On appeal from the Superior Court, Law Division, Hudson County.
Antell and Landau. Landau, J.A.D.
Ginger Grasser and her husband John appeal from final judgment entered in favor of defendant Dr. Hugo Kitzis in a medical malpractice action following jury trial. A motion for partial judgment n.o.v. and for new trial was denied.
The complaint arose out of serious injuries to Mrs. Grasser's uterus and small bowel suffered during a dilation and suction evacuation (D & E) procedure employed by Dr. Kitzis to clear from her uterus the remains of dead fetal twins discovered during prenatal examination early in the second trimester of pregnancy. Available options for removal of fetuses upon detection of non-viability include awaiting onset of spontaneous labor and evacuation for an indefinite time, which can be as long as six weeks; attempting to induce labor and consequent evacuation of the fetuses; and a dilation and suction evacuation of the uterus under general anesthesia.*fn1 On recommendation of Dr. Kitzis, the latter method was employed. After the procedure, the Grassers were informed that there was a uterine perforation and a portion of small bowel had been suctioned
through the perforation. These injuries were repaired by surgery during the extended procedure.
The case was tried on theories of negligent treatment and medical performance, and negligence by reason of lack of informed consent.
On appeal, the Grassers argue that the jury was not properly instructed regarding the issue of informed consent and proximate cause and that they are entitled to a new trial on damages. This argument was made to the trial judge by motion for molded judgment n.o.v. on the issue of liability and for new trial on damages only.
Secondly, as to the jury's findings that neither the decision to recommend and perform a D & E nor the manner in which Dr. Kitzis performed the operation were negligent, the Grassers urge that those findings were against the weight of the evidence.
We have carefully considered the record and the briefs of counsel on the second point, and note that those negligence questions essentially involved the jury's evaluation of witness credibility. We are satisfied as to this issue that the evidence in support of the jury verdict was not insufficient, R. 2:11-3(e)(1)(B), and that the determination of the trial court on the motion for new trial did not constitute a manifest denial of justice to the extent the motion and determination rested on these grounds. R. 2:11-3(e)(1)(C).
We turn to the question of informed consent.
The Grassers each testified that although they knew that the D & E procedure was an operation which had to be performed in a hospital and under anesthesia, they were not told of any of the risks which the procedure entailed. In particular, they said they were never told of possible complications such as perforation of the uterus wall or damage to the bowels, nor were they told about ...