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Sgro v. Ross

November 24, 1998

ANTONIO SGRO AND ERMELINDA SGRO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
RICHARD S. ROSS, M.D., DEFENDANT-RESPONDENT.



Judges Muir, Jr., Eichen, and Coburn.

The opinion of the court was delivered by: Per Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 1998

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

Plaintiffs appeal from a judgment dismissing their medical malpractice complaint entered after a jury decided defendant had not failed to secure the informed consent of his patient, Dr. Antonio Sgro. They contend the trial court erred when it submitted the informed consent issue to the jury, and further erred when it improperly charged the jury on informed consent. We find no error and affirm.

Plaintiff Dr. Antonio Sgro, an insulin-dependent diabetic who at the time was 66 years old, consulted defendant ophthalmologist Richard S. Ross when the vision in plaintiff's right eye became blurred. An examination disclosed the right eye visual acuity as 20/200. Plaintiff suffered from cataracts in the right eye. After consultation, plaintiff opted to have a lens implant, a procedure Ross described as "standard."

The lens implant was initially successful. Plaintiff told defendant his vision was "clear, crystal clear." Several days after the surgery, plaintiff experienced eyelid swelling. Defendant told plaintiff to change prescribed eye drops and call him if anything worsened.

On December 10, 1991, plaintiff appeared for a regularly scheduled examination. At that time, defendant found the suture holding the implant had unraveled, but the implant was secure with only a slight peaking of the pupil. Defendant gave plaintiff instructions on use of prescribed drops and scheduled him for a return exam in a week.

On the evening of December 12, 1991, plaintiff experienced some difficulty with the eye. He felt a sense of wetness and his vision suddenly blurred. Since it was late in the evening, plaintiff went to bed. The next day, the wetness remained and the vision seemed more blurred.

Defendant saw plaintiff around 11:30 a.m. that next day. A portion of plaintiff's iris had prolapsed; the iris had pushed out through the incision made at the time of the cataract operation. One expert, who testified at trial, stated the prolapse probably occurred between 11 and 11:30 p.m. the night before. No other expert took issue with that opinion.

Given the prolapse, the absence of any necrotic (unhealthy) tissue, and the absence of conjunctiva on the iris, defendant concluded the prolapsed iris should be reposited rather than excised. Defendant testified that, because the prolapsed iris tissue appeared healthy and it was less than 24 hours old, he was required to reposit the iris back into the eye. Defendant told the jury he did not inform plaintiff about excision of the iris because it was not an option in this case. Excising the prolapsed section of the iris would have caused plaintiff to suffer from light sensitivity, double vision, and night glare.

Defendant informed plaintiff that he was going to fix the prolapse. Plaintiff testified that defendant did not tell him how he was going to fix it. Both plaintiff and defendant testified that defendant did not inform plaintiff as to any alternative procedure for repairing the prolapse. Plaintiff also testified that defendant did not inform him of any possible risks that might be involved.

Upon completion of the reposit operation, defendant ordered plaintiff to put drops of the antibiotic Chibroxin on the surface of his eye. Plaintiff followed his instructions.

On the evening of December 16, 1991, plaintiff experienced an "annoying sensation," which worsened during the night. By the morning, the pain was worse and plaintiff was experiencing double vision. The next day, plaintiff kept a previously scheduled appointment. The defendant's examination disclosed increased inflammation in the eye. Defendant ...


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