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Colucci v. Oppenheim

November 22, 1999


Before Judges Kestin, Wefing and Steinberg.

The opinion of the court was delivered by: Steinberg, J.A.D.


Argued: October 20. 1999

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

In this medical malpractice case, plaintiff Donald Colucci appeals from an order dismissing his complaint against defendant William Oppenheim, M.D. with prejudice based upon a jury verdict of no cause for action, as well as from an order denying his motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We reverse.*fn1

On September 19, 1992, plaintiff, an Essex County Sheriff's Detective attached to the Fugitive Warrant Squad, while on the job, sustained an injury to his left knee. Arthoscopic surgery was unsuccessful. Accordingly, in October 1993, plaintiff met with defendant, an orthopedic surgeon, to discuss his treatment options. Plaintiff was accompanied by Judy Jordano, R.N., his rehabilitation nurse and case manager assigned to him by his employer's workers' compensation insurance carrier. According to plaintiff, defendant recommended performance of an osteotomy. Plaintiff said defendant advised him that an osteotomy involved a realignment of the bones in his left knee. Defendant also explained that pins would have to be inserted into his knee in order to hold the realignment in place. According to plaintiff, he was told that at least one pin would be protruding from his skin. He denied that defendant ever used the word "screw". Plaintiff also denied that defendant ever advised him that an open wedge osteotomy--which involved defendant's having to fracture his leg, realign it and hold it in place with an external fixator device--was to be performed. According to plaintiff, he first became aware that an external fixator had been drilled and screwed into his leg bone when he awoke in the hospital after the surgery.

Plaintiff also testified that defendant never advised him of an alternative procedure known as a closed wedge osteotomy, which involves the use of a closed long leg cast and an internal fixator as opposed to the application of an external fixator. Moreover, a closed wedge osteotomy does not involve screws or pins protruding from the patient's leg. Plaintiff contended that a closed wedge osteotomy would therefore create a lesser risk of infection.

On the other hand, defendant testified that he discussed the possibility of a closed wedge osteotomy with plaintiff. Defendant also testified that, in his opinion, since the incision for an open wedge osteotomy was much smaller, there was a decreased risk of infection. According to defendant, he discussed with plaintiff the advantages and disadvantages of both types of surgeries and explained why he recommended the open wedge osteotomy.

Plaintiff testified that had he known what was actually involved in an open wedge osteotomy, and the potential risks involved, he would have sought a second opinion regarding alternate treatment. Before leaving defendant's office, plaintiff was given a magazine article which discussed the open wedge tibial osteotomy. According to plaintiff, he read the article but did not understand it because it was too technical.

Jordano testified that she had no independent recollection of what took place during the meeting between plaintiff and defendant but, according to reports she filed with the insurance carrier, the only two procedures that were discussed were the open wedge osteotomy and a total knee replacement.*fn2

The surgery was performed on November 8, 1993, at St. Barnabas Hospital. Plaintiff signed a consent to operate which indicated that the proposed surgical treatment was "upper tibial osteotomy application external fixator left tibia". The consent form was dated November 8, 1993, and indicated it was signed at 6:45 a.m. Plaintiff testified that the consent form did not describe the proposed surgical treatment at the time he signed it, thereby implying that the description was filled in after he signed the form. He said the form was presented to him as he was leaving the "pre-op" room going to the hallway that led to the operating rooms. He said that he signed the form and "within three minutes I was in the operating room". However, according to the anesthesia record, plaintiff was taken to the operating room at 8:00 a.m.

Post-operative complications developed. Plaintiff is a diabetic and accordingly he is susceptible to an elevated risk of infection. He noted redness around the area of the upper screw sites and returned to defendant's office. He also experienced continued pain and redness of the screw sites as well as some swelling in the leg. In early January 1994, he was readmitted to the hospital because of increasing pain in his leg. Defendant opined that plaintiff had a low-grade infection rather than a pin-site infection. According to defendant, since plaintiff's low-grade infection which defendant referred to as an irritation or small cellulitis had resolved and plaintiff's knee had not sufficiently healed, defendant did not remove the external fixator during plaintiff's January 1994 hospitalization.

Defendant removed the external fixator on March 7, 1994, because, in his judgment, the bone that was being formed was not maturing and there was a recurrence of increased temperature around the pin-sites. On March 15, 1994, plaintiff was again admitted to St. Barnabas Hospital because the pin sites had not closed since the screws had been removed. It was discovered that plaintiff had a blood-borne infection called Methicillin Resistant Staphylococcus Aureus (MRSA).

According to plaintiff, the infection spread throughout his body. He went into a coma; was placed in intensive care on a respirator and feeding tube, and sustained a multiple system failure as a result of the infection. Dr. Leon Smith, who was board certified in infectious diseases, testified that plaintiff, as a result of the infection, had brain abscesses, lung problems, heart murmurs, a blood infection, kidney failure, and spinal abscesses. He opined that an infection had settled into plaintiff's spine causing spinal abscesses. According to plaintiff, he was ultimately required to undergo back surgery since the infection had eaten away the bone of his spine. In addition, plaintiff presented the testimony of Dr. Gary R. Joachim as a medical expert in the field of infectious diseases. Dr. Joachim testified that defendant deviated from the medically accepted standard of care in not recognizing and treating the infection earlier, and in the ...

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