Buckelew v. Grossbard

Decision Date14 October 1981
Citation87 N.J. 512,435 A.2d 1150
PartiesPatricia J. BUCKELEW, now known as Patricia J. Pera, Plaintiff-Appellant, v. Lillian GROSSBARD and Howard Grossbard, Executors of the Estate of Paul J. Grossbard, M. D., deceased, Defendants-Respondents.
CourtNew Jersey Supreme Court

Emanuel Needle, Newark, for plaintiff-appellant (Kohn & Needle, Newark, attorneys; Emanuel Needle and M. Marvin Soperstein, Newark, on the briefs).

Richard E. Brennan, Newark, for defendants-respondents (Shanley & Fisher, Newark, attorneys).

The opinion of the Court was delivered by

CLIFFORD, J.

In this action for personal injuries based on medical malpractice the trial court set aside a jury verdict in favor of plaintiff and entered judgment for defendant. The court held that plaintiff's expert had offered no more than a "net opinion," which, under Parker v. Goldstein, 78 N.J.Super. 472, 189 A.2d 441 (App.Div.), certif. den., 40 N.J. 225, 191 A.2d 63 (1963), was insufficient to warrant submitting to the jury the question of defendant physician's deviation from the applicable standard of care. The Appellate Division, in an unreported opinion, affirmed the judgment in favor of defendant. We reverse and remand the cause for a new trial on the issues of causation and damages.

I

Plaintiff, Patricia Pera, a thirty-six year old registered nurse at the time of trial, first consulted the defendant physician, a gynecologist, in 1973. 1 At that time she presented to Dr. Grossbard a history of gynecological and urinary problems, including the removal in 1963 of her left ovary because of a ruptured cystic tumor. During plaintiff's first visit Dr. Grossbard found that she had a urethrocele (a protrusion in the urethra) and rectocele (a protrusion or herniation of the rectum into the vagina). These conditions were surgically corrected later in 1973 by other physicians.

Miss Pera returned to Dr. Grossbard on January 20, 1975, complaining of profuse vaginal bleeding. On January 23 defendant performed a dilatation and curettage and bilateral fulguration transection via laparoscopy (a surgical destruction of the uterine tubes). On February 6 plaintiff returned complaining of bleeding, for which bed rest was recommended. On March 23 Dr. Grossbard had Miss Pera admitted to Beth Israel Hospital, Passaic, with a complaint of bleeding, and he performed a second dilatation and curettage on March 28. Because he discovered a nodular mass on the uterus and because bleeding was continuous postoperatively, Dr. Grossbard recommended a total abdominal hysterectomy, which was completed on March 31. 2

A few days after the hysterectomy plaintiff developed pain in the right side of the abdomen radiating into the groin and thigh. Dr. Kimmel, a cardiovascular specialist (likewise deceased as of the time of trial), was consulted because of the possibility of a thromophlebitis (inflammation of a vein associated with formation of a clot within blood vessels). When plaintiff did not improve after several days under his therapy, Dr. Kimmel recommended an exploratory laparotomy (the surgical procedure of cutting into the abdominal cavity through the loin or flank) this, because an unexplained mass was discovered in the right lower quadrant of the abdomen. On April 18 Dr. Grossbard performed the laparotomy, and it was during this operation that the occurrence forming the basis for this suit took place.

Plaintiff, being anesthetized during the surgery, had no personal knowledge of what transpired. When she awoke after the operation, she found herself in the intensive care unit. Thereafter she was moved to a private room, where she experienced "an awful lot of pain." When she complained to Dr. Grossbard, he told her there had been "a slight accident and he had cut into the bladder by mistake," and that was one of the reasons she was "as ill as (she) was."

Miss Pera was hospitalized until May 1. Shortly after discharge she developed bleeding and a urinary fistula, an abnormal tract from the urinary system that discharged urine to the abdominal incision. Therefore she returned to the hospital for reinsertion of the catheter that had been in place after the surgery but had been removed before discharge.

Plaintiff remained hospitalized an additional two weeks in May and was bedridden until the middle of June, when she attended her son's graduation ceremonies in a wheelchair. It was not until July that she ventured outside again, returning to nursing on a part-time basis in an administrative capacity. In December Miss Pera resumed this type of work on a full-time basis. In 1976 and again in 1978 she was hospitalized because of urinary bleeding. At the time of trial in July 1978 Miss Pera was under the care of a physician and suffered from recurrent infections, burning, chronic cystitis and muscle spasms, all treated by prescribed medications. She was unable to engage in any of the strenuous activities that she had enjoyed before April 1975, such as golf and bowling.

As part of the plaintiff's case Dr. Grossbard's deposition testimony was read into the record, whence comes the only recitation of the operative procedure other than what appears in the operative notes. Dr. Grossbard first determined the location of the mass, then made an incision through the incision previously made for the hysterectomy. Proceeding "very slowly" he "just kept on incising and found "a substantial amount of scar tissue under the skin. " Finally he "got down to what I thought was the peritonea (sic: pertitoneum, the serous membrane lining the interior of the abdominal cavity and surrounding the organs contained therein). And I made a very small incision into what I thought was a peritonea and after making a small incision it did not look like peritonea to me. And we stopped at this point and I put a probe into the point where I thought the peritonea was, but this was the incision and it turned out to be the urinary bladder."

Dr. Grossbard resisted the suggestion that his cutting of the bladder was a "mistake." His explanation of the event was that "(t)his was an abnormality which was caused by the patient's previous surgical procedures which I had not anticipated nor felt reasonably sure that that could have been a urinary bladder at that point." He acknowledged having performed three prior surgical procedures, albeit "in different areas," and conceded his familiarity with the 1973 surgery.

As soon as he realized that he had cut into plaintiff's bladder, Dr. Grossbard summoned a urologist, Dr. Zigendorf, who fortunately was "next door" and was able to do the necessary repair within minutes. Thereafter the operation proceeded without incident: the mass was located, the condition corrected, and "things" were "put back where they belonged." A catheter was inserted to drain the injured bladder.

Plaintiff produced an expert witness, Dr. Tuby, who was retained by plaintiff's attorneys to review the records of Miss Pera's confinements in Beth Israel Hospital from May 1, 1975, and from May 13 through May 26, 1975, and to furnish an opinion. According to the witness standard practice in the type of exploratory operation performed on plaintiff requires the surgeon to be "particularly careful" that an underlying vital structure not be injured. "In this particular instance," he said, "there were adhesions and fibrous tissue because she had a number of operations at that particular site. The urinary bladder lies in that area so that when one does a dissection in that particular area, they have to be very careful that they don't injure an underlying vital structure." It was Dr. Tuby's opinion that Dr. Grossbard "deviated from the accepted standards of medical practice when he failed to exercise the necessary care to avoid cutting into the urinary bladder and causing an opening measuring a quarter of an inch to three-eights of an inch in length * * *. (H)e should have exercised meticulous care to avoid injuring the underlying vital structures such as the urinary bladder."

Based on his review of Miss Pera's prior medical history, which had been furnished to him by plaintiff's counsel, and his examination of the hospital records, Dr. Tuby concluded that plaintiff's complaints "as to burning sensation, et cetera," were "commensuratory" (sic) with the type of injury that occurred during the exploratory operation. Defense counsel's objection to a hypothetical question designed to elicit Dr. Tuby's opinion as to permanency was sustained, apparently because the doctor had not examined any of the hospital records of plaintiff's prior operations or conducted any physical examination of plaintiff.

The trial court denied defendant's motion to dismiss at the conclusion of plaintiff's case but ruled that the doctrine of res ipsa loquitur was inapplicable. A motion to strike "any elements of permanency" was granted.

Defendant's case consisted of the testimony of Dr. Felix Vann, a board-certified specialist in obstetrics and gynecology. Whereas he agreed with plaintiff's expert that meticulous care is required in the type of surgery performed on plaintiff, Dr. Vann's opinion was that Dr. Grossbard had indeed exercised the requisite degree of care. He specifically disagreed with Dr. Tuby's assertion that "the very fact that this happened indicates that there was a lack of meticulousness or lack of care," and said further that "any surgeon who has done any degree of this type of work has had such an experience."

The defense expert's reconstruction of the surgical accident was in part as follows:

(W)hat he was dissecting was scar tissue. Once he was through, once he was through the skin and your scar tissue ends at whatever structure is beneath it, and he was looking for the source of this mass which, as I stated before, could have been a collection of serum in a cavity, it could have been the collection of blood in a cavity or if he had not found either of these things, h...

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