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Laurie Newmark-Shortino and v. andrei Buna

July 27, 2012

LAURIE NEWMARK-SHORTINO AND MARC SHORTINO, PLAINTIFFS-APPELLANTS,
v.
ANDREI BUNA, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3265-06.

The opinion of the court was delivered by: Sapp-peterson, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 14, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

The opinion of the court was delivered by SAPP-PETERSON, J.A.D.

Plaintiffs, Laurie Newmark-Shortino ("Laurie") and her husband, Marc Shortino ("Marc"), appeal from the judgment of no cause entered following a jury verdict.*fn1 The jury found that defendant, Andrei Buna, M.D., an obstetrician, was negligent but that his negligence was not the proximate cause of Laurie's injuries. On appeal, plaintiffs contend:

POINT I

THE COURT BELOW ERRED BY FAILING TO SUBMIT THE INFORMED CONSENT CLAIM TO THE JURY.

POINT II

THE COURT BELOW ERRED BY SUBMITTING THE PROXIMATE CAUSE QUESTION TO THE JURY.

POINT III

THE COURT BELOW ERRED BY FAILING TO SUBMIT SEPARATE JURY QUESTIONS FOR EACH CLAIM OF NEGLIGENCE.

POINT IV

THE COURT BELOW ERRED BY FAILING TO CHARGE ALTERATION OF RECORDS.

POINT V

THE COURT BELOW ERRED BY NOT GRANTING [THEIR] MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL.

We reject the arguments raised in Points II through V, but we are satisfied the trial court erred, as a matter of law, in declining to submit plaintiffs' claim of lack of informed consent to the jury. We therefore reverse and remand for a new trial on that claim.

I.

Laurie testified that on August 28, 2006, she went to her first appointment with Dr. Buna. During the physical examination, Dr. Buna noted she had no pain in her abdomen. After a pelvic exam, Dr. Buna informed her that she was about seven weeks pregnant; however, this did not reconcile with the time period when she believed conception occurred. He then told her to come back the next day at 7:30 p.m. for an ultrasound to determine exactly how far along she was in her pregnancy.

Laurie returned the next evening, as instructed, and brought along Marc, their daughter, and her mother, Ann Newmark, so they could all view the ultrasound together. When they arrived, Dr. Buna's sonographer, Linda Ahlborn, performed a transabdominal ultrasound. Because she was "too early on[,]" there was no reading.

Ahlborn then performed a transvaginal ultrasound, during which Laurie and Marc recalled that Ahlborn's facial expression changed, as if something were wrong, and she asked Ann to leave the room with the couple's daughter. Ahlborn then pressed on Laurie's stomach and asked if she felt pain. Laurie told her that she did not feel any pain but "when [Ahlborn] push[ed] on [her] side [she] fe[lt] a little discomfort."

Ahlborn testified that after she performed the transvaginal ultrasound, she spoke to Dr. Buna on the phone and related to him what she observed on the ultrasound: a cystic mass in the right adnexa, an area which includes the fallopian tubes and ovaries. She also observed a "pseudosac" in Laurie's uterus, which could have either been the beginnings of an early intrauterine pregnancy or could have been associated with an ectopic pregnancy.*fn2 From these observations, Ahlborn's impression was that Laurie either had an ectopic pregnancy or a normal, early intrauterine pregnancy with a small right corpus luteum cyst, which is a type of ovarian cyst. At that point, she was "[a]bsolutely" unable to make a conclusive determination. Ahlborn's notes from the ultrasound state: "? Right Ectopic - vs - Early IUP*fn3 [with] Right Corpus Luteum Cyst - [P]seudosac in Uterus - No Viable IUP - Seen - No [F]ree

[F]luid - Clinical Correlation Needed[.]" After the phone call, Ahlborn returned to the room and told Laurie that Dr. Buna would like to speak with her on the phone.

Laurie testified Dr. Buna told her she had an ectopic pregnancy and she needed to go to the hospital. She started to cry, dropped the phone, and then ran out the room. Marc testified he picked up the phone and asked Dr. Buna what was going on. Dr. Buna told him Laurie had an ectopic pregnancy and she was in imminent danger of rupturing her fallopian tube. Marc asked if Laurie possibly just had an early pregnancy and Dr. Buna responded, "'It's not possible. It's ectopic.'" He then instructed Marc to have Laurie report to the fourth floor of Saint Clare's Hospital at 7:30 a.m. the next day "'to get a methotrexate shot to terminate the pregnancy.'"

Laurie, who is an attorney, had a court appearance the following morning. Because she was not experiencing any discomfort, she decided to first attend court to complete a matrimonial proceeding continuing from the previous day. As a result, she, Marc, and Ann arrived at Saint Clare's three hours after the scheduled appointment with defendant. They also met Laurie's brother, Benjamin, at the hospital. Dr. Buna scolded her for being late and informed her the methotrexate injection was ready. Laurie requested a second ultrasound. She testified she did not want to "rely just on [Dr. Buna's] technician for this diagnosis to terminate this pregnancy." Dr. Buna told her that she did not need another ultrasound, his technician had been performing ultrasounds for twenty-five years, and he had been practicing for thirty years. He reiterated that she had an ectopic pregnancy which had to be terminated; otherwise, she could experience a rupture, with the worse case scenario resulting in her death.*fn4

Laurie, however, insisted upon a second ultrasound. Dr. Buna arranged to have a colleague, Dr. Barbara Girz, a specialist in high-risk pregnancies, perform the ultrasound that afternoon. Dr. Buna was present in the room during the procedure, and Laurie heard Dr. Buna murmur something about a "pseudosac." Dr. Girz, however, was silent.

Dr. Buna and Dr. Girz conferred, after which Dr. Buna reported to Laurie she had an ectopic pregnancy. Upon leaving the ultrasound room, he told Marc that Laurie's ectopic pregnancy had been confirmed. He did not relay to Laurie and Marc that Dr. Girz's report was equivocal as to whether she had an ectopic pregnancy. Nor did he advise them of Dr. Girz's recommendation. In the report prepared by Dr. Girz, however, the doctor wrote there was a "small sac noted in the fundus." Dr. Girz's recommendation stated: "The patient is here with Dr. Buna. He will send her for quantitative beta-HCG*fn5 and reevaluation for possible methotrexate treatment."

After completing the ultrasound, Laurie asked Dr. Buna whether she could leave and return to the emergency room if she felt any pain. Dr. Buna responded there would not be enough time to do so. He explained that if there were a rupture, it would happen very fast, and she could die or not be able to have any more children. He also informed Laurie her blood tests reported her beta-HCG level at 917. Beyond advising she could rupture at that number, Dr. Buna did not otherwise explain the significance of the beta-HCG level.

Because Laurie felt overwhelmed by the events, she went to the chapel, believing she was confronted with two options, leaving and possibly dying from a rupture, or taking the methotrexate injection to terminate the pregnancy. Meanwhile, Marc, who remained with Dr. Buna, testified that Dr. Buna, in response to his question whether he was 100 percent certain Laurie had an ectopic pregnancy, answered: "'It's ectopic, I am certain of it.'" Marc then joined Laurie in the chapel and conveyed to her Dr. Buna's certainty that she had an ectopic pregnancy and advised her to get the injection in order to avoid the risk of death or becoming infertile.

After the couple discussed the matter for another twenty minutes, Laurie agreed to commence the methotrexate treatment, and signed the consent form. Dr. Buna, however, was no longer at the hospital. He had returned to his office. Laurie received the injection around 3:00 p.m. and was told to report to the hospital on September 5 for additional blood work to confirm that her beta-HCG levels were going down.

Laurie and Marc returned to the hospital on September 5, as instructed, and she underwent the scheduled blood test. Later that day, she and Marc received a telephone call from Dr. Buna. He informed them that her beta-HCG level had risen to 4800, and that "the lab must have made a mistake." He also told the couple the rising number "'could be an indication that this was a normal pregnancy.'" When they inquired whether something could be done to save the baby, Dr. Buna explained the injection could cause severe physical deformities and the fetus would probably not survive. He directed Laurie to take another blood test and to receive her second methotrexate injection.

The next day, Laurie took a third blood test and signed another consent form to receive her second injection. Within hours, Dr. Buna contacted Laurie and reported that her beta-HCG numbers had risen again. Although Laurie requested a third ultrasound, Dr. Buna responded that there was no point in having another ultrasound. Because she was confused by the rising beta-HCG levels and also because she was very upset, she insisted that another ultrasound be scheduled.

Dr. Buna was present while the third ultrasound was being performed. He left the ultrasound room and told Marc, who was waiting outside the room, that Laurie was going to be "'very, very upset.'" He did not say anything further to Marc, who then said: "You were wrong." Dr. Buna did not respond. Marc then joined Laurie in the ultrasound room. The ultrasound technician turned the monitor so Laurie and Marc could see the screen. They saw the fetus in Laurie's uterus. The fetus, at that point, was five weeks old with cardiac activity and located in the uterus. Based upon Laurie's beta-HCG numbers and the third ultrasound, there was no dispute Laurie had a viable intrauterine pregnancy, and what Dr. Buna diagnosed as an ectopic pregnancy was actually a right corpus luteum cyst. By the time Laurie underwent the third ultrasound, the cyst had shrunk and partly collapsed.

After leaving the hospital, Laurie and Marc decided they would no longer see Dr. Buna. They consulted with another doctor, who advised that Laurie could either wait for the fetus to die or schedule a dilation and curettage procedure ("D&C"). Laurie elected the latter procedure. She was so upset by the events that she started to see a therapist. She became pregnant a few months later and gave birth to a baby boy in June 2007.

Plaintiffs presented Dr. Richard Luciani, board certified in obstetrics and gynecology, as their expert. He testified that neither the first nor second ultrasound could confirm whether Laurie had an ectopic or early intrauterine pregnancy, and therefore, the appropriate standard of care called for a conservative approach consisting of observation and repeated blood tests. He expressed ...


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