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Auston v. Wasserstrum


August 4, 2008


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

Per curiam.


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:





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, wasn't it?

A: It was a mistake in the judgment of how much to remove, yes.

Plaintiff's plastic surgery expert, Dr. William A. Wolkstein, M.D., testified that defendant was negligent and that medical judgment did not play a role. After discussing accepted surgical techniques to determine the proper removal of excess skin and avoiding the removal of too much skin during the brachioplasty procedure, Dr. Wolkstein offered the following opinion:

Q: So, doctor, regardless of the accepted technique that is employed by the individual surgeon, is there a uniform goal that must be achieved with this surgery?

A: Yes.

Q: What is that uniform objective?

A: The uniform objective is primary closure, closure of the wound, surgical repair of the wound at the time of initial surgery.

Q: And is it ever acceptable when performing this surgical technique, or the one you employed, or any other generally accepted technique for performing a brachioplasty to have a void between the tissue markings when you are completed?

A: No.

Q: But doctor, in your opinion, if there is a void between the tissue markings after this technique is employed, is it a deviation from accepted standards of plastic surgical practice?

A: Yes

Q: Would you please explain to the members of the jury your understanding of what Dr. Wasserstrum did in connection with this treatment of the patient?

A: It is my understanding according to the operative report by Dr. Wasserstrum with regard to the first surgery that on the left upper extremity of this patient skin was removed, skin and soft tissue was removed in excess which did not allow him to customarily repair the surgical incision at the time of surgery.

Q: And how did that occur? Why did it occur?

A: It occurred because too much tissue was removed at the time of incision of the area.

Q: And when Dr. Wasserstrum palpated the area of Mrs. Auston's left arm in order to draw the marks on her arm, is there any evidence from the record either from his deposition testimony, from his office records, or from the operative report that after the drawing of the lines following palpation he took into account the thickness of the tissue between his thumb and index finger?

A: No.

Q: Okay. And if he failed to do that would that constitute in your opinion a deviation from accepted standards of plastic surgical practice?

A: Yes.

On cross-examination Dr. Wolkstein testified that every doctor performing a brachioplasty has to determine where the incision is to be placed. The following colloquy then took place:

Q: Okay. When you do the staged incision brachioplasty as a medical professional using your thumb and forefinger, you have to determine - make a judgment where to draw that line, anterior and posterior, correct?

A: That's correct.

Q: And every physician has to do that, correct?

A: That's correct.

Q: So every physician that uses that thumb and forefinger has to use his or her judgment to draw that line?

A: That's correct.

Q: And sometimes when one uses that judgment it can be incorrect, they can make an error, correct?

A: Yes.

Q: . . . malpractice, is it?

A: No.

Q: But this time it is for Dr. Wasserstrum?

A: In my opinion, yes.

Testimony on redirect added the following:

Q: And would you agree, doctor, that it's not how much tissue you remove but how much tissue remains that is important?

A: That's correct.

Testifying for the defense, Dr. Rocco Tutela opined that the surgery performed by defendant upon plaintiff resulted in a complication due to the exercise of judgment and not malpractice.

Q: On the left arm did Dr. Wasserstrum take too much tissue?

A: Yes, he did.

Q: Was this taking too much tissue a breach of the standard of care?

A: No.

Q: And why is that?

A: Because he was using judgment on how much to take out. Its not that he used a strange technique not known to anybody. He used the standard technique and in the technique he has to use his judgment on how much tissue to remove. He misjudged, miscalculated, and took out too much tissue. More important is [that] he used - and he developed this complication by taking too much out, and then he used proper judgment in using the skin from the excised tissue to cover the defect.

Q: Do you know where that skin was placed after he originally cut it?

A: Usually there is a clean receptacle next to the operating table where specimens are placed.

Q: Did Dr. Wasserstrum prepare the tissue prior to performing the skin graft?

A: He painted it with Betadine. I mean the receptacle was clean. It wasn't sterile, but it was clean. . . . Being a clean receptacle it was probably as clean as a part of the body that I would use to do a skin graft. If I was going to take a skin graft on you I would take it from your leg. You prep it, put Betadine on it and he did basically the same thing.

Q: Was this an appropriate way for [Dr. Wasserstrum] to prepare the tissue?

A: Yes, it was.

Q: . . . [W]as the way Dr. Wasserstrum performed the skin graft appropriate?

A: Yes.

On cross-examination Dr. Tutela stated that regardless of the technique used, the standard of care in performing the surgery does not vary. The accepted standard was to resect enough tissue to achieve a good contour and functional result for the patient, but not so much to prevent closure of the surgical wound. He acknowledged that defendant resected so much that he could not close the surgical wound.

Following the close of testimony, the court denied the defense's request to charge medical judgment, stating:

This is about a mistake in calculation. This is not about medical judgment. The doctor, according to both the plaintiff's expert and your expert, made a miscalculation . . .

[H]e took too much skin off. And as a result there was harm suffered by the plaintiff. The deviation is not that the doctor chose a technique that was perhaps not as effective as the technique expressed in the journal article, but rather in the manner in which he performed the surgery.

The surgical procedure resulted in him taking too much skin. And therefore, all types of complications arose. Dr. Wolkstein opined that and so did your expert. To suggest to me that there could be a situation where you could have a procedure performed where there is not a meeting of the skin as much as in this case, but something less than that that would not constitute a deviation would be to suggest that the jury should speculate on where to draw the line. . . .

That mistake constitutes a deviation from accepted standard of care because the standard of care requires that - and this is coming from your expert. The accepted standard of surgical conduct is to resect enough tissue to achieve a good contour and functional result for the patient, but not so much that you prevent closure of the surgical wound.

Here, the defendant resected so much that he could not close the surgical wound. He agreed to that. I mean, I don't see how this is even an issue. Your expert agreed with the theory of the plaintiff's case that unless this wound is closed in the manner outlined by the experts there would be a deviation.

We concur with the decision of Judge Riva denying defendant's request to charge medical judgment under the facts of this case. The charge is limited to medical malpractice actions based upon misdiagnosis or where one of two or more generally accepted courses of treatment were chosen. Velasquez v. Portadin, 163 N.J. 677, 687 (2000). So in Aiello v. Muhlenberg Regional Medical Center, 159 N.J. 618 (1999), the Supreme Court held that the medical judgment charge was incorrectly given to the jury when in the course of a laparoscopic tubal ligation, the surgeon inserted a needle into the abdomen at a depth beyond the operative area of the plaintiff's abdomen, perforating the mesocolon and mesenteric artery and lacerating the patient's left iliac vein. In holding that the trial judge should not have charged medical judgment, the Supreme Court stated:

If the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a physician for "mistakes" would enable the physician to avoid responsibility for ordinary negligence. The "mistakes" that inheres the negligence, that is, the failure to exercise reasonable care is not the kind of mistake that is excusable. If, therefore, the physician's professional conduct implicates only the exercise of reasonable care in the performance of a medical procedure and not the exercise of medical judgment in selecting among acceptable and medically reasonable courses of treatment, the medical judgment rule should not be invoked.

[Id. at 632.]

Similarly, in Patton v. Amblo, 314 N.J. Super. 1 (App. Div. 1998), we reversed a verdict for the defense based upon the trial judge's charging exercise of judgment over plaintiff's objection. There the defendant made her initial incision too deep and placed a trocar spike directly into the patient's abdomen. We held that the trial judge erred in charging exercise of judgment over plaintiff's objection because the defendant's error dealt with the skill in which she performed the surgery rather than any judgment.

It was not her intention to pierce all three layers of skin. Regardless of the method in which she performed the incision, either by elevating the skin prior to the initial incision or by simply holding the skin taught, she simply cut too deep. She did not use her judgment to determine the depth. If she had, she would have incised only the first two layers of skin. Her incision of peritoneum was a mistake and cannot be considered an exercise of judgment.

[Id. at 9.]

In the instant case, defendant acknowledged it was a "miscalculation" or mistake in removing too much skin from the plaintiff's left arm. The expert testimony was that the excessive removal of skin was not an accepted medical procedure. Therefore, the issue was not one of medical judgment but rather the deviation from accepted standards of medical care. Accordingly, Judge Riva correctly declined to give the medical judgment charge to the jury.

Defendant's further arguments on appeal have no substantial merit. He first asserts that Dr. Wolkstein was permitted to testify beyond the scope of his expertise and that his testimony constituted cumulative evidence. He also asserts that the admission into evidence of a diagram depicting the procedure for determining the amount of skin to be removed in a brachioplasty was improper. Judge Riva correctly ruled in each instance that the testimony and evidence was admissible, and we find no misapplication of discretion in his rulings. Brenman v. Demello, 191 N.J. 18, 31 (2007).


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