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Tonelli v. Khanna

Decided: January 23, 1990.

LYNETTE TONELLI, PLAINTIFF-APPELLANT,
v.
SATYENDER KHANNA, M.D., DEFENDANT-RESPONDENT. AND FRANKLIN DOTOLI, M.D., DEFENDANT



On appeal from Superior Court, Law Division, Essex County.

Michels, Deighan and R.s. Cohen. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Plaintiff Lynette M. Tonelli appeals from a jury verdict in a medical malpractice action awarding her $10,000 against defendant Satyender Khanna, M.D. and from a denial of her motion for a new trial as to damages or, in the alternative, an additur. Plaintiff contends that defendant Dr. Khanna performed unnecessary surgery upon her. Prior to trial, plaintiff agreed to a voluntary dismissal of the defendant, Franklin Dotoli, M.D. At the close of evidence, defendant Dr. Khanna's motion to dismiss an assault and battery count was granted. Plaintiff also moved for reinstatement of her claim for battery and punitive damages. Defendant Khanna cross-motioned for a new trial as to liability. The trial judge denied both motions.

During February 1985, plaintiff first noticed lumps and felt pain in her breasts. In March 1985, plaintiff visited Dr. Dotoli, her family physician, who examined her, palpated lumps in her breasts and prescribed vitamins and painkillers. On her second visit, Dr. Dotoli referred her to a radiologist, Dr. Guarnaccia, for a sonogram. Plaintiff had a sonogram performed by Dr. Guarnaccia and a second sonogram as well as a mammogram performed by Dr. Robinson.

As a result of these various examinations, conflicting diagnoses were reached. Dr. Guarnaccia's report noted a "well circumscribed, well outlined" area in her left breast that was probably cystic in origin. In his report to Dr. Dotoli, he recommended a biopsy. Dr. Robinson diagnosed plaintiff's condition as lobular hyperplasia, a condition not indicating

surgery. At plaintiff's request Dr. Robinson's report was forwarded to Dr. Dotoli. Based on these reports and his own observations, Dr. Dotoli referred plaintiff to defendant for surgical consultation.

After Dr. Dotoli read the reports of the other doctors to defendant over the phone, defendant examined plaintiff, palpating her breasts. Defendant then told plaintiff that she had a lump in her left breast and urged immediate surgery to remove the lump. According to defendant, he fully explained the potential consequences of the surgery. However, plaintiff cannot recall whether defendant explained the consequences. Nevertheless, on April 23, 1985, she did sign a consent form permitting defendant to perform a surgical procedure on her breasts to remove the lump.

On April 23, 1985, defendant made an incision on plaintiff's left breast and removed tissue. A pathology report on the excised tissue indicates that the tissue was stromal fibrosis, adenosis and sclerosis, indicating fibrocystic breast disease, a benign condition.

In May 1985, while visiting friends in Florida, plaintiff developed an infection in the area of the incision and visited a clinic emergency room in Florida. The clinic treated her with antibiotics to cure the infection. Upon returning to New Jersey, plaintiff visited Dr. Cicalese, a gynecologist, who diagnosed fibrocystic breast disease and treated plaintiff with hormones, vitamins and dietary modification. Plaintiff continues to have a scar about five inches long on the outer portion of her left breast. The lumps in her breasts remain but she is no longer apprehensive about her condition.

On appeal plaintiff contends that the trial court erred in dismissing her complaint for damages arising from defendant's intentional act of unnecessary surgery. In this respect, she argues that, as a matter of law, she established a prima facie case of battery from which the jury could have concluded that the defendant's conduct constituted an intentional wrong. She

further contends that her motion for a new trial as to damages, or in the alternative for additur, should have been granted because the award was a clear miscarriage of justice. We affirm.

The standard on a motion for an involuntary dismissal at trial is, accepting as true the evidence supporting plaintiff's claims and according plaintiff the benefit of all the favorable inferences, whether reasonable minds could differ concerning whether defendant committed battery upon plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706 (1969). The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of evidence, but only with its existence, viewed most favorably to the party opposing the motion. Id. at 5-6, 258 A.2d 706.

Any non-consensual touching is a battery. Perna v. Pirozzi, 92 N.J. 446, 461, 457 A.2d 431 (1983). A doctor who conducts surgery without the patient's consent engages in unauthorized touching, and thus, commits battery. Id. at 461-462, 457 A.2d 431. Here, it is not disputed that plaintiff consented to the surgery. However, plaintiff argues that the ...


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