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Vasilevsky v. Chopin

Decided: December 14, 1990.

MIKHAIL VASILEVSKY AND KLAVDIA VASILEVSKY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
RICHARD M. CHOPIN, M.D., DEFENDANT-RESPONDENT



On Appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Michels, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.

Brody

The issue raised in this appeal may be demonstrated by an imaginary, though not fantastic, exchange between a trial attorney and a testifying witness:

Q. Was the traffic light red?

A. No.

The witness's meaning is certain. However, the witness's meaning would be uncertain if the question and answer were as follows:

Q. Was the traffic light not red?

A. No.

The answer could mean, "No, the traffic light was not red." Or, taken literally, it could mean, "No, the traffic light was not not red." In common usage, however, one does not describe a red light as a "not not red light." In the example given, after hearing the witness's terse answer, the attorney would ordinarily realize that his question was faulty and ask the witness to clear up the meaning of his answer.

The insertion of the mischievous word "not" in a special interrogatory to the jury produced a similar quandary in this medical malpractice action, but the trial judge did not ask the jury sua sponte to clarify its answer. Instead, without objection from plaintiffs' attorney, he entered judgment for defendant. The judge later denied plaintiffs' motion for a new trial, ruling that the jury's "no" answer to the negative question must be taken literally. We reverse and remand for a new trial.

Because the issue on appeal lies outside the factual and legal issues that were tried, we have not been provided with a transcript of the trial except for the judge's instructions to the jury and the post-trial proceedings. Our understanding of the trial issues is therefore sketchy.

It appears from colloquies in the transcripts that for most of his life plaintiff Mikhail Vasilevsky (plaintiff) suffered from an ocular condition commonly referred to as being cross-eyed.

Defendant undertook to perform surgery that would correct the condition cosmetically, but would not restore binocular vision. Defendant informed plaintiff that the operation would produce brief double vision until his brain suppressed the visual images received by the errant eye. The basis of the malpractice claim is that defendant failed to inform plaintiff of the risk that the double vision would be permanent. Plaintiff's wife asserts a per quod claim.

With the consent of the parties' attorneys, the judge put the following written special interrogatories to the jury:

1. Did Dr. Chopin fail to give the plaintiff all the information that a reasonable person in the patient's position would expect a doctor to disclose in order that ...


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