November 20, 2007
EDWARD F. REITZ, PLAINTIFF-APPELLANT,
KUMAR PATEL, M.D., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-12714-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Plaintiff appeals from a judgment of no cause for action entered following a jury verdict in defendant's favor. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff for several years suffered from varicose veins. His condition worsened, to the point that he would be awakened at night with cramping. He eventually determined to seek medical help for this condition. His decision was prompted, at least in part, by a brief discussion he had with an acquaintance who had undergone surgery for varicose veins. In the course of that discussion, he learned that this individual's surgery had involved only two small incisions. This corresponded with plaintiff's recollection of his mother's surgery for varicose veins many years earlier. Plaintiff met with the physician who had operated on his acquaintance, but he elected not to have that doctor treat him when he learned his health insurance would not cover all of that physician's charges.
Plaintiff reviewed the list of doctors who participated in his health insurance program and located defendant, a vascular surgeon who operated at plaintiff's local hospital. He met with defendant and arranged to have the surgery performed on January 7, 2003. Plaintiff had arranged for a family vacation in Puerto Rico over Martin Luther King weekend and was concerned that the surgery might interfere with those plans. Defendant assured him it would not.
At the doctor's office, plaintiff signed a form indicating that defendant had fully explained the risks and benefits of the surgery. At trial he testified that he had no recollection of doing so, although he admitted the signature on the form was his. He testified that he had no recollection of defendant asking him whether he had questions about the surgery and admitted that he asked none, assuming that the surgery would entail no more than the two small incisions that he had heard about from his acquaintance. He also admitted that his main concern when he met with defendant was to have the surgery completed quickly.
He saw defendant at the hospital prior to the surgery. Defendant testified that he marked on plaintiff's leg each place where he intended to make an incision. Plaintiff testified that he saw defendant draw approximately three circles on his leg. He made no inquiry as to their purpose or significance.
Following the surgery, plaintiff returned to defendant's office on January 13 for a follow-up visit, at which defendant removed the bandages that had been covering plaintiff's right leg. Plaintiff became enraged when he saw the number of incisions that had been made in his right leg and left the office. Because of the surgery, he was unable to keep his vacation plans. He returned on a later date for removal of the sutures.
Plaintiff admitted at trial that the pain and cramping he had experienced prior to the surgery had gone away. He testified, however, about the discomfort and embarrassment he experienced because of the scarring on his right leg. He also admitted that the scarring had become less visible over time.
Plaintiff presented one expert witness, Richard N. Tiedemann, M.D., a surgeon. Dr. Tiedemann testified that in his opinion, defendant deviated from the standard of care in three respects: in not removing defendant's saphenous vein from the groin to the knee; in not obtaining plaintiff's informed consent to the surgery which was performed; and in the manner in which defendant performed this surgery. With respect to this last issue, Dr. Tiedemann testified that defendant should not have used the technique of stripping and ligation but, rather, should have used a technique referred to variously as "stab avulsion," "microphlebectomy," or "stab phlebectomy." In that surgical technique, a tiny incision is made, and the vein is removed in segments through that incision. According to Dr. Tiedemann, defendant's incisions were larger than called for under the standard of care applicable to such surgery, with the result that plaintiff was left with more visible scarring than would otherwise have been the case. Dr. Tiedemann also testified that by leaving the saphenous vein in place, plaintiff was exposed to risk of future varicosities and reflux clotting, which could lead to formation of an embolism.
Defendant testified that he did not use stab avulsion because plaintiff's varicosities were too large to permit him to do so. Defendant said that if he had tried that surgical technique, severe bleeding would have resulted because of the size of plaintiff's varicosities. He also testified that he left the saphenous vein in place in case it were ever needed in the future for use in bypass surgery. Defendant testified that he could not remember the exact particulars of his conversations with plaintiff during the office visit. After a hearing conducted pursuant to N.J.R.E. 104, he was permitted to testify to the jury about his usual practice to explain the risks and benefits of a particular procedure to a patient.
Defendant's expert, Richard Nitzberg, M.D., testified that defendant did comply with the accepted standards of care for a vascular surgeon. Dr. Nitzberg told the jury that the standard of care for a patient such as plaintiff did not require that the long saphenous vein be removed. He also testified that the selection of which surgical technique to utilize to treat varicose veins such as those plaintiff had involved the exercise of surgical judgment.
The jury was asked whether plaintiff had established by a preponderance of the evidence that defendant had deviated from the standard of care. It responded in the negative. It was also asked whether plaintiff had established by a preponderance of the evidence that defendant had failed to give plaintiff all the information that a reasonable person in plaintiff's position would expect a doctor to disclose so that plaintiff could give an informed consent. Again, the jury answered in the negative.
Plaintiff makes three arguments on appeal: that the trial court erred in permitting testimony about medical judgment and charging the jury on that issue; that the testimony of defendant's expert should have been stricken because he never supplied a standard of care against which to measure defendant's conduct; and that the trial court erred in permitting defendant to testify based upon habit.
The law recognizes that situations arise in the practice of medicine in which a physician must choose between two or more courses of action, each of which fall within the standard of care for medical practice. Selecting one course of action over the other cannot be the basis for a finding of malpractice on the part of the physician. Schueler v. Strelinger, 43 N.J. 330, 344 (1964). A physician may not, however, select a course of action that does not comply with the standard of care and then seek to justify his decision on the basis that he exercised medical judgment. Velazquez v. Portadin, 163 N.J. 677, 686-87 (2000).
The Supreme Court has stressed that a trial court must carefully tailor its charge on the topic of medical judgment to the issues actually present in the case. Das v. Thani, 171 N.J. 518, 528 (2002); Velazquez, supra, at 690-91. We disagree with defendant's contention that the trial court's charge in this matter did not comply with this mandate. The trial court specifically instructed the jury that the question of judgment applied only to defendant's selection of the technique of stripping and ligation and his decision to leave the greater saphenous vein in place. Indeed, the trial court rejected defendant's request to include in this portion of the charge an instruction to the effect that the size of an incision was a question of judgment. We see no error in the court's charge or in the scope of testimony presented during the course of the trial.
At the conclusion of Dr. Nitzberg's direct testimony, plaintiff moved to strike his testimony on the basis that he had not established the standard of care for a physician treating a patient with the condition suffered by plaintiff. The trial court denied the motion, and plaintiff argues on appeal that this was error. We do not agree. Dr. Nitzberg testified at length as to his opinion that Dr. Patel's actions conformed with the standard of care and explained why, in his opinion, there was no deviation from those standards by Dr. Patel. The trial court did not abuse its discretion when it denied plaintiff's motion.
Finally, we reject plaintiff's argument that the trial court erred when it permitted Dr. Patel to testify as to his usual habit of discussing the relative risks and benefits of a particular procedure with a patient. The court permitted Dr. Patel to testify to his habit in this regard after Dr. Patel said that while he recalled discussing this subject with plaintiff, he could not recall the exact words he used in their conversation, which occurred more than three and one-half years before the trial took place.
Prior to admitting this testimony, the trial court heard Dr. Patel testify outside the presence of the jury that he discusses the various risks and treatment options every time with a patient at the end of a consultation. He said his practice in this regard does not vary and that he has used it consistently since he first began to practice medicine. There was no error in the court's ruling. Reaves v. Mandell, 209 N.J. Super. 465, 468-472 (Law Div. 1986).
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