On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3728-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Maven.
Plaintiff Renee Ashkenazi, individually, and in her capacity as the Administratrix of the Estate of her late husband, Eli Ashkenazi, filed a wrongful death action against defendants Steven A. Gorcey, M.D. and Monmouth Gastroenterology. While Eli Ashkenazi (Ashkenazi) was undergoing a colonoscopy performed by Gorcey, Gorcey attempted to remove a lipoma using snare removal. Ashkenazi had emergency surgery to resolve complications arising from the procedure and died shortly thereafter.
At trial, plaintiff claimed Gorcey deviated from applicable standards of care by: (1) failing to advise Ashkenazi that he had a lipoma and of the risks and complications of, and alternatives to snare removal of that growth; (2) attempting snare removal of the benign lipoma; and (3) continuing to apply electrocautery after the entanglement of the snare.
After the trial, the jury returned a verdict of no cause of action and, subsequently, plaintiff's motion for a new trial was denied. Plaintiff appeals from the March 10, 2011 order of judgment in favor of Gorcey and the May 6, 2011 order denying the motion for a new trial.
Plaintiff contends that the trial court (1) improperly instructed the jury on "medical judgment"; (2) improperly refused to instruct the jury on all three theories of liability and include each theory separately on the jury verdict form; and
(3) failed to clearly define the precise "procedure" or "treatment" on the jury interrogatory regarding informed consent.
Having reviewed the arguments presented on appeal in light of the record and applicable law, we conclude that the trial court's failure to affirmatively charge the jury with respect to plaintiff's second theory of liability, and the court's failure to clearly instruct the jury on informed consent, constitute reversible error.
These facts are found in the trial record. Ashkenazi first met with
Gorcey in September 1999, following a referral from his hematologist
who diagnosed Ashkenazi with anemia and an enlarged spleen. Gorcey
performed a colonoscopy during which he removed a polyp.*fn1
Gorcey also observed another lesion, which he believed
to be a lipoma,*fn2 measuring approximately three to
four centimeters in diameter.
After the procedure, Gorcey told Ashkenazi that he removed a precancerous polyp and that Ashkenazi would have to return in three years for a follow-up colonoscopy. Gorcey also informed Ashkenazi of the lipoma and that he left it in place because it was not causing any problems.
Ashkenazi returned to Gorcey in August 2002 complaining of right side discomfort, rectal bleeding, and feelings of bowel obstruction under his right rib cage. On September 9, 2002, Ashkenazi returned for his follow-up colonoscopy. Ashkenazi was then sixty-six years old, morbidly obese, weighed approximately 329 pounds, and had advanced severe cirrhosis of the liver, enlarged heart and spleen, anemia, diabetes, and a family history of colon and stomach cancer. Ashkenazi signed a consent form for the colonoscopy.
During the procedure, Gorcey removed a polyp, then observed a large lipoma growing at the same location of the lipoma he first observed in 1999. Because he had never seen a lipoma or polyp turn into a pedunculated, i.e., mushroom-shaped lesion, Gorcey used biopsy forceps to probe the lipoma. He examined the lipoma for approximately five minutes, noted that it had a stalk approximately three to four centimeters wide, and observed that it extended from the wall of the colon into the lumen or opening of the colon. Gorcey considered whether to remove the lipoma endoscopically or by open surgery. He believed that the lipoma was causing Ashkenazi's intermittent bowel obstruction, and that its protrusion could cause the colon to intussuscept*fn3 at any time. Considering Ashkenazi a poor surgical risk, Gorcey decided to remove the lipoma endoscopically.
To remove the lipoma, Gorcey positioned the loop of the electrocautery snare around the stalk of the lipoma and applied thirty watts of energy through the instrument to attempt to cut through the lipoma. Because fat does not conduct electricity well, the heat of the cautery caused the fatty lipoma to desiccate, or dry up and harden, entrapping the snare in the growth. In an effort to remove the entangled snare, Gorcey increased the energy to forty watts and applied the cautery for an additional minute, which caused the snare to become more embedded. Unable to remove the snare, Gorcey cut the colonoscopy handle, and sent Ashkenazi by ambulance to Monmouth Medical Center, leaving the snare protruding from Ashkenazi's rectum. Glenn Parker, M.D., a general surgeon, performed emergency surgery and removed thirty-two centimeters of colon, including the entangled snare, and the appendix. In the two weeks following surgery, Ashkenazi developed a bowel infection and other post-surgical complications, and died.
At trial, plaintiff presented testimony from Yong Kang, M.D., a pathologist; Steven Fiske, M.D., a gastroenterologist and internist; and David Befeler, M.D., a general surgeon. Kang examined the pathology of the growth following its removal by Parker and confirmed the length of the removed colon as more than thirty-two centimeters. The lipoma measured six centimeters long and extended into the submucosal layers, or bowel wall. The lipoma was four centimeters wide at the base and four-and-one-half centimeters at the head. Kang acknowledged that the lipoma may have been swollen around the area of the snare. The snare wire was still embedded in the lipoma and attached around the base of the lipoma near the wall of the bowel. The bowel wall area near the embedded snare was hemorrhaged and necrotic due to the blood supply being cut off either by the snare wire or the heat of the cautery. Kang testified that the lipoma did not appear to have a stalk when he examined it, but acknowledged that it may have had a stalk at the time Gorcey performed the colonoscopy. If the lipoma had a stalk, he would not consider four centimeters a thin stalk.
Fiske and Befeler opined that the accepted standard of care is not to remove a lipoma unless it is causing an obstruction. Fiske testified:
A If it is, if you can, if it looks like a lipoma, the standard of care would be to leave it alone. You might --
Q Why is the standard of care to leave the lipoma alone?
A Because it's not doing any harm. It is almost always not causing symptoms. I have patients with lipomas bigger than the one here at various areas of the colon that don't have symptoms.
Lipomas on the right side of the colon in particular have to grow extremely large to be causing symptoms. And if there's no harm there's no foul and you don't remove it. It has no pre-malignant potential, and so it's like a freckle on your face so to speak. It's not quite like a freckle, but you just leave it alone unless it's absolutely required to be removed in some way, shape or form.
Q Why not, if a lipoma is in the bowel and you see it in the bowel when you're doing a colonoscopy procedure, why not just take it out?
A Because it's not indicated, number one. Number two, a lipoma isn't a polyp. A lipoma is a fatty tissue that grows underneath the lining of the intestine, of a colon and goes deep into the wall or -- the bigger it is the more likely it is to go deeper through all the layers of the wall of the intestine and it is fraught with danger.
A Because first of all lipomas, because they're under the lining you don't know how deep they are. They can go to the very tip of the outer lining. Number two, it's fat and fat is a poor conductor of -- it's hard to cut through with a snare, through the fat.
And the amount of heat that will be dispersed through the cautery effect while you're snaring it gets intensified as you tighten the snare and it -- They're very difficult to remove safely endoscopically and should not be attempted to be removed endoscopically.
Fiske explained that once Gorcey saw the size of the lipoma, he should have tattooed (marked) the area and referred Ashkenazi to a surgeon who would have reviewed his medical history and cleared him for surgery. While his medical history placed Ashkenazi at a "slightly higher" risk as a candidate for open surgery, it did not contraindicate surgery. Fiske and Befeler opined that Gorcey deviated from the accepted standard of care by attempting to remove the lipoma.
Defendant Gorcey presented Adam Elfant, M.D.; Frank Gress, M.D.; and gastroenterologists, Parker and Gorcey. Elfant and Gress each opined that Gorcey did not commit medical negligence. Following a lengthy hypothetical question detailing the facts of Ashkenazi's medical history and Gorcey's treatment of Ashkenazi from 1999 through 2002, Elfant concluded that Gorcey did not deviate from the standard of care, but instead exercised medical judgment:
[M]y understanding of a standard of care is what most reasonable physicians would do under a similar set of circumstances. And given the clinical presentation of a patient, . . . Mr. Ashkenazi in this case, given his presentation of someone complaining of right side abdominal pain, obstructive type symptoms, when you do your colonoscopy, especially knowing there's a history of precancerous lesions, you're going in there to look for cancer. You're going in there to look for a source of obstruction.
You know your first worry is that he's developed a cancer. And when you get in there and you see no, there's no cancer, but there's a large mass. It's changed from what I remember before. Now it's pedunculated, ...