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Skripek v. Bergamo

Decided: May 2, 1985.


On appeal from the Superior Court of New Jersey, Law Division, Essex County.

Michels, Petrella and Baime. The opinion of the court was delivered by Michels, P.J.A.D.


Plaintiff Jean E. Skripek appeals from a judgment of the Law Division entered on a molded jury verdict of no cause for action in favor of defendant Angelo R. Bergamo, M.D., and from a denial of her motion for a new trial.

Plaintiff instituted this medical malpractice action against defendant seeking to recover damages sustained as the result of a post-operative closed capsulotomy performed by him following breast augmentation surgery. Although plaintiff also charged defendant with breach of express and implied warranties and with negligence in performing the breast augmentation surgery as well as negligence in performing the post-operative closed capsulotomy, her principal claim and the sole theory upon which she pretried and tried the case was lack of informed consent. Specifically, plaintiff claims that defendant failed to advise her of the risks and the possible serious consequences

attendant to the closed capsulotomy. The facts developed at trial may be summarized generally as follows.

In November 1979, plaintiff consulted defendant for the purpose of eliciting information with regard to breast augmentation mammoplasty. Plaintiff, who was then 38 years old, in the process of obtaining a divorce and the mother of two children, "believed that beautiful, firm breasts would improve her physical appearance." Plaintiff admitted that defendant discussed the pros and cons of breast augmentation mammoplasty during the initial consultation. According to plaintiff, defendant told her that such surgery was "a marvel of science today that breasts can be returned to what you were born with. Many times they're even more beautiful." Defendant explained how prostheses would be used and that there was a possibility that the breasts would get hard. He also explained that scars would be "in the natural crevice of the breast line and that the scars would be tucked underneath and would not be visible." According to defendant, he explained the risks of this type of surgery and did not make any guarantees regarding the success of the procedure, particularly since plaintiff's breasts at the time of his examination were not symmetrical. It is clear from the proofs that defendant did not force or coerce plaintiff to undergo the surgery and gave her the opportunity to discuss with whomever she wanted whether or not to have such an operation.

In early December 1979, after discussing the surgery and its implications with her former husband, plaintiff returned to defendant's office and signed a consent form for the breast augmentation surgery and prepaid his fee. Plaintiff expressly authorized defendant to perform the augmentation mammoplasty. In signing the form, she also acknowledged that "no guarantees have been made to me as to the results of the procedure to be performed . . . that there are risks, consequences and complications associated with all surgery" and that she "understood," among other things, that "the procedure may not be successful," and that "there may develop a firmness

of the breasts which may be due to excessive fibrous capsule forming around the implant, or for other reasons, a malpositioning of the implants which may be due to the manner in which the implant becomes firmly secured." The proofs at trial show that prior to signing the consent form, defendant reviewed it carefully with plaintiff to ensure that she understood its contents. According to defendant, he had plaintiff sign this special consent form because (1) there were discrepancies that existed in plaintiff's breast prior to surgery and he wanted to be sure that she understood that he was not promising her that they would be corrected, (2) she was married to an attorney and, perhaps more important, (3) she was in the process of a separation and a divorce. Although denied by plaintiff, defendant testified that he discussed other corrective procedures which would be performed, such as an excision of a mass of her right breast, a bilateral partial mastectomy, possible removal of her lower poles, excision of chronic granulation tissue, release of the contracture of the left mammary region and excision of the multiple lesions of her face and body.

On December 6, 1979, plaintiff entered Mountainside Hospital in Montclair, New Jersey, for the surgery. Before undergoing the surgery she executed the hospital's consent and operative permit which authorized defendant to perform the requested surgery. This form recited that "[t]he nature and purpose of the operation, possible alternative methods of treatment, the risks involved and the possibility of complications have been explained to [plaintiff]." After plaintiff signed the form, defendant performed the surgery. Plaintiff was pleased with the results. She saw defendant about a week later and felt that she looked fine. She returned to defendant about a month later in mid-January 1980 at which time defendant noticed that her right breast was a little hard, something she had not complained to him about. He told her to lay back and that he was going to give it a "little squeeze and it should soften it right up." Plaintiff permitted defendant to squeeze her breast but, according to plaintiff her breast remained hard.

About a month later, in February 1980, plaintiff returned to defendant's office. She was still satisfied with her appearance, but defendant noticed that her right breast was still hard. Although plaintiff did not complain about her appearance nor was she unhappy with her right breast, defendant again told her to lie back, that he was going to give it another squeeze to soften it up. Defendant, however, did not explain to plaintiff that anything would happen except "it may hurt a little bit." She acceded to his request and laid back. He told her to hold his arm while he performed the procedure. According to plaintiff, defendant cupped his hands beneath her breast and squeezed and pushed. At this time she screamed because it was painful. She further testified that she could almost feel the palms of his hands touching and heard a loud crunch. She was so sore that she could not move; she had a throbbing pain and was light-headed. Defendant told her that she would be alright in a few minutes. However, when plaintiff arrived home she was extremely sore and her breast was "really red." The following day it discolored, turning black and blue. She called defendant and told him that she was extremely sore. He told her to take a hot shower, put hot compresses on her breast and massage it. After about a week the discoloration went away, but she noticed a bulge forming underneath the crease in her breast and that the scar was raising. She called defendant who, in plaintiff's words, responded "its all in my [plaintiff's] imagination."

In early April 1980, plaintiff saw defendant who examined her and told her that her right breast was the more natural looking of the two and that she ought to come back in six months. In July, 1980, before the six months passed, plaintiff fell and scraped her shoulder. She went to her gynecologist, who recommended that she seek plastic surgery because "there's a lot of gravel still in there." She immediately made an appointment with defendant and saw him either July 7th or 11th. Defendant examined plaintiff's shoulder and gave her a prescription to apply to prevent any scarring. He then examined

her breasts and told her that he would like to do further surgery on her left breast. Although plaintiff made an appointment for the surgery, she cancelled it. She decided not to go through further surgery because she wanted the right breast corrected since that was the one that was painful and uncomfortable.

Eventually plaintiff consulted Dr. Robbie Meyjer, a plastic surgeon, who performed several operations. Dr. Meyjer testified that when plaintiff came to him she had an hour glass deformity of the right breast because the implant had slipped below the bra line. He performed an opened capsulotomy on both breasts, releasing both implants: the left to soften the breast and the right to correct the deformity. Shortly after that operation plaintiff complained and told Dr. Meyjer that she was unhappy with the different levels of the folds underneath the breasts. Dr. Meyjer performed an open capsulotomy on the left breast but this time the result was that the fold of the left breast became lower than the right. Another operation was performed and plaintiff was pleased with the result.

Dr. Charles Scher, a plastic surgeon who testified for plaintiff, explained that a closed capsulotomy is a procedure whereby the breasts are squeezed causing a tear in the scar tissue which forms around the implants. Such a procedure allows the implants to be more mobile so that the breasts are less firm. An open capsulotomy is a procedure whereby an incision is made and the scar tissue is released. According to Dr. Scher, the risks in a closed capsulotomy are bleeding, discoloration, rupture of the implant, displacement of the implant and inability to actually perform the capsulotomy, i.e. failure to rupture the scar tissue. He further testified that in February 1980 it was accepted practice to advise a patient of these risks before performing the procedure. The alternatives to the procedure were an open capsulotomy or no treatment at all and it was accepted practice for the doctor to inform a patient of those alternatives. Dr. Scher was of the opinion that the closed capsulotomy caused plaintiff's right breast to turn black and

blue, and the implant to drop and that that in turn caused the scar to become more visible. He was of the opinion that it would have been a deviation from accepted medical standards if defendant did not inform plaintiff of the risks and alternatives involved in the procedure.

Dr. Steven LaVerm, defendant's expert testified that defendant had not deviated from the standard of care because he did not fail to advise plaintiff of the risks and alternatives to the closed capsulotomy. According to Dr. LaVerm, defendant's notes showed that he explained the capsulotomy procedure to plaintiff before performing it and he offered her the alternatives of doing nothing or doing an opened capsulotomy. However, Dr. LaVerm acknowledged that if defendant had not told plaintiff of the alternatives and the risks of the procedures he would have deviated from accepted medical practice.

At the conclusion of the proofs, the trial court submitted the case to the jury on special interrogatories. The jury found that defendant did not obtain plaintiff's "informed consent before performing the procedure known as a closed capsulotomy." However, the jury also found that had plaintiff been fully informed of the risks and alternative procedures before the closed capsulotomy was performed, a reasonably prudent person in her position would have consented and submitted to the procedure. The trial court thereupon molded the verdict and entered judgment in favor of the defendant of no cause for action. Plaintiff's motion for a new trial on grounds that (1) the trial court erred in charging the objective standard and in choosing this standard erred in failing to define a reasonably prudent person and (2) the verdict was against the weight of the evidence, was denied. Judge Neagle in the Law Division, in denying the motion, emphasized that both counsel were afforded ample opportunity before the jury charge was delivered to review it and neither objected to those portions here challenged nor did they object to them at the conclusion of the charge. This appeal followed.

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