On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-3086-02.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, C. S. Fisher and Yannotti.
Plaintiffs Richard Saks (Saks) and Norma Saks filed a complaint against defendants Elena M. Ng, M.D. (Ng), Millennium Eye Care LLC and Eye Physicians and Surgeons, P.A. arising from an operation performed by Ng on April 2, 2001 to repair a detached retina in Saks' right eye. In the complaint, Saks alleged that Ng performed the operation negligently and failed to obtain his informed consent for the procedure. Saks' wife Norma asserted a claim for loss of her husband's services, society and consortium. Following a trial, the jury returned a verdict of no cause for action. Judgment was entered for defendants and this appeal followed. We affirm.
We briefly summarize the relevant facts based on the evidence presented at trial. In 1976, Saks became a patient of Eye Physicians and Surgeons, an entity which later changed its name to Millennium Eye Care. Saks had his eyes examined and his corrective lenses updated on a periodic basis. In 1996, when he was at a health club, Saks was struck in the left eye by another patron. Saks presented to Millennium and was referred to Ng, who determined that Saks had a traumatic inflammation of the iris and a partial retinal tear in his left eye. Ng also found that Saks had a pinpoint retinal hole in his right eye. The doctor performed laser photocoagulation surgery to repair the retinal tear in the left eye. Saks made follow-up visits to Ng at various times in subsequent years.
On March 29, 2001, Saks accompanied his wife to a professional conference in Toronto, Canada. After checking into the hotel, Saks experienced problems with the vision in his right eye. He saw flashes and stars. The hotel staff referred Saks to a local opthalmologist, who instructed Saks to go immediately to a hospital. There, Saks was diagnosed with a retinal tear in his right eye and transferred to a second hospital. The opthalmologist there consulted with Ng by phone and temporarily repaired the tear with laser surgery. Saks made an appointment with Ng and returned to New Jersey.
Saks saw Ng on March 31, 2001. She examined Saks and determined that he had a retinal detachment in his right eye. Ng recommended scleral buckle surgery. Ng testified that some of these procedures are relatively simple and some more complicated. She said that if a patient has a small retinal detachment, it can be repaired by sewing into place a "silicone sponge," which she described as a band of clear silicone material. She explained that the sponge pushes the eyeball in and, "the more the eyeball is pushed in it seals up the retina."
However, Ng said that a large retinal tear is a "more complicated problem." Patients with such a condition may have accumulated fluid between the retina and the back of the eye. They also may have a history of retinal holes which makes the retina more vulnerable to further tearing in the future. For those patients, more is required than placing a small piece of "silicone sponge" in one section of the eye.
Ng asserted that the fluid causing the tear first must be drained. To do so, the doctor makes a small incision in the wall of the eyeball until the vascular part of the eye is exposed. When the fluid is drained, the retina returns to its normal position. Because the retina still has the potential of detaching again, the doctor sews a scleral buckle over the area of the tear, pushing the wall of the eyeball and sealing up the tear.
If the patient's retina is still vulnerable, the doctor inserts an encircling band. To do so, the eyeball is rotated exposing one section of the eye at a time. Sutures then are placed all around the eyeball. Ng explained:
And at the end you pull up on this band a little bit, okay, and the band and the sutures will act like a belt holding up the pants and squeezing in the waist a little bit. Okay?
And once the eyeball, the wall of the eyeball all the way around is squeezed in it will support the retina, it will cut down on the chances of retinal tears forming and retinal detachment forming in the future.
Saks' procedure involved the insertion of the encircling band with the multiple sutures.
Ng used retrobulbar anesthesia for the surgery. She explained how this form of anesthesia is administered. The patient is given general anesthesia so the patient will not experience pain when the retrobulbar needle is inserted. The doctor then feels the bone structure around the eye and slides the needle over the bone, under the eye, aiming the needle at the rear of the eye called the muscle cone. Ng said she can feel the needle passing through soft tissue. She testified:
Gently and slowly we -- it's how you feel with the tip of your fingers and your experience. That's what counts. That's how you know how far to go.
And once we know that we've passed the eyeball we would angle it slightly fifteen degrees up and go a little bit further and when you hit the muscle cone you feel a slight pop just at the -- you don't hear anything. You can just feel it at the tip of your finger and from experience.
You know you're there, you draw back, make sure you don't get blood in the syringe, okay[.] [W]e maneuver the tip of the needle a little bit just to make sure that the tip of the needle didn't catch the eyeball and then we slowly inject the anesthetic and then we slowly withdraw the needle.
Saks testified that he had no pain in the recovery room. Saks said that his right eye was completely covered with a shield and a bandage. He returned the following morning, and when the bandage was removed, Saks realized he had no vision in his right eye. Ng examined the eye and found that there was hemorrhaging on the retina. Ng referred Saks to a retinal specialist, Dr. William Tasman, who sent Saks to Wills Eye Hospital in Philadelphia, where he came under the care of Dr. Peter J. Savino, a neuro-ophthalmologist. Saks remained in the hospital four or five days and when he was released, he still had no vision in his right eye. It is undisputed that the condition is permanent.
Saks presented testimony from Scott Soloway, M.D. (Soloway), who was qualified as an expert in ophthalmology and the administration of anesthesia by ophthalmologists. Soloway testified that two types of anesthesia are used when performing the scleral buckling procedure: peribulbar and retrobulbar anesthesia. The former is administered by injections through the eyelids whereas the latter is administered by an injection through the cone of the muscle in the retro-orbital space. Soloway stated that peribulbar anesthesia presents less of a risk of injury to the optic nerve, which can cause blindness.
Soloway opined that Ng deviated from the accepted standard of care for the proper administration of retrobulbar anesthesia by penetrating the optic nerve with the retrobulbar needle. Soloway explained that the anesthesia is administered with a blunted needle that is about an inch and one-half long. According to Soloway, in this case, the needle penetrated too deeply and went into the optic nerve. The needle caused changes in the back of the eye, affected the nerves and essentially destroyed the retina.
Soloway was asked to explain the basis for his assertion that Saks' optic nerve was injured when the anesthesia was administered. He responded by pointing to Ng's deposition testimony, in which she had stated that the optic nerve had been injured in the procedure. Soloway also pointed to the discharge summary from Wills Eye Hospital, which stated that there was a "presumptive" optic nerve injury. In addition, a report of an MRI performed on April 3, 2001 stated that there was an enlargement and enhancement of the orbital portion of the right optic nerve, with enhancement of the optic nerve sheath as well. This, in Soloway's view, was consistent with trauma to the optic nerve -- "fluid getting into the optic nerve and damage to the optic nerve."
Soloway also was asked whether the loss of vision in Saks' right eye was caused by a central retinal vein occlusion. Such an occlusion involves a blockage of the central retinal vein. When this occurs, blood entering through the artery cannot drain out of the eye. With no place to go, the blood leaks into the retinal tissue causing hemorrhaging and a loss of vision. Soloway said that the loss of vision in this case was caused by the injection into the optic nerve which caused a central retinal vein occlusion. Soloway was asked whether there would have been a central retinal vein occlusion in Saks' eye if the needle had not gone into the optic nerve and his reply was, "No."
Soloway also testified that Ng failed to inform Saks of any of the risks that accompany the use of retrobulbar anesthesia. Ng elected to use retrobulbar rather than peribulbar anesthesia. According to Soloway, Ng failed to give Saks a choice as to which kind of anesthesia he would receive.
On cross-examination, Soloway stated that he had no criticism of Ng's decision to use retrobulbar anesthesia. He conceded that the choice of the type of anesthesia is a matter of medical judgment. Soloway also had no criticism of the manner in which Ng performed the scleral buckling procedure. Soloway agreed that injury to the optic nerve was a rare but recognized complication of retrobulbar anesthesia. He also conceded that Tasman did not state in his chart that the anesthesia needle hit the optic nerve. Rather, Tasman wrote that the patient's findings had the "appearance" of a central retinal vein occlusion.
Ng testified that peribulbar anesthesia was not appropriate for Saks' surgery. She stated that the procedure is "very delicate." The patient must achieve "total akinesia," that is, no movement in the eye muscle. If the patient moves during the surgery, bleeding can occur and, in these circumstances, there is a potential for loss of vision. Ng said that she has been practicing for sixteen years and she has never used peribulbar anesthesia for the scleral buckling procedure, with the encircling band. Ng asserted that she did not offer Saks peribulbar anesthesia because it was not indicated "in light of the nature of the complexity of his retinal detachment."
Ng additionally testified that she had no specific recollection of what she told Saks about retrobulbar anesthesia. She testified as to the information she generally conveys to patients regarding the ...