On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1234-95.
Before Judges Rodriguez, Lefelt and Lisa.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION 11/29/01
Joseph Lazarich had a two-centimeter cancerous tumor on the left side of his colon. Unfortunately, defendant surgeon Leonard Galler erroneously performed right-sided colon surgery to remove the tumor. Once the doctor recognized the error, he performed the required left-sided abdominal surgery three days later. Lazarich developed complications and died six weeks thereafter. Plaintiff Lorraine Holdsworth, individually and on behalf of her father's estate, sued Dr. Galler; Dr. Richard Troum, the treating gastroenterologist; and nurse Ann Horstman. The jury found the nurse not negligent but rendered a verdict in favor of plaintiff and against Dr. Galler and Dr. Troum. Plaintiff appealed, contending that Scafidi v. Seiler, 119 N.J. 93, 108-09 (1990), should not have been charged by the trial judge and should not have been applied to reduce the damages. We agree and reverse and remand.
These are the relevant facts and pertinent procedural history. At the first surgery on the patient's right side, Dr. Galler removed the end of Lazarich's small intestine, his entire right colon and the majority of his transverse colon. Approximately forty to forty-five percent, or over two feet, of the colon was removed by Dr. Galler. The first surgery was performed on the patient's wrong side. Consequently, three days later Lazarich had to undergo another surgery, this time on his left side, after which he was left with approximately twenty- percent of his colon. Because of swelling from the first surgery, Dr. Befeler, plaintiff's medical expert, explained that the second surgery was more difficult and time consuming. The first operation took approximately fifty-two minutes, and the second surgery approximately an hour and forty minutes. Lazarich's wound was never completely closed after the second surgery and the nurses reported seeing a portion of his bowel through the wound. Lazarich never left the hospital and died six weeks after the second surgery.
The jury awarded plaintiff $40,000 for Lazarich's three days of pain and suffering related to the first unnecessary surgery. This portion of the verdict is not challenged on appeal. The jury also awarded plaintiff $250,000 in survival act damages, N.J.S.A. 2A:15-3, for Lazarich's pain and suffering from the second surgery until his death. The jury also awarded $35,000 wrongful death damages to Lazarich's estate for the pecuniary loss of his son and daughter. N.J.S.A. 2A:31-1 to -6. Because the jury found under Scafidi that Dr. Galler's negligence reduced by forty-percent Lazarich's chances of survival, the judge reduced by sixty-percent all of plaintiff's damages relating to the second surgery. It is this reduction, ostensibly because of Scafidi, that plaintiff claims was error.
Lazarich's cancerous tumor, while not very large, had grown through the wall of his large intestine and had invaded two lymph glands in that area. The tumor had to be surgically removed, and Lazarich was a candidate for chemotherapy after the surgery. According to Dr. Befeler, had Lazarich received proper treatment, Lazarich would have had a "sixty to seventy-five percent chance of surviving five years" and a "better than even chance of living ten years."
One would assume, based on this testimony, that Lazarich's tumor would qualify as a pre-existing condition under Scafidi. "[W]hen defendant's negligence combines with a preexistent condition to cause an injury, the standard charge on proximate cause could confuse or mislead a jury." Id. at 102. Consequently, in such cases, plaintiffs need only prove that defendants' negligence increased the risk of harm and that the increased risk was a substantial factor in producing the ultimate injury. Id. at 104.
However, the defendants did not argue that Lazarich's tumor was the pre-existing condition under Scafidi. No one asserted that the tumor played any role in causing the surgery complications or Lazarich's death. Instead, defendants argued that possible complications associated with the colon surgery constituted a pre-existing condition under Scafidi.
Defendants' Scafidi argument is based solely on the cross-examination of plaintiff's expert, Dr. Befeler. Dr. Befeler testified that the left-sided surgery to remove the cancer from Lazarich had less than ten-percent known risk of complications, including pulmonary embolism, infection, scarring, bleeding, leakage from the anastomosis (small bowel reconnected to the large bowel), ileus (a paralyzed bowel) and wound infection. Dr. Befeler explained that some complications might have occurred anyway even if there had only been one left-sided surgery. The performance of the second abdominal surgery three days after the prior abdominal surgery, according to Dr. Befeler, increased the risk of ...