BONNIE RAYMOND AND JAMES RAYMOND v. JOHN AMBROSE, M.D.



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0469-05T20469-05T2

BONNIE RAYMOND AND

JAMES RAYMOND,

Plaintiffs-Appellants,

v.

JOHN AMBROSE, M.D.,

Defendant-Respondent.

_________________________________________________


Submitted December 19, 2006 - Decided April 18, 2007

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, L-518-03.

Gold, Albanese, Barletti & Velazquez,

attorneys for appellants (Robert F. Gold,

of counsel and on the brief).

McDonough, Korn, Eichhorn & Schorr,

attorneys for respondent (Matthew S.

Schorr, on the brief).

PER CURIAM

In this medical malpractice action against defendant, John Ambrose, M.D., plaintiff, Bonnie Raymond, and her husband, James Raymond, suing per quod, appeal from the denial by the trial judge of their motion for a new trial, following entry of a no-cause verdict by the jury.

On appeal, plaintiffs make the following arguments:

I. PLAINTIFF, BONNIE, IS ENTITLED TO A NEW TRIAL, AS THE JURY'S VERDICT IS NOTHING MORE THAN CLEAR ERROR AND MISTAKE TANTAMOUNT TO AN EGREGIOUS MISCARRIAGE OF JUSTICE UNDER THE LAW.

A. THE JURY'S VERDICT AS TO PLAINTIFFS' CLAIMS OF LACK OF INFORMED CONSENT CLEARLY REPRESENTS A MISCARRIAGE OF JUSTICE.

B. THE JURY'S VERDICT OF NO CAUSE AS TO THE CLAIM THAT DR. AMBROSE DEVIATED FROM THE STANDARD OF CARE IN HIS SURGICAL TECHNIQUE WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AND AS SUCH, CLEARLY REPRESENTS A MISCARRIAGE OF JUSTICE.

II. PLAINTIFF'S COUNSEL SHOULD HAVE BEEN PERMITTED TO QUESTION DR. AMBROSE AS TO HIS RESPONSE TO FORM C(3) INTERROGATORY NUMBER 6, AS THE PROBATIVE VALUE OF THE INTERROGATORY WAS NOT SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE.

III. A NEW TRIAL SHOULD BE GRANTED AS PLAINTIFFS WERE DENIED THEIR RIGHT TO A FAIR TRIAL WHEN THE CIVIL PRESIDING JUDGE WRONGFULLY DENIED PLAINTIFFS' ADJOURNMENT REQUEST, AND ELIMINATED A FULL DAY OF DELIBERATION THEREBY FORCING A JURY TO DELIBERATE ON THE EVE OF A HOLIDAY WEEKEND.

We affirm.

I.

Bonnie Raymond (plaintiff) sustained a Monteggia variant fracture of the left radius and ulna, the two bones of the arm extending from the elbow to the wrist, when she tripped over her dog on February 17, 2001. She was treated by defendant John Ambrose, M.D., an orthopedic surgeon, who on February 18, 2001, performed an open reduction and fixation of the fractures. Finding the head of the radius to be incapable of repair, he excised it, smoothed the surface of the remaining bone, and stabilized the radius by temporarily inserting a pin through it and through the upper bone of the arm, the humerus, in the region of the elbow. The fractured ulna was aligned and fixed, using a plate and seven screws.

The fracture had fragmented the upper side of the bone in the area of the break, leaving a V-shaped defect. Initially, Dr. Ambrose sought to fix the largest of the bone fragments within the defect with one of the seven screws. However, when three attempts at doing so were unsuccessful, the doctor pulverized the fragments and packed them, together with pulverized fragments from the head of the radius, into the area of the defect and secured the fragments with a wire, thereby creating a bone graft. Allegedly to permit proper movement of the radius and ulna when the arm was pronated and suppinated, and to avoid having the two bones grow together, Dr. Ambrose left a depression in the area in which he had placed the bone fragments.

On March 23, 2001, Dr. Ambrose surgically removed the pin that stabilized the position of the radius. On June 8, 2001, having determined that the bony fragments were resorbing and that no bony union of the pieces of the ulna had occurred, Dr. Ambrose undertook a third operation, in which he harvested bone from the iliac crest of the hip and used that bone as a graft in the area of the defect left by the fracture of the ulna. Additionally, having found that the screws holding the ulnar plate had loosened, he removed the plate and replaced it with an intermedullary screw designed to hold the ulna in proper alignment.

Unfortunately, nonunion of the ulna again resulted, the intermedullary screw broke, and the ulna angulated at the fracture site. As a consequence, Dr. Ambrose referred plaintiff to New York's Hospital for Special Surgery, a well-known orthopedic surgical center. There, Andrew Weiland, M.D. placed a prosthetic head on the radius; replaced the intermedullary screw with a humeral plate, affixed by screws; and he regrafted the site of the defect in the ulna, again harvesting bone for that purpose from the iliac crest. The surgery was successful.

Suit against Dr. Ambrose was filed on January 28, 2003. Following discovery, the matter was called to trial eighteen months later on June 20, 2005. As the result of the unavailability of judges, occurring because of one judge's conflict of interest and attendance by others at a Passaic County Bar Association golf outing, the case was not assigned to the judge who presided over the trial of the matter until the afternoon of Tuesday, June 21.

Trial commenced on the afternoon of June 21. As the result of the denial of a request for an adjournment occasioned by the unavailability of plaintiff's expert, Ronald M. Krasnick, M.D., who would have been available to testify in person if the case had been reached immediately, and the denial of an emergent application for an adjournment by us, the doctor's de bene esse deposition was conducted, commencing at 7:00 p.m. on Wednesday, June 22 and concluding at approximately midnight. Trial continued on Thursday, June 23, was resumed on Monday, June 27, and continued through Wednesday, June 29. Although the parties anticipated that entry of additional documents into evidence, closing arguments, instructions to the jury, and jury deliberations would occur on the following day, instead, the trial judge was required to adjourn the trial so that she could assist in clearing the docket of an excess of cases filed in the Special Civil Part, an effort allegedly dictated by calendar control considerations at the end of the court term. As a consequence, the trial was not concluded until Friday, July 1, 2005 - the day preceding the Fourth of July holiday weekend. Jury deliberations ended at approximately 6:10 p.m., when the jury returned a verdict in Dr. Ambrose's favor after approximately three hours of deliberation. A subsequent motion for a new trial was denied by the trial judge on August 18, 2005.

II.

On appeal, plaintiff first argues that the trial judge erred in denying her motion for a new trial on the ground that the jury's verdict on issues of informed consent was against the weight of the evidence, and that it clearly and convincingly appeared that a miscarriage of justice under the law had taken place. Lanzet v. Greenberg, 126 N.J. 168, 174-75 (1991); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969); R. 4:49-1; R. 2:10-1. "To determine if a miscarriage of justice occurred, an appellate court defers to the trial court in regards to the "intangibles" of the case, including credibility, demeanor, and the general feel of the case, but otherwise makes its own independent determination of whether a miscarriage of justice occurred." Caputa v. Antiles, 296 N.J. Super. 123, 139 (App. Div. 1996), certif. denied, 149 N.J. 143 (1997).

The Supreme Court has held that, in order to establish liability on a claim of lack of informed consent, a plaintiff must prove, by a preponderance of the evidence,

that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken. The information a doctor must disclose depends on what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure.

A plaintiff seeking to recover under a theory of lack of informed consent also must prove causation, thereby requiring a plaintiff to prove that a reasonably prudent patient in the plaintiff's position would have declined to undergo the treatment if informed of the risks that the defendant failed to disclose. If the plaintiff would have consented to the proposed treatment even with full disclosure, the burden of proving causation is not met. Accordingly,

[t]o establish . . . medical negligence premised on a theory of liability for lack of informed consent, a plaintiff must show "(1) the physician failed to comply with the [reasonably-prudent-patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries.

[Howard v. University of Medicine and

Dentistry of N.J., 172 N.J. 537, 548-49

(2002) (quoting Tielhaber v. Greene, 320

N.J. Super. 453, 465 (App. Div. 1999)

(emphasis and other citations omitted).]

Plaintiff claims on appeal that Dr. Ambrose, among other things, did not discuss with her (1) the risk of non-union; (2) alternative methods of internal fixation (plates, rods and insertion of a prosthetic radial head); and (3) the alternative of an immediate referral to the Hospital for Special Surgery. Our review of the record demonstrates that the trial judge carefully identified these claims and instructed the jury in that connection on the required elements of plaintiff's proofs, providing the jury with a grid that facilitated its evaluation of each facet of plaintiff's required proofs in association with each of those identified informational failures. The jury returned a unanimous verdict finding that defendant had not "failed to give plaintiff all of the information that [a] reasonably prudent person would expect a doctor to disclose to permit a patient such as plaintiff, Bonnie Raymond, to make an informed decision."

Our independent review of the record fails to disclose by clear and convincing evidence that the jury's verdict constituted a manifest denial of justice. The record establishes that the fractures sustained by plaintiff were severe, relatively rare, and because of the pulverization of bone at the fracture sites, they presented treatment challenges. Plaintiff claims that prior to the initial open reduction procedure undertaken by Dr. Ambrose on February 18, 2001, she was not informed of the risk of non-union of the ulna. In that regard, Dr. Ambrose acknowledged that he had not identified non-union as a risk of the surgery, but he stated that the omission occurred in this context because the risk was created by the fracture itself, the deficit in the bone resulting from the fracture, and the nature of the healing process. He testified:

I absolutely did tell her that this fracture might not heal. But it would not be as a result of having to undergo an operation for it, but simply by the nature of the fracture itself and her underlying medical problems which I discussed with her, her underlying bone disease [osteoporosis], her underlying arthritic and auto-immune condition [psoriatic arthritis]. I did tell her that these things would have an adverse effect on the healing process, but no, did I think that the surgery would cause a non-union? Absolutely not.

The jury was entitled to conclude on the basis of this explanation by Dr. Ambrose that the risk identified by the plaintiff was not inherent in the surgical procedure that was performed by him. Blazoski v. Cook, 346 N.J. Super. 256, 276 (App. Div.) (observing that the risk to healing caused by smoking was not a risk inherent in spinal fusion surgery), certif. denied, 172 N.J. 181 (2002); Gilmartin v. Weinreb, 324 N.J. Super. 367, 376 (App. Div. 1999). The jury could have concluded after consideration of the evidence that the risk of nonunion was irrelevant to plaintiff's determination to undergo an open reduction and fixation - the procedure that was acknowledged to constitute the appropriate treatment for her condition - and thus causally unrelated to it. Such a finding by the jury would absolve Dr. Ambrose of liability with respect to this claim. Canesi v. Wilson, 158 N.J. 490, 506 (1999).

Plaintiff also argues that she should have been informed of the surgical option of insertion of an intermedullary rod rather than the installation of a plate and screws as a means of aligning and fixating her fractured ulna in the first surgery. In this regard, Dr. Ambrose testified that it would be inappropriate to permit a patient to choose the technique of fixation to be employed, because the choice required a degree of expertise that a reasonably prudent patient would not possess, and because the surgeon, himself, might not be in a position to choose a method of fixation until the surgery was in progress and the fracture was visualized. Additionally, testimony was presented to the jury that the use of plates or rods constituted a discretionary determination by a surgeon, and that either could be efficacious in fixating a fracture such as that sustained by plaintiff. As a final matter, it is unquestionable that a plate and screws similar to that initially utilized by Dr. Ambrose were successfully used in plaintiff's final surgery at the Hospital for Special Surgery.

We regard this testimony as sufficient to provide a foundation for a conclusion by the jury that a reasonably prudent patient would not have regarded the availability of both plates and rods as a means of fixation as requiring disclosure. Blazoski, supra, 346 N.J. Super. at 272-73 (recognizing that not all known information need be disclosed by a physician to a patient, particularly when it would distract the patient from making an informed judgment and dilute the force of information of greater significance to the patient's choice). Such disclosure would be required if evidence demonstrated the clear superiority of one means of fixation to another, or that use of one technique posed risks that were not attendant upon the use of the other. However, such was not necessarily the case here. Nicholl v. Reagan, 208 N.J. Super. 644, 650 (App. Div. 1986). Additionally, trial testimony offered a basis for a conclusion by the jury that plaintiff would have consented to the use of a plate and screws initially, since she later consented to additional surgery utilizing similar devices. Thus, evidence of causation was lacking.

Plaintiff also asserts that Dr. Ambrose failed to inform her, sua sponte, that the prosthetic head surgically implanted on her radius at the Hospital for Special Surgery, instead, could have been implanted by Dr. Ambrose in the course of his reconstructive procedures. Dr. Ambrose admits this fact. However, Dr. Ambrose testified that the radial head, unlike the head of the ulna, does not act to stabilize the elbow, and that the radius is functionally insignificant in connection with elbow movement. His expert, David Smith, M.D., testified that removing the radial head or implanting a prosthesis constituted surgical alternatives that were both accepted by the medical community, and that implantation of a prosthetic head sometimes blocked arm motion.

Dr. Ambrose testified additionally that the absence of a radial head could result in a disparity between the length of the radius and ulna at the wrist level, causing wrist complaints. Because, according to Dr. Ambrose, plaintiff had no such complaints and the bones remained properly aligned, he asserted that the insertion of a radial head was unnecessary. According to Dr. Ambrose, plaintiff's only symptoms were caused by roughness of the upper end of the radius, "because it hadn't smoothed down yet. That's all." The jury thus could have concluded as a result of the foregoing that Dr. Ambrose's failure to inform plaintiff of the alternative of insertion of a radial head was not the proximate cause of any injury to her.

At trial, plaintiff also claimed a failure on the part of Dr. Ambrose to offer her the option of a referral to the Hospital for Special Surgery immediately upon diagnosis of her fracture. We agree with Dr. Ambrose that this claim constitutes "merely a roundabout way of implying that [he] was not qualified to perform the procedure or that he had a duty to disclose the risk of potential improper performance." Such is not required. Gilmartin, supra, 324 N.J. Super. at 376-77. Dr Ambrose had treated similar fractures in the past and thus did not lack experience in the procedures required for their repair. In these circumstances, it was plaintiff's obligation to determine where and by whom she wished to be treated.

On appeal, plaintiff asserts further claims of lack of informed consent that were not highlighted in the judge's instructions, consisting of Dr. Ambrose's failure to inform plaintiff that bone tissue harvested from a cadaver could be utilized as an alternative to that harvested from her iliac crest (an option that was mentioned by Dr. Ambrose, although he did not recommend use of cadaver tissue) or that the iliac crest harvesting procedure could result in the stretching of a nerve, causing nerve irritation. Plaintiff's subsequent consent to the same procedure when performed at the Hospital for Special Surgery obviates this argument, since with knowledge of the alternatives and risks, she still consented to a virtually identical surgical procedure.

In summary, our review of the record satisfies us that plaintiff has failed to demonstrate by clear and convincing evidence that the jury's verdict rejecting her claims of lack of informed consent constituted a manifest denial of justice.

We likewise reject plaintiff's argument on appeal that the jury's determination that Dr. Ambrose did not deviate from the applicable standard of care in conducting plaintiff's surgeries was against the weight of the evidence and clearly and convincingly demonstrated a manifest denial of justice. In that respect, plaintiff points to the "hole" left in plaintiff's ulna as the result of pulverization of bone in the area of the fracture and to the fact that the "hole" was incompletely filled by bone graft material. However, Dr. Ambrose testified that the residual defect was left intentionally to permit proper pronation and flexion of the arm, whereas plaintiff's expert, Dr. Krasnick, claimed that in packing this space, Dr. Ambrose had failed to achieve good bony contact. The jury was entitled to credit the testimony of Dr. Ambrose in this regard. Testimony was also sufficient to support the conclusion that the lack of success experienced by Dr. Ambrose arose from the nature and severity of the fracture, not a failure of technique.

We have held in a case raising similar weight of the evidence issues in support of an argument that a new trial is required that "neither the trial court, nor this court, may substitute its judgment for that of the jury simply because we may have reached another conclusion." Shaefer v. Cedar Fair, L.P., 348 N.J. Super. 223, 240 (App. Div. 2002). The question instead is whether "reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). Our canvass of the record satisfies us of the adequacy of the evidence in that respect.

III.

In her second argument, plaintiff claims that the trial judge abused her discretion in barring evidence of Dr. Ambrose's settlement of four prior medical malpractice actions, finding upon application of N.J.R.E. 403, that although the evidence was relevant to the doctor's credibility, the potential for prejudice arising from the admission of the evidence outweighed its probative value.

We regard evidence of settlements for unknown reasons of suits involving similarly unknown claims as having no direct bearing on the elements of plaintiff's causes of action, and as bearing only a tenuous connection to the likelihood that Dr. Ambrose would dissemble in his testimony. In the circumstances, the probative value of this evidence was clearly outweighed by its potential for prejudice. We thus find no abuse of discretion by the trial judge in barring the evidence. Schaefer, supra, 348 N.J. Super. at 239-40; Benevenga v. Digrigorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (according substantial deference to the evidentiary rulings of the trial court), certif. denied, 163 N.J. 79 (2000).

IV.

As a final matter, plaintiff claims that a new trial should have been granted as the result of the failure of the civil presiding judge to grant an adjournment of trial when the case was not immediately reached, the resultant necessity of conducting a late-night de bene esse deposition of plaintiff's liability expert, the break in trial created by the reassignment of the trial judge to a one-day Special Civil Part docket clearance effort, and the resultant pressure on the jury to reach a verdict on the Friday preceding the Fourth of July holiday.

Our review of the record demonstrates that, when this matter was called to trial on June 20, 2005, it was its seventh trial listing. Previously, plaintiff's counsel had sought an adjournment of a May 31, 2005 trial date, stating that he was scheduled for trial in an older case in Union County on that date and continuing: "While I would typically ask that Raymond be marked ready hold, subject to my Union trial, I would need an adjournment as our expert has recently advised us that he is taking a prepaid vacation from May 31, 2005 until June 15, 2005." The case was accordingly rescheduled. In light of counsel's statement, we find his argument that the adjournment was necessitated solely by the scheduled trial of an older matter to be hypertechnical. In the circumstances, the civil presiding judge would have been within his discretion in construing R. 4:36-3 as requiring that a de bene esse deposition of plaintiff's expert take place - a finding implicit in the denial of plaintiff's adjournment application.

Plaintiff claims additionally that a showing was made, pursuant to R. 4:36-3(c), of exceptional circumstances sufficient to warrant an adjournment, and that the civil presiding judge abused his discretion in denying that request. We disagree. The transcript of the hearing before the presiding judge clearly demonstrates that, although plaintiff's expert, Dr. Krasnick, was only available on Wednesday, June 21, his schedule could have been accommodated if he were called as the first witness at trial. Although plaintiff's counsel sought first to call Dr. Ambrose, so that his testimony could serve as a foundation for the opinions of Dr. Krasnick, frustration of counsel's planned order of witnesses cannot be deemed exceptional circumstances, particularly since that strategy could be, and was accommodated to a significant extent by scheduling Dr. Krasnick's de bene esse deposition after Dr. Ambrose's trial testimony was substantially completed. In circumstances such as these in which an expert is known to be available to appear at trial as a witness only on a single day or afternoon, it is not reasonable for counsel to assume that the case will be immediately assigned out for trial and that counsel's ideal schedule will, in fact, be implemented. Moreover, presentation of expert testimony in medical malpractice and other cases by means of video recordation has become a standard practice. We have been presented with no evidence that would permit us to hold that utilization of such a practice, authorized by court rule, was sufficiently prejudicial to plaintiff to warrant a new trial.

Plaintiff also asserts that the reassignment of the trial judge to the Special Civil Part on the Thursday before the conclusion of the trial, thereby necessitating jury deliberations on the Friday before the Fourth of July weekend, constituted a substantial basis for a grant of a new trial that the trial judge failed to recognize. In this regard, we question whether term-end docket clearance was of sufficient importance to warrant the interruption of an ongoing medical malpractice trial. Nonetheless, no specific prejudice has been demonstrated. No evidence suggests that the jury would have reached a different verdict if it had deliberated for a longer period of time. In fact, the jury was specifically told that it could deliberate until midnight on July 1. It reached its unanimous verdict at approximately 6:00 p.m., a time far short of that allotted. Nothing in the record supports the argument that the jury rushed its decision that evening in order to commence the holiday weekend, or that it did not fairly consider the evidence in the three hours that it took for its deliberations. Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985) (finding no support for the argument that an unjust verdict resulted from continuing jury deliberations until 8:30 p.m. on the day before the Easter weekend).


Affirmed.

We regard plaintiff's reliance upon Matthias v. Mastromonaco, 160 N.J. 26 (1999) and Caputa, supra, 296 N.J. Super. 123, to be misplaced, since those cases concerned the far different circumstance of an alleged failure to offer both surgical and conservative, non-surgical treatment. In the Matter of Farrell, 108 N.J. 335 (1987), upon which plaintiff also relies, concerned the right of a patient to refuse life-sustaining treatment and is likewise inapposite.

In those instructions, however, the judge specifically did not limit instances of lack of informed consent to those that she identified.

(continued)

(continued)

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