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Gruccio v. Baxter

June 24, 1975

MICHAEL GRUCCIO AND PHYLLIS GRUCCIO, HIS WIFE, PLAINTIFFS,
v.
DAVID BAXTER, M.D., ELMER MATTIOLI, M.D., AND MILTON FINEMAN, M.D., DEFENDANTS



Miller, J.c.c., Temporarily Assigned.

Miller

Plaintiffs seek to amend a pretrial order previously entered by adding under paragraph seven thereof, as an additional legal issue, "lack of informed consent and assault and battery and the damages therefrom." R. 4:25-1(b)(7). The motion was precipitated by the suggestion of the court during the pretrial conference when plaintiffs insisted on the inclusion of such issues in the pretrial order. The court declined to include this issue, but, mindful of the sanctions imposable under In re Contempt of Carton, 48 N.J. 9 (1966), suggested this motion to afford both sides opportunity to research and argue the matter. Insofar as applicable, the facts pleaded or disclosed are as follows. (The complaint is woefully deficient of factual allegation, although replete with unsupported conclusions of law).

Defendants Baxter and Mattioli are engaged in the practice of general surgery. Defendant Fineman is engaged in the practice of internal medicine. Michael Gruccio was, during the times complained of, a patient of some or all of the defendants. In 1972 he complained to Fineman of certain symptoms in his left lower abdomen, the history being suggestive of diverticulitis. An admission to the hospital as a medical patient disclosed an abdominal mass. He was admitted to the service of defendant Baxter and on December 4, 1972 his abdomen was explored surgically by Baxter, assisted by Mattioli. A mass the size of "one's double fist" was discovered adherent to the dome of the bladder and to the area of the promontory of the sacrum and the iliac vessels. Baxter felt this mass was cancerous, declined to remove it, and advised plaintiff he had terminal cancer and that the mass was irremovable. This diagnosis was wrong and the mass was later removed by another surgeon and found to be benign. This suit resulted, Gruccio's wife suing per quod.

For an analysis of the issues presented reference must be had to the complaint, which, absent amendment, governs the course of plaintiff's case. R. 4:9; 4:25-1. An analysis of

this complaint discloses that the acts complained of recite "malpractice * * * in that they * * * negligently diagnosed his condition * * * and wrongly advised the plaintiff that he had a short terminal illness." It is further alleged that they "negligently carried out surgical procedures * * * and negligently performed a procedure that was unindicated in the first place." Other allegations in the complaint are mere conclusions of law and do not constitute proper pleading. Untermann v. Untermann, 19 N.J. 507, 518 (1955); McKee v. Harris-Seybold Co., 109 N.J. Super. 555, 573 (Law Div. 1970), aff'd 118 N.J. Super. 480 (App. Div. 1972). The ad damnum clause seeks compensatory damages, interest and costs. Punitive damages are not sought.

Paragraph three of plaintiffs' pretrial memorandum, which is quite complete, recites in detail facts supporting the above allegations of the complaint and further contains the following intriguing language:

"Plaintiff incorporates all allegations of negligence made in his interrogatories. Also, the defendants failed to inform the plaintiff of the risks and complications attendant to the surgery that was performed in accordance with contemporary community standards and therefore, the surgery that was performed, was obtained without an informed consent and constituted the assault and battery for which compensatory and punitive damages are sought. The action sounds in negligence, malpractice, lack of informed consent, and assault and battery." (Emphasis supplied).

It is to be noted that the language of this paragraph differs significantly from that of the complaint and constitutes a radical and unwarranted departure therefrom. It demonstrates graphically the effect of deviation from the practice of good pleading, and the confusion between the practice of permitting liberal amendments to pleadings in order to prevent injustice, on the one hand, and the fundamentally necessary requirement that a viable cause of action be properly pleaded on the other.

This confusion more often than not generates wasteful and unnecessary expenditures of time and money by counsel and

courts. It frequently results in delay, expense and injustice. A return to basics would appear appropriate.

R. 4:5-2 states as follows: "A pleading which sets forth a claim for relief * * * shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief * * *" (Emphasis supplied). Nothing in recent jurisprudence has appeared to emasculate the forceful and concise ...


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