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Thomas Tanski and Stacey Tanski v. Brian Van Grouw

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 30, 2012

THOMAS TANSKI AND STACEY TANSKI, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
BRIAN VAN GROUW, D.O., AND VAN GROUW ORTHOPEDIC ASSOCIATES, INC., DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2353-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 decision about whether to undergo surgery on his right arm?

JUROR ONE: Answer's yes, five dash one.

THE CLERK: Did the disclosed risk of the surgery occur, yes or no?

JUROR ONE: Yes, six dash zero.

THE CLERK: Would a reasonable person in the same circumstances as this [plaintiff] not have consented to the surgery had he been so informed, yes or no?

JUROR ONE: Yes, five dash one.

THE CLERK: Was the December 21st, 2005 surgery a proximate cause in producing Plaintiff's injuries, yes or no?

JUROR ONE: Yes, five dash one.

THE CLERK: What amount of money will fairly and reasonabl[y] compensate Plaintiff for his injuries, A, past pain, suffering and disability?

JUROR ONE: $150,000, six dash zero.

THE CLERK: B, future pain, suffering and disability?

JUROR ONE: $100,000, six dash zero.

THE COURT: Past lost wages.

JUROR ONE: $300,000 six dash zero.

THE CLERK: Future loss.

JUROR ONE: $200,000, six dash zero.

THE COURT: So that's, let's see --JUROR ONE: $750,000.

THE COURT: -- $750,000 total.

Dr. Van Grouw timely filed a motion pursuant to Rule 4:40-2(b), seeking an order for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial judge denied the motion on June 3, 2010.

As noted, Dr. Van Grouw now contends the trial court erred in submitting the informed consent issue to the jury and that the jury's verdict was against the weight of the evidence. Specifically, Dr. Van Grouw contends that Tanski submitted insufficient evidence to support a claim that nerve injury leading to RSD was a material risk and that a reasonable person in the same circumstances would not have consented to the surgery.

Whether an informed consent claim can prevail is governed by standards first set forth in New Jersey in Largey v. Rothman, 110 N.J. 204, 211-15 (1988). In Largey, the Supreme Court rejected the traditional "professional" standard and explicitly adopted the "prudent patient" or "materiality of risk" standard articulated initially in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). Pursuant to the "prudent patient" standard, a physician has a duty to "'warn of the dangers lurking in the proposed treatment' and to 'impart information [that] the patient has every right to expect,' as well as a duty of 'reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved.'" Largey, supra, 110 N.J. at 211 (quoting Canterbury, supra, 464 F.2d at 782).

The court in Largey explained the scope of the duty is measured by the patient's need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked. And to safeguard the patient's interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure. [Largey, supra, 110 N.J. at 211 (quoting Canterbury, supra, 464 F.2d at 786-87 (footnotes omitted)(quotations ommitted)).]

Further, the court noted

The breadth of the disclosure of the risks legally to be required is measured, under Canterbury, by a standard whose scope is "not subjective as to either the physician or the patient," rather, "it remains objective with due regard for the patient's informational needs and with suitable leeway for the physician's situation." A risk would be deemed "material" when a reasonable patient, in what the physician knows or should know to be the patient's position, would be "likely to attach significance to the risk or cluster of risks" in deciding whether to forego the proposed therapy or to submit to it.

[Largey, supra, 110 N.J. at 211-12 (quoting

Canterbury, supra, 464 F.2d at 787).]

As Largey made clear, the prudent patient standard does not require disclosure of "every risk (not just material risks) to any patient (rather than the reasonable patient)." Id. at 213.

The court in Largey explained:

The court in Canterbury did not presume to draw a "bright line separating the significant [risks] from the insignificant"; rather, it resorted to a "rule of reason," concluding that "[w]henever non-disclosure of particular risk information is open to debate by reasonable-minded men, the issue is one for the finder of facts." [Id. at 213 (quoting Canterbury, supra, 464 F.2d at 788).]

Because the sufficiency of disclosure under the prudent patient standard requires that disclosure be viewed from the perspective of the reasonable patient, not the physician, "expert testimony is no longer required in order to establish the medical community's standard for disclosure and whether a physician failed to meet that standard." Febus v. Barot, 260 N.J. Super. 322, 327 (App. Div. 1992).

While expert testimony may still be necessary in circumstances where it is contested whether the risk is one which the physician was aware or whether it was recognized within the medical community, ibid., these issues, as noted earlier, are not contested by Dr. Van Grouw on appeal.

In a holding that is significant to the present matter, the Largey court noted that disclosure of the risk in the case before it - the risk for lymphedema from an auxiliary node biopsy - was subject to debate because the defendant claimed the risk was remote and not material, and consequently required resolution by a jury.

In the present case, the materiality of a risk of nerve injury leading to RSD was likewise subject to debate and therefore properly submitted to a jury. We observe that Dr. Van Grouw himself contended that he told Tanski that nerve damage was a risk inherent in the surgery. Moreover, Dr. Bercik, defendant's own expert, conceded that lacerations of the lateral antebrachial cutaneous nerve "are a known and recognized complication of [the] surgery that plaintiff underwent[.]"

Further, Dr. Cooney, plaintiff's expert, opined, as well, that nerve damage is a recognized complication of biceps tendon repair surgery and that, in this case, the lacerated lateral antebrachial cutaneous nerve led directly to Tanski's RSD. Accordingly, there was sufficient evidence in the record from which a jury could have concluded that the risk was material and that a reasonable person in plaintiff's position would expect a doctor to disclose it so that plaintiff might make an informed decision about whether to undergo the surgery.

Dr. Van Grouw also contends that there was no evidence to suggest that a reasonable person in the same circumstances as Tanski would not have consented to the surgery had he been properly informed about its risks. As we have noted earlier, there is no requirement for expert testimony on this issue. Moreover, there was sufficient evidence in the record to present this issue to the jury. There was an abundance of testimony respecting the debilitating effect of RSD on a person in Tanski's position and the permanent nature of the injury. There was also testimony regarding the limited treatment options for the condition. Such facts are clearly pertinent to the issue of whether a reasonable person would have consented to the surgery.

We reject Dr. Van Grouw's argument that his failure to properly inform Tanski of risks inherent in the surgery was not material and did not proximately cause his injury because Tanski did not show he would not have consented to undergo the procedure. Tanski's own testimony on this subject is not required because the standard is objective and is "not subjective as to either the physician or the patient." Largey, supra, 110 N.J. at 211. The jury, when asked whether a reasonable person in the plaintiff's position would have declined the surgery if adequately informed, responded affirmatively. The jury had the benefit not only of the testimony of the parties pertaining to the surgery and the allegations respecting discussions of risks, but also the testimony of the witnesses and divergent opinions offered by the parties' expert witnesses respecting the risks and complications of surgery. Each expert spoke at length, after reviewing similar evidence, and offered an opinion with respect to the complications arising from injury to the lateral antebrachial cutaneous nerve.

As noted earlier, Dr. Van Grouw also contends that the verdict was against the weight of the evidence. A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmount Food Co., 74 N.J. 588, 597-98 (1977), and a jury's evaluation of a disputed factual issue must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).

In reviewing a motion for a new trial, the trial court is obligated to weigh the evidence, "tak[ing] into account not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible 'feel of the case' which it has gained by presiding over the trial."

Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). A jury verdict will not be set aside "unless, 'having due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law.'" Dolson, supra, 55 N.J. at 6-7 (quoting R. 4:49-1(a)).

"'The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its "feel of the case" including credibility.'" Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Feldman v. Leberle Labs., 97 N.J. 429, 463 (1984)); see also Johnson v. Scaccetti, 192 N.J. 256, 282 (2007). Aside from a consideration of these "intangible[s]," a court must make its own independent determination of whether a miscarriage of justice has occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979).

Based upon our review of the record and the applicable law, we are convinced, as was the trial judge, that the jury verdict was grounded in the evidence and did not constitute a miscarriage of justice. The jury reasonably could have found the potential risk of nerve damage and consequent RSD, to be material in that, had he been advised of the risk, a "reasonable person in the same circumstances" would not have consented to the surgery. Our Supreme Court has characterized "the standard for authorizing a new trial as one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). After reviewing this record, we do not reach that conclusion.

Lastly, defendant argues that prejudgment interest should not apply to "future pain and suffering." We disagree. Rule 4:42-11(b) provides that except where provided otherwise by statute or law, the court shall in tort actions . . . include in the judgment simple interest, calculated as hereafter provided, from the date of the institution of the action or from a date 6 [six] months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest.

The rule, by amendment in 2004, excluded future economic losses, which includes future loss of income, from prejudgment interest. However, that exclusion does not apply to non-economic losses, which include pain, suffering and disability. Thus, subject to the exclusion of future economic losses, prejudgment interest does run on future losses such as pain, suffering and disability. Ruff v. Weintraub, 105 N.J. 233, 245 (1987).

Affirmed.*fn1


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