On appeal from Superior Court of New Jersey, Law Division, Essex County, L-2520-98.
Before Judges Stern, Coburn and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this medical malpractice action plaintiff, Paul Okulicz, executor of the estate of his late wife, Nancy Okulicz, appeals from a judgment of no cause for action following a jury verdict in favor of defendant, Doreen DeGraaff, M.D., and from the denial of his motion for a new trial.
In 1995, thirty-six year old Nancy Okulicz was in the second trimester of her pregnancy with her second child. She received her pre-natal treatment from Dr. DeGraaff, who was a specialist in obstetrics and gynecology and part of a medical group with two other ob/gyn specialists. Because Nancy's advanced maternal age put her at risk for complications, Dr. DeGraaff referred her to Dr. Edward Wolf, a perinatologist with St. Barnabas Hospital, for an ultrasound examination. The examination disclosed no abnormalities to the fetus, but it showed a four and one-half by five centimeter mass on Nancy's left ovary. Dr. Wolf told both Nancy and Dr. DeGraaff about the ovarian mass and wrote a letter on the same day to Dr. DeGraaff, stating the results as follows:
Ultrasound exam performed in our office revealed a single viable intrauterine pregnancy with a normal anatomic survey. Of note, there is a small 1 cm cyst on the right ovary and in the left adnexa was a 4.5 x 5 cm complex adnexal mass. It had shadows and calcifications consistent with a probable dermoid. I conveyed this information to you over the phone and you elected to follow the patient expectantly. I discussed with the patient the risks/benefits and alternatives of expectant management v. surgical exploration at this gestational age. The patient elected to proceed with expectant management. A follow-up exam was recommended in 4 to 6 weeks to evaluate the size of the mass.
Dr. DeGraaff said that Dr. Wolf told her the mass had the characteristics of a benign cystic teration or dermoid cyst. He also related to Dr. DeGraaff that he discussed options with Nancy, including surgery with a slight risk to the pregnancy and fetus. He said Nancy opted for"expectant management" during the pregnancy, which involved continued monitoring of the ovarian mass and ultrasound examinations on a regular basis until delivery.
Dr. DeGraaff telephoned Nancy the same day. While she had no clear recollection of the conversation, Dr. DeGraaff said that she would have told Nancy that although the mass appeared benign, the only way to verify was by surgical removal and biopsy. She said she would have also told her it was early enough in the pregnancy for her to wait six weeks and be re examined for any changes in the mass before electing surgery. Dr. DeGraaff testified that she would have told Nancy that surgery would be of some risk to the fetus but could not recall if she provided her with a percentage of the risk. She conceded that the second trimester of pregnancy was the safest time for surgery with only a five percent chance of fetal loss and fifteen to twenty percent chance of maternal complications. Dr. DeGraaff said she pursued expectant management with Nancy's pregnancy because of the perceived low risk based on the information she received from Dr. Wolf that the mass appeared to be a teratoma, although she recognized that some malignant cysts could appear to be teratomas.
Dr. DeGraaff also admitted she did not take a history from Nancy about cancer in her family, which would have revealed that Nancy's sister had breast cancer, and her father had colon cancer. She conceded that such information could alert a physician to an increased risk of cancer for her patient.
Paul Okulicz testified that he and his wife met with Dr. Wolf in his office after the ultrasound examination. Dr. Wolf told them the mass appeared to be a dermoid, which was"nothing serious," and he recommended only monthly examinations during pregnancy. Paul said Dr. Wolf did not discuss surgery to remove the mass and never mentioned cancer. Later that day Paul was at home with Nancy when Dr. DeGraaff called to discuss the finding of the ovarian mass. He said that during the conversation Nancy sounded"very happy, very nonchalant about the conversation. And it was nothing that would have run up a flag." Nancy told him Dr. DeGraaff wanted to know how the sonogram went and whether Nancy was comfortable. During the conversation of three or four minutes, Dr. DeGraaff did not mention the possibility of cancer or that the mass could be removed and biopsied at that time with only slight danger to the fetus. Paul claimed that if Dr. DeGraaff told them of a greater risk for cancer by delaying surgery until after the delivery,"I would have looked to my wife and said to her,'we've got a little girl, we love Claudia so much, she needs a mother. Whatever they tell us to do, let's follow the procedures.'" He added that if he were ever informed of a continuous risk posed by the mass after delivery, he and his wife would certainly have chosen surgery.
Nancy remained under Dr. DeGraaff's care throughout her pre natal period. She was examined on May 8, July 24 and August 31, 1995. Dr. DeGraaff did not recall speaking to Nancy about the mass during these visits, and her office records did not reflect any discussion of the issue. She also did not remember telling Nancy that the mass must be removed and biopsied after delivery. She admitted that an ovarian mass was most easily removed immediately after caesarian delivery while the ovaries are exposed. During this time Nancy saw Dr. Wolf for follow-up ultrasound examinations, and no noticeable changes were observed.
On September 3, 1995, three days after her last examination by Dr. DeGraaff, Nancy Okulicz gave birth to a healthy baby boy by vaginal delivery. The delivery was performed by Dr. Marshall Pollack, a member of Dr. DeGraaff's group who was on call at the time. Nancy spent three days in the hospital following the birth. No one discussed the ovarian mass with her during that time.
Dr. DeGraaff testified she could not recall any conversations with Dr. Pollack or any of her colleagues about removal of the ovarian mass after delivery, and her records did not indicate any such conversations. She said that if there had been a notation in the hospital record about expectant management of the mass, it would have alerted the physician to examine the mass, since removal"is part of ...