LINDA M. DORSEY AND ANTHONY DORSEY v. STEVEN M. ORLAND, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5464-06T55464-06T5

LINDA M. DORSEY AND

ANTHONY DORSEY,

Plaintiffs-Appellants,

v.

STEVEN M. ORLAND, M.D.,

Defendant-Respondent.

____________________________________________________

 

Argued January 24, 2008 - Decided

Before Judges Lisa and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2695-02.

Frank Orbach argued the cause for appellants (Stark & Stark, P.C., attorneys; Mr. Orbach, of counsel and on the brief).

Sharon K. Galpern argued the cause for respondent (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).

PER CURIAM

Plaintiff Linda M. Dorsey appeals from the denial of her

motion for a new trial. The jury rendered a no-cause verdict on

her medical negligence claims against defendant Steven M. Orland, M.D. Plaintiff argues that defendant's trial stipulation admitting he did not advise plaintiff of other available surgical alternatives was a breach of the standard of care such that the jury's verdict must be set aside and a new trial on all issues should have been granted. We disagree and affirm.

Upon the referral of her long-time gynecologist, plaintiff consulted with defendant, to address acute left flank pain, at the Helene Fuld Medical Center (Fuld) emergency room. Defendant reviewed plaintiff's x-rays and a CT scan, noting two different sized stones that formed in plaintiff's left kidney. One stone was approximately six-by-four millimeters and the other ten-by-seven millimeters. The stones traveled from the kidney and were trapped in the left ureter. Defendant explained he intended to remove the two stones surgically, using the basket extraction method and a flexible ureterscope, because the size of the stones prevented their natural discharge. Defendant described the details of the basket procedure and its risks to plaintiff.

Defendant did not disclose available alternative courses of treatment, which included fragmenting the stones through electrohydraulic lithotripsy (EHL) and removing them using the basket device and a flexible ureterscope, or laser lithotripsy. At the time plaintiff was treated at Fuld, laser lithotripsy was unavailable, but could be performed at hospitals in Princeton and Philadelphia. No medical reason precluded plaintiff's transfer to another hospital.

Plaintiff underwent an ureterscopic basket extraction of the two kidney stones lodged in the left ureter. The smaller of the two stones was removed without incident. However, the larger stone proved more difficult to dislodge. Defendant made three unsuccessful attempts to remove the second stone using baskets and a flexible ureterscope. When additional baskets compatible with the flexible ureterscope were unavailable, defendant chose to continue the surgery by inserting a rigid ureterscope, which used a larger basket. Defendant admitted the rigid ureterscope posed a one to three percent higher risk of ureter injury than the flexible ureterscope. The stone broke apart on removal. Plaintiff's left ureter was punctured.

After the trauma, plaintiff underwent abdominal surgery at a different hospital to reimplant the injured left ureter into her bladder. Plaintiff suffered residual symptoms following surgery, including abdominal scarring, reflux of urine into the kidney, abdominal and flank pain, frequent urination, and anxiety over her health and the limits on her physical activity.

At trial, the parties' experts provided competing testimony on the standard of care in choosing the surgical method to extract plaintiff's kidney stones and the cause of her injury. At issue was whether a prudent patient in plaintiff's position would have decided differently if fully informed of the available options and attendant risks.

Plaintiff presented the opinion of Steven Cohen, M.D., a board certified urologist, who examined plaintiff and reviewed her medical records. Dr. Cohen stated that when removing stones larger than five millimeters, fragmentation of the stone should occur because "pulling a big stone through[,] you can rip the ureter, tear it, seriously damage it. And[,] therefore[,] the big stone needs to be broken up into small pieces before and then the pieces removed rather than removing it in one piece." Dr. Cohen opined the process of breaking up the stones, known as lithotripsy, should be employed. Dr. Cohen explained lithotripsy requires the use of a cystoscope and then an ureterscope, inserted inside the body. Then, the energy source, whether it be sound waves, electric shocks through water, or a laser, are inserted through the scope to the area of the stone and employed to fragment the stone. The fragments are then removed using basket extraction.

Dr. Cohen opined the second stone was too large for the basket attached to the flexible ureterscope. Then, in the course of removing the larger stone with a larger basket and inflexible ureterscope, defendant encountered a "hold[-]up as he pulled it out." Dr. Cohen described that the removal of the basket caused an avulsion. Essentially, the stone was embedded in the ureter lining because of its size, and when it was pulled in removal, the ureter was perforated.

Dr. Cohen acknowledged that the risks, which he characterized as minimal, attendant to fragmentation related to passing instruments into the ureter, burning the ureter lining or causing a fragmented stone to imbed in the ureter wall. The avulsion of the ureter suffered by plaintiff only occurs in the course of a basket extraction. Dr. Cohen stated laser fragmentation was the optimum method of removal, with the lowest risk of problems.

Dr. Cohen concluded defendant deviated from the standard of care by not fragmenting the plaintiff's larger kidney stone prior to removing it and by not stopping the procedure when he was unable to remove the larger stone with the basket and the flexible ureterscope. He testified, "Without a doubt[,] the extraction of that large stone was responsible for tearing the ureter and all the events that then occurred after that."

Defendant's expert, Barry Rossman, M.D., also a board certified urologist, opined that the care delivered and surgical approach taken by defendant were well within acceptable medical standards. He explained that defendant's choice to use an ureterscope and basket retrieval of the stones, although larger than five millimeters without fragmentation, was "a [surgeon's] judgment call."

Discussing the surgical risks attendant to the various surgical choices, Dr. Rossman posited:

And then no matter what treatment option you use to remove a stone, you know, anything from open surgery to extracorporeal shockwave therapy, which is the external device that we use, to basketing, to laser, to EHL, whatever fragmentation technique you use, any of these have the potential risk of injury or damaging the uterer which can result in complications.

. . . .

Fortunately, the risks of all these techniques, whether it be laser, ultrasound, EHL, pneumatic lithotripsy, direct vision stone basketing, all of these techniques[,] have . . . relatively low incidents of ureteral injuries, but they can occur no matter . . . what . . . .

Dr. Rossman offered his opinion on the cause of plaintiff's injuries, stating:

It does sound like, though, that when the [second] stone ultimately got basketed under vision through the rigid scope and it was pulled out, it likely tore part of the . . . inside lining of the ureter and then because it got torn and presumably, therefore, partially disrupted, and so ultimately that ureteral segment scarred down.

. . . .

It could happen with very appropriate care being taken and just the fact that ureteral stones often weaken ureteral walls and can certainly damage the ureter . . . .

The jury determined that a reasonable person would have consented to the procedure performed by defendant if advised of available alternatives and concluded there was no deviation from the standard of care.

The trial judge denied plaintiff's motion for a new trial. The judge acknowledged he was "surprised at the verdict," however, it did not shock his conscience or present a miscarriage of justice under the law. The trial judge noted that abstract factors may impact a patient's decision-making regarding a surgical procedure. Also, he determined that risk alone was not a patient's sole consideration. The judge identified other factors impacting a decision to proceed with surgery, including the benefit, the outlook, and the plaintiff's lifestyle. The trial judge stated: "Whether she doesn't like to go to Philadelphia, whether it's a comfort with the doctor that she's dealing with, whether it's the admissions process[,] I'm of the opinion that those things can be reasonably, if not mistakenly, taken into account by a plaintiff making a decision."

On appeal, plaintiff reasons that she should be afforded a new trial because: defendant failed to provide sufficient information to plaintiff to obtain her informed consent; the law of informed consent requires the jury to apply an objective standard when deciding whether a 'reasonable person' would have consented to the procedure if the patient had received adequate information; and knowing there was a higher risk of complications using the basketing retrieval method rather than any of the available fragmentation methods, no reasonable patient would choose the procedure with a higher risk of injury when a safer one was available; thus, defendant's failure to inform plaintiff was the proximate cause of her injuries.

A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977), and a jury's evaluation of the disputed factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). In reviewing a motion for a new trial, a trial court is obligated to weigh the evidence, "'tak[ing] into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible 'feel of the case' which it has gained by presiding over the trial.'" Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). A jury verdict will not be set aside "unless, 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law.'" Dolson, supra, 55 N.J. at 6-7 (quoting Rule 4:49-1(a)).

"'The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility.'" Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)); Johnson v. Scaccetti, 192 N.J. 256, 282 (2007). Beyond these "intangibles," this court is to make its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979).

We reject plaintiff's argument that defendant's failure to properly inform plaintiff of alternative surgical procedures proximately caused her injury because she would not have consented to undergo what was a more risky procedure. This melding of the issue of informed-consent and causation is not supportable. "[I]nformed-consent cases require that plaintiff prove not only that the physician failed to comply with the applicable standard for disclosure but also that such failure was the proximate cause of plaintiff's injuries." Largey v. Rothman, 110 N.J. 204, 215 (1988).

In this matter, the jury, when asked whether a prudent person in the plaintiff's position would have declined the surgery if adequately informed, responded negatively. The jury had the benefit of not only the testimony of plaintiff and defendant, but also the divergent positions offered by the parties' expert witnesses. Each expert spoke at length, after review of similar evidence, and offered his opinion on the risks of removing kidney stones using the various methods and the cause of plaintiff's injured ureter.

Based on our review of the record and the applicable law, we are convinced, as was the trial judge, that the jury verdict was grounded in the evidence and did not constitute a miscarriage of justice. The jury reasonably could have found defendant's testimony and Rossman's opinion that any treatment option chosen to remove a stone, involves the potential risk of complications, injury or damage to the ureter. The experts seemed to suggest the complication arose because the larger stone was imbedded in the ureteral wall and dislodging the stone caused the injury. Also, the jury may have accepted that defendant's decision to continue the surgery using the larger inflexible ureterscope did not deviate from accepted standards of medical care.

Our Supreme Court has characterized "the standard for authorizing a new trial as one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). After reviewing this record, we do not reach that conclusion.

Affirmed.

Anthony Dorsey, the husband of Linda M. Dorsey filed per quod claims, which are derivative. Therefore, we refer to "plaintiff" in the singular.

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A-5464-06T5

April 10, 2008