On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2353-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011 Before Judges Yannotti, Espinosa and Kennedy.
Defendants Dr. Brian Van Grouw, D.O., and Van Grouw Orthopedic Associates, Inc. (hereinafter collectively referred to as Dr. Van Grouw) appeal from a judgment entered against them following a jury verdict finding that Dr. Van Grouw failed to obtain plaintiff Thomas Tanski's (Tanski) informed consent prior to operating on him to repair a torn biceps tendon. During the course of the surgery, Tanski's "lateral antebrachial cutaneous nerve" was injured, causing him to sustain a debilitating condition known variously as causalgia, complex regional pain syndrome and reflex sympathetic dystrophy (RSD). Dr. Van Grouw claims on appeal that Tanski failed to present evidence pertaining to the "materiality of the risk" and whether a reasonable person in the same circumstances as plaintiff would not have consented to the surgery if he or she had been properly informed of its risks. Dr. Van Grouw contends that he is entitled to a reversal of the judgment or, alternatively, a new trial on the ground that the verdict was against the weight of the evidence. He also challenges the award of prejudgment interest for "future pain and suffering."
We discern the following facts from the trial record. Tanski, an industrial electrician, then age thirty four, suffered a torn biceps tendon while bowling on December 8, 2005, and thereafter came under the care of Dr. Van Grouw, an orthopedic surgeon. Dr. Van Grouw examined Tanski on December 9, 2005, and concluded that Tanski ruptured his right biceps tendon but he wanted to confirm the injury with an MRI. The MRI was undertaken and showed a "tear of the right biceps tendon where it inserts in the bone in the forearm called the radius." On December 15, 2005, Dr. Van Grouw discussed the MRI findings with Tanski and recommended surgery. Tanski conceded he was told that he had the option of not having the surgery and he knew that there was no guarantee he would have "100 percent strength" in the right arm after the surgery. However, Tanski asserted that Dr. Van Grouw never told him that the surgery posed a potential risk of nerve injury. "We didn't talk about any nerves," according to Tanski. Dr. Van Grouw had a different memory, however. He recalled telling Tanski that there was a possibility of nerve injury associated with the surgery but he conceded he never discussed with him the percentage of risk of nerve injury that the surgery entailed.
Following their discussion, Tanski agreed to the surgery and signed a standard "consent for surgery" form which represented that he was advised of the "significant risks and complications of the procedures." The form, however, did not specifically list nerve injury as a "significant risk" of the surgery. Tanski understood the form to be a "standard surgical form" which did not specifically list risks associated with the proposed procedure.
Tanski was admitted to Valley Hospital in Ridgewood for the biceps tendon repair on December 21, 2005. Dr. Van Grouw acknowledged that during the surgery he did not see the lateral antebrachial cutaneous nerve and that he proceeded with the surgery in a "very careful" manner, going "slow[ly] and meticulously." Dr. Van Grouw claimed that during the surgery he located the tendon tear at the "muscle tendon junction," sutured the area and closed the incision. He acknowledged that the surgery he performed was not the surgery he had planned, but noted, "I got lucky. There was enough material left on the bone to do an end-to-end repair." He found it was not necessary to anchor the tendon to the bone because "there was material left on the bone to sew it back to that material."
After the surgery, Tanski developed severe post-surgical pain including a "burning" pain which traveled down his arm and became worse with time. While he underwent some post-surgery physical therapy, Tanski continued to suffer from severe pain and hypersensitivity along his right forearm. He last saw Dr. Van Grouw on March 9, 2006, complaining of what Dr. Van Grouw characterized as "exquisite tenderness." Dr. Van Grouw recommended that Tanski consult with a neurologist.
Tanski eventually underwent surgery on April 20, 2006, at the Hospital for Special Surgery in New York. Dr. Andrew Weiland, M.D., the surgeon, found that the torn biceps tendon had not been properly repaired. He also identified multiple injuries to the lateral antebrachial cutaneous nerve, including the complete transection of a branch of that nerve. As a consequence of the injury to that nerve, Tanski developed RSD. Dr. Van Grouw does not contest that Tanski has RSD and that it was a consequence of the surgery.
Tanski's expert neurologist, Dr. Michael Samanman, M.D., characterized RSD as follows:
It's a chronic pain syndrome that occurs after trauma and it's, it's an unusual amount of pain that seems far disproportional to the original trauma, and it has, often has a very burning, very irritable quality and there's a strong emotional component. It can make the patient very depressed.
Tanski thereafter came under the care of a pain management specialist, Dr. Jose Contreras, M.D., who prescribed various medications and pain management modalities. Further, in February 2007, Dr. Weiland performed additional surgery on Tanski, which provided some relief, although the "burning" pain continued.
When Tanski attempted to return to work in July 2007, his pain and limitations prevented him from performing the duties of an industrial electrician and, as a consequence, he was given lower paying, administrative jobs.
Dr. William Cooney, M.D., one of Tanski's experts, indicated that the damage to the lateral antebrachial cutaneous nerve led to the condition of RSD and that nerve damage is a recognized complication of a biceps tendon repair. One of the defense experts, Dr. Michael Bercik, M.D., also testified that a laceration of that nerve is a "known and recognized complication of the surgery" that Dr. Van Grouw performed. Another defense expert, Dr. Brian Bauer, M.D., opined that "in orthopedics, people believe this happens two to three percent of the time in orthopedic surgeries."
Tanski's complaint against Dr. Van Grouw alleged in count one that Dr. Van Grouw's treatment of Tanski "did deviate from accepted standards of medical practice" and in the second count, that Dr. Van Grouw "failed to disclose to plaintiff. . . necessary information that would have enabled [him] to consider, weigh and choose knowledgably the medical options available[.]"
On April 1, 2010, the jury returned a verdict finding that Dr. Van Grouw did not deviate from accepted standards of medical practice in his treatment of plaintiff. However, on the issue of informed consent, the jury found as follows:
THE CLERK: Did Defendant fail to give Plaintiff all the information that a reasonable person in Plaintiff's position would expect a doctor to disclose so that Plaintiff might make an informed ...