SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4094-93T2
ROBERT PETROLIA,
Plaintiff-Appellant,
vs.
ESTATE OF DR. HARVEY NOVA,
Defendant-Respondent,
and
ALFRED A. STEINBERGER, M.D.,
ENGLEWOOD HOSPITAL ASSOCIATION,
and "JOHN DOE,"
Defendants.
Argued September 27, 1995 - Decided October 17, 1995
Before Judges Baime, Villanueva and Kimmelman.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County.
James F. Carney argued the cause for
appellant (Robert A. Vort, attorney; Mr.
Carney, of counsel; Mr. Vort, on the brief).
George J. Kenny argued the cause for
respondent (Connell, Foley & Geiser,
attorneys; Mr. Kenny, of counsel; Thomas A.
Sparno, on the brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D.
In this medical malpractice/informed consent case, a jury of five persons returned a unanimous verdict for defendant. Plaintiff appeals from the trial court's denial of his motions
for: (1) a mistrial when the jury was reduced to five; (2) a
directed verdict in his favor on the informed consent issue; (3)
a judgment notwithstanding the verdict; and (4) a new trial. We
reverse and remand for a new trial on all issues.
In 1969, plaintiff was completely paralyzed after a car
accident. Eventually, plaintiff regained some ability of
movement and was able to hold down a light job in his brother's
towing business. In 1987, plaintiff began to experience some
stiffness. Through a series of referrals, he met defendant Dr.
Harvey Nova,See footnote 1 a neurosurgeon, who determined that he could help
plaintiff by means of a surgical procedure. Plaintiff agreed to
undergo surgery and awoke from the procedure as a quadriplegic.
Plaintiff filed a complaint against defendants, Estate of
Dr. Harvey Nova,See footnote 2 Alfred A. Steinberger, M.D., Englewood
Hospital Association, and a fictitious unknown health care
professional, John Doe. Prior to trial, Dr. Steinberger and the
Englewood Hospital Association were dismissed as defendants.
Plaintiff's complaint against Dr. Nova was based on two theories:
(1) lack of informed consent; and (2) negligence by Dr. Nova in
performing the operation.
Eight jurors were impaneled for the trial, which was
expected to last five to seven days. Due to inclement weather,
however, the trial lasted approximately three weeks. For various
reasons, three jurors had to be excused. At the time that the
third juror was excused because of a heart attack, plaintiff
moved for a mistrial, asserting his right to have six jurors.
The trial judge, without stating her reasons, denied plaintiff's
motion.
At trial, plaintiff contended that: (1) defendant did not
inform him of the material risk of quadriplegia; and (2) if
defendant had informed plaintiff of that risk, he never would
have consented to the operation. The jury found otherwise,
concluding that defendant had "reasonably disclosed to plaintiff
the risk of quadriplegia involved in undergoing the operation"
and defendant did not deviate from accepted standards of
neurological practice. Although the jury rejected both of
plaintiff's claims, the negligence claim is not directly at issue
on appeal.
Plaintiff raises two arguments on appeal. First, the trial
judge erred in allowing the trial to continue after the number of
jurors was reduced to five. Second, the judge should have
granted a directed verdict and/or a judgment notwithstanding the
verdict in favor of plaintiff (or, in the alternative, a new
trial) on the informed consent issue because there was no
evidence from which the jury could reasonably have concluded that
the defendant had informed plaintiff of the risk of quadriplegia,
which was a material risk of the operation. We agree with
plaintiff's first argument but disagree with the second.
A litigant in a civil case enjoys a constitutional right of trial by jury. N.J. Const. art. I, ¶ 9. Our Constitution authorizes the trial of civil causes by a jury of six persons, and a litigant also enjoys the right to have the verdict "rendered by not less than five-sixths of the jury." Ibid. Rule 1:8-2(b) provides that juries in civil actions "shall consist of six persons unless the court for good cause shown shall order a jury of 12 persons." The Legislature has provided that all six "jurors shall sit and hear the case, but the court for good cause may excuse any of them from service provided the number of jurors is not reduced to less than 12 or six in an appropriate civil cause." N.J.S.A. 2A:74-2.
Although the constitutional and statutory provisions guaranteeing a jury trial require a minimum jury of six persons in a civil case, the parties may stipulate to proceed with less than the minimum number or more than the minimum number, R. 1:8-2(d), and may even agree to have the case decided by a smaller majority of the jurors than five-sixths. See R. 1:8-2(c).
However, the right to a jury trial can be waived. R. 4:35-1; see also Sexton v. Newark Dist. Tel. Co., 84 N.J.L. 85, 101 (Sup. Ct. 1913), aff'd on other grounds, 86 N.J.L. 701 (E. & A. 1914). Rule 1:8-2(c) is a specific example of waiver. It provides, in pertinent part:
If a jury of 6 is impaneled and sworn, the parties shall be deemed to have stipulated that in the event one juror is excused, the trial shall proceed and a verdict may be rendered by 5 of the jury agreeing,
unless at the time the jury was drawn, any party by
statement on the record refuses to so stipulate.
This rule was apparently adopted before alternates were generally
used or routinely impaneled.See footnote 3 The rule is clearly inapplicable
when alternates are impaneled and sworn because the rule refers
to a situation where only six jurors are impaneled. Moreover,
the very purpose of alternates is to insure that there are six
jurors remaining at the end of a civil proceeding, even if during
the course of the trial a juror, for any reason, is no longer
able to serve. See State v. Brunson,
101 N.J. 132, 145-46
(1985); State v. Belton,
60 N.J. 103, 108 (1972) (both of which
referred to the requirement of twelve jurors in a criminal case).
The case of Waldman v. Cohen,
125 A.D.2d 116 (N.Y. App.
Div. 1987), is very similar to this one. New York courts impanel
six jurors as well as alternates in civil cases, N.Y. Civ. Prac.
L. & R. § 4104, but, unlike New Jersey, have no rule similar to
R. 1:8-2(c). In Waldman, a medical malpractice case, six jurors
were impaneled together with two alternates. Both alternates
were excused during the course of the trial and one impaneled
juror had a heart attack on the morning of summations. Id. at
117. The Appellate Division held that in the absence of consent
by all parties, a jury made up of less than six persons cannot
render a valid verdict. Id. at 119. The court stated that,
absent such consent, "unanimity of five jurors is not
interchangeable with a five-sixths verdict of six jurors." Id.
The statutorily mandated minimum number of six jurors with a
requirement of a least a five-sixths vote is based, in part, on
the traditional freedom to disagree accorded to a minority juror.
Id. at 119. Justice Lazer enunciated the concern with the
sanctity of the six-person jury, as follows:
The paramount importance of maintaining the
independence and intellectual integrity of
each juror is underscored by cases holding
that all of the statutory number of jurors
must participate in the decision-making
process so that nonparticipation by a juror -- whether due to illness or other cause -- is
destructive to a verdict, even where
unanimity is not a requisite (see, e.g.,
Measeck v. Noble,
9 AD2d 19; Johnson v.
Holzemer,
263 Minn 227; City of Flat River v.
Edgar,
412 SW2d 537 [Mo]). These cases
illustrate the principle that participation
by less than all of its members deprives the
jury of the reflections and judgment of an
individual who might have opposed the verdict
and might have persuaded one or more of the
other jurors of the wisdom of his position
(see Comment, Courts: Jurors Dissenting on
Special Verdict Issue Excluded From
Subsequent Deliberations,
61 Minn. L. Rev.
151, 161; 4 Weinstein-Korn-Miller, N.Y. Civ.
Prac., ¶ 4113.03).
[Walden, supra, 125 A.D.
2d at 119 (quoting Schabe v.
Hampton Bays Union Free Sch. Dist.,
103 A.D.2d 418,
427-28 (N.Y. App. Div. 1984)).]
Defendant argues that, regardless of whether R. 1:8-2(c) applies literally to this case, the underlying rationale of the rule, i.e. that a five-sixth's majority is needed to render a valid verdict, compels a determination that the rule applies to an impaneled jury of any number that is governed by the five-sixths majority. Basically, defendant contends that the rule should be read broadly to require that a party who wants to
preserve the right to six jurors object before any jury of more
than six jurors is drawn, impaneled and sworn.
Presumably, the reason that a party must object to a
deliberating jury of five "at the time that the jury [of six] was
drawn," R. 1:8-2(c), is so that the judge, knowing that the party
insists on six deliberating jurors, can impanel as many
alternates as the judge believes are necessary to allow the trial
to be completed. Obviously, a new juror cannot be impaneled
after any opening statement is begun. R. 1:8-2(d).
Although the agreement of only five jurors is necessary to
return a verdict, the presence of a sixth juror during
deliberations may make a difference. "[N]umerous recent studies
have demonstrated that the quality of the jury's discussion and
deliberation is better in larger groups than in smaller ones."
Richard S. Arnold, Trial by Jury: The Constitutional Right to a
Jury of Twelve in Civil Trials,
22 Hofstra L. Rev. 1, 31 (1993).
Arnold insists that the size of the deliberating jury may affect
the stamina of jurors who take a position that is unpopular with
the rest of the jury. Id. at 28-32. Furthermore, with only five
deliberating jurors, the jury would have to reach a unanimous
verdict, and it has been argued that the applicable voting scheme
can affect the verdict. See Edward P. Schwartz & Warren F.
Schwartz, Decisionmaking by Juries Under Unanimity and
Supermajority Voting Rules,
80 Geo. L.J. 775, 786-87 (1992)
(detailing the surprising ways that jury verdicts can be affected
depending upon whether unanimity or supermajority is required).
To the extent that McCann v. Lester,
239 N.J. Super. 601,
608 (App. Div. 1990), suggests that five jurors alone can
deliberate and render a valid verdict, we disagree.
Plaintiff's second argument is that there is no evidence from which the jury could reasonably have concluded that defendant had properly disclosed the material risk of the operation to plaintiff, i.e., quadriplegia, and thus he was entitled to a finding that defendant was liable as a matter of law. Plaintiff contends that the only evidence directly on point is his own testimony that defendant did not warn plaintiff of the risk of quadriplegia, and that, had he known of that risk, he would never have consented to the operation.
We reject plaintiff's argument. It was plaintiff's burden to prove that defendant had breached his duty of disclosure, rather than defendant's burden to prove that he had satisfied the duty, and, until plaintiff proved the breach by a preponderance of the evidence, the jury was entitled to believe otherwise. Moreover, the jury was entitled to disbelieve plaintiff's recollection of the conversation with defendant and to find that a prudent patient in plaintiff's position would have undergone the operation even knowing that the risk of quadriplegia existed.See footnote 4
The judge properly denied the motions for a directed
verdict, a judgment notwithstanding the verdict and a new trial.
Plaintiff had the burden of proof not only as to the applicable
standard of disclosure, but also with respect to the fact that
defendant deviated from that standard. Dziedzic v. St. John's
Cleaners & Shirt Launderers, Inc.,
53 N.J. 157, 161 (1969); Long
v. Landy,
35 N.J. 44, 54 (1961). Plaintiff also had the burden
of proving that quadriplegia was a material risk. Largey v.
Rothman,
110 N.J. 204, 211-12 (1988) (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)). Assuming,
arguendo, that plaintiff had proved the materiality of the risk
of quadriplegia, plaintiff also had the burden of proving that
Dr. Nova did not disclose the risk.
At trial, defendant offered as evidence a signed form dated
April 25, 1988, entitled "Special Consent for Operation or Other
Procedure," that contained a signature above the line designated
"[s]ignature of patient or other person responsible." Paragraph
one of that form authorized Dr. Nova to perform a cervical
laminectomy on "myself" while paragraph two indicated that the
doctor had discussed "with me" the "items that are briefly
summarized below." The items set forth in the consent form were:
(1) The nature and purpose of proposed
procedure(s);
(2) The risks of the proposed procedure(s),
including the risk that such treatment may
not improve my condition;
(3) The possible or likely consequences of
the proposed procedure;
(4) Alternative ways of treatment;
(5) The prognosis if no treatment is
received.
The patient's portion of the consent form concluded with the
patient's certification that:
I have read and fully understand the above
consent for operation or other procedure; and
that the doctor has explained all of the
information in [paragraphs] 1 - 3 and has
answered my questions to my satisfaction. I
believe that I have adequate knowledge upon
which to base an informed consent to the
proposed treatment.
The consent form contained a signature above the patient
signature line. Although plaintiff's signature was witnessed by
a registered nurse, who so testified, plaintiff denied signing
the form.
The consent form concluded with a physician's certification
signed by Dr. Nova that he "personally explained the nature of
the patient's condition, the need for treatment, the operation to
be performed, and the risks, possible consequences and
alternatives" to the patient.
Because the defendant was dead and could not rebut any of
plaintiff's evidence, it was reasonable for a jury to assume that
before operating on a patient already having previously been
completely paralyzed, the neurosurgeon, defendant herein,
informed the plaintiff of the risk of quadriplegia. In fact, a
note in plaintiff's hospital chart prepared by Dr. Nova indicated
that the doctor "[e]xplained [the] operation to patient and the
fact that he has cord atrophy, and that he may not improve with
surgery and may get worse with [the] operation. Also risks of
surgery, that is infection, bleeding, and anesthesia explained.
He understands and agrees." Given that plaintiff just prior to
the operation "had progressive paralysis leading to quadriparesis
of his arms and legs," a jury could well find it difficult to
envision how his condition could "get worse" and yet be anything
other than quadriplegia.
Whether a prudent patient in plaintiff's position would have
foregone the procedure if advised of the risk of quadriplegia was
vigorously disputed at trial. Plaintiff testified that, had he
known of the risk of quadriplegia, he never would have undergone
the operation. However, defendant's medical experts testified
that plaintiff's neurological capabilities were deteriorating
toward quadriplegia anyway, and the operation was plaintiff's
best opportunity to prevent quadriplegia. Therefore, there was a
jury question as to the materiality of the risk.
Plaintiff also contends that the failure of defendant to
refer specifically to quadriplegia as one of the risks of surgery
in the informed consent form signed by plaintiff is, as a matter
of law, a deviation of accepted medical standards, particularly
in light of the fact that plaintiff had previously been
paralyzed. However, it is unnecessary to reach this issue since
the totality of the circumstances, i.e., the signed consent form,
the doctor's note, and the patient's worsening condition, support
the jury verdict that the plaintiff gave informed consent to the
operation.
The judgment under review is reversed. We remand to the
trial court for a new trial consistent with this opinion.
Footnote: 1 Dr. Nova died before the complaint was filed. Defendant refers to "Dr. Harvey Nova." Footnote: 2 We note that the proper defendant should be the duly appointed representative of Dr. Nova's estate. Footnote: 3 The Historical Note to N.J.S.A. 2A:74-2 states that the statute was first adopted in 1948. Footnote: 4 We recently discussed the prudent patient standard for determining causation in informed consent cases in Conklin v. Hannoch Weisman, P.C., 281 N.J.Super. 448-455-56 (App. Div. 1995), which is now applicable.