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Samoilov v. Raz

Decided: December 23, 1987.

SERGEY SAMOILOV, PLAINTIFF-APPELLANT,
v.
SHARIR RAZ, M.D., DEFENDANT-RESPONDENT



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

Dreier, Baime and Ashbey. The opinion of this court was delivered by Baime, J.A.D.

Baime

[222 NJSuper Page 109] Plaintiff instituted this medical malpractice action, claiming that defendant, a physician specializing in otolaryngology,*fn1 deviated from professional standards of treatment and committed an assault and battery by intentionally and negligently performing unauthorized surgery. Following a protracted trial, the jury rendered a verdict of no cause of action. On appeal, plaintiff argues that (1) the trial judge erred by refusing to submit the question of assault and battery to the jury, (2) a limiting instruction should have been given concerning the probative effect of the consent form utilized by defendant, and (3) the verdict was against the weight of the evidence. Our thorough review of the record convinces us that these contentions lack merit. We affirm.

The salient facts are as follows. Plaintiff, a chemical engineer, initially visited defendant on November 9, 1982, complaining of recurring pain and a lump slightly below his left ear which had existed for approximately six years. During the physical examination, defendant located a "firm mass" underneath plaintiff's left earlobe, measuring one inch in length. Defendant ordered a sialography, a dye study, of the parotid or salivary gland and x-ray examinations. Defendant testified, and it is essentially undisputed, that it is impossible to determine precisely the location and type of tumor involved without exploratory surgery. Upon receipt of the test results, which confirmed the presence of a mass in the parotid region, defendant recommended surgical removal of the lump. Despite this advice, plaintiff elected not to submit to surgery at that time.

A second visit occurred on December 17, 1982, when plaintiff sought treatment for irritation of his gums and mouth. Concerned with the possibility of a malignancy, defendant again recommended surgery to remove the lump. On this occasion, plaintiff agreed to this procedure. Plaintiff was prescribed an antibiotic and was told to return in two weeks.

On December 31, 1982, plaintiff again visited defendant's office. Defendant confirmed his recommendation of surgery and the two engaged in a lengthy discussion concerning the complications and risks attendant to the procedure. At trial, the testimony of plaintiff and defendant diverged sharply concerning the particulars of their conversation. According to plaintiff, defendant stated that there existed a 30% possibility the tumor was or would become malignant. Defendant allegedly noted that there was some degree of risk plaintiff's facial nerve would be impaired during the course of the surgical procedure, but it was unlikely that serious damage would occur. According to plaintiff, defendant claimed that "[at] the worst" there might result "some kind of cosmetic distortion [to the] face or mouth."

In contrast, defendant testified that he emphasized the possibility of facial nerve damage during the course of each discussion with plaintiff. In that respect, defendant noted that the two had several extensive conversations concerning the matter prior to plaintiff's admission to the hospital. According to defendant, he told plaintiff that there was a distinct possibility of facial nerve damage and that the potential was much higher in the event the tumor was found to be malignant. Defendant also allegedly apprised plaintiff of the consequences of facial nerve damage, noting the impairment that would occur to the mouth, eye and facial muscles.

The subject was further explored when plaintiff was admitted to the hospital. Defendant testified that he again stressed the possibility of damage to the facial nerve. He repeated that the likelihood of impairment was greater if the tumor was found to be malignant. He noted, however, that such damage was possible even if the tumor was benign. According to defendant, he told plaintiff that the "main diagnosis was a benign parotid tumor" but that "something else" might be found during surgery and that "the facial nerve was definitely at risk."

On the eve of surgery, plaintiff signed a consent form which listed as possible complications "bleeding, damage to facial nerve, infection, anesthesia risk." On the consent form, which was admitted into evidence at trial, appeared the phrase "possible resection of facial nerve." Plaintiff maintained, however, that these words were not present on the form when he signed it, although in his subsequent conversations with defendant he never alluded to this fact. He testified that he interpreted the language "damage to facial nerve," which he admitted appeared on the form at the time he executed it, as referring to the remote possibility of damage to several of the nerve branches. According to plaintiff, he consented to resection of the facial nerve only upon a finding of malignancy.

During the surgery the facial nerve was exposed, thus visualizing part of the tumor. Initially, defendant believed that the tumor surrounded the nerve and could be severed from it without consequent damage. In making this attempt, defendant rotated the tumor and then realized that it could not be separated from the nerve. At this point, defendant's impression was that the mass constituted a "muco-epidermoid tumor," possibly a malignancy. Defendant thus resected the nerve and removed the tumor, which was immediately given to a pathologist for a "frozen section." According to defendant, a frozen section generally discloses malignant tissue, but is not as accurate as a complete biopsy, which usually takes three days. Within approximately 20 minutes, the pathology tests were returned to the operating room. These tests revealed that the mass was a neurilemmoma, a benign tumor. Although defendant was relieved by the test results, he nevertheless did not totally discount the possibility of malignancy until the full biopsy was completed.

Although defendant attempted to repair the nerve, his efforts proved unavailing. The left side of plaintiff's face remains paralyzed. At the time of trial, plaintiff was unable to close his left eye, had no "blink reflex" and suffered eating and speech problems.

As we noted at the outset of our opinion, the trial judge refused to include in his instructions a charge on assault and battery. Rather, the case was submitted to the jury on the basis of traditional negligence principles. However, subsumed in the judge's instructions concerning professional standards was an extensive discourse on the concept of consent. While we will later describe the judge's charge in far greater detail, we merely note here the jury was instructed that the performance of a surgical procedure beyond a patient's consent constitutes a deviation from professional standards of care and treatment. Apart from this theory, the judge instructed the jury to return a verdict in plaintiff's favor if they found that defendant either misdiagnosed the nature of plaintiff's condition

when he encountered the tumor during surgery, treated the condition too aggressively, used incorrect instruments during the operation or was negligent in ...


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