BARBARA A. FINLEY v. LENORA BAROT, M.D., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6108-03T56108-03T5

BARBARA A. FINLEY,

Plaintiff-Appellant,

v.

LENORA BAROT, M.D.,

COOPER PLASTIC SURGERY

ASSOCIATES, and COOPER

HOSPITAL UNIVERSITY MEDICAL

CENTER,

Defendants-Respondents,

and

KAREN BUCKLEY, M.D. and

MICHAEL ARNSTEIN, M.D.,

Defendants.

_____________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Skillman and Levy.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1657-01.

The Beasley Firm, attorneys for appellant (Jayne A. Piarulli, on the brief).

Parker McCay, attorneys for respondents (Stacy L. Moore, Jr., on the brief).

PER CURIAM

This is a medical malpractice case. After plaintiff was diagnosed with cancer of her left breast and advised to undergo a partial mastectomy, she was referred to defendant Dr. Lenora Barot for consideration of breast reconstruction surgery. Dr. Barot discussed several surgical options with plaintiff. Based on those discussions, plaintiff elected to undergo a surgical procedural called a TRAM FLAP breast reconstruction. Both the mastectomy and the TRAM FLAP breast reconstruction were performed on March 17, 1999.

Plaintiff's breast reconstruction surgery was unsuccessful and resulted in significant complications. Plaintiff had to undergo multiple additional surgeries due to those complications and suffered permanent injuries to her breast and abdomen as well as a loss of strength in her left arm.

Thereafter, plaintiff filed a malpractice action against defendants. She asserted two separate medical malpractice causes of action. First, she alleged that Dr. Barot deviated from the accepted standard of medical care in performing the TRAM FLAP surgery. Second, she alleged that Dr. Barot failed to obtain her informed consent to the performance of this surgical procedure.

The case was tried before a jury. After its instructions, the trial court submitted a verdict sheet to the jury that set forth a series of questions regarding plaintiff's two malpractice claims and damages.

The jury indicated by its answer to the first question on the verdict sheet that plaintiff had failed to prove the Dr. Barot deviated from the accepted standard of medical care in her decision to perform a TRAM FLAP breast reconstruction procedure on plaintiff. On appeal, plaintiff does not challenge this part of the jury verdict.

The jury gave the following answers to the questions on the jury verdict sheet relating to plaintiff's lack of informed consent claim and damages:

3a. Did the defendant Dr. Lenora Barot fail to give Barbara Finley all of the information that a reasonable person in the plaintiff's position would expect a doctor to disclose so that the plaintiff was able to make an informed decision about the course of treatment?

YES X NO_______

If your answer to #3a is "Yes" go to #3b.

If your answer to #3a is "No" and you have answered "Yes" to both #1 and #2 then go to #4.

If your answer to 3a was "No" and you have answered "No" to #1 or #2 then cease your deliberation and return your verdict.

b. Did the undisclosed risk of TRAM FLAP failure occur?

YES X NO_______

Go to #3c

c. Would a reasonable person under the circumstances of this case have chosen to undergo a TRAM FLAP breast reconstruction procedure had she been informed of the risk of TRAM FLAP loss?

YES X NO_______

If your answer to #3c is "Yes", proceed to #3d.

If your answer to #3c is "No" and you have answered "Yes" to #1 and #2 then go to #4.

If your answer to #3c is "No" and you have answered "No" to #1 and #2 then cease your deliberations and return your verdict.

d. Was the TRAM FLAP surgery a proximate cause of some or all Barbara Finley's injuries and losses?

YES X NO_______

If your answer to #3d is "Yes" go to #4.

If your answer to #3d is "No" and you have answered "Yes" to #1 and #2 then go to #4.

If your answer to #3d is "No" and you have answered "No" to #1 or #2 then cease your deliberations and return your verdict.

4. What amount of money will fully and fairly compensate Barbara Finley for her disability, impairment, disfigurement, loss of enjoyment of life and pain and suffering?

$160,000

5. What amount of money will fully and fairly compensate Barbara Finley for her lost past and future wages and fringe benefits?

$140,000

The trial court discharged the jury without asking for clarification of the intent of this verdict.

The trial court decided that the jury's "yes" answer to question 3(c) required a judgment of no cause of action in favor of defendants even though the jury also answered "yes" to question 3(d), which asked, "Was the TRAM FLAP surgery a proximate cause of some or all [of plaintiff's] injuries and losses?" and awarded plaintiff $300,000 in damages in response to questions 4 and 5.

After the court announced this decision, plaintiff filed a motion for entry of judgment in her favor or, in the alternative, a new trial, which the court denied. Plaintiff appeals from the judgment in defendants' favor.

To sustain a cause of action based on a lack of informed consent, a plaintiff must prove that

(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. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 549 (2002) (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 465 (App. Div. 1999)).]

Questions 3(a) through 3(d) on the jury verdict sheet were designed to elicit jury findings regarding these four elements of a lack of informed consent medical malpractice claim. However, question 3(c) and the instructions following that question were highly misleading and could have led to jury misunderstanding. Questions 3(a) and (b) set forth the first two elements of a malpractice claim based on lack of informed consent in affirmative terms, so that the jury's "yes" answer to question 3(a) together with the court's affirmative answer to question 3(b) as a matter of law constituted findings that plaintiff had proven those two elements. Moreover, the instructions following each of these questions informed the jury that it was to proceed to the next question if the answer was "yes." However, question 3(c) set forth the third element of this claim in negative terms, requiring the jury to give a "no" answer to find that plaintiff had proven this element of her cause of action. Furthermore, even though a "no" answer to this question would have constituted a finding that this element had been proven, the instructions following question 3(c) state: "[i]f your answer to #3c is 'No' and you have answered 'No' to #1 or #2 [relating to the deviation claim,] then cease your deliberations and return your verdict[,]" and "[i]f your answer to #3c is 'Yes', proceed to #3d." Thus, the instructions following question 3(c) implied, contrary to the actual wording of the question, that a "yes" answer would constitute a finding that this element of the cause of action had been proven and a "no" answer that this element had not been proven, which would result in a verdict in defendants' favor. Therefore, although it is possible, as defendants argue, that the jury understood question 3(c) and intended to return a verdict in defendants' favor, it seems more probable, in light of the fact that the jury proceeded to answer questions 3(d), 4 and 5 and awarded plaintiff $300,000 in damages, that it misconstrued question 3(c) based on the erroneous instructions following that question and believed that its "yes" answer constituted a finding in plaintiff's favor on this element.

A trial court may not enter a judgment based on its view of the probable intent of a jury verdict. Roland v. Brunswick Corp., 215 N.J. Super. 240, 242-44 (App. Div. 1987). The court may not "pars[e] the answers to the special interrogatories,

. . . identify[] which of [the jury's] determinations or answers is critical, or eliminate[] the erroneous interrogatory from the mix." Theer v. Phillip Carey Co., 133 N.J. 610, 624 (1993). A jury's verdict may be "molded" only where the court can decipher the "plainly manifested intention of the jury." Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135 (1990) (quoting Turin v. J. & L. Constr. Co., 8 N.J. 543, 552 (1952)).

The trial court erred in entering judgment in defendant's favor based solely on the jury's answer to question 3(c), without considering the uncertainty regarding the meaning of that answer raised by the erroneous instructions following this question or the fact that the jury proceeded to answer questions 3(d), 4 and 5. Therefore, once the court discharged the jury without clarifying the jury's intent, it was obligated to declare a mistrial and retry the case. See Theer, supra, 133 N.J. at 624; Kassick, supra, 120 N.J. at 134; Vasilevsky v. Cohen, 244 N.J. Super. 703, 708-09 (App. Div. 1990), certif. denied, 126 N.J. 319 (1991).

Moreover, since it is possible, as defendants argue, that the jury actually found that a reasonable person would have chosen to undergo a TRAM FLAP breast reconstruction procedure even if fully informed of the risk, but nonetheless rendered a purely advisory verdict as to damages because it read the verdict sheet to require answers to questions 4 and 5 even though it had found that defendants were not liable, the case must be retried on all issues. See Johnson v. Salem Corp., 97 N.J. 78, 95-98 (1984); Bleeker v. Tricklo, 89 N.J. Super. 502, 507-08 (App. Div. 1965).

Under Point IIIC of her brief, plaintiff argues that "standard civil jury charge 5.36c is an incomplete and therefore incorrect recitation of the holding of Largey v. Rothman." Plaintiff did not present this argument to the trial court. In fact, plaintiff's own proposed jury verdict sheet includes the language she now attacks under this point of her brief. Therefore, the issue is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Under Point IIID of her brief, plaintiff argues that the trial court committed reversible error in excluding a table in a learned treatise from evidence because she violated her discovery obligations by providing this document to defendants only a day before trial. Because we have reversed the judgment on other grounds and this discovery issue will not arise on remand since defendants will have had more than adequate notice of plaintiff's intent to introduce this document before the retrial, there is no need for us to address the argument.

Accordingly, the judgment in defendants' favor on plaintiff's lack of informed consent claim is reversed and the case is remanded for a new trial on both liability and damages.

 

The complaint alleges that Dr. Barot and the other individual defendants were employees of defendant Cooper Plastic Surgery Associates. The complaint also alleges in the alternative, that Cooper Plastic Surgery Associates is a division of defendant Cooper Hospital/University Medical Center. Plaintiffs brief states that discovery revealed that defendants Buckley and Arnstein were involved in her care only "in a peripheral fashion" and therefore plaintiff elected "not [to] proceed against these two defendants." The term defendants is used in this opinion to refer collectively to defendants Barot, Cooper Plastic Surgery Associates and Cooper Hospital.

The trial court answered this question in the affirmative as a matter of law, which was reflected on the verdict sheet by the court marking a "yes" under this question before submitting it to the jury.

(continued)

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A-6108-03T5

November 10, 2005