and his stomach began to spasm
even though it felt constantly bloated. He had difficulty sleeping
for long periods of time and could not work or do any other
activity. On April 2, 1991, plaintiff was admitted to Kennedy
Medical Center. He had not eaten for five days. Defendant Wolfman
conducted a series of tests as did defendant Rosenheck. Dr.
Rosenheck concluded that plaintiff was suffering from perforations
in his stomach and referred plaintiff to Dr. Chung-Loy, a surgeon.
After reviewing plaintiff's x-rays, Dr. Chung-Loy concluded
that plaintiff was not suffering from perforations of his stomach.
He conducted further tests and concluded that plaintiff had an
obstruction in his small intestine and recommended surgery to
correct the condition. Plaintiff signed a consent form on April
5, 1991, which authorized defendant to treat an "INTESTINAL
OBSTRUCTION" and provided in part:See footnote 2
2. The procedure(s) necessary to treat my
condition (has, have) been explained to me by
Dr. CHUNG-LOY and I understand the nature of
the procedure to be: (description of the
procedure(s) in laymen's terms) EXPLORATORY
LAPAROTOMY.
3. I have been made aware that there are common
risks and possible complications of the
proposed procedure as well as risks and
consequences of not having the proposed
procedure. I understand that there may be
alternative treatments, and have been given
the opportunity to discuss these with Dr.
CHUNG-LOY.
4. I understand that the explanation given to me
by my doctor is not exhaustive and that other,
more remote risks and consequences may arise.
I do not request any further explanation of
these risks.
5. I agree that if during the course of the
operation additional or different procedure(s)
than those set forth in paragraph 2 are
necessary due to the urgency of the condition,
I authorize that such procedures be done,
except:
[Left Blank]
6. I have received no guarantees as to the
results of the planned procedure(s).
. . . .
11. CROSS OUT AND INITIAL ANY OF THE ABOVE
PARAGRAPHS WHICH YOU DO NOT AGREE WITH.
12. I have read this document, or this document
has been read to me in its entirety. I fully
understand it and all blank spaces have been
either completed or crossed off by me prior to
my signing.
Dr. Chung-Loy signed the following statement at the bottom of the
consent form:
I have personally explained to the patient
and/or the patient's authorized
representative, the information contained in
this consent.
Dr. Chung-Loy and a nurse were present when plaintiff signed
the consent form. No one explained the form to plaintiff nor did
he read the form before signing it. Dr. Chung-Loy gave him only
ten minutes to decide if he wanted the surgery and never informed
him that this was a life-threatening situation. Plaintiff,
admitted however, that Dr. Chung-Loy informed him just prior to the
surgery that this was a serious condition.
Dr. Chung-Loy was called to testify in plaintiff's case. He
stated that after explaining the proposed surgery to plaintiff, he
recommended that plaintiff have an exploratory laparotomy to
determine the inner condition of his stomach. He informed
plaintiff that surgery was necessary because the obstruction in his
intestines was a potentially life-threatening condition and that
without surgery his intestines would rupture and he would die. He
said that surgery was the only option to correct plaintiff's
condition, but that there were potential risks and complications to
the surgery. Dr. Chung-Loy stated that he explained all of the
risks, including the risk of developing a hernia to plaintiff
before the first operation.
It later developed, however, that Dr. Chung-Loy informed
plaintiff about the risk of hernia after the surgery when plaintiff
became upset and tried lifting a nightstand to throw it at his
roommate. The following colloquy occurred outside the presence of
the jury:
THE COURT: Did you talk about hernia to the
plaintiff before the first operation?
THE WITNESS: Not relating to the surgery,
sir.
THE COURT: Is it true that the first time the
subject matter came up was at this time after
the first operation when you got this call
[about plaintiff trying to throw the
nightstand]?
THE WITNESS: Yes, sir.
THE COURT: Just tell me what you and he spoke
about at that time.
THE WITNESS: Well, after I did initial
assessment to make sure that this [lifting the
nightstand] wasn't a life threatening problem
that Mr. Posta was going through, I told him
he cannot lift up the night table because if
he does he can break his stitches he will
definitely get a hernia. I told him that he
cannot do any heavy lifting and pulling
because that will break his wound open.
Back in the presence of the jury, Dr. Chung-Loy stated that he
examined plaintiff shortly after the first surgery. As a result of
the nightstand incident, Dr. Chung-Loy instructed plaintiff not to
lift the nightstand because he had just had abdominal surgery two
hours before and lifting heavy objects could rip his sutures and he
could develop a hernia.
Plaintiff's condition improved and he was discharged on April
19, 1991. During the next month, plaintiff had some nausea and
vomiting, so he visited Dr. Rosenheck twice who treated him with
medication. Plaintiff's symptoms continued, however. Eventually,
he was admitted to the Kennedy Medical Center on May 23, 1991.
Plaintiff claimed that his symptoms were worse than before the
first surgery. The nurse's notes indicated that plaintiff was
having difficulty eating and drinking and that he was experiencing
constant nausea and vomiting. Plaintiff was seen by Dr. Wolfman
who conducted several tests.
Dr. Chung-Loy had been on vacation and did not examine
plaintiff until May 29. He concluded that plaintiff was suffering
from a partial intestinal obstruction near the area of the previous
surgery and recommended a surgical procedure called a bilateral
truchan vagotomy gastrojejunostomy. He drew a diagram to explain
the operation to plaintiff. Plaintiff, however, denied that Dr.
Chung-Loy ever explained the risks associated with this surgery to
him or that he had any other options. Further, plaintiff stated
that Dr. Chung-Loy never told him what he would do if during the
operation the doctor found it was not necessary to perform the
operation as described.
Dr. Chung-Loy claimed that he discussed the risks of the
operation with plaintiff, telling him about the common risks and
potential complications such as bleeding, infection, lung, heart,
and kidney problems. The doctor did not, however, discuss the risk
of a hernia.
Plaintiff signed a consent form for the second operation on
May 30, 1991. The form authorized Dr. Chung-Loy to treat a
"PARTIAL INTESTINAL OBSTRUCTION" and provided in part:
2. The procedure(s) necessary to treat my
condition (has, have) been explained to me by
Dr. CHUNG-LOY and I understand the nature of
the procedure to be: (description of the
procedure(s) in laymen's terms) BILATERAL
TRUCHAN VAGOTOMY, GASTROJEJUNOSTOMY.
3. I have been made aware that there are common
risks and possible complications of the
proposed procedure as well as risks and
consequences of not having the proposed
procedure. I understand that there may be
alternative treatments, and have been given
the opportunity to discuss these with Dr.
CHUNG-LOY.
4. I understand that the explanation given to me
by my doctor is not exhaustive and that other,
more remote risks and consequences may arise.
I do not request any further explanation of
these risks.
5. I agree that if during the course of the
operation additional or different procedure(s)
than those set forth in paragraph 2 are
necessary due to the urgency of the condition,
I authorize that such procedures be done,
except:
[Left Blank]
6. I have received no guarantees as to the
results of the planned procedure(s).
. . . .
11. CROSS OUT AND INITIAL ANY OF THE ABOVE
PARAGRAPHS WHICH YOU DO NOT AGREE WITH.
12. I have read this document, or this document
has been read to me in its entirety. I fully
understand it and all blank spaces have been
either completed or crossed off by me prior to
my signing.
The second operation was performed on May 31, 1991. During
surgery, Dr. Chung-Loy determined that it was not necessary to
perform a gastrojejunostomy because he was able to separate various
adhesions in plaintiff's intestines. Dr. Chung-Loy concluded that
surgery was the only medical option for the treatment of the
adhesions. After the operation, Dr. Chung-Loy explained to
plaintiff that he did not have to conduct the procedure as
originally proposed.
Plaintiff was discharged from the hospital on June 9, 1991,
with instructions to eat a low fat, low salt, high fiber diet and
to return in two weeks. He claimed that at the time he was
discharged, the wound was beginning to come apart and was bleeding.
Two weeks later, plaintiff returned to see Dr. Chung-Loy.
Plaintiff's stomach wall had started to protrude through the
opening, resulting in a bulge. Dr. Chung-Loy did not find a bulge
in plaintiff's stomach. He recalled that plaintiff told him that
he had heard a popping sound one day while having a bowel movement,
but that plaintiff had no associated pain after the popping sound.
Dr. Chung-Loy stated that plaintiff's scar was in the same
condition after both surgeries because he had cut through the scar
from the first operation when he performed the second operation.
Nearly a year later, on March 26, 1992, plaintiff visited the
Veterans Administration Hospital in Lyons complaining about a
"bulge" in his stomach. Dr. Ahamad Najme, the head of surgery at
the hospital, examined plaintiff. Dr. Najme testified out of the
presence of the jury that plaintiff had developed a ventral
incisional hernia which may result from a variety of causes. He
explained that some people were predisposed to developing a hernia
and that others might develop a hernia from increased abdominal
pressure arising from activities such as lifting heavy items. He
also noted that any increase in intra-abdominal pressure may cause
separation of the fascia and a resulting hernia. Dr. Najme, was
however, unable to determine what caused plaintiff's hernia.
The following year, plaintiff began to have more discomfort
and noticed that the bulge in his stomach was larger. He visited
the Veteran's Administrative Hospital where on June 9, 1993, Dr.
Najme performed surgery to correct plaintiff's incisional hernia by
placing a mesh screen inside plaintiff's stomach.
Plaintiff stated that he would not have had either the first
or second surgery had he been informed that there was a possibility
of suffering a hernia from those operations or that a mesh screen
would be permanently inserted in his stomach to repair his hernia.
Plaintiff also stated that he would not have had the second surgery
had he known Dr. Chung-Loy was going to perform a different
procedure than explained and diagramed or had he known that he
would have sustained such a large scar. On cross-examination,
however, plaintiff admitted that had he known that he would die if
his condition were left untreated, he may have considered the risk
of a small hernia as being acceptable.
Dr. Chung-Loy explained that there was a two percent to twelve
percent risk of developing a hernia under normal circumstances
following both the first and second operation. He further stated
that he was not surprised plaintiff developed a hernia because
plaintiff gained substantial weight after each operation.
Plaintiff attempted to call defendant's expert, Dr. Chandler,
as part of his case. Dr. Chung-Loy objected because plaintiff had
not named Dr. Chandler as a witness or served him. Further, Dr.
Chandler had never even examined plaintiff nor had he previously
rendered an opinion on the cause of plaintiff's hernia. The judge
sustained the objection, but allowed Dr. Chandler to testify out of
the presence of the jury in order to create a record. Dr. Chandler
stated that there were many causes of abdominal hernia, such as
obesity, diabetes, a strain, stretch, or other muscular activity.
He also stated that a hernia could be caused by an operation
because that procedure weakened the area. The judge concluded that
Dr. Chandler's testimony fell short of establishing causation
between the operation and the hernia and continued to exclude Dr.
Chandler's testimony.
At the close of plaintiff's case, Dr. Chung-Loy moved for
judgment at trial. He argued that plaintiff had failed to prove an
informed consent case because no reasonable person would have
refused the surgeries performed given their medical necessity and
the potential life-threatening situation that existed. Further,
Dr. Chung-Loy argued that plaintiff had failed to prove causation
or damages because he was unable to show that any injury,
specifically, a hernia was medically related to the surgeries
performed.
The trial judge agreed. He explained that although under
Largey v. Rothman,
110 N.J. 204 (1988), expert testimony was no
longer required in an informed consent case in order to establish
either the medical community standard for disclosure or whether a
physician failed to meet that standard, expert testimony was still
needed with regard to other required proofs. The judge concluded
that plaintiff had failed to provide sufficient proof that the
failure to disclose was a proximate cause in producing plaintiff's
ultimate injuries or condition. On May 21, 1996, the trial judge
filed an order memorializing his decision to dismiss plaintiff's
complaint against Dr. Chung-Loy with prejudice.
Plaintiff moved for reconsideration and submitted a two-paragraph expert report of Bertram Levinstone, M.D., dated May 17,
1996. In this report, Dr. Levinstone stated:
It is my opinion, after review of these
documents [plaintiff's medical reports after
all three surgeries], and based upon
reasonable medical certainty, that the
incisional hernia which was found and repaired
in July 1993, occurred in the incision line of
the two previous operations and was a direct
result of weakness of the abdominal wall
following the second operation.
The judge concluded that this evidence was not new and could have
been available at trial. He found that plaintiff failed to
establish any grounds for relief from a judgment under R. 4:50-1
and denied the motion. In addition, the judge found that Dr.
Levinstone's report was a net opinion which would be inadmissible
at trial, in any event.
In June 1990, plaintiff again moved for reconsideration,
submitting a second report by Dr. Levinstone. This time, Dr.
Levinstone opined:
As noted in the previous report from this
office, based on reasonable medical certainty,
the incisional hernia found at operation on
June 9, 1993, was due to the operation of May
31, 1991, and occurred in the line of incision
of that operation. It was noted that the
surgeon elected to use a continuous suture of
absorbable material for closure of the fascia,
which has much less tensile strength and is
weakened by the process of absorption. In
addition, the use of a continuous suture
jeopardizes the entire suture line, if there
is any defect along the suture, in contrast to
a single area of deficiency in the case of
failure of an individual or interrupted
suture. Within the bounds of reasonable
medical probability, this was a likely
proximate cause for the development of
incisional hernia, which the plaintiff noted
to be present after the operation and during
the hospital stay, when the wound opened and
discharged bloody material. As a consequence,
additional surgery was necessary for repair of
this incisional hernia with Marlex mesh in
1993.
In response to plaintiff's motion, Dr. Chung-Loy cross-moved
for an order compelling plaintiff to pay the $583.10 deposition fee
of his expert, Dr. James Chandler, for the deposition conducted by
plaintiff on March 7, 1996. Plaintiff's counsel objected to the
amount of Dr. Chandler's fee and claimed that Chandler's fee should
have been $291.60. On July 12, 1996, the trial judge granted
defendant's cross-motion on the papers and ordered that plaintiff
pay Dr. Chandler's $583.10 fee within seven days.
On July 22, 1996, notwithstanding his second motion for
reconsideration filed in the trial court, plaintiff filed a notice
of appeal from the dismissal of his complaint and from the judge's
orders dated June 6, 1996, and December 2, 1994. Plaintiff also
moved for a stay, which we denied on August 28, 1996.
On July 26, 1996, the trial judge denied plaintiff's second
motion for reconsideration. The judge reiterated his view that
even though plaintiff did not need expert testimony with regard to
informed consent, expert testimony was "essential" to the question
of causation. The judge noted that plaintiff did not present an
expert's report in which a physician opined that there was a causal
connection between the injury and Dr. Chung-Loy's operations until
long after the trial. The judge concluded that it was "too late"
to introduce such evidence.
Plaintiff contends that the case management order dated March 18, 1996, was arbitrary, capricious, unreasonable, and a gross abuse of judicial discretion. He claims that he had a right to take the deposition of the defendant before submitting a medical expert witness report. Plaintiff argues that he had insufficient time to prepare for trial because he had only twenty one days to obtain an expert to respond to Chandler's opinions and only two weeks to prepare for trial after he received the deposition transcripts of Drs. Chung-Loy and Chandler.
R. 4:10-4 governs the sequence and timing of discovery. R. 4:10-4 reads:
Unless the court upon motion, for the convenience of parties and witnesses and in
the interest of justice, orders otherwise,
methods of discovery may be used in any
sequence and the fact that a party is
conducting discovery, whether by deposition or
otherwise, shall not, of itself, operate to
delay any other party's discovery.
The comment to this rule notes that "this rule should eliminate the
claim heretofore made by some practitioners that the party first
serving a notice of the taking of a deposition has the right to
complete all his depositions before any other party may commence
taking his depositions." Pressler, Current N.J. Court Rules,
comment on R. 4:10-4 (1997).
Plaintiff argues that Dick v. Atlantic City Med. Ctr.,
173 N.J. Super. 561 (Law Div. 1980) supports his argument. In Dick,
also a medical malpractice case, the court used R. 4:10-4 to reject
defendant's application that he was entitled to plaintiff's expert
report before preparing for a deposition. Id. at 565. The court
held that even though it was often "helpful" to adhere to an
orderly progression of events during discovery, such a course was
"not mandated," especially in medical malpractice actions which
were "not noted for the ease in which a case against a doctor or
hospital can be developed." Ibid.
We do not read Dick to support plaintiff's argument. That
case does not establish a "right" for a plaintiff in a medical
malpractice action to always obtain discovery of the defendant
before preparing his or her case. Rather, it stands for the
proposition that there is no set order of discovery without a
specific court order.
Here, the judge granted plaintiff sufficient time to respond
to defendant's expert, whose deposition was taken on March 7, 1996.
Plaintiff had until April 8, 1996, to respond to defendant's expert
or be barred from thereafter serving any responsive report.
Further, if plaintiff produced an expert, the expert's deposition
was to be taken by April 15, 1996, the day scheduled for trial.
Plaintiff did not produce an expert prior to trial, which commenced
on April 30, 1996. We note that within two weeks after plaintiff's
complaint was dismissed, he produced an expert. This case was over
three years old. Plaintiff had sufficient time to produce an
expert. At some point, the case must proceed to trial. We find no
abuse of discretion in the time constraints set by the trial judge.
Plaintiff contends that the trial judge's order dated December 2, 1994, granting partial summary judgment to defendants on the issues of res ipsa loquitur and common knowledge was arbitrary, capricious, and unreasonable. He argues that there was no hearing held and, consequently, that the judge made no finding of fact and conclusions of law. Further, plaintiff urges that the photos taken following the surgery which depicted bulges and ugly scars was evidence of negligence.
Recently, we explained the principles of res ipsa loquitur and common knowledge:
The res ipsa loquitur doctrine applies "where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c)
there is no indication in the circumstances
that the injury was the result of the
plaintiff's own voluntary act or neglect."
[Kelly v. Berlin,
300 N.J. Super. 256, 265
(App. Div. 1997) 265 (quoting Buckelew v.
Grossbard,
87 N.J. 512, 525 (1981)).]
Further we added:
The common knowledge doctrine applies
when "[t]he facts of a given case [are] such
that the common knowledge and experience
possessed by lay[persons] . . . enable a jury
to conclude, without expert testimony, in a
malpractice action as in any other negligence
action that a duty of care has been breached."
. . . "The basic postulate for the
application of the doctrine therefore is that
the issue of negligence is not related to
technical matters peculiarly within the
knowledge of medical . . . practitioners."
[Kelly, supra, 300 N.J. Super. at 265 (quoting
Klimko v. Rose,
84 N.J. 496, 503-04 (1980),
and Sanzari v. Rosenfeld,
34 N.J. 128, 142
(1961)).]
We also explained that:
In res ipsa cases, plaintiff need only prove
his injury, and need not prove a standard of
care or a specific act or omission.
Ordinarily, the common knowledge doctrine is
applied in a malpractice case after the
plaintiff proves his injury and a causally
related act or omission by the defendant.
[Kelly, supra, 300 N.J. Super. at 266-67
(quoting Sanzari, supra, 34 N.J. at 141).]
Here, there was insufficient evidence to apply either doctrine. With regard to the res ipsa loquitur doctrine, the development of a hernia almost one year after the second operation does not bespeak negligence. Moreover, even if plaintiff could overcome that requirement, res ipsa loquitur is not warranted because plaintiff presented no evidence, expert or otherwise, that
tended to exclude other possible causes of his hernia or to show
that his own actions did not cause or contribute to development of
that hernia.
Regarding the common knowledge doctrine, lay persons do not
have the knowledge or skill to analyze plaintiff's injury or Dr.
Chung-Loy's actions. It is not within the common knowledge of lay
jurors to determine whether Dr. Chung-Loy's treatment of plaintiff
constituted a deviation from the accepted surgical standards of
care for the operations performed. Moreover, without expert
testimony people of average intelligence and ordinary experience
could not determine the cause of plaintiff's hernia.
The trial judge correctly concluded that plaintiff did not
satisfy the requirements for either res ipsa loquitur or common
knowledge.
Plaintiff contends in Points III and IV of his brief that the trial judge erred by granting an involuntary dismissal at the end of his case. Plaintiff argues that he presented ample evidence to prove the absence of informed consent and causation.
In determining whether to grant a motion for dismissal at the close of plaintiff's case under R. 4:37-2(b), the judge must accept as true all the evidence which supports the claim of the party opposing the motion and must accord that party the benefit of all legitimate inferences flowing from the proofs presented. Lanzet v. Greenberg, 126 N.J. 168, 174 (1991); Dolson v. Anastasia, 55 N.J.
2, 5 (1969). The issue essentially is "whether the evidence
presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a
matter of law." Brill v. Guardian Life Ins. Co.,
142 N.J. 520, 536
(1995) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52,
106 S. Ct. 2505, 2512,
91 L. Ed.2d 202, 214 (1986)). An
informed consent cause of action is grounded in negligence and is
predicated on the duty of a physician to
disclose to a patient such information as will
enable the patient to make an evaluation of
the nature of the treatment and of any
attendant substantial risks, as well as of
available options in the form of alternative
therapies.
[Largey, supra, 110 N.J. at 208.]
It is a plaintiff's burden to prove that the defendant failed to
comply with the applicable standards for disclosure, and that such
failure was a proximate cause of plaintiff's injuries. Id. at 215.
In Largey, the Supreme Court adopted the "prudent patient"
standard, also known as the "materiality of risk" standard, to
determine whether a doctor has complied with disclosure. Id. at
212-13. Under this standard, a physician must disclose all
information material to a reasonably prudent patient's treatment
decision. Id. at 211.
A risk would be deemed "material" when a
reasonable patient, in what the physician
knows or should know to be the patient's
position, would be "likely to attach
significance to the risk or cluster of risks"
in deciding whether to forego the proposed
therapy or to submit to it.
[Id. at 211-12 (quoting Canterbury v. Spence, 464 F.2d 772, 787 (D.C. Cir.), cert. denied,
409 U.S. 1064,
93 S. Ct. 560,
34 L. Ed.2d 518
(1972)).]
Here, Dr. Chung-Loy testified during plaintiff's case that
there was between a two-percent to twelve-percent risk that
plaintiff would develop a hernia after his surgeries. Thus,
plaintiff presented evidence that the risk of hernia was one which
was recognized as a risk within the medical community. Further,
Dr. Chung-Loy's testimony established that he had advised plaintiff
about the risk of hernia after the operation, but not before.
Therefore, plaintiff established the lack of informed consent.
In addition to proving that Dr. Chung-Loy breached his duty to
disclose, however, plaintiff must also prove causation. Plaintiff
must show that the lack of informed consent proximately caused the
surgery to have been performed and that the surgery performed
caused his injuries. See Grasser v. Kitzis,
230 N.J. Super. 216,
221-22 (App. Div. 1988).
Proximate cause due to the lack of informed consent is
resolved by application of an objective standard. That is,
plaintiff must show that "'the prudent person in the patient's
position would have decided differently if adequately informed.'"
Largey, supra, 110 N.J. at 215 (quoting Perna v. Pirozzi,
92 N.J. 446, 460 n.2 (1983)). "If adequate disclosure could reasonably be
expected to have caused that [prudent] person to decline the
treatment because of the revelation of the kind of risk or danger
that resulted in harm, causation is shown, but otherwise not."
Largey, supra, 110 N.J. at 216 (quoting Canterbury, supra, 464 F.
2d
at 791). Here, plaintiff would have established the first prong of
causation had he demonstrated that a prudent person in plaintiff's
position would have declined treatment had he been adequately
informed of the two-percent to twelve-percent risk that resulted in
a post-surgical hernia.
While the trial judge did not specifically address this issue,
we are satisfied that plaintiff failed to sustain his burden of
proof regarding causation as to the lack of informed consent. We
are convinced that assuming all facts and inferences in plaintiff's
favor, reasonable minds could not differ that if adequately
informed of the hernia risk, the prudent person in plaintiff's
position would have decided to have the two surgeries.
It was undisputed that when plaintiff was initially admitted
to the hospital on April 2, 1991, he had not eaten for five days,
had lost weight, and was nauseous and vomiting all of the time. In
fact, plaintiff admitted that he was "essentially at the end of
[his] rope." Plaintiff had an obstruction of his bowel, which the
undisputed evidence established was life-threatening if left
untreated surgically. Following the first operation, when
plaintiff was admitted to the hospital on May 23, 1991, he was
again experiencing nausea, vomiting and his symptoms were worse
than before the first surgery. Further, it was not disputed that
during the second surgery Dr. Chung-Loy found adhesions in the area
of his first surgery which could only be removed surgically. We
are convinced that the evidence was so one-sided that no reasonable
jury could have determined that a reasonably prudent patient would
have refused to consent to either surgery even if informed of the
potential risks of developing a hernia, of undergoing another
operation to repair that hernia, and of having a mesh screen
permanently implanted during the hernia operation.
Even if there was sufficient evidence for the jury to decide
that a reasonably prudent patient would have withheld consent had
he been properly informed, plaintiff was required to establish that
his injury was caused by the medical procedure for which the
informed consent was inadequate. Adamski v. Moss,
271 N.J. Super. 513, 519 (App. Div. 1994); Grasser, supra, 230 N.J. Super. at 222;
Skripek v. Bergamo,
200 N.J. Super. 620, 633-34 (App. Div.),
certif. denied,
102 N.J. 303 (1985). The judge dismissed this case
after concluding that plaintiff failed to produce any reliable
testimony that his hernia was proximately caused by the operations
performed by defendant or that the operations were a substantial
factor in causing the hernia. We agree.
It was undisputed that plaintiff had a two-percent to twelve-percent risk of developing a hernia after the two surgeries
performed by defendant. It was also undisputed that almost one
year after the second surgery, plaintiff was diagnosed with a
ventral incisional hernia, i.e., a hernia that developed in the
area of the prior surgeries. Dr. Najme and Dr. Chandler, however,
stated that hernias were caused by a variety of events, including
predisposition, obesity, diabetes, muscular activity as well as
surgery. Moreover, there was no testimony that plaintiff's
particular hernia was caused by the operations performed by
defendant or that those operations were a substantial factor in
causing the hernia.
Without expert testimony, plaintiff could not prove that his
hernia was caused by the medical procedure for which the informed
consent was inadequate. A jury may not speculate in an area where
laypersons could not be expected to have sufficient knowledge or
experience. See Germann v. Matriss,
55 N.J. 193, 208 (1970);
Butler v. Acme Markets, Inc.,
89 N.J. 270, 283 (1982).
Moreover, even if the photographs showing plaintiff's hernia
had been admitted, such photos merely showed the plaintiff's
condition. That condition was not evidence of the cause of
plaintiff's hernia. Consequently, any error in the exclusion of
the photograph was harmless. R. 2:10-2.
Plaintiff also argues that Dr. Chung-Loy was negligent for
failing to perform a bilateral truchan vagotomy gastrojejunostomy
as proposed and diagramed prior to the second surgery. We reject
this argument. It was undisputed that defendant performed a
"lesser" operation on plaintiff instead of the gastrojejunostomy,
and that the operation performed was medically necessary to cure
plaintiff of his symptoms.
Viewing the evidence in the light most favorable to plaintiff,
we are satisfied that plaintiff failed to present a prima facie
case that his hernia was proximately caused by the operations
performed by Dr. Chung-Loy. The judge did not err in granting
judgment in favor of Dr. Chung-Loy.
Plaintiff contends that the trial judge erred by denying his two motions for reconsideration. We note that plaintiff does not take issue with the actual reasons set forth by the trial judge, i.e., net opinion and delay of submitting report, in denying plaintiff's reconsideration motions to open the judgment. We need not address each of plaintiff's contentions under this point heading. Plaintiff's main argument centers on newly discovered evidence, the expert reports by Dr. Levinstone.
R. 4:50-1 allows the judge to:
relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial . . . (d) the judgment or order is void; . . . or (f) any other reason justifying relief from operation of the judgment or order.
The motion for vacation of a judgment based on any one of those
specified grounds should be granted sparingly, and is addressed to
the sound discretion of the trial judge, whose determination will
be left undisturbed unless it results from a clear abuse of
discretion. Housing Auth. v. Little,
135 N.J. 274, 283-84 (1994).
R. 4:50-1, does however, make it clear that evidence
justifying relief is evidence that could not have been discovered
by due diligence in time to move for a new trial. Plaintiff had
three years to prepare for trial and twenty one days to obtain an
expert to support his case. He failed to do so. Nevertheless,
within two weeks after the case was dismissed, plaintiff obtained
a report from Dr. Levinstone. We are satisfied that newly
discovered evidence does not include a post-trial realization of
the inaccuracy of medical proofs upon which the plaintiff relied at
trial, and the attempt to remedy the same. See Aiello v. Myzie,
88 N.J. Super. 187, 196-98 (App. Div.), certif. denied,
45 N.J. 594
(1965).
Plaintiff also argues that because his counsel mistakenly
failed to present the appropriate expert testimony at trial, he
should be granted relief. However, an attorney's error of law is
not sufficient to relieve a party from a final judgment or order.
Hendricks v. A.J. Ross Co.,
232 N.J. Super. 243, 248-49 (App. Div.
1989).
Plaintiff contends that the judge erred by not granting a mistrial and review on numerous occasions during trial, when plaintiff requested a mistrial after the judge ruled against him on various evidentiary objections. We have reviewed each of plaintiff's contentions and find that they are all clearly without merit. R. 2:11-3(e)(1)(E).
Affirmed.
Footnote: 1Respondent Marc M. Wolfman, M.D., was improperly pleaded as Mark M. Wolfman, M.D. Footnote: 2 The consent form was typed with various blanks filled in by hand. We have underlined the filled in spaces.