On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication October 17, 1995.
Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
In this medical malpractice/informed consent case, a jury of five persons returned a unanimous verdict for defendant. Plaintiff appeals from the trial court's denial of his motions for: (1) a mistrial when the jury was reduced to five; (2) a directed verdict in his favor on the informed consent issue; (3) a judgment notwithstanding the verdict; and (4) a new trial. We reverse and remand for a new trial on all issues.
In 1969, plaintiff was completely paralyzed after a car accident. Eventually, plaintiff regained some ability of movement and was able to hold down a light job in his brother's towing business. In 1987, plaintiff began to experience some stiffness. Through a series of referrals, he met defendant Dr. Harvey Nova, *fn1 a neurosurgeon, who determined that he could help plaintiff by means of a surgical procedure. Plaintiff agreed to undergo surgery and awoke from the procedure as a quadriplegic.
Plaintiff filed a complaint against defendants, Estate of Dr. Harvey Nova, *fn2 Alfred A. Steinberger, M.D., Englewood Hospital Association, and a fictitious unknown health care professional, John Doe. Prior to trial, Dr. Steinberger and the Englewood Hospital Association were dismissed as defendants. Plaintiff's complaint against Dr. Nova was based on two theories: (1) lack of informed consent; and (2) negligence by Dr. Nova in performing the operation.
Eight jurors were impaneled for the trial, which was expected to last five to seven days. Due to inclement weather, however, the trial lasted approximately three weeks. For various reasons, three jurors had to be excused. At the time that the third juror was excused because of a heart attack, plaintiff moved for a mistrial, asserting his right to have six jurors. The trial Judge, without stating her reasons, denied plaintiff's motion.
At trial, plaintiff contended that: (1) defendant did not inform him of the material risk of quadriplegia; and (2) if defendant had informed plaintiff of that risk, he never would have consented to the operation. The jury found otherwise, concluding that defendant had "reasonably disclosed to plaintiff the risk of quadriplegia involved in undergoing the operation" and defendant did not deviate from accepted standards of neurological practice. Although the jury rejected both of plaintiff's claims, the negligence claim is not directly at issue on appeal.
Plaintiff raises two arguments on appeal. First, the trial Judge erred in allowing the trial to continue after the number of jurors was reduced to five. Second, the Judge should have granted a directed verdict and/or a judgment notwithstanding the verdict in favor of plaintiff (or, in the alternative, a new trial) on the informed consent issue because there was no evidence from which the jury could reasonably have concluded that the defendant had informed plaintiff of the risk of quadriplegia, which was a material risk of the operation. We agree with plaintiff's first argument but disagree with the second.
A litigant in a civil case enjoys a constitutional right of trial by jury. N.J. Const. art. I, P 9. Our Constitution authorizes the trial of civil causes by a jury of six persons, and a litigant also enjoys the right to have the verdict "rendered by not less than five-sixths of the jury." Ibid. Rule 1:8-2(b) provides that juries in civil actions "shall consist of six persons unless the court for good cause shown shall order a jury of 12 persons." The Legislature has provided that all six "jurors shall sit and hear the case, but the court for good cause may excuse any of them from service provided the number of jurors is not reduced to less than 12 or six in an appropriate civil cause." N.J.S.A. 2A:74-2.
Although the constitutional and statutory provisions guaranteeing a jury trial require a minimum jury of six persons in a civil case, the parties may stipulate to proceed with less than the minimum number or more than the minimum number, R. 1:8-2 (d), and may even agree to have the case decided by a smaller majority of the jurors than five-sixths. See R. 1:8-2(c).
However, the right to a jury trial can be waived. R. 4:35-1; see also Sexton v. Newark Dist. Tel. Co., 84 N.J.L. 85, 101, 86 A. 451 (Sup. Ct. 1913), aff'd on other grounds, 86 N.J.L. 701, 91 A. 1070 (E. & A. 1914). Rule 1:8-2(c) is a ...