Rivera v. The Valley Hosp., A-25-21

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPIERRE-LOUIS, JUSTICE
PartiesMirian Rivera, as Executrix of the Estate of Viviana Ruscitto, et al., Plaintiffs-Respondents, v. The Valley Hospital, Inc., et al., Defendants-Appellants.
Docket NumberA-25-21,A-26-21,A-27-21
Decision Date25 August 2022

Mirian Rivera, as Executrix of the Estate of Viviana Ruscitto, et al., Plaintiffs-Respondents,

The Valley Hospital, Inc., et al., Defendants-Appellants.

Nos. A-25-21, A-26-21, A-27-21

Supreme Court of New Jersey

August 25, 2022

Argued March 15, 2022

On appeal from the Superior Court, Appellate Division.

Rowena M. Durán argued the cause for appellants Howard H. Jones, M.D. and Valley Physician Services, Inc., d/b/a Valley Medical Group P.A. (Vasios, Kelly & Strollo, attorneys; Rowena M. Durán, of counsel and on the briefs).

William G. Theroux argued the cause for appellant Linda Malkin (Buckley Theroux Kline & Cooley, attorneys; William G. Theroux and Sean C. Garrett, on the briefs).

Evelyn Cadorin Farkas argued the cause for appellants The Valley Hospital, Inc., Valley Health System, and Audrey Meyers (Farkas & Donohue, attorneys; Evelyn Cadorin Farkas, of counsel and on the briefs, and Eileen M. Kavanagh, on the briefs).

Michael Gunzburg, a member of the New York bar, admitted pro hac vice, argued the cause for respondent Mirian Rivera, as Executrix of the Estate of Viviana Ruscitto (Michael Gunzberg and Ruta, Soulios & Stratis, attorneys; Michael Gunzberg, and Demetrios K. Stratis, of counsel and on the briefs).

Rayna E. Kessler argued the cause for respondent Nicholas Roche, Individually and as the Guardian of Maximo Valentino Ruscitto-Roche (Robins Kaplan, attorneys; Rayna E. Kessler, and Ian S. Millican, of counsel and on the briefs).

John Zen Jackson argued the cause for amici curiae Medical Society of New Jersey and American Medical Association Litigation Center (Greenbaum, Rowe, Smith & Davis, attorneys; John Zen Jackson, on the brief).

James DiGiulio argued the cause for amicus curiae New Jersey Hospital Association (O'Toole Scrivo, attorneys; James DiGiulio and Andrew Gimigliano, of counsel and on the brief, and Alex Daniel and Julia E. Duffy, on the brief).

Theodora McCormick argued the cause for amicus curiae New Jersey Doctor-Patient Alliance (Epstein Becker & Green, attorneys; Anthony Argiropoulos, William Gibson, and Maximilian Cadmus, of counsel and on the brief).

Bruce H. Nagel argued the cause for amicus curiae New Jersey Association for Justice (Nagel Rice, attorneys; Bruce H. Nagel, of counsel and on the brief, and Randee M. Matloff, on the brief).

PIERRE-LOUIS, J., writing for a unanimous Court.

In this matter, the Court considers whether plaintiffs' punitive damages claim -- which requires a showing by clear and convincing evidence that the defendant medical providers' acts or omissions reflected actual malice or wanton and willful disregard for their patient -- should have been dismissed.

Plaintiffs, the heirs and executor of the estate of Viviana Ruscitto, filed complaints seeking compensatory and punitive damages on numerous counts after Ruscitto's death from leiomyosarcoma, a rare cancer that cannot be reliably diagnosed preoperatively, following the hysterectomy she underwent at defendant Valley Hospital with the use of a power morcellation device. Ruscitto sought treatment for uterine fibroids from defendant Howard Jones, a gynecologic surgeon at the hospital with whom Ruscitto met four times before she underwent surgery.

At their second meeting, Dr. Jones informed Ruscitto that the endometrial biopsy conducted at their first appointment revealed noncancerous tissue, and he discussed all treatment options. At their third appointment, Ruscitto decided to proceed with surgical management of her fibroids. Dr. Jones advised Ruscitto that one particular surgical option for removal of the fibroids would result in a significantly longer recovery time and greater postoperative pain, and that the better option was laparoscopic hysterectomy. The laparoscopic hysterectomy would be performed with the use of a power morcellator -- a device used to cut tissue into smaller pieces to facilitate removal. In an update letter to Ruscitto's endocrinologist, Dr. Jones noted he "counsel[ed] her about the risk of morcellation including morcellation of a malignancy."

At their fourth appointment, Ruscitto signed a consent form agreeing to a laparoscopic hysterectomy. The form described the procedure in simple terms and did not mention the use of a power morcellation device. Ruscitto later testified at her deposition that Dr. Jones never mentioned the use of a power morcellator but she conceded that Dr. Jones told her that he would "chop up" her uterus. After the procedure, tissue from Ruscitto's uterus revealed Stage 4 leiomyosarcoma. Ruscitto began cancer treatment and passed away less than one year later.


Approximately six months before Ruscitto's surgery, the FDA issued a Safety Communication discouraging the use of power morcellation. The communication "estimated that 1 in 350 women undergoing [surgery] for the treatment of fibroids is found to have an unsuspected uterine sarcoma, a type of uterine cancer that includes leiomyosarcoma." It stated that, "[i]f laparoscopic power morcellation is performed in women with unsuspected uterine sarcoma, there is a risk that the procedure will spread the cancerous tissue within the abdomen and pelvis, significantly worsening the patient's likelihood of long-term survival." The FDA also provided specific recommendations for health care providers, including informing patients.

Valley Hospital administrators and Dr. Jones exchanged emails about the continued use of power morcellation. They considered factors including that "without the morcellator these cases would be open instead of laparoscopic, which "increases morbidity"; the fact that "the numbers at Valley" did not support the "1 sarcoma in 350 operations" number suggested by the FDA; and the role of informed consent. A "power morcellation group" was convened to draft an informed consent form. A form was prepared and approved by the legal department but was never implemented or used prior to Ruscitto's surgery.

One month after her surgery, the FDA issued an updated communication explicitly warning against the use of power morcellators in the majority of cases. Valley Hospital then discontinued use of the power morcellation device.

Plaintiffs brought claims against several defendants, including Dr. Jones and the Valley Hospital administrators, and defendants sought partial summary judgment dismissing the punitive damages claim. The trial court denied the motions, and the Appellate Division denied leave to appeal. The Court granted leave to appeal. 248 N.J. 552 (2021); 248 N.J. 557 (2021).

HELD: As a matter of law, the evidence presented, even affording plaintiffs all favorable inferences, does not establish that defendants' acts or omissions were motivated by actual malice or accompanied by wanton and willful disregard for Ruscitto's health and safety. A reasonable jury could not find by clear and convincing evidence that punitive damages are warranted based on the facts of this case, and partial summary judgment should have been granted.

1. The Punitive Damages Act (PDA) provides that "[p]unitive damages may be awarded . . . only if plaintiff proves, by clear and convincing evidence," both "that the harm suffered was the result of defendant's acts or omissions," and that defendant's acts or omissions were either "actuated by actual malice" or were "accompanied by wanton and willful disregard of persons who foreseeably might be harmed." N.J.S.A. 2A:15-5.15(a). The PDA explicitly states that "[t]his burden of proof may not be satisfied by proof of any degree of negligence including gross


negligence." Ibid. "Actual malice" is defined as "intentional wrongdoing in the sense of an evil-minded act." N.J.S.A. 2A:15-5.10. "Wanton and willful disregard" is defined as "a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." Ibid. The PDA codified the common law principle that punitive damages were limited to only exceptional cases; its purpose was to establish more restrictive standards in awarding punitive damages. (pp. 21-24)

2. The Court explains why plaintiffs' claims do not meet the standard for punitive damages. First, the FDA Communication was purely advisory in nature, so the use of the power morcellator after that communication does not constitute per se evidence of wanton and willful disregard for Ruscitto's safety. With regard to Dr. Jones, nothing in the facts before the Court suggests that he acted with actual malice or with wanton and willful disregard of Ruscitto's health as those terms are defined in N.J.S.A. 2A:15-5.10. Dr. Jones noted the complications that can occur with open surgeries as opposed to non-invasive laparoscopic procedures. The FDA Communication noted that there was less than a one percent risk that a woman would have unsuspected uterine sarcoma, and leiomyosarcoma unfortunately cannot be reliably diagnosed preoperatively. Dr. Jones performed the morcellation on Ruscitto after meeting with her four times and conducting tests. As several defendants have conceded, the facts of this case thus far present genuine issues regarding whether defendants were negligent and deviated from accepted standards of care. But plaintiffs cannot recover damages here by recasting their negligence claims as wanton and willful actions based on the same alleged conduct. (pp. 24-28)


3. Plaintiffs' punitive damages claim against the Valley Hospital defendants is even less compelling than the claim against Dr. Jones. The numerous emails among administrators and physicians illustrate that the Valley Hospital defendants took proactive steps, shortly after the issuance of the FDA Communication, to respond to the advised risks of power morcellation. Although the draft consent form was never fully adopted and implemented, plaintiffs' arguments regarding the lack of informed consent for the power morcellation...

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