On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-2725-99.
Before Judges Stern, A. A. Rodríguez and Kimmelman.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a trial of her case against defendant on negligence and informed consent claims, plaintiff, as executriX of her late husband's estate and individually, appeals from a molded judgment in the amount of $7,285, based on an assessment that 90% of decedent's"ultimate injuries or damages" were attributable to his pre-existing cancer. Defendant cross- appeals from the denial of his pretrial motion to dismiss the informed consent claim on which the jury found liability. The jury found no negligence or"deviat[ion] from accepted standards of medical practice."
Plaintiff argues that she is entitled to a new trial on damages and on the Scafidi allocation issue, see Scafidi v. Seiler, 119 N.J. 93 (1990), while contending that"the liability issues should not be retried." On his cross-appeal, defendant seeks a reversal of the judgment and dismissal of the complaint because there is no basis for a verdict premised on lack of informed consent.
We reverse the judgment based on lack of informed consent, but order a new trial on all issues on the negligence claim.
In her complaint, plaintiff alleged that defendant, a urologist, deviated from the standard of care in his treatment of her husband (decedent) for bladder cancer, thereby contributing to his death. Plaintiff asserted claims for survivorship, wrongful death and loss of consortium.
At trial, plaintiff pursued two theories of liability: (1) a negligent diagnosis/treatment theory--that defendant deviated from the standard of care when he failed to diagnose the recurrence of decedent's bladder cancer in April 1997; and (2) an informed consent theory--that in April 1997 defendant failed to inform decedent of all information a reasonable person would expect a doctor to disclose, thereby depriving him of his ability to make an informed decision about whether to pursue additional diagnostic testing or courses of treatment.*fn1
The jury concluded that defendant was not negligent in failing to diagnose and treat the cancer. However, the jury also concluded that defendant failed to obtain decedent's informed consent regarding additional diagnostic testing which could have been performed, and that this failure"increase[d] the risk of harm posed by the [decedent's] pre-existing condition." As already noted, the jury attributed ten percent of the"ultimate injuries or damages" to defendant's failure to obtain decedent's informed consent.
In assessing damages, the jury awarded $12,000 to decedent's estate for his"pain, suffering, disability, impairment and loss of enjoyment," $13,000 to his survivors for wrongful death, and $15,000 to plaintiff on her loss of consortium. Defendant also stipulated to $20,000 in unreimbursed medical and funeral expenses. On April 4, 2003, the trial judge entered final judgment, molding the jury's verdict and reducing the damage awards in accordance with the percentage of liability assessed by the jury. The court awarded plaintiff damages in the amount of $7,285 ($6,000 in damages, that is 10% of the aggregate $60,000 damage award, plus $1,285 in prejudgment interest).
Decedent first visited defendant on January 26, 1996. At that time, decedent was a seventy-four-year-old retiree. He complained of"urinary hesitation" ("a urinary stream that is [slow or] hesitant to start"), frequent urination, burning and discomfort when urinating, and erectile dysfunction. Defendant performed a physical examination and found a mass in the right upper quadrant of the abdomen, as well as a nodular and firm prostate, which are signs of prostate cancer. Defendant discussed his findings with decedent and ordered a variety of tests to determine the cause of the symptoms.
According to the proofs, there are several tests used to detect bladder cancer. They include cytology, which involves taking urine samples which are tested by a pathologist. If malignant cells are discovered, additional testing must be performed to discover the location of the cells within the urinary tract. Cytology is successful in detecting between eighty and ninety percent of high-grade or"aggressive" cancers.
Cystoscopy involves a visual examination of the bladder through the use of a cystoscope, an instrument containing a light and a camera lens, which is inserted through the urethra into the bladder, allowing visual examination of the interior surface of the bladder. Cystoscopy provides only"a one- dimensional view" of the bladder and, therefore, cannot detect cancer that is not visible on the surface of the bladder. However, bladder cancers are"transitional cell cancers"; they originate from the transitional cells which are unique to the lining of the urinary tract, and then spread into the bladder wall. Therefore, virtually all bladder cancers would be visible on the surface of the bladder. As a result, even plaintiff's expert urologist admitted that it would be"rare" for a bladder cancer not to be visible by cystoscope.
A third diagnostic technique involves a biopsy or removal of tissue from the bladder and having it tested for cancer by a pathologist. Finally, a CT scan can be taken to x-ray and examine the lower pelvis. However, CT scans are typically used to"stage" the progress of bladder cancer which has already been diagnosed based on other tests and to determine the extent to which the cancer has spread beyond the bladder. The CT scan is"three-dimensional" and can detect cancer"which does not appear on the inner surface of the bladder."
Among the tests defendant performed on decedent in February 1996 was a cystoscopy. The cystoscopy revealed a lesion or tumor on the right side of the bladder, which defendant believed was positive for cancer. Defendant discussed these findings with decedent and one week later performed surgery to remove the tumor as well as some surrounding tissue.
Post-surgical biopsies revealed that the tumor was cancerous. The cancer had been located on the surface of decedent's bladder, with some invasion into the submucosa and lymph channels of the bladder wall, but with no invasion into the muscular wall of the bladder. The bladder cancer was an aggressive form which recurs in approximately seventy percent of its victims.
Defendant treated decedent with six courses of BCG therapy over a six-week period. BCG is a tuberculosis vaccine used as a form of chemotherapy to prevent the recurrence of bladder cancer. ...