The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its decision filed on August 15, 2017 that medical malpractice defendants may not use the plaintiff’s treating doctors to provide expert testimony relating to deviation from the standard of care (nonetheless, a treating doctor may be called by a defendant to testify about the cause of the plaintiff’s illness).
In the case that the New Jersey Appellate Court was deciding, the plaintiff consulted a doctor for diagnosis and treatment of her symptoms of nausea, vomiting and jaundice several days following a laparoscopic cholecystectomy. Upon conducting an open surgical procedure, the subsequent treating doctor discovered the plaintiff’s common bile duct had been transected and treated the plaintiff by effecting a surgical repair.
The New Jersey Appellate Court stated that the subsequent treating doctor could certainly testify that the cause of the plaintiff’s problem was a severed bile duct. However, how it happened and why it happened, or that it could have happened to the best of surgeons, are beyond the scope of what this fact witness could offer the New Jersey medical malpractice jury and should not have been permitted. The New Jersey Appellate Court held that the comments of the subsequent treating doctor in the case it was deciding went well beyond the doctor’s own diagnosis or treatment of the plaintiff, and the defendant could not fairly use this fact witness to place in context the treatment the plaintiff received before.
The New Jersey Appellate Court further held that the trial court erred in admitting evidence of informed consent in a case in which there was no informed consent claim. The New Jersey Appellate Court stated that while it agreed that the medical malpractice defendant is entitled to defend himself against the complaint made against him, the question is whether he may mount such a defense when plaintiff has made no such complaint.
The New Jersey Appellate Court stated that a patient’s right to be informed about medically reasonable treatment alternatives and their attendant risks is separate and distinct from a cause of action predicated on a physician’s breach of a standard of care, notwithstanding both are a form of medical negligence. Although when the claims are brought together the facts underlying them can be intertwined, there is no question but that they are different claims having different elements of proof: the informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each.
The New Jersey Appellate Court stated that the admission of informed consent evidence in the absence of an informed consent claim is reversible error because such evidence is irrelevant to whether the doctor provided negligent treatment and its admission risks undue prejudice to patients.
The New Jersey Appellate Court held in the case it was deciding that the plaintiff’s knowledge of the risk of bile duct injury in the course of a laparoscopic cholecystectomy is entirely irrelevant to whether the defendant performed the procedure in accordance with the applicable standard of care. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong.
The New Jersey Appellate Court rejected the defendant’s argument that the informed consent evidence could assist in either establishing the standard of care for the procedure or bolstering his claim that the plaintiff’s transected bile duct resulted from a recognized complication of the procedure and not negligence: a patient’s knowledge of the risks of a surgical procedure obviously cannot establish the standard of care for the physician performing it. Likewise, that a recognized complication of a surgical procedure occurred says nothing about whether it could have been avoided by the surgeon’s exercise of reasonable care.
The New Jersey Appellate Court stated that the known risks of a surgical procedure are relevant to the standard of care applicable to a surgeon performing the procedure, and the defendant is free to argue to the jury that common bile duct injuries can occur in the course of a laparoscopic cholecystectomy in the absence of negligence; however, such evidence can readily be presented clearly and without confusion through the testimony of a defense expert regarding the risks of the procedure, without reference to what advice the expert provides patients or what the plaintiff was told of the risks of the surgery.
Source Granovski v. Chagares, Docket No. A-0090-15T2
If you or a family member were injured (or worse) during a laparoscopic cholecystectomy in New Jersey or in another U.S. state, you should promptly find a New Jersey medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.
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