[98 NJSuper Page 557] The complaint herein alleged a cause of surgical and medical malpractice in three aspects, viz., negligent performance of surgery, failure to give plaintiff adequate information to procure his full consent, and failure to tender pre- and post-operative care. At the close of plaintiff's case the court granted defendant's motion for an involuntary
dismissal on the issue of surgical malpractice. At the end of the whole case the court submitted to the jury the issues of (a) informed consent -- should defendant have informed his patient of all probable results short of death; (b) failure of pre- and post-operative care.
The jury returned a unanimous general verdict, accompanied by answers to interrogatories, R.R. 4:50: See Marchese v. Monaco, 52 N.J. Super. 474 (App. Div. 1958). The verdict was no cause for action. The answers to interrogatories are consistent with the general verdict.
The issues here presented came before the court on motion for a new trial, which claimed that either (a) the jury verdict was the result of passion, mistake, partiality or prejudice, or (b) the court made erroneous rulings of law and procedure at trial.
The pertinent facts are that plaintiff was suffering from unbearable pain due to a condition known as tic douloureaux. There is no known medical cause for this condition. To relieve the pain plaintiff underwent corrective surgery at the Neurological Institute of Columbia Presbyterian Hospital, New York, sometime in 1959. During that surgery, which was in the plaintiff's temple area, a sensory branch of the fifth cranial nerve was severed, with the result that plaintiff suffered both analgesia and anesthesia of the left face, as well as a deviation of the jaw to the left. For a time, at least, the pain was relieved. Subsequently, however, the pain recurred until it again became so unbearable that plaintiff consulted defendant Dr. Winokur, a specialist in neurosurgery, at his offices in Jersey City on February 18, 1964. There is a conflict in the testimony at this point, but the jury could have found that defendant informed plaintiff of the need for and effect of additional surgery, for which plaintiff was subsequently hospitalized in the Jersey City Medical Center when he signed a form of written consent for the contemplated surgery. It is undisputed that at some point plaintiff was told by defendant that he could die during or as a result of the contemplated surgery, which
was performed by defendant on March 16, 1964. The surgery consisted of a fifth nerve section, cerebellar craniotomy in the medial to mastoid area, during which a part of the occipital bone was removed. In the course of the operation a vein began to hemorrhage, which the jury could have found involved the seventh and eighth cranial nerves that are in close proximity to the fifth nerve. As a result of the involvement of the seventh and eighth nerves, plaintiff developed a left facial palsey, ataxia (loss of balance) and, eventually, loss of hearing in the left ear.
Defendant was called as plaintiff's first witness. During the course of plaintiff's examination defendant stated that involvement of the seventh and eighth nerves was not a probable sequence of events during a fifth nerve section of the type performed. Further, he testified that the only involvement of the seventh and eighth nerves which he had contemplated and anticipated prior to the operation was by visualization and not by damage. Furthermore, he testified that the accepted surgical standard for protection of the seventh and eighth nerves in an operation like the one in question was to cover the seventh and eighth nerves with thin, wet cottonoid strips -- a standard which, he said, he had observed.
Plaintiff is now deaf in the left ear and blind in the left eye; suffers a total paralysis of the left facial muscles; has no feeling in his left eyeball or left cheek; can walk only with the assistance of a cane; his jaw deviates to the left; his tongue has no feeling on the left side, with the consequence that he has trouble eating. It seems clear that plaintiff will not be able to resume his trade as a dock-builder and construction worker.
Concisely, plaintiff urged at the hearing of this motion that (1) a prospectively occurring snowstorm impeded deliberation by the jury; (2) the jury could not have reached a fair verdict in 60 minutes; (3) the court erred in granting the involuntary dismissal on the issue of surgical malpractice; (4) it erred in refusing to allow plaintiff to cross-examine
defendant on the question of surgical malpractice after the involuntary dismissal, and (5) it erred in refusing to charge res ipsa loquitur. Items 1 and 2 are related and will be ...