On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Ackerson, J.
This is an action in tort against a physician for alleged malpractice. The complaint, filed in the Law Division of the Superior Court on January 18, 1949, and later amended, contained three counts. The second and third were stricken by the court on defendant's motion and the cause was submitted to the jury on the first count resulting in a verdict in plaintiff's favor for $7,500 on which judgment was accordingly entered. Defendant's appeal therefrom to the Appellate Division has been certified here on our own motion.
The first count alleges that the defendant, a practicing physician specializing in the treatment of ear, nose and throat and in plastic surgery, was engaged by the plaintiff in August, 1946, to perform plastic surgery upon her nose for the purpose of improving her appearance; that in the process of the operation and treatment he was negligent, and because thereof she was disfigured and otherwise injured.
The pretrial order, in conformity with the amended pleadings, expressly limited the issues to "negligence, contributory negligence, assumption of risk, statute of limitations, injuries [and] damages." No disability on the part of the plaintiff, such as would postpone the running of the statute pursuant to R.S. 2:24-4, is alleged.
The evidence discloses that the defendant operated on the plaintiff at a hospital on August 6, 1946, for the purpose of removing an enlargement or hump on the bridge of her nose and reducing the length of that organ. On August 9, 1946, she returned to her home, remaining under defendant's care. Several weeks later keloids (excessive scar tissue) and adhesions appeared at the site of the recent operation causing a very "bumpy and irregular shaped nose." On September 26, 1946, the defendant performed a second operation for the removal of these keloids and adhesions. Thereafter the condition of the plaintiff's nose did not improve, she could not breathe through one nostril and more extensive keloids and adhesions developed. Acting upon the defendant's advice, plaintiff then consulted a specialist in New York City who, on October 25, 1946, performed a third operation and removed the keloids and adhesions, at which operation the defendant was present. Thereafter plaintiff continued to visit the defendant at his office two or three times weekly for further medical attention. However, a large keloid reappeared on the left side of her nose and on December 8, 1946, the defendant, advising X-ray treatments, referred his patient to Dr. Henle, a specialist in that field, who immediately began such treatments and continued them until July, 1947. These treatments, as conceded by the plaintiff herself, resulted in the improvement of her condition, although at the time of the trial there was still a disfiguring scar on the right side of her nose and her ability to breathe properly was impaired. Defendant testified that during the period of the X-ray treatments and for a while thereafter the plaintiff from time to time visited his office at his request merely for observation, no treatments were given, and he did not see her after June or July, 1947. Plaintiff claimed, however, that she was under his care and treatment until October, 1947, and was discharged by him in November, 1947.
So much for the timetable of the events with which we are here concerned. As to specific charges of negligence there was evidence from which, if believed, the jury could have
found that the proper and accepted practice for performing this type of plastic surgery is to avoid incising the outerskin of the nose and to that end all of the surgery and every step in the technique is done entirely from within the nose. Further, when the dressing was removed from her nose shortly after the first operation (August 6, 1946), plaintiff observed a cut or slit on the outside of her nose which cut had been drawn together by three sutures, and there were two scars, one on the side and the other at the tip of her nose. This was denied by the defendant, but, if true, it was inferable that an incision had been made through the outerskin of the plaintiff's nose during the first operation contrary to proper surgical practice. Her medical expert testified that the cause of the keloid formation was an incision through the entire thickness of the outerskin of the nose. He also stated that in his opinion the X-ray treatment should have been advised and applied immediately after the first appearance of the keloid formation following the first operation, and "the treatment was late." On the other hand defendant's medical witnesses all testified that he followed accepted medical procedure as to the timing of such treatment.
The probative value of the foregoing opinion of plaintiff's medical witness concerning the timeliness of advising radiological treatment as bearing upon malpractice is questionable in view of the rule pronounced in such cases as Gramaldi v. Zeglio, 3 N.J. Misc. 669, 672 (Sup. Ct. 1925); Woody v. Keller, 106 N.J.L. 176 (E. & A. 1930), and Hull v. Plume, 131 Id. 511 (E. & A. 1944). Nevertheless, assuming its relevancy for the purpose stated, the record before us is completely barren of any evidence of negligence or malpractice on the part of the defendant after the commencement of the X-ray treatments in December, 1946, and it is conceded that they were properly administered and beneficial. Therefore, if the defendant was negligent in any respect it necessarily must have occurred within the period beginning with the first operation on August 6, 1946, and ending with the commencement of the X-ray treatments by Dr. Henle early in December,
1946 -- more than two years before the commencement of ...