On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2695-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Lihotz.
Plaintiff Linda M. Dorsey appeals from the denial of her motion for a new trial.*fn1 The jury rendered a no-cause verdict on her medical negligence claims against defendant Steven M. Orland, M.D. Plaintiff argues that defendant's trial stipulation admitting he did not advise plaintiff of other available surgical alternatives was a breach of the standard of care such that the jury's verdict must be set aside and a new trial on all issues should have been granted. We disagree and affirm.
Upon the referral of her long-time gynecologist, plaintiff consulted with defendant, to address acute left flank pain, at the Helene Fuld Medical Center (Fuld) emergency room. Defendant reviewed plaintiff's x-rays and a CT scan, noting two different sized stones that formed in plaintiff's left kidney. One stone was approximately six-by-four millimeters and the other ten-by-seven millimeters. The stones traveled from the kidney and were trapped in the left ureter. Defendant explained he intended to remove the two stones surgically, using the basket extraction method and a flexible ureterscope, because the size of the stones prevented their natural discharge. Defendant described the details of the basket procedure and its risks to plaintiff.
Defendant did not disclose available alternative courses of treatment, which included fragmenting the stones through electrohydraulic lithotripsy (EHL) and removing them using the basket device and a flexible ureterscope, or laser lithotripsy. At the time plaintiff was treated at Fuld, laser lithotripsy was unavailable, but could be performed at hospitals in Princeton and Philadelphia. No medical reason precluded plaintiff's transfer to another hospital.
Plaintiff underwent an ureterscopic basket extraction of the two kidney stones lodged in the left ureter. The smaller of the two stones was removed without incident. However, the larger stone proved more difficult to dislodge. Defendant made three unsuccessful attempts to remove the second stone using baskets and a flexible ureterscope. When additional baskets compatible with the flexible ureterscope were unavailable, defendant chose to continue the surgery by inserting a rigid ureterscope, which used a larger basket. Defendant admitted the rigid ureterscope posed a one to three percent higher risk of ureter injury than the flexible ureterscope. The stone broke apart on removal. Plaintiff's left ureter was punctured.
After the trauma, plaintiff underwent abdominal surgery at a different hospital to reimplant the injured left ureter into her bladder. Plaintiff suffered residual symptoms following surgery, including abdominal scarring, reflux of urine into the kidney, abdominal and flank pain, frequent urination, and anxiety over her health and the limits on her physical activity.
At trial, the parties' experts provided competing testimony on the standard of care in choosing the surgical method to extract plaintiff's kidney stones and the cause of her injury.
At issue was whether a prudent patient in plaintiff's position would have decided differently if fully informed of the available options and attendant risks.
Plaintiff presented the opinion of Steven Cohen, M.D., a board certified urologist, who examined plaintiff and reviewed her medical records. Dr. Cohen stated that when removing stones larger than five millimeters, fragmentation of the stone should occur because "pulling a big stone through[,] you can rip the ureter, tear it, seriously damage it. And[,] therefore[,] the big stone needs to be broken up into small pieces before and then the pieces removed rather than removing it in one piece." Dr. Cohen opined the process of breaking up the stones, known as lithotripsy, should be employed. Dr. Cohen explained lithotripsy requires the use of a cystoscope and then an ureterscope, inserted inside the body. Then, the energy source, whether it be sound waves, electric shocks through water, or a laser, are inserted through the scope to the area of the stone and employed to fragment the stone. The fragments are then removed using basket extraction.
Dr. Cohen opined the second stone was too large for the basket attached to the flexible ureterscope. Then, in the course of removing the larger stone with a larger basket and inflexible ureterscope, defendant encountered a "hold[-]up as he pulled it out." Dr. Cohen described that the removal of the basket caused an avulsion. Essentially, the stone was embedded in the ureter lining because of its size, and when it was pulled in removal, the ureter was perforated.
Dr. Cohen acknowledged that the risks, which he characterized as minimal, attendant to fragmentation related to passing instruments into the ureter, burning the ureter lining or causing a fragmented stone to imbed in the ureter wall. The avulsion of the ureter suffered by plaintiff only occurs in the course of a basket extraction. Dr. Cohen stated ...