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Posta v. Chung-Loy

December 18, 1997


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

Approved for Publication December 18, 1997.

Before Judges Conley, Wallace and Carchman. The opinion of the court was delivered by Wallace, Jr., J.A.D.

The opinion of the court was delivered by: Wallace, Jr.

The opinion of the court was delivered by


Plaintiff John Posta appeals from the involuntary dismissal of his medical malpractice action against defendants, Harold E. Chung-Loy, M.D., David M. Rosenheck, M.D., Marc M. Wolfman, M.D., and the John F. Kennedy Medical Center. Prior to trial, the Judge granted summary judgment in favor of defendants on the issues of negligence, common knowledge, and res ipsa loquitur because plaintiff had failed to produce any expert opinion on causation. At trial, the Judge dismissed plaintiff's case on the issue of informed consent for failure to prove proximate cause. On appeal, plaintiff challenges as error: (1) the trial court's case management order dated March 18, 1996, (2) the grant of summary judgment to defendants on the issues of res ipsa loquitur and common knowledge, (3) involuntary dismissal on the issue of informed consent at trial, and (4) denial of his motions for reconsideration. In addition, plaintiff claims that the trial court erred by denying his numerous motions for a mistrial. We affirm.


Plaintiff filed a medical malpractice complaint against defendants contending that they deviated from accepted standards of care in treating him. The complaint alleged negligence, gross negligence, outrageous conduct, and failure to obtain informed consent, resulting in serious and permanent injury. During discovery, plaintiff responded to portions of interrogatories by stating that written reports of his expert would be supplied. Thereafter, defendants made various motions and the motion Judge entered several orders compelling the production of plaintiff's expert reports, but no such reports were produced. On July 8, 1994, the motion Judge ordered plaintiff to provide an expert liability report within ninety days or be barred from introducing expert testimony at the time of trial. Plaintiff failed to submit a report by the determined deadline.

On December 2, 1994, the motion Judge granted Dr. Chung-Loy's motion for partial summary judgment against plaintiff on the issues of res ipsa loquitur and common knowledge. The Judge further ordered the exclusion of plaintiff's expert testimony on the issue of liability, and noted that informed consent was the sole issue to be tried.

On October 27, 1995, the Judge entered an order compelling plaintiff to provide fully responsive and more specific answers to various interrogatories submitted by Dr. Chung-Loy. In February 1996, the Judge, following a case management conference, ordered that Dr. Chung-Loy appear for deposition and that discovery be completed within thirty days of January 29, 1996.

On March 18, 1996, the Judge entered another case management order directing that: (1) defendant's expert, Dr. James Chandler, appear for deposition; (2) plaintiff submit on or before April 8, 1996, any expert report responding only to Chandler's report, or be barred from thereafter serving a responsive report; (3) plaintiff's expert be produced for deposition between April 8 and 15, 1996, or be deposed during trial; (4) trial begin on April 15, 1996; and (5) videotaped depositions be taken of any witness unavailable for trial. Again, plaintiff failed to submit an expert's report.

Dr. Chung-Loy's counsel requested that plaintiff pay $583.10 for Chandler's deposition taken by plaintiff on March 7, 1996. Plaintiff refused to pay or respond to the request.

Trial commenced on April 30, 1996. Defendants David M. Rosenheck, M.D., Marc M. Wolfman, M.D., and John F. Kennedy Medical Center did not appear and were not represented at trial because they were not involved in the informed consent issue.

The evidence presented at trial showed that in September 1990, plaintiff began experiencing stomach problems and lost approximately sixty pounds. He was working as an independent engineering consultant at the time. On Christmas Eve 1990, he went to the Kennedy Medical Center complaining of severe nausea, vomiting, and a lack of appetite. He was treated and released. Plaintiff's stomach problems increased over the next few months. He became dehydrated, weak, and his stomach began to spasm even though it felt constantly bloated. He had difficulty sleeping for long periods of time and could not work or do any other activity. On April 2, 1991, plaintiff was admitted to Kennedy Medical Center. He had not eaten for five days. Defendant Wolfman conducted a series of tests as did defendant Rosenheck. Dr. Rosenheck concluded that plaintiff was suffering from perforations in his stomach and referred plaintiff to Dr. Chung-Loy, a surgeon.

After reviewing plaintiff's x-rays, Dr. Chung-Loy concluded that plaintiff was not suffering from perforations of his stomach. He conducted further tests and concluded that plaintiff had an obstruction in his small intestine and recommended surgery to correct the condition. Plaintiff signed a consent form on April 5, 1991, which authorized defendant to treat an "INTESTINAL OBSTRUCTION" and provided in part: *fn2

2. The procedure(s) necessary to treat my condition (has, have) been explained to me by Dr. CHUNG-LOY and I understand the nature of the procedure to be: (description of the procedure(s) in laymen's terms) EXPLORATORY LAPAROTOMY.

3. I have been made aware that there are common risks and possible complications of the proposed procedure as well as risks and consequences of not having the proposed procedure. I understand that there may be alternative treatments, and have been given the opportunity to discuss these with Dr. CHUNG-LOY.

4. I understand that the explanation given to me by my doctor is not exhaustive and that other, more remote risks and consequences may arise. I do not request any further explanation of these risks.

5. I agree that if during the course of the operation additional or different procedure(s) than those set forth in paragraph 2 are necessary due to the urgency of the condition, I authorize that such procedures be done, except:

[Left Blank]

6. I have received no guarantees as to the results of the planned procedure(s).


12. I have read this document, or this document has been read to me in its entirety. I fully understand it and all blank spaces have been either completed or crossed off by me prior to my signing.

Dr. Chung-Loy signed the following statement at the bottom of the consent form:

I have personally explained to the patient and/or the patient's authorized representative, the information contained in this consent.

Dr. Chung-Loy and a nurse were present when plaintiff signed the consent form. No one explained the form to plaintiff nor did he read the form before signing it. Dr. Chung-Loy gave him only ten minutes to decide if he wanted the surgery and never informed him that this was a life-threatening situation. Plaintiff, admitted however, that Dr. Chung-Loy informed him just prior to the surgery that this was a serious condition.

Dr. Chung-Loy was called to testify in plaintiff's case. He stated that after explaining the proposed surgery to plaintiff, he recommended that plaintiff have an exploratory laparotomy to determine the inner condition of his stomach. He informed plaintiff that surgery was necessary because the obstruction in his intestines was a potentially life-threatening condition and that without surgery his intestines would rupture and he would die. He said that surgery was the only option to correct plaintiff's condition, but that there were potential risks and complications to the surgery. Dr. Chung-Loy stated that he explained all of the risks, including the risk of developing a hernia to plaintiff before the first operation.

It later developed, however, that Dr. Chung-Loy informed plaintiff about the risk of hernia after the surgery when plaintiff became upset and tried lifting a nightstand to throw it at his roommate. The following colloquy occurred outside the presence of the jury:

THE COURT: Did you talk about hernia to the plaintiff before the first operation?

THE WITNESS: Not relating to the surgery, sir.

THE COURT: Is it true that the first time the subject matter came up was at this time after the first operation when you got this call [about plaintiff trying to throw the nightstand]?

THE WITNESS: Yes, sir.

THE COURT: Just tell me what you and he spoke about at that time.

THE WITNESS: Well, after I did initial assessment to make sure that this [lifting the nightstand] wasn't a life threatening problem that Mr. Posta was going through, I told him he cannot lift up the night table because if he does he can break his stitches he will definitely get a hernia. I told him that he ...

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