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Tindal v. Smith

March 26, 1997


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

Approved for Publication March 28, 1997.

Before Judges Pressler, Stern and Humphreys. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

The opinion of the court was delivered by


This is another difficult case involving a claim of medical malpractice impacted by a pre-existing condition and assertions that the patient's health habits (specifically excessive smoking) contributed to her condition. Plaintiff contends that she developed Reflex Sympathetic Dystrophy (RSD) as a result of surgery that should not have been performed and, in any event, was negligently performed. We affirm the judgment for defendants.

Plaintiffs Deborah and Tom Tindal appeal from a judgment of "no cause for action" based on a verdict in favor of defendants. Plaintiffs also appeal from the denial of their motion for judgment n.o.v., a new trial, or relief from judgment. They contend that "defendants were negligent in recommending and performing a bunionectomy" on Deborah (plaintiff) because it "was contraindicated by her known condition of Raynaud's phenomenon, a vascular disease." After the surgery, plaintiff developed RSD, a disease characterized by prolonged and intense pain long after the surgery was performed. Defendant John Smith, a podiatrist, performed the surgery in August 1989. Defendant John Freda, who practices with defendant South Brunswick Family Practice, cleared plaintiff for the surgery.

On this appeal plaintiffs principally contend that testimony concerning Deborah's medical condition and treatment after September 1993 should not have been excluded even though she failed to provide discovery thereof; that the trial Judge should have enforced plaintiffs' subpoenas served on two doctors; that the jury charges and interrogatories were inappropriate and misleading; that the testimony of Dr. Szemere, a chiropractor, should have been admitted; that the defense summation was prejudicial, and that the Judge erroneously denied them additional peremptory challenges.

The charge on proximate cause was erroneous. However, the jury found no negligence and the issues of negligence and proximate cause were distinct and separable. Under these circumstances and in the absence of prejudice, we find no reversible error in the giving of the erroneous charge on proximate cause. We also find that no error, alone or in the aggregate, warrants reversal in the circumstances and affirm the judgment.


After a ten-day trial, the jury found that plaintiff suffered "from either Raynaud's Syndrome or some other type of Vaso Spastic Condition" prior to the surgery, but that it was not "a contributing factor" to plaintiff's RSD. The jury further found that Freda and South Brunswick Family Practice had obtained plaintiff's "informed consent" before granting medical clearance for the bunion removal Smith performed and that Smith had obtained plaintiff's informed consent before performing the surgery. The jury also concluded defendants had not "deviated from accepted standards of medical practice." As we understand the record, the jury was asked to decide if the risks of surgery were adequately explained to plaintiff and whether the decision to perform the surgery was itself a deviation from proper medical care, as well as whether the surgery was negligently performed.

In March 1989 defendant John Jorgensen, *fn1 who was associated with defendant, the South Brunswick Family Practice, referred defendant to defendant Smith because of problems with her feet. Plaintiff first saw Smith on May 23, 1989. She complained of pain and swelling in both feet. Plaintiff told Smith that she had had bunions for approximately two years and had previously seen a doctor for treatment. *fn2 She also told Smith that she possibly had Raynaud's phenomenon, a diagnosis which Freda had not confirmed. Plaintiff also advised Smith that she had no trouble healing after prior surgeries. After taking plaintiff's history and conducting an examination, including x-rays, Smith saw no indication that plaintiff was suffering from Raynaud's phenomenon or other circulatory problems.

Smith diagnosed plaintiff as suffering from bunions on both feet and a spur on her left foot. He advised plaintiffs that surgery to remove the bunions was a viable alternative. However, he testified that he "offered" that plaintiff be evaluated by a vascular surgeon, but that plaintiff "rejected" this idea. According to plaintiff, she "was not informed of any of the risks of surgery other than general risks," never recommended further vascular testing and repeatedly reassured her that there was "nothing to worry about." Smith and plaintiff both testified that they agreed that Smith would obtain the records of Dr. Lev, a "circulatory diagnostic" expert who had previously cleared her for surgery. However, those records were not obtained before the surgery was conducted.

On June 30, 1989, plaintiff saw Smith for a preoperative visit. Smith had no specific recollection of what he told plaintiff; however, he testified as to his usual practice before this type of surgery. He informs patients how long the operation will take and how long the feet will take to heal. He also tells patients about possible complications, possible side-effects of medications, the risk of postoperative infections, swelling, numbness, and the possibility that the bones will not heal. In addition, he informs smokers, like plaintiff, of the potential for arterial spasm and limb loss because "nicotine constricts the arteries" and blood vessels. Smith testified that he believed plaintiff's "heavy smoking" "contributed to her problems."

Smith further testified that, as a result of their Discussion, plaintiff "agreed to stop smoking," but indicated that this agreement was not a precondition to his operating. Plaintiff signed a consent form. Smith admitted that he did not tell plaintiff about the possibility that the surgery might aggravate Raynaud's phenomenon, arterial spasms or vasculitis.

Smith also gave plaintiff a form to be completed by her family physician before the surgery could be performed. On July 28, 1989, Jorgensen examined plaintiff and cleared her for surgery. According to plaintiff, Jorgensen assured her that he saw no evidence of Raynaud's disease or any other circulatory problems. Jorgensen noted on the form that there were no cardiovascular problems. Freda also signed the form.

Smith removed the bunions from plaintiff's left foot on August 7, 1989, at the Princeton Medical Center. According to plaintiff, before the operation she told Smith that she had not quit smoking and Smith told her there was "no problem" proceeding with the operation. During the operation, Smith applied a tourniquet to the left ankle in order "to identify the small structures" of the foot and work in an "accurate, efficient," and rapid fashion. Smith "moved" two nerves, the medial dorsal cutaneous nerve and the lateral proper nerve to the great toe. The portion of the bone which forms the bunion was cut off and the remaining bone was pinned in a way to keep it from moving. The surgery lasted forty-three minutes. The tourniquet was in place for approximately forty-six to forty-seven minutes. After it was removed the foot immediately returned to a "pink and ...

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