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Bendar v. Rosen

Decided: April 3, 1991.

RONNIE BENDAR AND JOEL BENDAR, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
NATALIE A. ROSEN, DEFENDANT-RESPONDENT, AND ELAINE ZALE, DEFENDANT-APPELLANT. RONNIE BENDAR AND JOEL BENDAR, PLAINTIFFS-RESPONDENTS, V. RICHARD BERMAN, M.D., DEFENDANT-RESPONDENT CROSS-APPELLANT



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

Coleman, Dreier and Landau. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

In these consolidated cases defendants Elaine Zale, Natalie A. Rosen and Richard L. Berman, M.D. appeal from auto negligence and malpractice judgments entered against them.

The facts may be simply stated. On April 30, 1986 plaintiff was a passenger in Zale's car when they were involved in an intersection accident with a vehicle operated by Rosen. In an earlier bifurcated liability trial, the jury returned a verdict of 90% against Zale and 10% against Rosen, obviously determining that Rosen had the green light. Plaintiff Ronnie Bendar (hereafter referred to as the plaintiff unless the context indicates otherwise), was being driven by Zale to meet a bus which was to take them to a library convention in Atlantic City. Their

attendance had been requested by their common employer, the Woodbridge Library.

At the time the jury was empaneled and just before the trial began, Zale belatedly raised a workers' compensation defense. Her counsel admitted error in not asserting the defense in Zale's answer or by way of a motion for summary judgment. The trial judge determined that it would be unfair to permit the motion to be made orally and without full briefing. He therefore denied it, without prejudice to renewal at the close of the trial. Counsel failed to do so, but Zale has raised it anew on this appeal. Rosen has filed a separate brief and argued the appeal solely to oppose this contention. Otherwise she joins in each point raised by Zale. Plaintiffs and Berman join in Rosen's opposition on this point.

Contrary to Zale's contention, R. 4:6-7 provides that defenses such as a bar by the exclusiveness of the workers' compensation remedy (N.J.S.A. 34:15-8) are waived if not raised by motion pursuant to R. 4:6-3, or as an affirmative defense. R. 4:5-4. See Pressler, Current N.J. Court Rules, R. 4:5-4 Comment 39 (1991). Furthermore, there is a serious question whether the workers' compensation defense would have been available at all under N.J.S.A. 34:15-36, as amended by L. 1979, c. 283 § 12, and L. 1981, c. 413 § 6. Therefore the defense was properly barred.*fn1

Plaintiff was injured in the accident and was taken to a hospital where five x-rays were performed on her without a pelvic shield. Thereafter, her family doctor treated her for four months for an acute cervical sprain and a strain and contusion of the right knee and thigh.

Soon after the accident, plaintiff missed her regular menstrual period, and scheduled a visit with Dr. Fleisch who had been

her regular gynecologist since 1983. On May 9, 1986 Dr. Fleisch discovered plaintiff was pregnant. Upon hearing this, plaintiff became "very, very upset." She was particularly concerned that she had been x-rayed only ten days before. She explained that at the time the x-rays were taken she felt she could not have been pregnant, since three years earlier, in May 1983, defendant Berman had performed a sterilization procedure, a tubal ligation, by means of a laparoscopy during which she had been told that her fallopian tubes had been cauterized, rendering it impossible for her to conceive.*fn2

On May 23, 1986, at plaintiff's request, Dr. Fleisch performed an abortion and then a new tubal ligation. As he was looking at the tubes through a telescope, he spontaneously commented, "Oh, shit. He missed the left tube." He explained that defendant Berman had cauterized the utero-ovarian ligament instead of the left fallopian tube. Plaintiff's gynecological expert, Dr. Greenberg, further testified that from the evidence it appeared that defendant Berman misidentified the utero-ovarian ligament as the left fallopian tube, constituting a "very important deviation from accepted medical standards." The ligament is a shorter, thinner structure and is of a different color than a fallopian tube. He further testified that the x-rays to which plaintiff had been exposed during the first few weeks of pregnancy had "the potential of causing congenital abnormalities."

Plaintiff's psychologist, Dr. Fink, to whom plaintiff's general practitioner had referred her in September 1986 as a result of

an emotional aspect he had observed from plaintiff's physical discomfort, testified that she suffered from a "post-traumatic syndrome" caused by both the April 1986 accident and the unwanted abortion. When he was asked to quantify the relative contributing roles of the two causes, Dr. Fink testified that the severity of the problem was due to the abortion, since post-traumatic stress usually disappears within a year or 18 months. Plaintiff's lingering residual emotional problem "was much more from the abortion than from the automobile accident." He claimed, however, that plaintiff discontinued treatments with him before he thought she was ready, and that his prognosis was guarded in that there "will always be residuals from this experience."

Plaintiff testified that being told that she was pregnant after having undergone the x-rays was the "shock of [her] life;" she became "hysterical" and "out of [her] mind" with worry. She testified that she decided to abort the pregnancy because of the risks posed by the x-rays and financial considerations, and that this was "the hardest decision" she ever had to make; "it was the most totally overwhelming thing that ever happened to me in my whole life." She further stated that Dr. Fleisch informed her that the x-rays created a probability that the baby would be born with something wrong, and further if she carried the baby to term, she would be forced to undergo another uterine stitch operation.

Plaintiff testified extensively concerning the effect of the accident and abortion upon her family life. She differentiated between the problems caused by the auto accident and the abortion. Soon after the accident when she got into her car she would relive the accident. Later she would be a "total wreck" when she went through the intersection where the accident occurred. The majority of her testimony, however, concerned the after-effects of the abortion and the new tubal ligation. She became an angry person, screaming at her husband and children, especially each month when she got her period. However, in August 1987, a year following the event, she stated

that her relationship with her husband had begun to return to where it had been before the accident.*fn3

Plaintiff Joel Bendar then testified that his wife "was a totally different person" following the abortion. She would jump at him and their two children "at the least little thing." She was upset, nervous, and "always screaming;" "it was very difficult to live at that time." Although plaintiff thought that the relationships had stabilized after a year following the accident, her husband felt that her condition had only improved a little and that she still was very nervous and difficult to live with. He further confirmed that there were still physical effects remaining from the accident and that plaintiff had pain in her neck and knee.

Defendant Berman explained the tubal ligation procedure and stated that although he had little independent recollection of the professional relationship with plaintiff, he was "one hundred percent sure" that he burned the fallopian tube and not the utero-ovarian ligament. He explained that a ligament does not burn the same way as a tube, and that it could not have been grasped by him. He did explain, however, that his usual procedure was to insert a scissors and cut between the two extremes of the burn, but that the operative record showed that the scissors had jammed in this procedure and he did not want to risk having a piece of the scissors breaking off. A cut was not really necessary because he believed he "had thoroughly burned the tube." Plaintiff's post-operative examination also revealed nothing to suggest that the operation had been unsuccessful. Dr. Berman's first notice that anything was wrong was years later when plaintiff filed her lawsuit. From a review of the records, his expert declared that Dr. Berman had not deviated from acceptable standards and that plaintiff's pregnancy most probably resulted from "recanalization, a re-formation

of passages through tissue." This expert also rejected Dr. Fleisch's physical observation and opinion that the utero-ovarian ligament had been cauterized rather than the fallopian tube.

The 90%/10% allocation of the automobile negligence liability between defendants Zale and Rosen is not challenged by the drivers. What is before us is the second trial encompassing the malpractice liability and the damages arising from both the automobile accident and the physician's negligence. The jury determined that Dr. Berman was negligent, and the court charged that the jury should assume the drivers' negligence. Next, the jury determined that the drivers' negligence was the proximate cause of plaintiff's orthopedic injuries and set the orthopedic damages at $77,000 for plaintiff and $50,000 for her husband's per quod claim. In the answers to the next two questions, the jury further determined that both the drivers' negligence and the negligence of Dr. Berman were proximate causes of plaintiff's injuries associated with the termination of her last pregnancy. For this injury the jury awarded plaintiff $220,000 and her husband $30,000. Lastly, the jury determined that Dr. Berman's negligence was a proximate cause of plaintiff needing a second tubal ligation and awarded her $33,000 and her husband $8,000.

A.

Initially, the drivers contend that their negligence could not be a proximate cause of plaintiff's emotional injuries emanating from the abortion. To be a proximate cause, however, conduct need only be a cause which sets off a foreseeable sequence of consequences, unbroken by any superseding cause, and which is a substantial factor in producing the particular injury. Scafidi v. Seiler, 119 N.J. 93, 101, 574 A.2d 398 (1990); Model Jury Charges (Civil § 7.11); and see Kelly v. Gwinnell, 96 N.J. 538, 543, 476 A.2d 1219 (1984). The tortfeasor ...


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