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Smith v. Basch

January 24, 2008


On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1385-02.

Per curiam.


Submitted December 17, 2007

Before Judges S.L. Reisner, Gilroy and Baxter.

In this medical malpractice case, plaintiff Joann Smith appeals from a March 31, 2006 trial court order dismissing her complaint based on a jury verdict of no cause and denying her motion for a new trial. In connection with her appeal, she contends that the trial judge erred in adjourning the trial to give defendant additional time to retain an expert witness, that the verdict was a miscarriage of justice, and that the trial judge erred in refusing to give a jury charge concerning defendant's failure to perform a diagnostic test, pursuant to Gardner v. Pawliw, 150 N.J. 359 (1997). Finding no merit in any of these contentions, we affirm.


These are the most pertinent facts. On April 26, 2002, plaintiff filed a medical malpractice complaint against defendant David Basch in connection with spinal surgery that he performed on her. After several trial adjournments, the case was scheduled for trial in February 2005. On February 10, 2005, both counsel appeared before Judge Dumont to argue defense counsel's application for a further adjournment. The basis for the motion was the failure of plaintiff and her expert Dr. Cohen to provide defendant with medical records, and the refusal of the defense expert, Dr. Jacobs, to continue serving as defendant's expert after defendant agreed to serve as an expert against Dr. Jacobs in a different malpractice case. Defendant thus needed to obtain a new expert.

In a lengthy and cogent oral opinion placed on the record on February 10, 2005, Judge Dumont granted the adjournment request for several reasons. First, there were no trial judges available to handle the trial at that time and the matter would thus have to be adjourned for several weeks in any event. Second, due to the insolvency of defendant's malpractice carrier, it was anticipated that Judge Shuster would order a stay on all malpractice trials involving that carrier as of February 18, 2005. Third, while plaintiff was pressing the court to proceed with the trial, plaintiff still had not provided discovery that defendant needed. Judge Dumont also acknowledged the well-known "bad blood" between Drs. Cohen and Basch, which apparently led to Dr. Cohen's recalcitrance in producing records in this case. And, finally, as a matter of fundamental fairness, Judge Dumont recognized that defendant was faced with the unexpected loss of his expert and he could not present a defense without an expert witness.*fn1

The trial finally commenced on February 8, 2006, before Judge Langlois. The following testimony was presented at the trial.*fn2

In September 1998, plaintiff was injured in a car accident. Plaintiff obtained treatment from Dr. Buim, a chiropractor with whom she continued to consult until after the surgery performed by defendant. After about a year of chiropractic treatment, plaintiff's condition had not improved.

Plaintiff ultimately consulted with defendant around September 1999. They discussed her case, analyzed her injuries, the pain she was feeling, and the treatments she had undergone until then. Specifically, plaintiff informed defendant she had "knife-like pain" in her back. On cross examination, plaintiff explained that before

[e]very visit I went to [defendant] I was in a lot of pain. There was something that could be done. I was having therapy, medications, I'm not getting any better. Something needs to be done, I can't tolerate this pain.

On redirect, plaintiff testified that she was not aware of what that "something" was that she believed needed to be done. For example, she did not know whether it could be other injections or surgeries.

Under defendant's care, plaintiff first underwent physical therapy and water treatment. Defendant also administered two epidural injections. Defendant conceded that he never informed plaintiff that, although the first two epidural injections were not effective, there was a chance that a third one might be effective. When these preceding procedures failed to produce positive results, defendant informed plaintiff that fusion surgery*fn3 was necessary.

Plaintiff testified that defendant never discussed alternate surgeries. Plaintiff further testified that, had defendant offered them to her, she would have opted for the alternative treatments, such as injections or less intrusive surgery. On the other hand, defendant testified that the procedure he performed was the least invasive viable procedure to treat plaintiff's severe herniated disc at L5-S1. It was the "best way to fix this problem." For example, defendant ruled out simply removing the herniation and keeping the disc intact, and IDET, a new procedure that involved cauterizing the disc with a heated wire; neither of those procedures would have worked. Indeed, defendant opined that the only reasonable options were for plaintiff to live with her condition, or undergo the surgery he performed. On cross-examination, however, defendant conceded that he did not discuss numerous procedures with plaintiff, such as micro diskectomy or facet block injections. Defendant further conceded that he never advised plaintiff to get a second opinion because he was confident in his diagnosis.

Plaintiff also testified that defendant did not adequately inform her of the material risks and possible side effects of the operation he proposed to perform. For example, defendant told plaintiff that she would be out of work for only three to six months. Moreover, defendant assured her not to worry about the procedure because "he had done hundreds of these [surgeries]." Finally, defendant never told her that the surgery could exacerbate her injuries or make the pain worse. However, plaintiff did concede that defendant informed her that the surgery could yield little or no relief. Additionally, on cross-examination, plaintiff conceded that defendant discussed with her the risks and benefits of surgeries.

On April 28, 2000, the day of the surgery, plaintiff read and signed a consent form containing handwritten notes that set forth the inherent risks of the operation. For example, the risks involved included "[b]leeding, infection, swelling, stiffness, continued pain, numbness, nerve damage, failure of bone to heal, [and] possible need for further surgery." However, plaintiff testified that she had no recollection of whether the blanks were filled in when she signed the form, and that she had been on medications at the time. Moreover on redirect, plaintiff testified that she would have signed whatever the hospital had put in front of her that day. On the other hand, defendant testified that he explained the consent form to plaintiff on multiple occasions.

Following the surgery, plaintiff was released from the hospital after one night. Plaintiff was in "terrible" pain. On a scale of one to ten, plaintiff testified that her pain was a fifteen. She was basically in bed all the time. In addition to her back, her side, hip, and leg were also in pain. Indeed, plaintiff could not sneeze, bend over, or lift anything without severe pain in her back, and her foot was numb. Plaintiff could no longer stand in one position. She also had spasms in her foot that felt like "sharp knives." She was unable to play with her grandchildren because she was basically confined to a chair. Plaintiff was unable to return to work.

When plaintiff brought these complaints to defendant's attention, he told her that this was part of the healing process, and that it would take time to recuperate. In an attempt to alleviate her pain, defendant sent plaintiff for physical therapy. According to defendant, within the first six months after the surgery, plaintiff showed signs of improvement, and he ultimately removed her from pain medications. Indeed, a report was submitted into evidence, containing a statement from plaintiff indicating that she felt better and was making progress. When it became apparent after six months that plaintiff was no longer improving, defendant placed her on permanent disability. Plaintiff, on the other hand, insisted that she never had any improvement subsequent to defendant's surgery.

In early 2001, a little less than a year after the surgery, plaintiff underwent certain tests, including MRI's and a myelogram. After analyzing the results of these procedures, defendant concluded that the surgery was successful. "The fusion was solid. This bone had not moved an iota. It's solidly fused on top and bottom and it's solid fusion, no pseudoarthrosis."*fn4

The parties differed on whether defendant recommended additional surgery and whether plaintiff wanted it. Between February 2001 and August 2001, plaintiff continued to complain of severe back pain and nerve irritation in her legs. Nonetheless, defendant testified that he was reluctant to do more surgeries "because she didn't respond [well] to the first surgery." Defendant further testified that he informed plaintiff that a second surgery would not be beneficial. Defendant therefore recommended "continued conservative treatment," such as acupuncture or physical therapy. It was plaintiff, defendant testified, who desired to pursue further surgical treatment. Plaintiff, on the other hand, testified that defendant recommended a second surgery.

Sometime after September 2001, plaintiff phoned defendant's office. To her dismay, an employee informed her that defendant was no longer there, and that defendant's location was unknown. This left plaintiff deeply upset because she "really had a lot of faith in him." As a result, plaintiff was ...

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