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Frost v. Brenner

May 5, 1997


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

Approved for Publication May 5, 1997.

Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by D'annunzio, J.A.D.

The opinion of the court was delivered by: D'annunzio

The opinion of the court was delivered by


Plaintiffs appeal from an adverse judgment in this medical malpractice case. The case was tried against Dr. Stephen Brenner and the Estate of the late Dr. John Hubbard. Plaintiffs presented two claims: deviation and informed consent. At the Conclusion of plaintiffs' case, the court dismissed the informed consent claim on the ground that plaintiffs' proofs had failed to quantify the relevant risks and, therefore, the jury would be unable to determine whether the reasonably prudent patient would have submitted to surgery in light of the relevant risk. The court also dismissed the claim against Hubbard on the ground that Hubbard had been a consultant and not a treating physician. Consequently, the case was submitted to the jury solely on the deviation claim against Brenner. The jury determined that Brenner had not deviated from the applicable standard of care.

In May 1990, plaintiff *fn1, William Frost, was employed as a carpenter by a furniture manufacturing company. At that time, he was attempting to lift a 'four by eight' piece of fiberboard when he experienced low back pain. A chiropractor treated Frost for six weeks while Frost continued to work. Frost's health insurer, however, required that he see a medical doctor because he was not improving. The first doctor Frost consulted recommended immediate disc surgery. Plaintiff felt that immediate surgery was premature, and he asked for a second opinion. The second physician also told Frost that he needed surgery. Frost sought a third opinion from his family physician, Dr. Samarsinghe. The family physician admitted Frost to the Pascack Valley Hospital on August 20, 1990 for testing and diagnosis. Upon admission to the hospital, Frost came under the care of defendant, Dr. Brenner, an orthopedic surgeon.

During his August admission, treatment consisted of traction and epidural steroid injections. Frost obtained no relief from these procedures. He testified that his pain increased. Consequently, Brenner and Hubbard performed disc surgery on August 28, 1990.

Frost and Brenner disagreed regarding the immediate impact of the surgery. According to Frost, after the surgery he woke up and had a lot of pain and a "fierce" urge to urinate. The next day Frost told Brenner and Hubbard that his right big toe was numb and he had a tingling in the calf muscle of his right leg. According to Frost, he had no toe numbness before surgery, but he did have calf tingling before surgery. Frost said that he was released two days after the surgery and that he was in "bad shape" as far as lower back pain. He had no leg pain, however.

Frost testified that he experienced increasing urinary frequency, but he did not tell Brenner about the problem because he did not believe it had any connection with his back condition. He thought it would go away. Brenner became aware of the urinary problem after Frost mentioned it to his physical therapist. Brenner immediately referred Frost to Hubbard, whom Frost saw on November 13. Hubbard ordered an MRI, which was performed on November 14. As a result of his exam and the MRI, Hubbard was concerned about the recurrence of disc fragments at the site of the August surgery, that is, at L4-L5 and L5-S1. Hubbard's differential diagnosis also included the possibility of scar tissue and spinal instability as potential sources of Frost's complaints.

Brenner also referred Frost to a urologist, Dr. Berdini, whom he saw on November 19. Berdini's diagnosis was that of a neurogenic bladder. Brenner admitted Frost to Pascack Valley Hospital on November 21, 1990.

Brenner testified that he and Hubbard removed herniated discs at L4-L5 and at L5-S1 during the August surgery, and that the surgery "freed up the nerve roots." Brenner stated that immediately after surgery, Frost experienced dramatic improvement. His leg pain was gone the first day. According to Brenner, the primary purpose of the surgery, elimination of pain and ambulation without cane or walker, was accomplished. Brenner testified, however, that Frost continued to have sensory loss around the L5-S1, S2 and S3 nerve roots. He described it as a "spotty loss." Brenner stated that pressure on the spinal nerves by a herniated disc damages those nerves. He explained that relief of the pressure eliminates the existing pain and that one then hopes that the nerve repairs itself. He cautioned, however, that more often than not the sensory function does not return.

Brenner testified that after the August surgery he saw Frost on November 5, 1990, October 1, 1990, October 22, 1990 and November 7, 1990. On November 7, Frost told Brenner that he had leg pain and tingling on the outside part of the right foot. Frost also told Brenner that he was leaking urine. Brenner then ordered Hubbard's examination and the urological consultation.

After the examinations by Hubbard and Berdini, Brenner admitted Frost to the hospital on November 21 for testing, including x-rays, bone scan, myelogram, MRI with catolinium enhancement, and abdominal and pelvic CAT scans. According to Brenner, these diagnostic procedures did not indicate a need for surgery. He did note, however, that they demonstrated a lot of scarring which he characterized as more scarring than might normally be seen. Brenner noted that some people develop more scarring from surgery than other people. He also testified that the lumbar CAT scan noted a left side change at L5-S1, which was felt to be a small disc herniation. He also considered spinal instability as a cause of Frost's ...

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