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Pelose v. Green

Decided: February 16, 1988.

ANTHONY PELOSE AND ROSE PELOSE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ROBERT E. GREEN, M.D., LEO KELLY, JR., M.D., ABC, DEF, AND JOHN DOES I THROUGH XV, FICTITIOUSLY DENOMINATED, WHOSE IDENTITIES ARE PRESENTLY UNKNOWN. DEFENDANTS-RESPONDENTS



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

Pressler, Bilder and Muir, Jr. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

This is an appeal from the dismissal of a medical malpractice case at the end of plaintiffs' case. The facts relevant to this appeal can be simply and briefly stated.

Defendants, Dr. Robert Green, a neurosurgeon, and Dr. Leo Kelly, Jr., an orthopedic surgeon, performed a cervical laminectomy on plaintiff Anthony Pelose. Dr. Green was the principal surgeon; Dr. Kelly assisted. As the assistant, Dr. Kelly not only assisted in peripheral matters (tying knots, cutting, suturing, suctioning blood, retracting muscles, and the like) but actively participated in removing lamina from the spinal column. Plaintiff developed quadriparesis (weakness of all four limbs).

Plaintiff's expert, Dr. Charles Fager, a neurosurgeon, testified (by way of deposition) that the condition resulted from the operation and was caused by surgical trauma to the spinal cord during the operation; that Dr. Kelly lacked sufficient expertise to perform a cervical laminectomy and deviated from acceptable medical standards by actively engaging in crucial aspects of the laminectomy (removal of the lamina);*fn1 and that Dr. Green deviated from acceptable medical standards by allowing Dr. Kelly to assist in such a manner. When asked whether this negligence (i.e., Dr. Kelly's participation) was within reasonable medical probability, a proximate cause of and a substantial factor in plaintiff's quadriparesis, Dr. Fager said:

Yes, I believe that [it] did . . . sustain some damage to the spinal cord, some surgical damage during this operation.

While it is unclear from this answer whether Dr. Fager was saying that Dr. Kelly's participation was a proximate cause of the damage to plaintiff's spinal cord, we assume for the purpose of this appeal that he was saying that. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

The trial judge granted a motion to dismiss at the end of plaintiff's case. On appeal plaintiff makes the following contentions:

POINT I

THE TRIAL JUDGE FAILED TO CONSIDER THE LEGITIMATE INFERENCES AS TO CAUSATION ARISING FROM (a) DR. KELLY'S TOTAL LACK OF SKILL; and (b) FROM THE STRICKEN EVIDENCE OF DR. FAGER'S EXPERIENCE WHEN ALL TRAUMA WAS ELIMINATED.

POINT II

DR. KELLY'S LACK OF SKILL INCREASED THE RISK OF QUADRIPARESIS, WHICH OCCURRED, THUS PRESENTING A PRIMA FACIE CASE UNDER ...


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