On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2429-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
This is a medical malpractice case. Plaintiff, Kathy Presson, appeals the Law Division's February 9, 2006 order for judgment, entered after a jury verdict of no cause for action in favor of defendants, Michael Minoff, M.D., and Derek Chapman, M.D., dismissing plaintiff's complaint against the defendants with prejudice.*fn1 Plaintiff also appeals the Law Division's April 12, 2006 order denying her motion for a new trial. The order memorialized Judge Hogan's written opinion of the same date. We affirm substantially for the reasons articulated by Judge Hogan in his comprehensive written opinion of April 12, 2006.
Plaintiff alleged that Dr. Minoff deviated from accepted standards of gynecological care by failing on June 19, 2001 to properly suture close a layer under the skin known as the fascia, when the right lower abdominal port in plaintiff's right lower abdomen was removed, at the conclusion of his performance of a laparoscopic-assisted vaginal hysterectomy (LAVH) on plaintiff. The closure of fascia occurs when a laparoscopic port used to pass instruments into the abdomen is removed at the conclusion of the operation. As a result of this deviation, plaintiff claimed that she suffered a small bowel obstruction and incisional hernia, which required surgical repair. Plaintiff alleged she suffered permanent injuries and emotional distress as a result of Dr. Minoff's negligence.
Plaintiff further contended that Dr. Minoff and his partner, Dr. Chapman, were negligent in the postoperative care provided to plaintiff. Plaintiff has not set forth in her notice of appeal any express contention as to how either doctor's postoperative care deviated from accepted standards of medical care. Plaintiff argues, however, that defendants' actions following her operation are so intertwined with whether Dr. Minoff closed the fascia that if this court decides to remand this case for a new trial, a new trial would have to include all issues, including allegations concerning defendants' negligence in their postoperative care.*fn2
After plaintiff's operation, she awoke with generalized pain in her abdomen, which later became localized to the right side. According to her medical records, on June 20, 2001, one day following the operation, her right lower quadrant was "tender to palpation," but the doctor doubted that it was a hematoma. Plaintiff's pain continued. The record notation of June 21, 2001 indicates that plaintiff experienced pain in the right abdomen which was secondary to a hematoma that appeared as a bruise in the location of the right port. It was described as "large" and "above [the] incision." On June 22, 2001, plaintiff had an x-ray of her abdomen. She was found to have "a partial distal small bowel obstruction," and it was recommended that "appropriate further and follow up evaluation should be obtained." Dr. Minoff's notes from the same day indicate that what was initially thought to be a hematoma was actually an "[i]ncarcerated hernia in right lower quadrant port site with opening in small bowel."
On June 24, 2001, plaintiff awoke with severe abdominal pain. Plaintiff was further evaluated. She had a computed tomography (CT) scan of her abdomen and pelvis. The CT scan showed "multiple loops of dilated small bowel," which appeared to be associated with "a hernia in the lower right abdominal wall containing a dilated loop of bowel, partially filled with fluid, also containing air." The CT report concluded that there was "an obstructed loop of bowel relating to a lower right abdominal hernia."
Plaintiff was rushed to the operating room on the same day. She underwent an exploratory laparotomy, small bowel resection, closure of enterotomy, and repair of the ventral hernia. According to the operative report, "[t]he right lower quadrant incision was explored and extended. There were enteric contents draining from the wound. The wound was then exposed. An area of perforated small bowel was identified herniating through a ventral hernia." Plaintiff's postoperative diagnoses were a ventral hernia and two small bowel perforations. Dr. Minoff's postoperative note dated July 2, 2001 stated that the enlarged right lower quadrant mass "[i]nitially thought to be an abdominal wall hematoma but an emergency [CT] scan [done on June 24, 2001] showed it to be a hernia."
Prior to trial, the parties exchanged discovery and took depositions. Pertinent to this appeal is the following portion of Dr. Minoff's deposition, which was taken on January 13, 2004:
Q: . . . Did you try to close the fascia in this case?
Q: And was that your routine?
Q: And one of the . . . reasons for closing the fascia is to try to prevent a hernia from occurring; is that correct?
A: Specifically that. . . . .
Q: . . . Is it your opinion that you did not successfully close the fascia on the ...