Gould v. Winokur

• Citation: 98 N.J.Super. 554,237 A.2d 916
• Decision Date: 12 January 1968
• Docket Number: No. L--28471,L--28471
• Parties: Elmer GOULD, Plaintiff, v. Gerald WINOKUR, Defendant.
• Court: New Jersey Superior Court

Page 554

98 N.J.Super. 554

237 A.2d 916

Elmer GOULD, Plaintiff, v. Gerald WINOKUR, Defendant.

No. L--28471.

Superior Court of New Jersey

Law Division.

Jan. 12, 1968.

Seymour B. Jacobs, Newark, for plaintiff (Balk & Jacobs, Newark, attorneys).

Arthur J. Blake, Jersey City, for defendant (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

PINDAR, J.S.C.

The complaint herein alleged a cause of surgical and medical malpractice in three aspects, Viz., negligent performance of surgery, failure to give plaintiff adequate information to procure his full consent, and failure to tender pre- and post-operative care. At the close of plaintiff's case the court granted defendant's motion for an involuntary dismissal on the issue of surgical malpractice. At the end of the whole case the court submitted to the jury the issues of (a) informed consent--should defendant have informed his patient of all probable results short of death; (b) failure of pre- and post-operative care.

The jury returned a unanimous general verdict, accompanied by answers to interrogatories, R.R. 4:50. See Marchese v. Monaco, 52 N.J.Super. 474, 145 A.2d 809 (App.Div.1958). The verdict was no cause for action. The answers to interrogatories are consistent with the general verdict.

The issues here presented came before the court on motion for a new trial which claimed that either (a) the jury verdict was the result of passion, mistake, partiality or prejudice; or (b) the court made erroneous rulings of law and procedure at trial.

The pertinent facts are that plaintiff was suffering from unbearable pain due to a condition known as Tic douloureaux. There is no known medical cause for this condition. To relieve the pain plaintiff underwent corrective surgery at the Neurological Institute of Columbia Presbyterian Hospital, New York, sometime in 1959. During that surgery, which was in the plaintiff's temple area, a sensory branch of the fifth cranial nerve was severed, with the result that plaintiff suffered both analgesia and anesthesia of the left face, as well as a deviation of the jaw to the left. For a time, at least, the pain was relieved. Subsequently, however, the pain recurred until it again became so unbearable that plaintiff consulted defendant Dr. Winokur, a specialist in neurosurgery, at his offices in Jersey City on February 18, 1964. There is a conflict in the testimony at this point, but the jury could have found that defendant informed plaintiff of the need for and effect of additional surgery, for which plaintiff was subsequently hospitalized in the Jersey City Medical Center when he signed a form of written consent for the contemplated surgery. It is undisputed that at some point plaintiff was told by defendant that he could die during or as a result of the contemplated surgery, which was performed by defendant on March 16, 1964. The surgery consisted of a fifth nerve section, cerebellar craniotomy in the medial to mastoid area, during which a part of the occipital bone was removed. In the course of the operation a vein began to hemmorhage, which the jury could have found involved the seventh and eighth cranial nerves that are in close proximity to the fifth nerve. As a result of the involvement of the seventh and eighth nerves, plaintiff developed a left facial palsy, ataxia (loss of balance) and, eventually, loss of hearing in the left ear.

Defendant was called as plaintiff's first witness. During the course of plaintiff's examination defendant stated that involvement of the seventh and eighth nerves was not a probable sequence of events during a fifth nerve section of the type performed. Further, he testified that the only involvement of the seventh and eighth nerves which he had contemplated and anticipated prior to the operation was by visualization and not by damage. Furthermore, he testified that the accepted surgical standard for protection of the seventh and eighth nerves in an operation like the one in question was to cover the seventh and eighth nerves with thin, wet cottonoid strips--a standard which, he said, he had observed.

Plaintiff is now deaf in the left ear and blind in the left eye; suffers a total paralysis of the left facial muscles; has no feeling in his left eyeball or left cheek; can walk only with the assistance of a cane; his jaw deviates to the left; his tongue has no feeling on the left side, with the consequence that he has trouble eating. It seems clear that plaintiff will not be able to resume his trade as a dockbuilder and construction worker.

Concisely, plaintiff urged at the hearing of this motion that (1) a prospectively occurring snowstorm impeded deliberation by the jury; (2) the jury could not have reached a fair verdict in 60 minutes; (3) the court erred in granting the involuntary dismissal on the issue of surgical malpractice; (4) it erred in refusing to allow plaintiff to cross- examine defendant on the question of surgical malpractice after the involuntary dismissal, and (5) it erred in refusing to charge Res ipsa loquitur. Items 1 and 2 are related and will be considered together; similarly, items 3, 4, and 5.

The case went to the jury on November 30, 1967 after 13 days of trial. On the morning of that day there were warnings of expected snow. Plaintiff urges that the jury's anxiety over reported weather conditions prevented it from properly discharging its duties, which consumed an approximate 60-minute time period before the verdict was returned. The court recollects that at 11 A.M., at which time the jury retired to deliberate, it was not snowing. Further, when the jury returned its verdict at approximately noon there were some snow flurries but not extensive. The court feels that it would be unjustified in concluding on the basis of this evidence, i.e., an adverse weather forecast, snow flurries and a 60-minute verdict, that the jury was so overcome with anxiety that a full and fair deliberation was impossible, and therefore a new trial should be granted. The evidence is simply insufficient and unconvincing. It is significant that upon return of the jury neither the related weather circumstance nor the time consumed was questioned.

For similar reasons plaintiff's contention that a 60-minute verdict after 13 days of trial and voluminous exhibits is convicing evidence of mistake, partiality or prejudice, or is against the weight of the evidence, must also be rejected. The court will concede, as contended by plaintiff, that it was obviously impossible for all jurors to have examined in detail each of the many documents they had in their possession. But the point is that the jury need not have examined them fully to arrive at a fair and impartial verdict. There was extensive examination by respective counsel on each of the salient features contained in the records by questioning the witnesses about them. Thus the jury has a sufficiently fresh recollection of those points to make a detailed personal inspection of them unnecessary. Particularly there was nothing contained in the records relevant to the question of informed consent that was of immediate concern to the jury, which, after the issue of surgical malpractice was excluded, was the stronger issue in plaintiff's favor. Without detailing all the evidence, suffice it to say that having reviewed the matter, the court further concludes that the jury's verdict on the submitted issues aforementioned was not against the weight of that evidence. Plaintiff's motion pursuant to R.R. 4:61--1 is, therefore, denied.

Considering plaintiff's contention that he was unduly prejudiced by the court's refusal to allow defendant to be cross-examined on the question of surgical malpractice, the court concludes that its ruling was correct and necessarily followed from the granting of defendant's motion for an involuntary dismissal on this issue when plaintiff rested his case. Plaintiff had the right to call, and did in fact call, defendant as a witness in his case. Having failed to elicit any information from the doctor at that time which would permit an inference that he was negligent in performing the operation, there was no useful purpose to be served by prolonging that line of questioning.

Plaintiff argues further that in a malpractice case the sole source of information is defendant himself. While that statement may or may not be correct, depending upon all the circumstances, it is not persuasive here because plaintiff conducted a thorough pretrial discovery. Defendant's depositions were taken and substantial portions were admitted in evidence over his objection at trial. R.R. 4:16--4; 4:16--5. Therefore, plaintiff was not unduly prejudiced, considering the pretrial discovery and the doctor's direct testimony on plaintiff's behalf.

While courts are generally reluctant, especially in malpractice cases, to grant involuntary dismissals--see Terhune v. Margaret Hague Maternity Hosp., 63 N.J.Super. 106, 164 A.2d 75 (App.Div.1960)--where it is clear that plaintiff has not established a Prima facie case, no purpose is served by prolonging his hope against hope. In this regard, since plaintiff relies upon Res ipsa loquitur as establishing a Prima facie case, the court should point out that plaintiff's pretrial discovery plays no part in its later decision regarding the application of that doctrine in this case. See Menth v. Breeze Corp., Inc., 4 N.J. 428, 437, 73 A.2d 183, 18 A.L.R.2d 1071 (1950). The court points this out in answer to defendant's statement that plaintiff could have and should have resorted to procedures provided by R.R. 4:25B. However, the voluntary nature of that procedure--see Marsello v. Barnett, 50 N.J. 577, 236 A.2d 869 (1967)--makes it clear that plaintiff's failure to use it is not a factor to consider in ruling on the applicability of Res ipsa loquitur, and it plays no part in the court's determination.

Considering the propriety of the ruling at trial, that plaintiff had not presented a Prima facie...