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Aiello v. Muhlenberg Regional Medical Center

June 29, 1999


The opinion of the court was delivered by: Handler, J.

Argued March 16, 1999

On appeal from the Superior Court, Appellate Division.

This is a medical malpractice case that requires the Court to address the principle of law that allows a doctor to avoid liability for injuries to a patient resulting from medical conduct involving the "exercise of judgment." The alleged malpractice in this case arose out of the performance of a medical procedure known as a laparoscopic tubal ligation. The procedure requires the insertion of a needle into the patient's body. The plaintiff sustained significant internal injuries when the defendant, her surgeon, mistakenly inserted the needle through her abdomen and beyond the operative field.

The issue is whether, under these circumstances, the court should have instructed the jury to consider whether the doctor's conduct in performing the medical procedure involved the reasonable "exercise of judgment" that could be a defense or excuse for medical "mistake;" or alternatively, whether the performance of the medical procedure raised only the question of the doctor's negligence or lack of reasonable professional care, which would not provide a defense based on a "mistake" otherwise attributable to the "exercise of judgment."


On September 30, 1992, defendant, Dr. Mahesh Shah, a specialist in obstetrics and gynecology, performed a laparoscopic tubal ligation on plaintiff, Laura Aiello, at Muhlenberg Regional Medical Center. During the procedure, a Verres needle inserted by defendant perforated plaintiff's mesocolon and mesenteric arteries and lacerated her left iliac vein.

Plaintiff commenced a medical malpractice action against Dr. Shah, another surgeon, Dr. Mabini Piezas, and Muhlenberg Regional Medical Center d/b/a Muhlenberg Hospital. Plaintiff claimed that following the surgery she suffered from chronic abdominal and pelvic pain, tingling and numbness in her left groin, and pain during intercourse.

The case was presented to a jury with an instruction that it should consider whether defendant had exercised reasonable medical judgment. The jury found that defendant had not deviated from accepted standards of medical care in treating plaintiff, and returned a no cause of action verdict in favor of defendant. Plaintiff moved for judgment notwithstanding the verdict and/or a new trial on the issue of liability pursuant to Rule 4:40-2.

The trial court thereafter granted plaintiff's motion for a new trial on the issue of damages. The court determined that, as a matter of law, the injury to plaintiff's iliac vein could not occur in the absence of negligence. The court also ruled that the jury instruction was erroneous because it included the standard of a physician's reasonable "exercise of judgment" as a possible basis for not finding defendant liable.

Defendant filed a motion for leave to appeal, which was denied by the Appellate Division. This Court subsequently granted defendant's motion for leave to appeal and summarily remanded to the Appellate Division to consider the merits.

In an unpublished per curiam opinion, the Appellate Division reversed the trial court's entry of a directed verdict in favor of plaintiff, and remanded for the entry of a no cause of action verdict. The court reasoned that "reasonable minds could differ on whether or not Dr. Shah was negligent" and that the trial Judge correctly included the legal standard of a physician's "exercise of judgment" in the jury charge. Judge Shebell Dissented in part, agreeing that the directed verdict should be vacated, but concluding that the trial court committed reversible error by including the "exercise of judgment" portion in the jury charge.

Plaintiff appeals to this Court as of right pursuant to Rule 2:2-1(a)(2).


This case requires an understanding of the medical procedures that were performed on plaintiff. Plaintiff first consulted Dr. Shah about replacing her I.U.D., which she used for birth control. Dr. Shah recommended sterilization as an alternative after plaintiff informed him that she was certain that she did not want to have any more children. Because plaintiff was very concerned about any scarring that could result from surgery, defendant determined that it was necessary to perform a laparoscopic tubal ligation.

A tubal ligation is a surgical procedure that is undertaken to occlude a woman's fallopian tubes, making her sterile. When performed using a laparoscope, a telescopic device that allows visual examination of the internal cavity, the procedure may be performed without significant incisions to a patient's skin, thereby avoiding scarring.

In order to perform a laparoscopic tubal ligation, a surgeon makes a small incision either in or directly below the navel and introduces a Verres needle into the abdominal cavity. The Verres needle is an instrument that has a ten-centimeters-long outer needle with a blunt protruding probe at its tip. Once the probe meets with resistance, it retracts, and a spring mechanism propels the needle forward. During a laparoscopic tubal ligation, the Verres needle is pushed through the patient's inner lining and into the peritoneal cavity, which contains the intestines, uterus, ovaries and stomach. When the needle is at that position, the abdominal cavity is insufflated with carbon dioxide gas, which pushes the intestines down and away from the area, allowing for greater instrument mobility and visualization. The Verres needle is then removed and a laparoscope is introduced into the abdomen. Next, a cutting instrument is pushed into the lower abdomen through a second incision in the upper pelvic area. Sterilization is completed by a procedure that requires placing plastic bands, called fallope rings, on the left and right fallopian tubes. This was the surgical procedure that was performed on plaintiff.

After plaintiff's tubal ligation was completed, Dr. Shah noticed that some blood had collected in plaintiff's cul-de-sac, an extension of the peritoneal cavity, which lies between the rectum and the posterior wall of the uterus. A laparotomy, that is, a surgical opening of the abdomen, was required to correct ...

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