Argued: September 10, 1997
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County.
Before: Judges Muir, Jr., Kestin and Cuff.
The opinion of the court was delivered by: Kestin, J.A.D.
Plaintiff appeals from a judgment of dismissal entered on a jury verdict of no cause for action, and from the trial court's denial of her motion for a new trial or for judgment notwithstanding the verdict. We reverse and remand for a new trial.
This is a medical malpractice action. Plaintiff alleges that defendant, an orthopedic surgeon, was negligent in treating a fractured right hip which plaintiff suffered in a fall in her home. Specifically, plaintiff contends, inter alia, that the trial court erred in its rulings on informed consent which not only disallowed plaintiff from arguing an independent, viable theory of negligence to the jury, but also placed unwarranted limitations on plaintiff's capacity to prove her basic medical malpractice case.
Plaintiff was eighty-one years of age at the time of her fall on August 26, 1990. She lived alone in a senior citizen residence. Her right leg was partially paralyzed as a result of a stroke in 1952 which had been caused by a blood clot resulting from a mismatched blood transfusion. She wore a leg brace because she was unable to hold her foot in a horizontal position.
Following her fall, plaintiff could not get up or reach a phone. She was unattended for two days. After she was found and admitted to the hospital, plaintiff was severely dehydrated and had grossly distended bowels. X-rays revealed a fracture of her right hip, in respect of which defendant, an orthopedic surgeon, was called in on August 30 to consult on the case.
Based upon his review of the x-rays, defendant diagnosed plaintiff with a nondisplaced intracapsular fracture of the neck of the femur which had impacted on her right hip. He also noted, in addition to her dehydration and bowel problems, a right-side hemiparesis, defined in Stedman's Concise Medical Dictionary (2d Ed. 1994) as "slight paralysis affecting one side of the body." Defendant learned of the latter condition from the medical history provided by plaintiff, who related that the condition had affected her upper and lower extremities since her stroke many years before. Defendant determined that because of plaintiff's partial paralysis and consequent lack of activity, her right leg muscles had deteriorated to the point where she could not contract them upon request, and her bones had become severely weakened and osteoporotic. Additionally, defendant observed that plaintiff's right arm and hand had been rendered almost useless through a combination of the partial paralysis, which had resulted in a ninety-degree contracture of her right elbow, and rheumatoid arthritis, which had so deformed her hand that she was unable to open it.
Defendant evaluated plaintiff's mobility prior to the accident and formed impressions of her ability to maintain an independent lifestyle. The latter subject became an issue in the case. Defendant testified that because of plaintiff's paralysis and generally weakened condition, she was unable to walk normally. He maintained that plaintiff could not generate any kind of propulsion from her right leg and hip, and instead had to use her leg as a post into which she would lean while swinging her good leg forward. Defendant testified that based upon his conversations with plaintiff, he understood that while she had been capable of maneuvering around her closely confined apartment where she had things to hold on to, she had for a number of years relied upon a motorized scooter whenever she left the apartment.
Although experts for both sides agreed with defendant's assessment of plaintiff's limited ambulatory ability prior to her accident, plaintiff's daughter, Jean Kurzrok, testified that plaintiff had been entirely capable of caring for herself. Kurzrok related how, after being bedridden for an entire year after the stroke, plaintiff had managed to resume a normal life and care for her children. Kurzrok stated that plaintiff was able to walk, albeit with a leg brace and a limp, and that problems with her right arm eventually waned. It was only many years later, well after plaintiff moved into the senior citizen residence, that she found it necessary to rely upon a three-wheel electric scooter whenever she went outdoors. Kurzrok insisted that, until the fall, her mother could walk about her own apartment. She was of the opinion that her mother's leg brace was not really necessary but was worn as "a security blanket ... or a matter of habit." Kurzrok described her mother as a woman who "loved her independence." She stated that, while at the senior citizen residence, plaintiff washed and dressed herself, made her own bed, prepared her own food and did her own housework, laundry and light shopping. Plaintiff's friend, Madeline Quinlan, confirmed that plaintiff was largely capable of caring for herself, although she noted that plaintiff received one meal a day from Meals on Wheels.
Quinlan also believed that plaintiff did not need the scooter when moving throughout the building in which she resided. Plaintiff's dentist from 1981 to 1990, Arthur Massarsky, noted that over the years he had observed her climb the stairs to his second floor offices using a cane.
By the time of trial, plaintiff suffered from periodic disorientation and confusion; she was too ill to testify. Accordingly, portions of her deposition were read into evidence. Plaintiff testified that prior to her accident she was unable to walk without her leg brace because she had only sporadic feeling in her right leg. She stated that she could move her leg only when the brace was on. According to plaintiff, while she did her own housework, she could not go up a ladder or get down on the floor. She used a cart to transport her laundry while riding on her scooter. She could not get into her bathtub, so she washed herself at the sink. Although she did not use her scooter in the apartment, she always used it when she left the apartment, even to visit friends in the building.
Defendant testified that he made his treatment decisions after assessing plaintiff's physical condition. His goal was to provide plaintiff with a leg that could still function as a post and allow her to stand and to move from bed to a chair or to the bathroom. Because plaintiff's fracture was intracapsular, i.e., inherently stable due to the fact that the broken pieces were both contained and held together by the rubbery tissue of the capsule, defendant believed that there was a possibility that this goal could be met without surgical intervention. Although defendant knew that the standard procedure in such instances was to "pin" the fracture in order to prevent its displacement, defendant did not believe that plaintiff's bones were strong enough to withstand the insertion of four stainless steel screws without coming apart. The screws were described as being an eighth- to quarter-inch in thickness and about four inches in length.
Defendant further testified that if the pinning failed, it was likely that the pins would escape the capsule, "caus[ing] tremendous pain." According to defendant, immediate surgery would then be necessary to remove the pins, followed by a partial or full hip replacement. With either of these procedures, many complications could occur such as adverse reaction to anesthesia, blood clotting, dislocation, or fractures to the weak bone below the prosthesis.
Given plaintiff's frail condition, defendant decided that the better course of action would be to try to avoid complications that would lead to progressively more intrusive surgeries. He opted to proceed with a program of simple bed rest in order to avoid displacement and promote healing. He knew that displacement was likely to occur, resulting in a slight shortening of plaintiff's leg, but he believed that this would not be a serious problem in light of the fact that her foot already hung down. He believed that if all went well, plaintiff would have the same limited mobility as she had had before, utilizing the same walking aids. Defendant believed that there was no way plaintiff was going to get the leg she wanted, nor any way that she would be able to resume living independently. He testified:
[T]here were no risks really. She could ... be the same thing after the conservative therapy was over than [sic] she could before. She'd still have limited ability to ambulate. I'm not going to give her that leg she wanted. She wanted to live alone, but she couldn't live alone. It was detrimental to her to live alone. She could get up, but she couldn't walk on the avenue. I wasn't asking her that. I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.
According to defendant, he discussed his recommended treatment approach with plaintiff, and told her that he did not believe that she was a candidate for surgery at the time. He testified that plaintiff expressed some concern about blood transfusions and stated that she did not want to undergo surgery. Defendant stated that plaintiff appeared to be in possession of her faculties; and Kurzrok acknowledged during her testimony that her mother was fully capable of, and had, in fact, made the decision to follow defendant's recommendations. Defendant testified that he also spoke with plaintiff's family regarding her care and expressed his opinion that plaintiff should be placed in a situation where she would have twenty-four-hour care.
Kurzrok testified that she had received a phone call from defendant who informed her that plaintiff had a "slight" crack in her right hip, and advised bed rest in the hopes that it would heal itself. Kurzrok stated that defendant asked no questions about plaintiff's ability to live independently; and her impression was that, upon healing, all would be fine. According to Kurzrok, she and defendant did not speak about placing plaintiff in a nursing home. Kurzrok testified that defendant never informed her of the attendant risks of displacement, loss of leg length, or non-recovery from the course of treatment he recommended; nor did he indicate that plaintiff needed surgery. Kurzrok contended that defendant had not conveyed to her an accurate picture of the condition of plaintiff's hip. She testified that defendant told her the fracture could be pinned, but that this surgery was elective and could be done in the future. He stated to her that plaintiff had informed him that she did not want surgery.
Kurzrok visited her mother every day and noted that, after the first few days, nurses regularly assisted plaintiff out of her bed and into a chair. Plaintiff complained constantly of hip pain. Kurzrok called defendant to relate this information. Defendant told her he would call her back after he had had a chance to review plaintiff's latest x-rays. Kurzrok testified that, during their subsequent conversation, defendant stated that "there had been a slight shift in the crack, and he could kick himself for not putting a pin in right away." Nonetheless, defendant ordered a continuous program of bed rest, which prevailed until his involvement with plaintiff's care ended upon her discharge from the hospital on October 11, 1990.
Defendant testified that he had waited several days before ordering new x-rays because he wanted to evaluate the stability of the fracture after plaintiff made it out of bed. He acknowledged that he had expressed regret to Kurzrok, after discovering the displacement, that he had not put a pin in, but stated that he was merely expressing his frustration over not having been able to help plaintiff either with or without surgery. He believed, nevertheless, that his goal of making plaintiff minimally ambulatory could still be accomplished with continued conservative care. Defendant realized that many orthopedic surgeons would have operated immediately once the displacement occurred, but he believed, given plaintiff's overall condition and the likelihood of complications, that surgery should be avoided as long as possible, especially where there was every reason to think that plaintiff could still become minimally ambulatory on her own.
After her discharge from the hospital on October 11, 1990, plaintiff was transferred to an intermediate care center where she was expected to receive physical therapy. This therapy was eventually ordered in late 1990 by plaintiff's succeeding orthopedist. Throughout 1991, while plaintiff was still at the intermediate care center, she saw a number of other orthopedists. During her time there she was also treated for depression. By the end of 1991, plaintiff was unable to straighten her right knee and she was diagnosed with contractures of the knee. In February 1992, surgery was performed on plaintiff to release those contractures. Her therapy continued until her release from the intermediate care center in January 1993, after more than two years.
Plaintiff was then admitted to a nursing home, where her therapy was continued. Two-and-one-half additional years passed and, in June 1995, plaintiff underwent a full hip replacement. She suffered complications from this procedure, and almost died. The problems included massive blood clotting requiring the insertion of a blood filtering device, toxic encephalopathy, a urinary tract infection, and a secondary infection which resulted in massive diarrhea caused by a necessary antibiotic. Eventually plaintiff returned to the nursing home, but still could not walk.
Later the same year, plaintiff's leg broke beneath her prosthesis and she was rehospitalized for additional surgery. Kurzrok testified that, at the time of trial, plaintiff was withdrawn, forgetful and easily confused. Although she could operate her scooter on the nursing home floor, she required assistance to get out of bed, dress, go to the bathroom, or bathe.
Plaintiff's expert, Dr. Hervey S. Sicherman, a board-certified orthopedic surgeon, testified that defendant had deviated from the standard of care by failing to pin plaintiff's fracture immediately in order to ensure its stability. According to Sicherman, neither plaintiff's age nor the fact that she was osteoporotic contraindicated surgery. He asserted that pins do not dislodge because of osteoporosis, but rather because of "the nature of the fracture and the amount of forces on the hip joint in there." He believed that pinning would probably have restored plaintiff to her prior condition. In Sicherman's opinion, defendant should have tried to avoid further disadvantage to his partially paralyzed patient by preventing any shortening of her leg.
Sicherman opined further that a non-operative course of treatment should be attempted only with strong patients who can endure traction. Nevertheless, once plaintiff had begun this course of treatment, she should not have been allowed out of bed; and x-rays should have been performed as soon as she complained of pain. Sicherman believed that defendant's failure to impose necessary restrictions upon plaintiff's movement resulted in the displacement of her fracture. He further believed that once displacement had occurred, defendant should have immediately performed a hemiarthroplasty, a partial hip replacement. He stated that, with an elderly patient, it is always better to operate sooner, rather than later.
Sicherman believed that the development of contractures of the hip by late 1990, and of the knee by late 1991, resulted from the course defendant had undertaken to treat plaintiff's fracture, which left her unable to move and allowed her muscles, tendons and ligaments to stiffen and contract. He was of the opinion that the failure to pin the fracture resulted in plaintiff's need for a full hip replacement in 1995; and that her inability to walk afterwards was the result of nerve damage sustained during her protracted period of immobility and the resultant surgery to release the knee contractures. In sum, plaintiff's then current inability to walk and the need for her to have become institutionalized were, in Sicherman's estimation, caused by defendant's deviations.
Sicherman also testified that defendant's decision to follow a non-operative course of treatment with plaintiff did not render her an unsuitable candidate for later hip surgery. He acknowledged that plaintiff remained a candidate for either a partial or full hip replacement in December 1990 when she was no longer under defendant's care. He also stated that the subsequent contractures in her hip and knee did not rule out a partial hip replacement.
Defendant's expert, Dr. Ira A. Roschelle, a board-certified orthopedic surgeon, testified to his view that a patient's overall physical condition is vitally important in making the decision whether or not to operate. He stated that because plaintiff had sustained an inherently stable intracapsular fracture, healing without surgical intervention was possible provided there was no movement at the fracture site.
Roschelle believed that surgery was not mandated in plaintiff's case because she was already significantly impaired and did not require a perfectly aligned leg to use the leg as a post, as she had done before. He also noted that surgery would have placed plaintiff at risk due to her poor health. He testified that it is acceptable under the prevailing standard of care to treat a patient without surgery in order to avoid harming the patient. Roschelle agreed that, had plaintiff been generally healthy, the proper course would have been to pin the fracture.
Although Roschelle acknowledged that pinning could have increased the chances of non-displacement, he opined that plaintiff's osteoporosis raised a valid concern as to whether her bones could withstand the insertion of four pins. Roschelle noted that pinning fails sixty percent of the time due to such complications as loss of fixation, failure to heal, and loss of blood supply to the joint. When pinning fails, either partial or full hip replacement is necessary. Risks of hip replacement surgery include blood clots and bowel problems. Patients without normal muscle control, such as plaintiff, also run the risk of dislocation.
Roschelle opined that defendant was not to blame for the subsequent partial displacement of plaintiff's fracture. He testified that traction had not been necessary and that defendant had sufficiently monitored plaintiff's progress. He stated that there were no instructions which defendant could have given to the hospital staff to avoid displacement. Fractures of this type take four to six months to heal and patients must move out of their beds.
Roschelle noted that defendant could still have decided to pin the fracture or replace plaintiff's hip once the displacement occurred. This would have been the usual course with a healthy patient, but he observed that defendant's decision not to operate was supported by plaintiff's medical problems and by the fact that the fracture remained intracapsular and healing could still have occurred. Roschelle stated further that defendant's conservative treatment approach did not preclude the possibility of a partial or full hip replacement at a later date, and that any one of plaintiff's subsequent orthopedists could have performed those surgeries.
Roschelle testified that plaintiff's knee contractures, which developed halfway into her stay at the intermediate care center, could not have been avoided even if defendant had pinned the fracture. In Roschelle's opinion, these contractures were the result of plaintiff's paralysis and rheumatoid arthritis. He believed them to have caused much of the apparent shortening of plaintiff's leg, noting that the implant plaintiff received in 1995 was of normal size. He also opined that defendant was in no way responsible for the fact that plaintiff ultimately received a full rather than a partial hip replacement.
From the beginning of the trial, plaintiff sought to have the issue of informed consent placed before the jury. The trial Judge ruled that the issue was not part of the case. Plaintiff was prohibited from cross-examining defendant relative to it and from establishing a predicate for any such argument in the testimony of her own experts. Prior to jury selection, plaintiff argued that defendant had not only failed to "use proper care in the management of [the] ... conservative [course of] treatment" he had selected for plaintiff, but that he had also violated his legal duty in making the decision to treat plaintiff conservatively, i.e., non-surgically, without providing sufficient information about alternative treatment options and the benefits and risks associated with each, so that plaintiff herself, on a fully informed basis, would be in a position to select a course of treatment from the choices available. Plaintiff argued that the failure to provide sufficient ...