NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3045-16T4
MICHAEL SMITH,
Plaintiff-Appellant,
v.
HUNG Q. NGUYEN, M.D. and
ADVANCED SURGICAL
CONSULTANTS,
Defendants-Respondents.
_____________________________
Argued December 17, 2018 – Decided February 14, 2019
Before Judges Messano, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1129-13.
Michael B. Zerres argued the cause for appellant
(Blume, Forte, Fried, Zerres & Molinari, PC, attorneys;
Michael B. Zerres, of counsel; Robert C. Sanfilippo, on
the briefs).
James H. Moody argued the cause for respondents
(Orlovsky, Moody, Schaaff, Conlon & Gabrysiak,
LLC, attorneys; James H. Moody and Anthony W.
Liberatore, on the brief).
PER CURIAM
Plaintiff Michael Smith went to the hospital emergency room after
experiencing abdominal pain for several days. Diagnostic tests did not establish
whether plaintiff was suffering from appendicitis. The emergency room doctor
called in defendant, Dr. Hung Q. Nguyen, a surgeon, for consultation and further
evaluation. Defendant performed a laparoscopic diagnostic procedure in
anticipation of removing plaintiff's appendix. However, during the procedure,
defendant observed an abnormal lesion on plaintiff's colon near the appendix.
Although he could not determine from observation whether the lesion was
malignant or benign, defendant suspected it was the cause of plaintiff's pain.
While plaintiff was under general anesthesia, defendant made a larger incision
that permitted him to feel the lesion and examine it further. Defendant
performed an appendectomy, removing plaintiff's appendix, and a
hemicolectomy, removing that portion of plaintiff's colon where the lesion was
located and other surrounding tissue. Laboratory tests revealed the lesion was
not malignant; plaintiff's appendix was abnormal but did not evidence acute or
chronic appendicitis.
Plaintiff remained hospitalized for several days following surgery. He
subsequently experienced pain and discomfort at the incision site and
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complained of recurrent diarrhea. Plaintiff underwent two surgeries to correct
hernias at the incision site, and, at the time of trial, was contemplating a third
hernia operation.
Plaintiff filed a complaint against defendant alleging he deviated from
accepted medical standards and that he failed to obtain plaintiff's informed
consent. The jury unanimously concluded plaintiff failed to prove defendant
deviated from accepted medical standards. Plaintiff did not make a motion
challenging that portion of the verdict in the Law Division, nor does he challenge
that verdict on appeal.
The judge also asked the jury to answer two interrogatories on the issue
of informed consent.
3. Did . . . defendant . . . give . . . plaintiff . . . all of
the information that a reasonable patient in plaintiff['s]
. . . position would expect defendant . . . to disclose in
order that . . . plaintiff . . . could make an informed
decision about the course of his treatment?
....
4. Would a reasonably prudent patient under the
circumstances have consented to the surgery, had he
been fully informed?
[(Emphasis added).]
A-3045-16T4
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The jury unanimously found that defendant failed to provide plaintiff with all
necessary information. However, the jury also unanimously concluded that
plaintiff would have consented to "the surgery" had he been fully informed.
Plaintiff moved for a new trial. He argued that the jury should have
considered the informed consent issue separately as to both procedures, i.e., the
laparoscopic diagnostic procedure/appendectomy and the hemicolectomy.
Plaintiff contended the jury interrogatories on informed consent "were neither
clear nor comprehensive[] and[] had a tendency to cause jury confusion." The
judge denied plaintiff's motion and this appeal followed.
Before us, plaintiff reasserts the argument, contending the interrogatories
were "incomplete, confusing, misleading and ambiguous," amounting to plain
error that resulted in a "miscarriage of justice" requiring a new trial. 1 We have
1
At trial, plaintiff submitted proposed interrogatories that asked whether
defendant had obtained plaintiff's informed consent, and then asked the jury to
consider separately whether "a reasonable person" would have consented to the
laparoscopic appendectomy and whether "a reasonable person" would have
consented to the hemicolectomy. Defendant objected and the judge proposed
using the interrogatories she actually submitted to the jury. Plaintiff's counsel
consented to the interrogatories, as long as he could argue in summation, as he
in fact did, that defendant needed to obtain plaintiff's informed consent as to
both procedures. Given these circumstances, plaintiff acknowledged before us
that the plain error standard guides our review. See R. 2:10-2 (permitting the
appellate court to review "in the interests of justice" any error not brought to the
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considered the argument in light of the record and applicable legal standards.
We affirm.
I.
Plaintiff's theme throughout trial was that defendant failed to obtain his
informed consent prior to performing both the laparoscopic procedure and the
hemicolectomy. We describe only that portion of the testimony necessary to
place the legal issue before us in context.
It was undisputed that defendant recommended plaintiff undergo a
diagnostic laparoscopic procedure with possible appendectomy. Plaintiff
testified that defendant told him he could return home the day after the
procedure. Alternatively, plaintiff could return home without undergoing the
procedure but could possibly die if his appendix ruptured. It was disputed
whether defendant offered plaintiff the option of admission to the hospital for
further observation.
Plaintiff signed two consent forms: a "Consent for Medical Treatment" at
11:30 a.m. before he met defendant for the first time in the emergency room;2
attention of the trial court if it "is of such a nature as to have been clearly capable
of producing an unjust result").
2
Neither form is in the appellate record.
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and a "Consent to Operate" prior to surgery. 3 Plaintiff testified that he believed
he was only consenting to a laparoscopic appendectomy.
Defendant wrote on the "Consent to Operate" form — "[d]iagnostical
laparoscopy, possible appendectomy, possible open laparotomy" — as the
procedures for which he was obtaining plaintiff's consent. The form also stated:
"[i]f any unforeseen condition arises in the course of the operation calling [the
doctor's] judgment for procedures in addition to or different from those now
contemplated, I further request and authorize [the doctor] to do whatever [the
doctor] deems advisable." The form further provided: "[t]he nature and purpose
of the operation, possible alternative methods of treatment, the risk involved and
the possibility of complications have been fully explained to me by my
physician."
We need not describe the particulars of the surgery, except to say that
defendant acknowledged there were other options available to investigate the
lesion instead of performing a hemicolectomy. Defendant could have performed
3
The parties disputed when plaintiff signed this second consent form. Plaintiff
testified he signed it while on the gurney immediately before surgery, although
at his deposition, plaintiff could not recall when he signed the form. Defendant
testified that he did not have the form with him when he discussed its contents
with plaintiff, but specified that the discussion occurred in the emergency room.
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a biopsy, or, he could have stopped the procedure and discussed plaintiff's
options, including a further "work . . . up" by himself or another doctor, and a
possible second surgery.
Plaintiff testified that he would not have consented to the laparoscopic
appendectomy had he known the option existed for admission to the hospital
with continued observation. He also testified that he would not have consented
to the hemicolectomy to treat an abnormality that may or may not have been
cancerous. Rather, plaintiff would have consulted his primary care doctor or
obtained a second opinion.
Plaintiff's expert, Dr. Robert Villare, a board certified surgeon, testified
that admission to the hospital for further observation prior to any laparoscopic
procedure was a reasonable option that defendant should have offered to
plaintiff. Dr. Villare also asserted that defendant should have withdrawn the
laparoscopic equipment after removing plaintiff's appendix and provide plaintiff
with options regarding the lesion on his colon.
Dr. John Morris testified as defendant's surgical expert. Dr. Morris
acknowledged that a physician should advise a patient of all "medically
reasonable" courses of treatment. Although he testified at trial that admitting
plaintiff for observation was not "reasonable given []his presentation," Dr.
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Morris stated at his deposition that admitting plaintiff to "perform serial
examinations[,] . . . follow his clinical course, follow his laboratory values and
potentially repeat imaging" was an available option.
Dr. Morris opined that defendant's decision to perform the hemicolectomy
was appropriate. He asserted that the consent form and any discussion defendant
had with plaintiff appropriately dealt with "situations that arise, albeit unusual,
where you have to go to Plan B[.]"
The judge followed the model jury charge as to informed consent. After
deliberating for several hours, the jury sent out a two-part question:
[R]egarding Question 4: Are we to understand that
"fully informed" means aware of the presence of the
lesion?
[W]hat is "the surgery"; i.e., is "the surgery" the
appendectomy or the hemicolectomy?
With counsels' consent, the judge provided the jury with the following response:
With respect . . . to what constitutes "fully
informed," it is what a reasonably prudent patient
would want to know under the circumstances. . . .
With respect to [q]uestion [n]umber [two], the
"surgery" is the surgery in its entirety, including both
the appendectomy and the hemicolectomy.
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Jury deliberations continued into a second day, during which the jury asked for
and heard the cross-examination and redirect testimony of defendant, before
returning its verdict.
In denying plaintiff's motion for a new trial, the judge reasoned that
evidence about plaintiff's pain was of "particular importance" to the jury. She
noted the jury could reasonably accept that plaintiff's pain was potent enough to
require a visit to the emergency room, had progressed over three to four days,
and that plaintiff experienced increased pain while in the emergency room
despite being given pain medication. The judge observed that plaintiff's
credibility was "hurt somewhat" because he seemingly attempted to minimize
his pain during his testimony.
The judge said plaintiff's credibility went directly to the issue of informed
consent, because plaintiff argued that he should have been given the option of
admission and observation, and that even in the midst of surgery, he should have
been offered opportunities for additional testing instead of the hemicolectomy.
The court explained it was "fair to conclude that the jury believed . . . [plaintiff]
was in significant pain and that, presented with the question of 'Would a
reasonably prudent patient under the circumstances have consented to the
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surgery had he been fully informed,'" "the jury clearly and understandably said
yes . . . ."
The judge stated that while the focus of plaintiff's case seemed to be on
the hemicolectomy, plaintiff's arguments that defendant should have obtained
informed consent for both the appendectomy and the hemicolectomy were clear
to the jury. She reasoned that the jury found a reasonably prudent person, "fully
advised as to either procedure," would have consented to the surgery in light of
the evidence and credibility issues of plaintiff.
II.
Rule 4:49-1(a) provides that the trial court shall grant a motion for a new
trial if "having given due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly appears that there was a
miscarriage of justice under the law." We review the denial of a motion for a
new trial using the same standard as the trial judge and, therefore, reverse only
if "there was a miscarriage of justice under the law." Risko v. Thompson Muller
Auto. Grp., Inc., 206 N.J. 506, 522 (2011) (citing Bender v. Adelson, 187 N.J.
411, 435 (2006)). In our review, however, we "must give 'due deference' to the
trial court's 'feel of the case.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216,
230 (2008)).
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"A verdict sheet is intended for recordation of the jury's verdict and is not
designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161,
196 (2010) (citing State v. Reese, 267 N.J. Super. 278, 287 (App. Div. 1993)).
We note that plaintiff does not challenge any aspect of the judge's instructions.
The Court has clearly stated "that interrogatories, like any other
instructions to a jury, [a]re 'not grounds for a reversal unless they [a]re
misleading, confusing or ambiguous.'" Mogull v. CB Com. Real Estate Grp.,
162 N.J. 449, 467 (2000) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148
N.J. 396, 418 (1997)). When there is no objection to the interrogatories, as in
this case, "we must determine whether the interrogatories were so misleading,
confusing, or ambiguous that they produced an unjust result." Id. at 468.
We acknowledge that "[w]here there are multiple allegations, multiple
interrogatories are not only the best way to focus the jury's attention on the
details of the case but also to ascertain, with some degree of specificity, what
the jury has actually determined." Ponzo v. Pelle, 166 N.J. 481, 492 (2001)
(citing Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990)). In
Ponzo, for example, the Court found reversible error when the trial court
submitted a single interrogatory, even though the plaintiff "advanced three
distinct injuries from the accident, the existence of only two of which [the
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defendant] disputed," and where the defendant "advanced entirely distinct
defenses to the different claims." Ibid.
However, in Newmark-Shortino v. Buna, the plaintiff asserted separate
claims that the defendant doctor deviated from accepted medical standards on
two different days. 427 N.J. Super. 285, 309 (App. Div. 2012). The judge
submitted a single interrogatory. Id. at 310. Although we reversed because the
judge failed to charge the jury on informed consent, id. at 308-09, we found that
despite the plaintiff's multiple claims, the submission of a single interrogatory
on medical negligence, was not "'confusing' and . . . there was [no] need to
separate plaintiffs' allegations of deviation into 'finely diced interrogatories.'"
Id. at 311 (quoting Ponzo, 166 N.J. at 492).
Here, it may have been preferable to provide the jury with separate
interrogatories. However, in answering the jury's question, the judge made clear
that the "surgery" referenced in the interrogatory was "the surgery in its entirety,
including both the appendectomy and the hemicolectomy." In fact, as the
answer to interrogatory three demonstrates, the jury accepted plaintiff's
contention that defendant failed to provide him with all necessary information
regarding options to the surgery, i.e., the appendectomy and the hemicolectomy,
so as to permit an informed choice. As the judge persuasively reasoned in
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denying plaintiff's motion for a new trial, the jury simply refused to credit
plaintiff's assertion that he would not have submitted to the surgery, either the
appendectomy, the hemicolectomy, or both, if properly informed.
Under these circumstances, we agree with the trial judge. It does not
"clearly and convincingly appear[] that there was a miscarriage of justice under
the law." R. 4:49-1(a).
Affirmed.
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