On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication March 21, 1997.
Before Judges Skillman, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Cuff, J.A.D.
The opinion of the court was delivered by: Cuff
The opinion of the court was delivered by
In this medical malpractice case, we must determine whether the jury should have been instructed in accordance with the increased risk of harm standard of causation of Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990). Because defendant did not establish that plaintiff suffered from a pre-existing condition, we conclude that the trial Judge correctly rejected defendant's request for the Scafidi charge and affirm.
The basic facts are relatively straightforward. In 1983, plaintiff Irene Golinski underwent surgery to remove an ovary. In January 1989, plaintiff gave birth to her first child by Caesarean section. In November 1990, she delivered her second child by Caesarean section. During this delivery, plaintiff suffered bleeding which her obstetrician, defendant Dr. Elizabeth Del Rosario (Del Rosario), attributed to adhesions which developed after her two prior surgical procedures. To control the bleeding, Del Rosario applied pressure with laparotomy pads. The bleeding was successfully controlled and plaintiff's second child was delivered without further incident.
Plaintiff experienced extreme pain following this delivery. Initially, the pain subsided within seven to ten days after the delivery. Approximately six weeks after the birth of her second child, plaintiff noticed a cyst-like formation on her left side. Plaintiff brought this to the attention of Del Rosario's partner, Dr. Irani, but no treatment was rendered.
In March 1991, plaintiff visited her family doctor with complaints of lightheadedness. She also showed her family doctor the cyst-like formation, which had grown. She was referred to her obstetrician/gynecologist. Dr. Irani ordered a CT scan which revealed the presence of a foreign object, a laparotomy pad twelve inches square.
On March 29, 1991, plaintiff underwent surgery performed by Del Rosario and her partner. Upon opening the peritoneum, Del Rosario discovered the laparotomy pad and some purulent material. She also discovered that the laparotomy pad was inextricably intertwined with the omentum, a protective drape that hangs over the small bowel and prevents entanglement of the bowel. Del Rosario removed the pad and omentum. Prior to closing the incision, she examined the small bowel. She found no abnormalities or adhesions in the area of the small bowel.
Following the March 1991 surgery, plaintiff's abdominal discomfort did not subside. In 1993, she became pregnant with her third child. On August 27, 1993, plaintiff underwent surgery to relieve a bowel obstruction. The surgery was successful. Eight to ten weeks after the surgery, plaintiff returned to work on a part-time basis. Her third child was born without further incident in December 1993. Following the birth, plaintiff returned to work full-time, but still suffers some abdominal discomfort.
On July 3, 1991, plaintiff and her husband filed this action against defendants Hackensack Medical Center, Del Rosario, Dr. M. Conley, Dr. M. Schlesinger, Dr. Diamont, Klaire Doyle Archer, S.T., Linda DeJonghe Bruno, R.N., and various fictitiously named defendants, which alleged that defendants committed malpractice during the November 1990 delivery of the couple's second child. At the close of defendants' case, a directed verdict was entered against defendants Doyle Archer and DeJonghe Bruno, the surgical technician and nurse who were responsible for counting the laparotomy pads used during surgery. Plaintiff's medical malpractice claim against Del Rosario was submitted to the jury which found that Del Rosario deviated from accepted standards of medical care in her treatment of plaintiff and that the deviation was a proximate cause of her injuries. *fn1 The jury apportioned the negligence equally between defendants Del Rosario, Doyle Archer, and DeJonghe Bruno and awarded $500,000 in compensatory damages. Following denial of Del Rosario's motion for a new trial or remittitur, Del Rosario filed a notice of appeal.
In his charge, Judge McLaughlin instructed the jury on the issue of causation as follows:
By proximate cause is meant that the negligent conduct of the defendant was an efficient cause of the accident and resulting injuries. That is a cause which necessarily set other causes in motion and was a substantial factor in bringing [about] the accident and injuries complained of. It's defined as a cause which naturally and probably ...