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Auston v. Wasserstrum

August 4, 2008

JENNIFER AUSTON AND JAMES AUSTON, PLAINTIFFS-RESPONDENTS,
v.
ALLAN WASSERSTRUM, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, L-2496-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 17, 2007

Before Judges Collester and C.L. Miniman.

In this medical malpractice case defendant Allan Wasserstrum, M.D., appeals from the order for judgment on January 2, 2007, in favor of plaintiffs Jennifer Auston and James Auston, her husband*fn1 in the amount of $2,178,000, which together with pre-judgment interest and costs amounts to a total of $2,380,067.78. Defendant also appeals from the January 19, 2007, order denying a new trial. We affirm.

The facts are largely undisputed. On September 11, 2001, plaintiff underwent gastric bypass surgery at Wayne General Hospital. At the time of the surgery plaintiff weighed over 400 pounds. She lost between 200 and 210 pounds following the surgery, which resulted in loose skin hanging from her upper arms, commonly referred to as "bat wings." After consultation with her family physician, plaintiff was referred in April 2002 to defendant, a Board certified plastic surgeon. He recommended brachioplasty, a surgical procedure to shape or mold the upper arms, and advised plaintiff that the risks of the procedure included formation of keloids and scarring.

Plaintiff appeared for surgery on June 6, 2002 at Chilton Memorial Hospital. Before performing the procedure, defendant palpated the skin and marked on each arm where he would cut to remove the excess. Defendant began surgery by cutting plaintiff's left arm along the line he had drawn. After completing the anterior line, he removed excess skin from the posterior side and placed it in a non-sterilized container. He then attempted to close the borders of the skin but found there was a gap of approximately 3.5 centimeters totaling approximately forty square inches because he miscalculated and removed too much tissue. He prepped the excess skin he had removed with Betadine to sterilize it and used it as a skin graft to close the gap. He then adjusted the marks on plaintiff's right arm to account for his miscalculation on the left arm. There were no further complications during the procedure.

Unfortunately, the full-thickness skin graft used to cover the gap on plaintiff's left arm became hard, dark, and leathery, and finally turned gangrene. Plaintiff returned to the hospital for its removal, and defendant removed a skin specimen from her thigh to cover the gap on her left arm. Thereafter, plaintiff complained of sharp and burning pains in her left arm. Defendant prescribed pain medicine, but the pain continued. Plaintiff finally consulted a pain management specialist. She underwent pain management treatment at Hackensack Medical Center, which included pain medication and physical therapy. Since her job entailed typing, she could not work fulltime due to the pain and, accordingly, suffered a decrease in her income of $450 every two weeks.

Dr. Sanjier Parikh, plaintiff's pain management expert, indicated that plaintiff developed reflex sympathetic dystrophy as a result of excess removal of tissue from her left arm, and that the need for subsequent skin grafts scarred and entrapped the nerve fibers below. Plaintiff had more than twenty stellate ganglion block injections of anesthetic into her neck, and a permanent electronic device was implanted to help her manage her pain.

The complaint charging malpractice by defendant was filed on June 9, 2004. The matter was tried to a jury over a period of four days. Following the adverse verdict, defendant filed a motion for a new trial. Following its denial he filed a notice of appeal. He makes the following legal arguments:

POINT I - A NEW TRIAL IS ESSENTIAL BECAUSE THE VERDICT IN FAVOR OF THE PLAINTIFF CLEARLY AND CONVINCINGLY WAS A MISCARRIAGE OF JUSTICE UNDER THE LAW.

A. THE TRIAL COURT ERRED IN REFUSING TO UTILIZE THE MODEL CIVIL JURY CHARGE RESPECTING JUDGMENT.

B. PLAINTIFF'S PLASTIC SURGERY EXPERT, DR. WOLKSTEIN, WAS IMPROPERLY ALLOWED TO TESTIFY BEYOND HIS EXPERTISE, RESULTING IN CUMULATIVE EVIDENCE.

C. THE TRIAL COURT IMPROPERLY ALLOWED DIAGRAMS OF A BRACHIOPLASTY PROCEDURE NOT THE ONE PERFORMED ON THE PLAINTIFF INTO EVIDENCE.

Defendant's major argument is that the trial judge, Judge Joseph J. Riva, erred by failing to charge medical judgment to the jury. The model charge requested by defendant reads as follows:

A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnoses/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specified type(s) of treatment or diagnosis involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.

The so-called medical judgment defense was raised by defendant's attorney in his opening statement. Counsel said:

Dr. Wasserstrum treated the plaintiff for an extended period of time after the initial surgery and you're not going to hear by the defense that there was no miscalculation. That there wasn't a mistake in judgment. Physicians are entitled to exercise medical judgment. You will hear that and with all that medical judgment that is exercised by the physicians, guess what, it's not right all the time. . . .

My point is [plaintiff] comes in with those bat wings, she needs the plastic surgery. Dr. Wasserstrum is a board-certified plastic surgeon who has done this. He does palpate. He exercises his medical judgment. He does that. And if he does that, he's okay. But he did make a mistake. He did take too much skin. And that will be charged to you as well at the end of the case, medical judgment.

So, when you listen to the testimony, you don't have to focus on a miscalculation. There was one. You're going to have to determine whether or not Dr. Wasserstrum as a board-certified plastic surgeon acted appropriately, exercised his best judgment, and still there was an untoward result. That we have to listen because you won't hear that there was [not] a miscalculation. You will hear this was a miscalculation where he exercised his best judgment, as a board-certified plastic surgeon. That's what the defense will say.

Following the defense's opening, plaintiff's counsel moved for a directed verdict on liability based on the admission by the defense that there was a "miscalculation" by defendant in cutting away too much skin. He argued that medical judgment was not a proper issue in the case. The trial judge denied a directed verdict, reserving on the question of whether medical judgment was an issue to be submitted to the jury.

Reliance upon a claim of medical judgment was the only real defense asserted by defendant. During his testimony he conceded his miscalculation.

Well, I was able to get the ends closed, but as I worked toward the middle, it was evident that I couldn't get it closed and if I really tried, it would have been too tight. But there was a gap. It was obvious to me that I had miscalculated the amount of tissue to be taken off.

Thereafter on cross-examination, there was the following colloquy:

Q: [A]s close as you could get them with pulling and tugging to approximate them, they were still 3 to 3.5 centimeters apart.

A: I would say so, yes.

Q: And that was a mistake, ...


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