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Nicholl v. Reagan

Decided: March 18, 1986.


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

Morton I. Greenberg and Havey. The opinion of the court was delivered by Havey, J.A.D.


In this medical malpractice personal injury action plaintiff Debra Nicholl appeals from a judgment entered on a no cause jury verdict in favor of defendant Dr. Lindley Reagan, a general surgeon. Plaintiff contends that the trial court erred by excluding from jury consideration the issue of lack of informed consent where the issue was identified in the pretrial order and was inferentially referred to in plaintiff's expert report. She also argues that the trial court's ruling excluding expert testimony as to damages on the ground that a proper foundation had not been laid was prejudicial error. Finally, plaintiff contends that the trial court abused its discretion in denying a mistrial when it excluded lack of informed consent as an issue in the case. We reject each contention and affirm.

The gravamen of plaintiff's complaint is that defendant negligently sutured her surgical wounds following a gallbladder operation (cholecystectomy) in July 1977. Specifically, she claims that defendant "operated on plaintiff and did not remove wire sutures which were [remnants of] surgery[.]"*fn1 The complaint did not raise the issue of lack of informed consent. At trial plaintiff testified that she was referred to defendant in June 1977 as a result of experiencing abdominal pain. Defendant diagnosed plaintiff's condition as gallstones which required surgical removal. Plaintiff testified that defendant told her that he would utilize catgut sutures to close the inside of the surgical wound (the fascia), and nylon sutures to close the outer subcutaneous tissue and skin. She underwent the cholecystectomy on July 8, 1977. Defendant testified that he used wire sutures to close the fascia and proline, a synthetic plastic-like material, to close the subcutaneous tissue and skin.

In January 1981 plaintiff discovered "something protruding from the skin." She was examined by Dr. Nahas, a general practitioner, who told her that x-rays revealed that the protrusion was a piece of metal suturing wire that had been used during the 1977 cholecystectomy. In February 1981 Dr. Nahas removed the metal fragment. Dr. Nahas testified that the wire fragment was a "clipping" which had been negligently left in the wound site during surgery. Plaintiff testified that she developed anxiety and depression over the fact that wire sutures had been used. She worried that other sutures might surface causing further complications resulting in future surgery. She began counselling with a clinical psychologist, Dr. Adelman, in June 1981 and saw him on 17 occasions between June and October of 1981. Dr. Adelman diagnosed plaintiff as suffering from a "post-traumatic stress disorder."

Dr. Criares, a specialist in obstetrics and gynecology, was plaintiff's medical expert. He testified that the wire fragment removed by Dr. Nahas may have been a whole suture rather than a clipping. He acknowledged that use of wire sutures to close the fascia was medically accepted practice and that, in fact, wire sutures were the least likely to extrude through the skin and subcutaneous tissue. It was his view, however, that defendant had improperly placed sutures in the subcutaneous tissue, one of which extruded through the tissue to the skin layer.

Plaintiff was prepared at trial to establish that she underwent a third surgical procedure in October 1984, performed by Dr. Butler, to remove the remaining wire sutures. The trial court excluded that testimony, concluding that plaintiff failed to establish a causal relationship between defendant's conduct in 1977 and the 1984 surgery.

Plaintiff's principal contention on appeal is that the trial court committed prejudicial error by precluding her from developing lack of informed consent as a theory of negligence during trial. The trial court sustained defendant's timely objection when

plaintiff's counsel, during his opening statement, made reference to the issue. It was counsel's intention to argue to the jury that defendant deviated from accepted medical standards and conduct by failing to disclose to plaintiff prior to the surgery that he intended to use wire sutures to close the surgical wound. Defendant's objection was that there was no mention in plaintiff's expert reports that a surgeon must disclose to a patient the type of sutures the surgeon intends to use during the surgical process. Plaintiff countered by arguing that "informed consent" was in the case by virtue of its identification as an issue in the pretrial order. She also argued that the issue could be "inferred" from Dr. Criares's second written report which stated in pertinent part as follows:

In 1977, it was good and accepted medical practice in the field of surgery to:

(1) inform the patient being operated upon of the type of procedure and techniques as well as the risk of the operative procedure that was being performed, as well as answering ...

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