Perna v. Pirozzi
| Citation | 182 N.J.Super. 510,442 A.2d 1016 |
| Parties | Betty L. PERNA and Thomas R. Perna, Jr., Plaintiffs-Appellants, v. Michael J. PIROZZI, M.D.; Anthony Del Gaizo, M.D.; Patrick N. Ciccone, M.D.; and Mansoor Karamooz, M.D., Defendants-Respondents. |
| Decision Date | 11 January 1982 |
| Court | New Jersey Superior Court – Appellate Division |
William O. Barnes, Jr., Newark, for plaintiffs-appellants.
John L. Shanahan, Chatham, for defendants-respondents (Jung, Wilson, McGuire & Shanahan, attorneys; John L. Shanahan, Clifford H. Lange, Chatham, and J. Anthony Manger of Manger, Kalison & Murphy, Morristown, of counsel and on the brief).
Before Judges BISCHOFF, KING and POLOW.
The opinion of the court was delivered by
KING, J. A. D.
This is an appeal from a verdict of no cause for action in a medical malpractice case. Plaintiffs-appellants raise several claims of legal error. They challenge R. 4:21-"Professional Liability Claims Against Members of Medical Profession; Procedure," claiming "it contravenes the constitutional guarantees of equal protection; ... violates the constitutional mandate of separation of powers; ... (and) constitutes a denial of due process." They also claim error in certain exclusionary evidentiary rulings and in the supplemental charge to the jury. We treat the final point first.
On May 8, 1977 plaintiff Thomas Perna was admitted by a family physician to St. Joseph's Hospital. A urological consultation was sought with Dr. Michael Pirozzi, who practiced in a medical group of urological surgeons with Dr. Del Gaizo and Dr. Ciccone. Dr. Pirozzi initially had seen Thomas Perna in his office for a bladder infection during the mid-1960s. After admission to St. Joseph's Hospital in 1977 and upon examination and consultation an operation for kidney stones (right pyelolithotomy) was recommended.
A written consent to operate was executed by Thomas Perna in the sole presence of a urological resident, Dr. Karamooz, on May 17. The written consent form authorized surgery by Dr. Pirozzi alone; it did not mention the other members of his group, Dr. Del Gaizo or Dr. Ciccone. Dr. Karamooz did not testify at trial. The operation was performed on May 18, 1977 by Dr. Del Gaizo, assisted by Dr. Ciccone.
Post-surgical complications resulted which ultimately led to this lawsuit ending in a verdict for defendants. Plaintiffs alleged medical bills of $27,000 and substantial residual disability attributable to defendants' malpractice. During the pendency of the malpractice suit a R. 4:21 panel hearing was held; a finding adverse to plaintiffs on the issue of negligence was returned by the panel and was reported to the jury. The alleged informed consent issue was not submitted to the R. 4:21 panel.
During the eight-day trial plaintiffs contended that the three defendants were negligent during the performance of the original surgery of May 18, during the follow-up surgery of June 24 and during all post-operative care consequent upon those procedures. Plaintiffs further claimed that defendants were guilty of a violation of the doctrine of informed consent because Dr. Pirozzi did not perform the May 18 surgery despite his sole authority to do so. In rejoinder, defendant-doctors contended that actual authority to operate had been extended by implication to all three members of the group; they said there was no understanding that only Dr. Pirozzi could operate but the parties understood that any one of the group could operate assisted by any other. They conceded that the surgery was scheduled and performed on Dr. Pirozzi's day off.
The case was submitted to the jury on two theories of liability: (1) standard medical malpractice-deviation from the applicable standard of care, supported by expert testimony, and (2) lack of informed consent because of the substitution of surgeons-also supported by expert testimony. In summation, plaintiffs' attorney argued that four deviations from standard practice occurred: (1) failure to obtain an informed consent, (2) failure to find an attenuated ureter on May 18, (3) the delay between the two operations, and (4) the failure to splint. As will be seen, the informed consent issue was troublesome to the jury. They appeared to resolve the standard malpractice contentions based on the other three alleged deviations without difficulty.
In the original charge on informed consent the judge said:
In addition to the issues of medical malpractice to which I have just referred, the plaintiff Thomas Perna alleges as still another element of medical malpractice an issue of informed consent; that is, had he known that Dr. Pirozzi would not perform the operation he would not have consented to it. It is the plaintiff's contention that with regard to the first operation of May 18, 1977, he had given his consent to perform that operation to Dr. Pirozzi, the only doctor he knew in the group practice in which that doctor was engaged, that is, he consented to the operation based on his understanding that Dr. Pirozzi would perform it.
Now, Dr. Pirozzi and his colleagues deny that there was any express understanding that Dr. Pirozzi would perform the operation. He asserted and so did his colleagues that the rules followed by his group were that if a request were made for a particular doctor in the group that doctor is so tagged and if no such request is made any two of the group would operate. Dr. Pirozzi further contended that he had no discussion with plaintiff and denies that Mr. Perna ever asked to be his patient alone for the first surgery.
This issue of informed consent is an issue that was not considered by the malpractice panel since they deemed it a purely factual issue; that is, an issue of credibility. It is an issue for you the jury to decide based on the law as I will state it to you. I charge you that in the absence of an emergency or of unforeseeable condition arising during surgery, a physician or surgeon before operating on a patient must obtain the consent of the patient. The consent of the patient to be sufficient for the purpose of authorizing a particular surgical procedure must be an informed consent. The question is not what the plaintiff would have decided if properly advised but what a reasonably prudent person in the plaintiff's position would have decided if fully informed. In reaching your decision on this issue you must consider the facts and circumstances that existed at the time the consent was given and may not consider facts or circumstances that came to light thereafter.
Should you determine with regard to the first operation of May 18, 1977, the plaintiff's consent to the operation was based on the fact that Dr. Pirozzi was to perform the operation and that that was his understanding with the doctor and further determine that such failure of informed consent constituted a deviation from accepted medical standards and that if there was such deviation constituting medical malpractice, it was the proximate cause as I will define that term for you of the plaintiff's damages, then you must find for the plaintiff on this issue. However, should you determine that with regard to the first operation of May 18, 1977, there was no understanding that Dr. Pirozzi would perform the operation or that any two members of the group would perform it or that such failure of informed consent was not such deviation from accepted medical standards as to constitute medical malpractice or should you find that such medical malpractice was not a proximate cause as I will define that term for you of the plaintiff's damages, then you must find for the defendants on this issue.
A standard charge on proximate cause was rendered. Neither party objected to submission of the issue of unauthorized surgery to the jury in this form.
Subsequent to the judge's initial charge, the jury presented the following inquiry to the trial judge: "In your charge to the jury with reference to informed consent, is there a basis for malpractice if consent was given to one physician and another operated but no deviation from standard surgical procedures were involved?" The judge responded to the jury's query thus:
Now, I'm going to answer that question only as it relates to the issue of informed consent and, of course, if you are considering the other issues you would still rely on the Court's charge and all that I told you about medical malpractice.
Now, negligence and medical malpractice in a sense are synonymous. I indicated that to you in my charge. There may be negligence or malpractice but nevertheless there is still proof required as to the injuries and damages which would naturally flow from such negligence or malpractice and, if there are no injuries or damages naturally flowing from such malpractice, that is with reference to this particular issue, your verdict would then be as far as this issue is concerned no cause for action. However, if you find that Dr. Pirozzi was guilty of medical malpractice by not operating himself and the damages and injuries were the proximate cause thereof; that is, any damages or injuries were the proximate cause thereof, as I will define that term for you and I had done it once before for you, that is the term proximate cause, then you would proceed to determine the damages resulting as a natural consequence of that malpractice.
Now, proximate cause is defined by proximate cause is meant that the negligence of a defendant was an efficient cause of the injuries and damages that is, a cause which necessarily sets the other causes in motion and was a substantial factor in bringing the injuries and damages about. It is defined as a cause that naturally and probably lead to and might have been expected to produce the damages and injuries complained of.
Plaintiff's counsel objected in advance to this supplemental charge. He said: ...
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...surgical procedure which is performed by a surgeon other than the surgeon specifically authorized to operate. (Perna v. Pirozzi, 182 N.J.Super. 510, 442 A.2d 1016, 1019 (1982). See also Zimmerman v. New York City Health & Hospitals Corp., 91 A.D.2d 290, 458 N.Y.S.2d 552, 554 (1983).) The au......
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Perna v. Pirozzi
...ruled that the operation by a doctor other than the one identified in the consent form is not malpractice, but a battery. 182 N.J.Super. 510, 442 A.2d 1016 (1982). We granted certification, ---N.J. ---, --- A.2d ---- We agree that R. 4:21 is constitutional and that the operation by the seco......
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