On appeal from the Superior Court, Law Division, Morris County.
Michels, Pressler and Bilder. The opinion of the court was delivered by Michels, J.A.D.
Plaintiff Elaine Nadel appeals from a summary judgment in favor of defendant Angelo R. Bergamo, M.D., dismissing her action to recover damages for personal injuries based on defendant's alleged medical malpractice.
A brief review of the nature of the claim involved and the chronology of events is helpful to a resolution of this appeal. On November 5, 1973 plaintiff consulted defendant, a physician specializing in plastic and reconstructive surgery. She complained of sinus trouble, headaches and difficulty with nasal breathing, apparently caused by an occlusion on the left side and partial occlusion of the right. Her appearance as the result of facial scarring and facial dropsy, especially over the right side of her face, also caused her concern. She discussed the possibility of surgery, specifically a "face lift" operation, with defendant. On November 21, 1973 defendant performed a plastic surgical operation on plaintiff at Mountainside Hospital. Apparently the results achieved in the first operation were not entirely successful and defendant performed a second operation.
On November 5, 1975 plaintiff instituted this action seeking to recover damages for the personal injuries she allegedly sustained as a result of the surgical procedures defendant performed in 1973. Plaintiff charged that defendant was guilty of medical malpractice in his: (1) diagnosis and treatment; (2) performance of the surgical procedures and, (3) failure both to inform her of the proposed treatment's serious risks and possible collateral hazards, and to afford her an opportunity for an informed consent. Although plaintiff's complaint alleged numerous charges of medical malpractice against defendant, she subsequently limited her claim to one based on lack of informed consent. In this regard the charge was supported by Dr. David H. Smith's report of October 7, 1976, which states:
I have reviewed the Mountainside Hospital records and the letter of Dr. Mancuse-Ungaro in the above case.
Mrs. Nadel went to Dr. Bergamo for a "face lift." He prevailed on her to have her nose operated on. He operated November 22, 1973 in the Mountainside Hospital but a "bump" was left in the nose. The operative record dictated by Dr. Bergamo on December 5, 1973 is quite impressive and appears to be in order.
Mrs. Nadel re-entered the hospital and was re-operated by Dr. Bergamo in February 1974. He states "admitted for additional revision of nose to increase breathing." Again the operative report is full and appears to be in order.
Dr. Ungaro, in a letter dated March 10, 1975 found definite malformation of the nose and advised further operative repair and grafts. Thus, the operations done by Dr. Bergamo were unsuccessful. But, as far as I can see, he followed standard procedure.
What he did not do, apparently, was to inform Mrs. Nadel that it was possible for the operations to fail and for her to be left with a nasal deformity and nasal obstruction.
Plaintiff furnished defendant with Dr. Smith's report in November 1977. Thereafter, on January 11, 1977 plaintiff moved for an order both to compel defendant to appear for depositions and to furnish her with copies of his experts' reports. The motion was returnable on January 28, 1977. On or about January 15, 1977 Dr. Smith died. Plaintiff immediately notified defendant and apparently brought the matter to the trial judge's attention at the motion argument. In addition to ordering all parties to take depositions according to a specific schedule, the judge required defendant to supply all experts' reports in his possession by February 2, 1977, to furnish any additional reports 14 days after the depositions, and:
If the plaintiff obtains the services of additional experts, the names and reports shall be given to the attorneys for the ...