On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number BER-L-4603-99.
Before Judges Petrella, Parker and Yannotti.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2004
Defendants James J. Pedicano, M.D. and James J. Pedicano, M.D., P.A. appeal from an adverse jury verdict of $150,000 in an action originally instituted by plaintiffs Wendy and John Zuidema as a malpractice action, but which was amended to assert additional claims of sexual assault and"medical negligence." This appeal presents the issue of whether sexual relations by a physician with a patient can be considered medical malpractice or"medical negligence" as opposed to an assault where the medical malpractice claims were dismissed before trial and the jury found no sexual assault. Plaintiffs*fn1 cross-appeal the judge's calculation of prejudgment interest using the filing date of the amended complaint.
On appeal defendants argue: (1) plaintiff's claim of sexual assault was a new claim unrelated to her malpractice claim and was time-barred; (2) it was error to permit plaintiffs to rely on N.J.A.C. 13:35-6.3 on their negligence claim; (3) it was error to instruct the jury on"medical negligence" and include that term on the verdict form as to the sexual assault aspect; and (4) there was no medical testimony of any permanent damages. Defendants seek entry of judgment in their favor, or alternatively, ask that if there is a remand for a new trial that the jury's finding of no sexual assault not be disturbed.
In 1996, Zuidema lived in Pine Bush, New York and worked part time at Valley Hospital in Ridgewood, where Dr. Pedicano had staff privileges. Zuidema, then about thirty-eight years old,*fn2 went to see Dr. Pedicano at his Ridgewood office for swelling and pain in her hand from picking up her baby. At that first visit, Dr. Pedicano advised her that the swelling would go away and further treatments were not required.
In early May 1997, Zuidema met Dr. Pedicano in a hallway at Valley Hospital and showed him a lump that had developed on her wrist. He told her that the lump was a ganglion cyst and suggested she call his office to schedule a same-day surgical procedure. Zuidema scheduled surgery for Thursday, June 5, 1997. However, by the middle of May the lump had disappeared, and when she saw Dr. Pedicano in the hallway of Valley Hospital, she told him that she wanted to cancel the surgery because her wrist condition had improved. Later that day, Zuidema again met Dr. Pedicano in the hallway and commented that"there must be some sort of karma." This time Dr. Pedicano told her that she should have the surgery anyway to prevent the lump from returning. On Dr. Pedicano's advice, Zuidema decided to continue with the wrist procedure.
On May 30, Zuidema went to Dr. Pedicano's office for a pre surgery physical and brought her then-eighteen month old baby along. A brief conversation ensued and Dr. Pedicano allegedly asked Zuidema if she meant her"karma" comment at Valley Hospital. The question caused such a reaction on Zuidema's face that Dr. Pedicano apologized, and jokingly said"I hope you're not going to sue me for sexual harassment." After Zuidema assured him that she would not, he began the physical, but she said he seemed nervous and his hands were shaking.
Zuidema testified that the conversation then turned to Dr. Pedicano's marriage, his marital problems, and that one of his friends was leaving his wife to marry his girlfriend. Zuidema responded that one of her previous doctors was leaving his wife to marry his nurse. After the physical, Zuidema left the office.
On June 5, 1997, Dr. Pedicano performed the surgery on Zuidema's wrist. Zuidema testified that while being prepped for the procedure, Dr. Pedicano leaned over and said she"was the most beautiful patient he had ever operated on." After the procedure, Zuidema was placed in an enclosed area for post-operative patients, where Dr. Pedicano visited her and began talking about personal interests, including bicycle riding. Dr. Pedicano gave Zuidema a business card with his home phone number and private voice mailbox number, and joked"[i]n case you want to leave me dirty messages." Nonetheless he looked down his scrubs and said"I better stop this before I get into trouble." Zuidema believed he was looking towards his penis as a sexual innuendo.
Zuidema called the next day to schedule a post-operative check-up and she said Dr. Pedicano told her that Monday would be too late to remove the bandages, which only left Saturday. Zuidema went by herself to the checkup on Saturday, June 7, 1997.
When Zuidema arrived at Dr. Pedicano's office, she observed that the other doctors' secretaries were there. Dr. Pedicano led Zuidema to an examination room toward the rear of his office. Zuidema could not remember the chronological sequence of what occurred next and could only remember flashes of the events, but recalled when they were both in the room, Dr. Pedicano embraced her and began kissing her. She could not remember how long the kiss lasted, but she was finally able to tell him not to kiss her. She stated that Dr. Pedicano did stop kissing her, but then reached under her shirt and began touching her breasts. Zuidema said she wanted to leave the room but was in shock.
She testified that Dr. Pedicano pushed her down by the shoulders to perform oral sex on him and forcefully inserted his penis into her mouth. However, she soon came to her senses, and told him she could not do it. She did notice that he had a scar on his stomach and no hair on his chest. After the incident, Dr. Pedicano talked about his sex life and a vasectomy, and changed her wrist bandages. She left his office shortly thereafter, sat in her car and cried.
According to Zuidema, the events of that day affected her relations with her husband. She said she did not have these problems before the incident and required therapy from four different doctors and medication. Her son and husband testified that Zuidema had changed significantly after the incident and did not want to be touched or hugged. No expert witnesses testified for the plaintiffs, either as to any standard of medical care or as to Zuidema's damage claims.
Dr. Pedicano's office manager testified that it was normal post-operative treatment procedure for patients to return to the office one to three days after the procedure. However, she stated that Dr. Pedicano normally did not have Saturday hours and he would only see a patient on Saturday on special occasions. Before she took any appointments for a Saturday visit, she would check with the doctor and would never let the caller speak directly with the doctor. She also stated that Dr. Pedicano's staff advised patients not to drive if their hand was bandaged.
Dr. Pedicano denied having any sexual relations with Zuidema, or making comments to her regarding karma or asking whether she was going to sue him for sexual harassment or talking about his sex life. He admitted having a post-operative scar on his abdomen from the treatment of an ulcer and having had a vasectomy fifteen years ago, but did not know how Zuidema knew that. He confirmed that he had very little chest hair, and attributed Zuidema's knowledge of that fact to pictures in his office and to the open scrubs that he wore. He admitted giving Zuidema his phone numbers, but stated that he did so solely to help her and her husband, who was unemployed at the time.
The doctor said he accepted Zuidema's Saturday follow-up appointment because she told him that her children had medical appointments the following week. However, he believed Zuidema would have someone else drive her. He contradicted Zuidema's account of what happened in the examination room. According to him, Zuidema attempted to kiss him at the very end of the office visit and he rejected her advances, stating"I don't think this is a good idea." Afterwards, he felt uncomfortable and they walked out of the office together.
Although Zuidema asked to come in on another Saturday, a second follow-up visit was scheduled for June 18, 1997, a weekday, to avoid having the same problem. The second follow-up visit was routine. Zuidema did not mention this second follow up visit in her testimony.
Although the medical malpractice claim relating to Zuidema's wrist surgery was dismissed, on the second day of trial the judge ruled that Zuidema stated a"cause of action for medical negligence based on common knowledge"*fn3 and that medical expert testimony was not necessary to establish a standard of care. The judge also stated that he would instruct the jury on the New Jersey Administrative Code sections that forbid medical professionals from having sexual relations with their patients. N.J.A.C. 13:35-6.3. The judge was of the view that the evidence presented only supported two factual versions of the events: the assault either happened or it did not. The case was considered to have only two remaining issues: whether there was medical negligence and whether there was assault and battery.
During the jury charges, the judge instructed the jury on medical negligence and read the cited section of the administrative code pertaining to conduct by doctors, indicating that the regulations"set up the standard of conduct for physicians." The ...