On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication December 31, 1996.
Before Judges Shebell, P.g. Levy and Braithwaite. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by
In this medical malpractice action, tried before a jury, plaintiffs, Peter Caputa and his wife, Patricia, asserted negligence and lack of informed consent claims against defendant, Dr. Leonard Antiles, arising out of the care and treatment of Peter's kidney stone. The plaintiffs' motion for a directed verdict at the end of the case on the lack of informed consent claim was denied. After the return of a verdict of no cause for action by the jury, plaintiffs filed a motion for a judgment notwithstanding the verdict or alternatively for a new trial. By order dated July 10, 1995, the trial Judge denied the motion. This appeal followed.
On March 12, 1990, Peter Caputa (plaintiff) experienced pain in his back and side. The pain was intermittent and continued until March 17, a Saturday night, when the pain became severe for a number of hours and the plaintiff became nauseated and vomited. The next morning he was still feeling pain, although not as severe as the night before, and his wife drove him to the emergency ward at Mountainside Hospital.
Plaintiff arrived at the emergency room at 6:00 a.m., where a doctor took his history, blood pressure, urine specimen and x-rays. Plaintiff did not have a fever and no blood was seen in his urine. The emergency room doctor recommended defendant, Antiles, a urologist. While still in the emergency room, and before he had met defendant, plaintiff signed a surgical consent form handed to him by a nurse. Plaintiff was admitted, and that afternoon defendant saw plaintiff for the first time and told him that he had a kidney stone lodged in his urethra tube, and that it should come out. The radiology report described the stone as less than four millimeters in size.
Surgery was performed by defendant late in the day on Monday, March 19. Plaintiff testified that he was not given the option of observation as opposed to intervention before consenting to the surgery. Defendant admitted he never gave the plaintiff any treatment option other than surgery. Defendant testified in his deposition testimony, which was read to the jury:
Q. What were the options that you discussed with Mr. Caputa?
[Defendant]. Really, I don't remember.
Q. What are the options that in your usual and customary practice would you have offered to a patient like Mr. Caputa?
A. In this specific instance, I don't think there was much in the way of option to offer. This man is sick, he's hurting. This is a good stone that hasn't passed for a week's time. The only good option is to do what I did for him. In the setting that I saw, I thought there were no other options.
Q. Did you tell Caputa that?
The defendant also responded on cross-examination at trial:
Q. Did you tell him, did you tell him that if the stone is four millimeters or less, 90 percent of the time it passes spontaneously, so I'm going to send you home and observe you, did you tell him that?
Q. You didn't tell him that because you believed that he had no options except surgery, isn't that correct?
Defendant disclosed to plaintiff in the recovery room after surgery that the stone was not removed. Therefore, the next day, plaintiff had a second operation by another surgeon, who placed wires through plaintiff's back into his kidney in preparation for a third surgery, which would approach the stone in a different way.
On Thursday, March 22, the plaintiff was placed under general anesthesia. When he woke up he was told that most of the stone had been removed but that there were still fragments left in his urethra tube. The defendant also informed him that he had placed a stent or tube through the urethra, from his kidney to his bladder. The purpose of the stent was to allow flushing out of any particles that were left. Defendant informed him to make an appointment and that he would remove the stent in his office in about one and a half to two weeks. Plaintiff remained in the hospital until Sunday, experiencing pain in his back and side.
On April 5, the plaintiff went to defendant's office. The defendant used a syringe and injected an anesthetic into the plaintiff's penis, after which the defendant inserted a long metal rod, through which he inserted another object in an attempt to withdraw the stent. The procedure lasted about a half hour, with plaintiff fully conscious. He was unsuccessful in removing the ...