SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6097-97T1
KENNETH EAGEL, Individually
and as Administrator of the
Estate of JOELIZABETH EAGEL,
and as parent and natural
guardian of their three
children, Joshua, Tara and
Tiffany,
Plaintiff-Appellant,
v.
MARK C. NEWMAN, M.D.,
Defendant-Respondent.
Argued October 26, 1999 - Decided November 12, 1999
Before Judges Pressler, Ciancia and Arnold.
On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County.
Michael D. Schottland argued the cause for
appellant (Schottland, Manning, Rosen, Caliendo &
Munson, attorneys; Bettina E. Munson, on the brief).
Martin J. McGreevy argued the cause for respondent
(Carton, Witt, Arvanitis & Bariscillo, attorneys;
Mr. McGreevy, of counsel; Russell J. Malta, on the
brief).
The opinion of the court was delivered by
PRESSLER, P.J.A.D.
This medical malpractice case arose out of the sudden death of
decedent JoElizabeth Eagel, who suffered from mitral valve
prolapse. The action was filed against defendant, Mark C. Newman,
M.D., by her husband, plaintiff Kenneth Eagel, individually, as
administrator of the estate of JoElizabeth Eagel, and as parent and
natural guardian of their three minor children, Joshua, Tara and
Tiffany Eagel. He appeals from a judgment entered upon a jury
verdict of no cause dismissing his complaint. He contends on
appeal that the trial judge erred in refusing to instruct the jury
on the issue of informed consent and in dismissing the emotional
distress claims of the children. We affirm.
Decedent was thirty-nine years old at the time of her tragic
and sudden death in October 1993. She had been diagnosed with
mitral valve prolapse in 1983 when she was pregnant with her first
child. There is no medical dispute that this is not an uncommon
condition and is usually benign and asymptomatic. Some victims of
the condition, however, are subject to arrhythmia, that is, an
irregular heartbeat. The danger posed by an arrhythmia is its
capacity to disrupt the electrical impulses of the heart resulting
in what is described as an electrical storm that can lead to
elevated heart rate levels, precipitous drop in blood pressure and
resultant death. Mitral valve prolapse patients with associated
arrhythmia are, therefore, required to be monitored and medicated,
usually by a beta blocker that slows rapid and irregular heartbeat.
Decedent was under care for ventricular tachycardia, a type of
arrhythmia, during her pregnancy, delivered the child in a cardiac
care unit as a precaution, and was prescribed Inderal, a common
beta blocker, which she took until the end of 1984.
In 1986 and 1987 decedent consulted with a cardiologist, Dr.
Checton, a defense witness at trial. According to his testimony,
decedent was entirely stable, reported that she felt fine,
exercised without palpitations and appeared to be asymptomatic and
in general good health. Her two younger children were delivered
without the precautions that attended the birth of her eldest, and
a beta blocker was not again prescribed. Decedent did not follow
up with Dr. Checton after her 1987 visit.
Decedent first consulted with defendant, an internist, in
April 1992, having initially met him at the beach club where both
families were members. She was not, however, seeking treatment for
her cardiac condition but rather for a sore throat. Defendant was,
however, aware of her cardiac history. She saw him again on
several occasions for non-cardiac-related problems through January
1993. In March 1993, decedent nearly fainted at a social function
and called Dr. Checton to ask for a beta blocker prescription.
Since he had not seen her for six years, he declined to prescribe
over the telephone and asked to see her in his office for an
evaluation. Apparently she could not obtain an immediate
appointment and went instead to defendant's office. According to
him, she reported suffering from occasional palpitations but showed
no signs of shortness of breath or chest pain. Defendant also
testified that, as is his practice with all mitral valve prolapse
patients, he asked decedent if she had experienced any
lightheadedness or dizziness, and decedent claimed that she had
not. He then prescribed Lopressor, also a beta blocker, to be
taken as needed. He further testified that he had prescribed only
a seven to ten-day supply of Lopressor as an impetus to her seeing
her cardiologist. We note that plaintiff's expert opined that
Lopressor should only be taken regularly since discontinuation may
tend to make the heart more vulnerable to the effects of high blood
pressure or palpitations. Defendant's expert, however, was of the
view that these consequences are only relevant to conditions from
which decedent did not suffer, namely hypertension and angina. In
any event, it is not claimed that decedent's death was caused by
Lopressor. Defendant also testified that during the course of that
March visit, he had not only advised decedent to return to her
cardiologist for a cardiac re-evaluation and believed from her
response that she intended to do so.
According to defendant, he met decedent at the beach club
several times during the summer of 1993, asked her if she had yet
seen her cardiologist, and when she reported that she had not but
felt fine, he encouraged her to do so anyway. He did not warn her
that she was under a life-threatening risk because he believed that
she was not. It appears that she had stopped taking the Lopressor
in June but had told her sister-in-law that she resumed the
medication in August because of palpitations. On August 24, 1993,
decedent visited defendant's office, again without an appointment,
apparently to have blood work done for another physician.
According to defendant's office note, which he read to the jury,
decedent reported that she was doing well, had no weight loss, no
pain, no shortness of breath and no palpitations. He was, however,
on his way to do hospital rounds and, having no time to do an
electrocardiogram, made an appointment for her for that purpose and
for a full physical examination for the following week. She
canceled the appointment and never returned to defendant's office
despite his having "advised her strongly" to come for the exam.
Defendant did not see her again professionally prior to her sudden
death on October 27, 1994, attributed to an "electrical storm" or
"short circuit" brought on by an episode of arrhythmia.
It is important to note that defendant, according to his
testimony, was well aware of the risks of arrhythmia. He was quite
definite in his testimony that she had never told him, either in
his office or when he saw her socially, that she had experienced
dizziness, lightheadedness, shortness of breath, nausea or pain and
that if she had, he "would have put her in my car, and brought her
right over to the hospital...." It is also important to note that
plaintiff conceded that mitral valve prolapse is considered a
benign condition even if attended by palpitations. Lightheadedness
and dizziness are the alarming symptoms of serious trouble, that
is, a potentially dangerous arrhythmia.
The theory of plaintiff's case against defendant was
essentially that he deviated from the required standard of care by
not appropriately responding to decedent's arrhythmia or potential
arrhythmia. Plaintiff's expert opined that such symptoms of
arrhythmia as lightheadedness and dizziness imposed upon him the
duty to warn her of the extreme urgency of her condition and to see
to it that she immediately had a proper cardiac evaluation
including the twenty-four hour use of a halter monitor, an
echocardiogram, a stress test, and the taking of a complete medical
history. Defendant's factual response was that decedent had never,
upon his questioning, reported such symptoms and that he had no
reason to know and did not know that she had experienced them. Dr.
Checton, decedent's cardiologist, moreover, testified that
defendant had acted properly in the case of a mitral valve prolapse
patient with no indication of arrhythmia symptoms and that he would
not have treated her differently in the period from March 1993 on.
It is clear that there was a factual dispute respecting
defendant's alleged deviation from the standard of care, a dispute
that centered on the question of whether defendant knew or should
have known that decedent had symptoms of arrhythmia, since if he
did or should have known, he concedes he would have been obliged to
follow-up with appropriate tests or to hospitalize her and to make
sure that she appreciated the urgent necessity of immediate
cardiological attention. We think it plain that the jury's finding
that defendant had not deviated from the required standard of care
could not have been reached without it also having found that
defendant did not have this knowledge. It thus clearly accepted
his testimony in that regard, rejecting plaintiff's witnesses who
testified to the contrary. It was free to do so.
Plaintiff does not challenge the jury's finding that there was
no deviation from the applicable standard of care. His argument
rather is that the proofs also supported defendant's liability on
an informed consent theory, which the judge refused to charge, but
which he permitted counsel to argue in her summation. As we
understand plaintiff's argument, the gravamen of that theory was
that even if defendant reasonably believed that decedent's mitral
valve prolapse condition was benign in view of her own alleged
assertions and the ten years which had elapsed since her arrhythmia
episode, nevertheless he should have warned her about the
seriousness of lightheadedness and dizziness should those symptoms
appear and her need in that event to seek immediate medical
attention. Defendant's position, accepted by the trial judge, was
that such a failure to warn was subsumed by the deviation theory.
In sum, the judge charged the jury that defendant would be liable
if he was negligent in his diagnosis or treatment of decedent.
Plaintiff argued that liability was premised not only on negligent
treatment or diagnosis but also upon defendant's negligence in the
giving or withholding of advice, a deficiency he equated with the
failure to obtain informed consent. The judge declined to add
"advice" to "diagnosis and treatment" having concluded that
"advice" is an included concept within the category of "treatment."
We are satisfied that informed consent was an inapposite
theory. As the Supreme Court explained in Matthies v.
Mastromonaco,
160 N.J. 26, 35 (1999), quoting Perna v. Pirozzi,
92 N.J. 446, 459 (1983), "[i]nformed consent is a negligence concept
predicated on the duty of a physician to disclose to a patient
information that will enable him to 'evaluate knowledgeably the
options available and the risks attendant upon each' before
subjecting that patient to a course of treatment" (quoting from
Canterbury v. Spence,
464 F.2d 772, 780 (D.C. Cir.), cert. denied,
409 U.S. 1064,
93 S. Ct. 560,
34 L. Ed.2d 518 (1972). Thus the
informed-consent basis of malpractice, as opposed to deviation from
the applicable standard of care, rests not upon the physician
having erred in diagnosis or administration of treatment but rather
in the failure to have provided the patient with adequate
information regarding the risks of a given treatment or with
adequate information regarding the availability of alternative
treatments and the comparative risks and benefits of each. See,
e.g., Baird v. American Medical Optics,
155 N.J. 54, 71 (1998);
Teilhaber v. Greene,
320 N.J. Super. 453, 465 (App. Div. 1999).
Patently, neither explanation of the risks of a proposed
treatment nor explanation of the comparative risks and benefits of
available options is what this case is all about. The crux of
plaintiff's claim against defendant is that he did not appreciate
the seriousness of decedent's condition, that he did not respond
appropriately to it, and that these failures permitted her to
regard her condition too cavalierly. But that is what the
deviation case was all about, namely, that confronted with a
patient with mitral valve prolapse and a history of arrhythmia some
ten years earlier, defendant was negligent in not taking an
adequate history, not adequately interrogating her as to her
symptoms, not responding to critical symptoms (if she had them) by
treatment or warning, and not assuring that she had a proper
cardiological evaluation. We regard these failures, if there were
such failures, and the jury determined to the contrary, as
negligence in diagnosis and treatment, i.e., deviation.
A simple analogy explains our point. It is well known that a
possible complication of mononucleosis is a ruptured spleen. If a
physician treats the disease by prescribing medication and bed rest
but does not warn the patient of that complication or tell the
patient what its symptoms are or what to do if they appear, it may
well be that the doctor will be deemed negligent in the overall
treatment since proper treatment would, in our view, comprehend the
giving of that advice to the patient. The physician would,
however, not thereby have failed to obtain the patient's informed
consent to the treatment that was administered.
We are persuaded that plaintiff's informed consent argument
here confuses the course of the disease with the course of the
treatment. These are very different matters. Not taking the
necessary and available steps to protect the patient or to permit
the patient to protect himself from the potential course of the
disease is negligent treatment. Depriving the patient of the
opportunity to reasonably determine for herself whether she wishes
to accept the risks of a proposed or alternate treatment is an
informed consent failure irrespective of whether the treatment
itself is performed in accordance with prevailing medical
standards. If not so performed, then, of course, the patient will
also have a cause of action based on deviation. In sum, we are
satisfied that a physician's failure to advise a patient respecting
the disease is potentially a treatment deviation, not potentially
a failure to obtain informed consent. We are also convinced that
in rejecting the claimed deviation, the jury also addressed and
rejected the factual elements on which plaintiff based his informed
consent theory. They were, indeed, the same.
Plaintiff also argues that the trial judge erred in dismissing
the claim of the decedent's children for emotional distress. We do
not address the issue of whether their witnessing of their mother's
sudden death brings the claim within the parameters of Portee v.
Jaffee,
84 N.J. 88 (l980). It is clear that prerequisite to a
Portee claim is the fact that the event witnessed by the bystanders
must have resulted from defendant's negligence. The jury, however,
found that defendant was not negligent, and we have rejected the
argument that in addition to deviation negligence, the jury should
have been asked to consider informed consent negligence.
Consequently the children's emotional distress claim must fail in
the absence of the negligence predicate.
The judgment appealed from is affirmed.