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Tramutola v. Bortone

Decided: March 20, 1972.


Goldmann, Collester and Mintz. The opinion of the court was delivered by Collester, J.A.D. Goldmann, P.J.A.D. (concurring).


This case involves appeals and a cross-appeal from a judgment entered in favor of plaintiffs in a medical malpractice action.

On May 25, 1966 Josephine Tramutola brought an action to recover damages for personal injuries against Dr. Frank Bortone, Hazel Olga Elwood and Jerome J. Rose, co-executors of the estate of Dr. Benjamin Elwood, deceased (hereafter Elwood), and The Berthold S. Pollak Hospital for Chest Diseases (hereafter Pollak Hospital). Her husband, Fred Tramutola, joined in the action, per quod. At the close of all the evidence and before summations the hospital settled plaintiffs' claim for $7,500. The trial judge did not reveal the settlement to the jury and it returned a verdict in favor of

Josephine Tramutola for $65,000 and in favor of her husband for $5,000 against all three defendants.

Following the trial, motions were brought on behalf of Elwood for a judgment n.o.v. , a new trial, or to reduce the judgment pro rata by reason of plaintiffs' prior settlement with the hospital; on behalf of Bortone for a new trial as to damages only or to settle the form of the judgment, and on behalf of plaintiffs to limit the deduction from the judgment against Elwood and Bortone to $10,000. The trial judge denied the motions and ordered that judgments be entered in favor of plaintiffs and against Elwood and Bortone, the judgments against each to be in the amount of $23,333.33. Elwood and Bortone appealed and plaintiffs cross-appealed.

Most of the evidence adduced at the trial is uncontradicted. While Josephine Tramutola was being treated for a kidney condition at the Bayonne Hospital in November 1959 an X-ray revealed the existence of a shadow in her right lung. She was referred to Dr. Elwood who thereafter treated her for the lung condition. Following a series of tests at Pollak Hospital it was determined that plaintiff was suffering from "bilateral cylindric bronchiectasis, stenosis of the right middle lobe bronchus." Dr. Elwood referred her to Dr. Bortone, a thoracic surgeon, who on April 28, 1960 performed a right middle lobectomy upon her at the hospital. Post-operative X-rays were taken of Mrs. Tramutola while she was still in the hospital. Within a week after her discharge plaintiff was again treated by Dr. Elwood. She continued to visit him for post-operative treatment, at first monthly and later biannually. She continually complained of a sharp pain in her chest above the breast. Dr. Elwood took X-rays and fluoroscopes on each visit, but plaintiff was never informed of the results. The doctor indicated that the pain was muscular and in time would clear up. He prescribed medication. Plaintiff was treated by Dr. Elwood until the fall of 1964, more than four years after the operation. She testified that she was in constant pain and was nervous and concerned about her condition.

In 1965, after Dr. Elwood's death, plaintiff consulted Dr. Theodore Talbot in Staten Island. He took X-rays of plaintiff and informed her that there was a metallic object in her chest. It was determined that the object was part of a surgical needle which was used during the lobectomy at Pollak Hospital in April 1960. As a result Mrs. Tramutola was admitted to St. Vincent's Hospital in Staten Island for further tests. Following a conference with Dr. J. Maxwell Chamberlain, a New York City thoracic surgeon, Dr. Talbot recommended that no surgical operation be performed to remove the needle because it did not warrant the risk. Mrs. Tramutola testified that it is necessary for her to see Dr. Talbot once every six months to learn whether the needle had moved; that she continues to have pain in her chest, is very nervous and bothered by sleeplessness, and is required to take medication for pain.

(At oral argument the court was shown the X-rays taken at the hospital following the lobectomy. The presence of part of the surgical needle was evident even to our untrained eyes.)

The principal factual issue was whether plaintiff's pain was caused by the needle in her chest or was the result of the spreading of the ribs during the lobectomy in 1960. Dr. Talbot, whose testimony was taken by deposition, said that the area where the needle was imbedded was insensitive and he did not think pain could emanate from it. In his opinion the pain was due to the lobectomy. He testified that it is necessary for plaintiff to be X-rayed periodically to ascertain whether the needle had moved.

On the other hand, Dr. David Graubard, plaintiff's medical expert, testified that the pain was caused by the needle. He said that the X-rays taken at Pollak Hospital following the operation revealed that the front portion of a surgical needle used for suturing was located in the vicinity of the right bronchus in the hilar region. He testified that the needle had become encapsulated by scar tissue, causing the surrounding tissue to become nonelastic and rigid. He said that whenever

plaintiff took a deep breath or made certain movements of her body the rigid tissue produced a pulling sensation on other organs in the area, causing pain. He stated the pain was not related to the lobectomy and that plaintiff would suffer pain for the rest of her life.

The only defense witness was Dr. Henry Reich, who examined plaintiff on behalf of Dr. Bortone in November 1968. After examining the X-rays taken at the hospital he conceded that part of a surgical needle must have broken off during the operation and became buried in the hilar region. He said it had encapsulated and would not cause pain. He testified that his examination of plaintiff revealed no abnormal physical findings, no anxiety or nervousness, and was of the opinion that she had suffered no ill effects from the encapsulated needle.

The Elwood executors contend that the court erred in denying their motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. It is argued that no expert testimony was adduced to show that Dr. Elwood in any way deviated from accepted medical standards in his post-operative treatment of plaintiff; that even assuming the X-rays taken by him revealed a foreign object in plaintiff's chest, there was no proof of any medical standard that would require a doctor to tell the patient about it. It is also argued that there was no proof by competent medical evidence that plaintiff sustained damage because of Dr. Elwood's nondisclosure.

The negligence charged against Dr. Elwood in this case was his failure to disclose to plaintiff that a foreign object was left in her body during the operation performed by Dr. Bortone. Where a surgeon knows or has reason to believe that he left a foreign object in his patient's body during an operation he has a duty to disclose the facts to his patient, absent any sound medical reason for not doing so. See Annotation, "Malpractice -- Foreign Objects," 10 A.L.R. 3d, 9, ยง 6 at 37 (1966); Dietze v. King , 184 F. Supp. 944 (E.D. Va. 1960); Taylor v. Milton , 353 Mich. 421, 92

N.W. 2d 57, 60 (Sup. Ct. 1958); Ernen v. Crofwell , 272 Mass. 172, 172 N.E. 73, 74 (Sup. Jud. Ct. 1930); Benson v. Dean , 232 N.Y. 52, 133 N.E. 125, 126 (Ct. App. 1921). A physician entrusted with the post-operative care of a patient, and who has reason to believe that a foreign object was left in the patient's body during the operation, has a similar duty of disclosure. See Jackson v. United States , 182 F. Supp. 907, 911 (D. Md. 1960); You Goo Ho v. Dr. Edmund T.K. Ing , 43 Haw. 289 (1959).

It is well settled that when a physician treats a patient he has an obligation to exercise the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his field, and failure to have and use such skill and care, resulting in injury or damage to the patient, constitutes negligence. Evidence of a deviation from accepted medical standards must ordinarily be provided by expert testimony. Schueler v. Strelinger , 43 N.J. 330, 344-345 (1964). However, a well recognized exception dispenses with the need for such testimony where the facts are such that it may be said, looking at the matter in the light of the common knowledge and experience of laymen, that there has been a lapse from the standard. Jones v. Stess , 111 N.J. Super. 283, 287 (App. Div. 1970); Sanzari v. Rosenfeld , 34 N.J. 128, 141 (1961).

In the instant case there was evidence that X-rays taken at the hospital immediately following the operation revealed the presence of the needle in plaintiff's chest; that on each of her visits to Dr. Elwood over a four-year period following the operation he took X-rays and fluoroscoped her chest, but never informed her that a needle was lodged in her body. The alleged malpractice of Dr. Elwood was his negligence in either not discovering the needle in plaintiff's chest or, having observed it, failing to inform Mrs. Tramutola of its presence so that she could have had it removed shortly after the lobectomy and before it became encapsulated by scar tissue.

The issue of Dr. Elwood's negligence was not related to technical matters peculiarly within ...

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