The Superior Court of New Jersey Appellate Division (“New Jersey Apellate Court”) held in its unpublished opinion dated February 14, 2019 in a New Jersey medical malpractice case in which the plaintiff alleged that he had not given his consent for the surgery that the defendant surgeon performed: “[a]s the judge persuasively reasoned in denying plaintiff’s motion for a new trial, the jury simply refused to credit plaintiff’s assertion that he would not have submitted to the surgery, either the appendectomy, the hemicolectomy, or both, if properly informed.”
The Underlying Facts
The plaintiff went to the hospital emergency room after experiencing abdominal pain for several days. Diagnostic tests did not establish whether the plaintiff was suffering from appendicitis. The emergency room doctor called in the defendant surgeon for consultation and further evaluation.
The defendant performed a laparoscopic diagnostic procedure in anticipation of removing the plaintiff’s appendix. However, during the procedure, the defendant observed an abnormal lesion on the plaintiff’s colon near the appendix. Although the defendant could not determine from observation whether the lesion was malignant or benign, he suspected it was the cause of the plaintiff’s pain.
While the plaintiff was under general anesthesia, the defendant made a larger incision that permitted him to feel the lesion and examine it further. The defendant performed an appendectomy, removing the plaintiff’s appendix, and a hemicolectomy, removing that portion of the plaintiff’s colon where the lesion was located and other surrounding tissue. Laboratory tests revealed the lesion was not malignant, and the plaintiff’s appendix was abnormal but did not evidence acute or chronic appendicitis.
The plaintiff remained hospitalized for several days following surgery. He subsequently experienced pain and discomfort at the incision site and complained of recurrent diarrhea. The plaintiff underwent two surgeries to correct hernias at the incision site, and, at the time of trial, was contemplating a third hernia operation.
The plaintiff filed a complaint against the defendant alleging that he deviated from accepted medical standards and that he failed to obtain the plaintiff’s informed consent. The jury unanimously concluded the plaintiff failed to prove that the defendant deviated from accepted medical standards. However, the jury unanimously found that the defendant failed to provide the plaintiff with all necessary information. Nonetheless, the jury also unanimously concluded that the plaintiff would have consented to “the surgery” had he been fully informed.
The plaintiff moved for a new trial, arguing that the jury should have considered the informed consent issue separately as to both procedures, i.e., the laparoscopic diagnostic procedure/appendectomy and the hemicolectomy. The plaintiff also contended the jury interrogatories on informed consent were neither clear nor comprehensive and had a tendency to cause jury confusion. The trial judge denied the plaintiff’s motion and the plaintiff appealed.
The New Jersey Appellate Court stated that it was undisputed that the defendant recommended the plaintiff undergo a diagnostic laparoscopic procedure with possible appendectomy. The plaintiff testified that the defendant told him he could return home the day after the procedure. Alternatively, the plaintiff could return home without undergoing the procedure but could possibly die if his appendix ruptured. It was disputed whether the defendant offered the plaintiff the option of admission to the hospital for further observation.
The plaintiff testified that he would not have consented to the laparoscopic appendectomy had he known the option existed for admission to the hospital with continued observation. He also testified that he would not have consented to the hemicolectomy to treat an abnormality that may or may not have been cancerous. Rather, the plaintiff would have consulted his primary care doctor or obtained a second opinion.
The New Jersey Appellate Court stated that it may have been preferable to provide the jury with separate interrogatories. However, the trial judge made clear to the jury that the “surgery” referenced in the interrogatory was “the surgery in its entirety, including both the appendectomy and the hemicolectomy.” In fact, the jury accepted the plaintiff’s contention that the defendant failed to provide him with all necessary information regarding options to the surgery, i.e., the appendectomy and the hemicolectomy, so as to permit an informed choice. The jury simply refused to credit the plaintiff’s assertion that he would not have submitted to the surgery, either the appendectomy, the hemicolectomy, or both, if properly informed.
Source Smith v. Nguyen, Docket No. A-3045-16T4.
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