Ashkenazi v. Gorcey

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Before Judges Nugent and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3728-04.

Cynthia A. Walters argued the cause for appellant/cross-respondent (Budd Larner, P.C., attorneys; Ms. Walters, on the briefs).

Richard A. Amdur argued the cause for respondents/cross-appellants (Amdur, Maggs & Shor, P.C., attorneys; Mr. Amdur, on the brief). PER CURIAM

Plaintiff Renee Ashkenazi, individually, and in her capacity as the Administratrix of the Estate of her late husband, Eli Ashkenazi, filed a wrongful death action against defendants Steven A. Gorcey, M.D. and Monmouth Gastroenterology. While Eli Ashkenazi (Ashkenazi) was undergoing a colonoscopy performed by Gorcey, Gorcey attempted to remove a lipoma using snare removal. Ashkenazi had emergency surgery to resolve complications arising from the procedure and died shortly thereafter.

At trial, plaintiff claimed Gorcey deviated from applicable standards of care by: (1) failing to advise Ashkenazi that he had a lipoma and of the risks and complications of, and alternatives to snare removal of that growth; (2) attempting snare removal of the benign lipoma; and (3) continuing to apply electrocautery after the entanglement of the snare.

After the trial, the jury returned a verdict of no cause of action and, subsequently, plaintiff's motion for a new trial was denied. Plaintiff appeals from the March 10, 2011 order of judgment in favor of Gorcey and the May 6, 2011 order denying the motion for a new trial.

Plaintiff contends that the trial court (1) improperly instructed the jury on "medical judgment"; (2) improperly refused to instruct the jury on all three theories of liability and include each theory separately on the jury verdict form; and (3) failed to clearly define the precise "procedure" or "treatment" on the jury interrogatory regarding informed consent.

Having reviewed the arguments presented on appeal in light of the record and applicable law, we conclude that the trial court's failure to affirmatively charge the jury with respect to plaintiff's second theory of liability, and the court's failure to clearly instruct the jury on informed consent, constitute reversible error.

I.

These facts are found in the trial record. Ashkenazi first met with Gorcey in September 1999, following a referral from his hematologist who diagnosed Ashkenazi with anemia and an enlarged spleen. Gorcey performed a colonoscopy during which he removed a polyp. Gorcey also observed another lesion, which he believed to be a lipoma, measuring approximately three to four centimeters in diameter.

A polyp is a growth from the mucous membrane of the gastrointestinal tract. Most polyps are not dangerous. However, some polyps may turn into cancer or already be cancer. To be safe, doctors remove polyps and test them. Polyps can be removed when a doctor examines the inside of the large intestine during a colonoscopy. http://www.nlm.nih.gov/medlineplus/colonicpolyps.html.

A lipoma is a slow-growing, non-cancerous fatty lump, which can grow from the layer under the mucous membrane of the colon wall. http://www.mayoclinic.com/health/lipoma/ds00634.

After the procedure, Gorcey told Ashkenazi that he removed a precancerous polyp and that Ashkenazi would have to return in three years for a follow-up colonoscopy. Gorcey also informed Ashkenazi of the lipoma and that he left it in place because it was not causing any problems.

Ashkenazi returned to Gorcey in August 2002 complaining of right side discomfort, rectal bleeding, and feelings of bowel obstruction under his right rib cage. On September 9, 2002, Ashkenazi returned for his follow-up colonoscopy. Ashkenazi was then sixty-six years old, morbidly obese, weighed approximately 329 pounds, and had advanced severe cirrhosis of the liver, enlarged heart and spleen, anemia, diabetes, and a family history of colon and stomach cancer. Ashkenazi signed a consent form for the colonoscopy.

During the procedure, Gorcey removed a polyp, then observed a large lipoma growing at the same location of the lipoma he first observed in 1999. Because he had never seen a lipoma or polyp turn into a pedunculated, i.e., mushroom-shaped lesion, Gorcey used biopsy forceps to probe the lipoma. He examined the lipoma for approximately five minutes, noted that it had a stalk approximately three to four centimeters wide, and observed that it extended from the wall of the colon into the lumen or opening of the colon. Gorcey considered whether to remove the lipoma endoscopically or by open surgery. He believed that the lipoma was causing Ashkenazi's intermittent bowel obstruction, and that its protrusion could cause the colon to intussuscept at any time. Considering Ashkenazi a poor surgical risk, Gorcey decided to remove the lipoma endoscopically.

Intussusception is a "serious disorder in which part of the intestine — either the small intestine or colon — slides into another part of the intestine. This 'telescoping' often blocks the intestine, preventing food or fluid from passing through. Intussusception also cuts off the blood supply to the part of the intestine that's affected." http://www.mayoclinic.com/health/intussusception/DS00798.

To remove the lipoma, Gorcey positioned the loop of the electrocautery snare around the stalk of the lipoma and applied thirty watts of energy through the instrument to attempt to cut through the lipoma. Because fat does not conduct electricity well, the heat of the cautery caused the fatty lipoma to desiccate, or dry up and harden, entrapping the snare in the growth. In an effort to remove the entangled snare, Gorcey increased the energy to forty watts and applied the cautery for an additional minute, which caused the snare to become more embedded. Unable to remove the snare, Gorcey cut the colonoscopy handle, and sent Ashkenazi by ambulance to Monmouth Medical Center, leaving the snare protruding from Ashkenazi's rectum. Glenn Parker, M.D., a general surgeon, performed emergency surgery and removed thirty-two centimeters of colon, including the entangled snare, and the appendix. In the two weeks following surgery, Ashkenazi developed a bowel infection and other post-surgical complications, and died.

At trial, plaintiff presented testimony from Yong Kang, M.D., a pathologist; Steven Fiske, M.D., a gastroenterologist and internist; and David Befeler, M.D., a general surgeon. Kang examined the pathology of the growth following its removal by Parker and confirmed the length of the removed colon as more than thirty-two centimeters. The lipoma measured six centimeters long and extended into the submucosal layers, or bowel wall. The lipoma was four centimeters wide at the base and four-and-one-half centimeters at the head. Kang acknowledged that the lipoma may have been swollen around the area of the snare. The snare wire was still embedded in the lipoma and attached around the base of the lipoma near the wall of the bowel. The bowel wall area near the embedded snare was hemorrhaged and necrotic due to the blood supply being cut off either by the snare wire or the heat of the cautery. Kang testified that the lipoma did not appear to have a stalk when he examined it, but acknowledged that it may have had a stalk at the time Gorcey performed the colonoscopy. If the lipoma had a stalk, he would not consider four centimeters a thin stalk.

Fiske and Befeler opined that the accepted standard of care is not to remove a lipoma unless it is causing an obstruction. Fiske testified:

A If it is, if you can, if it looks like a lipoma, the standard of care would be to leave it alone. You might --
Q Why is the standard of care to leave the lipoma alone?
A Because it's not doing any harm. It is almost always not causing symptoms. I have patients with lipomas bigger than the one here at various areas of the colon that don't have symptoms.
Lipomas on the right side of the colon in particular have to grow extremely large to be causing symptoms. And if there's no harm there's no foul and you don't remove it. It has no pre-malignant potential, and so it's like a freckle on your face so to speak. It's not quite like a freckle, but you just leave it alone unless it's absolutely required to be removed in some way, shape or form.
. . . .
Q Why not, if a lipoma is in the bowel and you see it in the bowel when you're doing a colonoscopy procedure, why not just take it out?
A Because it's not indicated, number one. Number two, a lipoma isn't a polyp. A lipoma is a fatty tissue that grows underneath the lining of the intestine, of a colon and goes deep into the wall or -- the bigger it is the more likely it is to go deeper through all the layers of the wall of the intestine and it is fraught with danger.
Q Why?
A Because first of all lipomas, because they're under the lining you don't know how deep they are. They can go to the very tip of the outer lining. Number two, it's fat and fat is a poor conductor of -- it's hard to cut through with a snare, through the fat.
And the amount of heat that will be dispersed through the cautery effect while you're snaring it gets intensified as you tighten the snare and it -- They're very difficult to remove safely endoscopically and should not be attempted to be removed endoscopically.

Fiske explained that once Gorcey saw the size of the lipoma, he should have tattooed (marked) the area and referred Ashkenazi to a surgeon who would have reviewed his medical history and cleared him for surgery. While his medical history placed Ashkenazi at a "slightly higher" risk as a candidate for open surgery, it did not contraindicate surgery. Fiske and Befeler opined that Gorcey deviated from the accepted standard of care by attempting to remove the lipoma.

Defendant Gorcey presented Adam Elfant, M.D.; Frank Gress, M.D.; and gastroenterologists, Parker and Gorcey. Elfant and Gress each opined that Gorcey did not commit medical negligence. Following a lengthy hypothetical question detailing the facts of Ashkenazi's medical history and Gorcey's treatment of Ashkenazi from 1999 through 2002, Elfant concluded that Gorcey did not deviate from the standard of care, but instead exercised medical judgment:

[M]y understanding of a standard of care is what most reasonable physicians would do under a similar set of circumstances. And given the clinical presentation of a patient, . . . Mr. Ashkenazi in this case, given his presentation of someone complaining of right side abdominal pain, obstructive type symptoms, when you do your colonoscopy, especially knowing there's a history of precancerous lesions, you're going in there to look for cancer. You're going in there to look for a source of obstruction.
You know your first worry is that he's developed a cancer. And when you get in there and you see no, there's no cancer, but there's a large mass. It's changed from what I remember before. Now it's pedunculated, it's on a stalk. You know, what do I want to do here.
I've got a patient with multiple medical problems. He's diabetic. He's morbidly obese. He's got cardiac disease. He's got cirrhosis. You know he's got all these medical issues which makes him a very high surgical risk.
. . . I think any reasonable physician would opt to try and remove this pedunculated lesion. And so what he did at that point I think is what any reasonable
physician would have done under similar circumstances.

Elfant conceded that it would be a deviation from accepted standards if Gorcey did not adequately probe the lipoma to determine the size or makeup of the lesion and ascertain the appropriate margins for its removal.

Both plaintiff and defense experts stated that snare removal could be considered on lipomas that are pedunculated (mushroom-shaped) and have a thin stalk. All of the experts acknowledged that a lipoma with a stalk measuring over two centimeters in width is large, and that Ashkenazi's lipoma, measuring four to six centimeters at the base, would be considered very large. Their opinions differed on whether Ashkenazi's lipoma had a stalk.

Plaintiff's expert Fiske opined that, after the snare became entangled, Gorcey deviated from the standard of care by increasing the heat of the cautery to forty watts, which further embedded the instrument. Rather, Gorcey should have attempted to remove the embedded snare and discontinued efforts to remove the lipoma. The continued heat from the cautery increased the risk of perforation of the bowel wall.

Defense witness Elfant testified that the increased use of cautery was not a deviation from the standard of care. He stated:

Q What about Dr. Gorcey attempting to increase the power, the cautery, the burning, whatever you want to call it. Once the snare got entrapped in this fatty mass, was it appropriate for him to attempt to increase the burning or was that in some way some medical negligence or malpractice?
A That's exactly what I would recommend doing when you get a polyp entrapped. It's exactly what I've done when I've had a snare stuck on a polyp that didn't cut through.
. . . .
Q So was that increase that Dr. Gorcey tried, was that increase of the burning or cautery, whatever you want to call it, was that in some way a deviation from standards or was that an appropriate method of attempting to solve the problem?
A It was clearly not a deviation. It was what one would expect another physician to do when the snare is entrapped on a polyp. Once it's not coming off and you've cut through it partially, you're going to try to continue to cut through it.
Q To do what you can to get it out?
A To get it out.
Q And was the purpose or goal by increasing the cautery to try to get it out, was that in case, an effort to avoid surgery which could have ultimately caused death and did?
A. I believe the goal of increasing the energy was to try and cut out the polyp to avoid the process that ultimately happened here.
Q Just the last question or two. Going back to a doctor's judgment, in the
decision at the point where Dr. Gorcey sees this lipoma, sees the, is aware of the patient's complaint of obstruction or blockage and now he attempts to remove what he thinks may be the cause of it and the snare gets caught, was at that point, was it a judgment decision or a deviation from standards?
A It's a judgment decision.

On cross-examination, Elfant acknowledged the increased risk of snare removal of lipomas due to desiccation and snare entrapment.

Gress opined that Gorcey's use of increased cautery on the entrapped snare was "the recommended approach." Because "[y]ou have to take into consideration the size of the polyp or lesion you're removing . . ., it's really [a] judgment" of how much cautery to apply.

On the issue of informed consent, Gorcey testified that prior to the colonoscopy, he reviewed the consent form with Ashkenazi, but at no time did he discuss the possibility of removing the lipoma with a snare, the risks of endoscopically removing the fatty mass or the open surgery alternative and risks. In explaining why he did not discuss the possible removal of the lipoma, Gorcey indicated he never expected a problem nor considered the possibility of removal and testified that:

Number one, I knew that he would do whatever I recommended and I didn't want to inconvenience him. Number two, in terms of having to come back in, having to schedule another procedure, having to re-prep again, having to come back and do this thing again. And number three, I was concerned that something bad might happen from this thing.

Further, Gorcey stated:

[k]nowing that he usually deferred to my judgment, you know, going by past experience with the whole esophageal variceal thing, you know, and he said, sure, Doc, you know, do what you think is best, he has always trusted me, and I've always treated him like family, I knew that he would want me to do the less invasive option of removing this thing endoscopically and preventing a disaster.

Defense expert Gress stated that the standard of care for gastroenterologists is to present all of the alternatives before a procedure.

At the conclusion of the trial, the court instructed the jury, in part:

Where an expert has offered an opinion base[d] upon an assumption that certain facts are true, it is for you the jury to decide whether the facts upon which the opinion is based are true. The value and the weight of an expert's testimony in such instances is dependent upon and no stronger than the facts upon which it is predicated.
When determining the applicable standard of care, you must focus on accepted standards of practice in gastroenterology, and not on the personal subjective belief or practice of the defendant doctor. The law
recognizes that the practice of medicine is not an exact science. Therefore the practice of medicine according to accepted medical standards may not prevent a poor or an unanticipated result.
Therefore, whether the defendant doctor was negligent depends not on the outcome, but on whether they adhered to or departed from the applicable standard of care.
There are a number of different alleged deviations claimed by the plaintiff in this case, all of which are denied by the defendant. In this case, there is a dispute in the testimony presented by the plaintiff and the defendant concerning the removal of the lipoma by Dr. Gorcey. Plaintiff's experts, Dr. Fiske and Befeler, testified that a large lipoma should not be removed except through an open surgery, and that it was a deviation from the standard of care for Dr. Gorcey to remove the lipoma during the colonoscopy.
The defendant's experts, Dr. Elfant, Gress and Gorcey, testified that a large lipoma may, under certain circumstances, which they testified to, be removed by a snare during a colonoscopy. And that this is an accepted alternative treatment to removal of a large lipoma by an open surgery.
As I previously instructed, you will need to resolve the conflict in the expert's opinions. If you find that the plaintiff's expert testimony on this issue is more persuasive[, then] the following charge, which I'm going to give you, on this issue, should not be applied. If however you find that the [defendants'] expert testimony on this issue is more persuasive then you may consider and apply this charge as to this claim of deviation.
This charge, which I'm going to give you, is not applicable to the other claims made by the plaintiff, that is the plaintiff's claim that the defendant's technique in removing the lipoma was negligent. You will recall that the plaintiff claims that the defendant used too much cautery during the attempted removal, and this is denied by the defendant. This charge doesn't really apply to that claim. And this charge on judgment, which I'm going to give you, is not applicable as to plaintiff's claim on lack of informed consent, which is also denied by the defendant. And I'm going to give you a very specific change [sic] on informed consent in just a few moments.
So depending upon how you resolve the conflict of the parties on this issue, you may apply the following or you may not apply the following charge. . . . A doctor may have to exercise judgment when diagnosing and treating a patient, however alternative diagnosis and treatment choices must be in accordance with accepted standard medical practice.
Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to the diagnosis and treatment alternatives, and if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice.
If you determined that the standard of care for treatment or diagnosis with respect to the defendant's removal of plaintiff's large lipoma by a snare during the colonoscopy did not allow for the choices or the treatment the defendant doctor made here, then the doctor would be negligent. So that's the judgment charge.
All right, continuing with the charge that is applicable to all claims. If you find that the defendant complied with the accepted standard of care then he is not liable to the plaintiff regardless of the result. On the other hand, if you find that the defendant has deviated from the standard of care resulting in injury or damage to the plaintiff, then you should find defendant negligent and return a verdict for the plaintiff.

After reviewing the verdict sheet with the jury, the court denied plaintiff's counsel's request that the court clarify that both theories of liability were included in one question.

The jury returned a verdict in favor of defendants. As to Question No. 1 -- "Has the plaintiff proven by a preponderance of the credible evidence that the defendant, Steven A. Gorcey, M.D., deviated from the accepted standards of medical care?" -- six out of seven jurors voted no.

On Question No. 3 -- "Has the plaintiff proven by a preponderance of the credible evidence that Dr. Steven A. Gorcey failed to provide to Eli Ashkenazi all of the information that a reasonable person in the patient's position would expect a doctor to disclose in order to make an informed decision about whether or not to proceed with the procedure?" -- all seven jurors answered yes.

Because of the jury's answers to questions one and five, they were not required to answer questions two, six, seven and eight.

On Question No. 4 -- "Has the plaintiff proven by a preponderance of the credible evidence that an undisclosed risk of the treatment rendered by the defendant to the plaintiff occurred?" -- all seven jurors responded yes.

On Question No. 5 -- "Has the plaintiff proven by a preponderance of the credible evidence that a reasonable person under the circumstances of this case would not have submitted to the treatment rendered had he properly been informed of the risks and alternatives?" -- the jury in a six to one vote answered no.

After the verdict, the court denied plaintiff's request to poll the jury to determine if they deliberated on both theories of liability in Question No. 1.

The trial court denied plaintiff's motion for a new trial. This appeal followed.

II.

On appeal, plaintiff argues that the medical judgment instruction should not have been charged; that even if the judgment instruction was proper, the charge was not specifically tailored to include the second theory of liability; and the informed consent charge was unclear as to whether the consent related to the colonoscopy or the snare removal of the lipoma.

Gorcey raises two issues in a conditional cross-appeal, contingent upon whether a new trial is granted, with respect to several evidential rulings by the trial judge: (1) whether plaintiff's remarriage, since the death of her late husband, limits her right to continuation of her claim for loss of consortium; and (2) whether a physician who is deposed by the adversary well in advance of trial, and is then designated as an expert witness, can be permitted to give opinion testimony as to standard of care.

"[C]lear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error." Das v. Thani, 171 N.J. 518, 527 (2002) (citing State v. Robinson, 165 N.J. 32, 40 (2000)). "Jury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them[.]" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (internal quotation marks and citations omitted). Accordingly, "a trial court must not only administer the exercise of judgment charge solely in cases where the charge is appropriate, but it must also separate out those aspects of the medical care that involved judgment and those that did not." Ibid. (citation omitted). Nonetheless, we will not overturn a jury verdict based on a trial court's instructional error "'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

In a medical malpractice action, the court first instructs the jury on the general standard of care, that is, "that a physician must exercise the standard of care appropriate to the average member of the profession practicing in that field." Das, supra, 171 N.J. at 527; see also Model Jury Charge (Civil), 5.50A, "Duty And Negligence" (2002). In so doing, the court decides whether to provide the jury with a medical judgment charge. Das, supra, 171 N.J. at 527.

We begin by addressing plaintiff's first assertion regarding the medical judgment charge. "To constitute a medical judgment, a medical decision generally must involve 'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Ibid. (quoting Velazquez, supra, 163 N.J. at 687); see also Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 632 (1999). That is, a medical judgment charge applies only where a defendant doctor pursued a course of treatment that was an "equally acceptable approach[]." Velazquez, supra, 163 N.J. at 690. "Otherwise, '[i]f the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a physician for "mistakes" would enable the physician to avoid responsibility for ordinary negligence.'" Das, supra, 171 N.J. at 528 (alteration in original) (quoting Aiello, supra, 159 N.J. at 632).

Here, plaintiff contends that the medical judgment charge was not warranted because Gorcey failed to demonstrate that his course of treatment for the lipoma was a legitimate and equally acceptable approach as between two or more generally accepted courses of treatment; namely, snare removal or open surgery. Plaintiff also contends that the charge was improper and obviated the need for the jury to decide the fact issue on which liability rested; namely, whether the lipoma was of such size and shape that snaring it was an acceptable alternative to open surgery.

The court's charge closely followed the Model Jury Charge (Civil), 5.50G, "Medical Judgment" (2002), except that the specific action stated by the court focused the jurors' scope of review too narrowly on the colonoscopy procedure. The judge instructed that:

If you determined that the standard of care for treatment or diagnosis with respect to the defendant's removal of plaintiff's large lipoma by a snare during the colonoscopy did not allow for the choices or the treatment the defendant doctor made here, then the doctor would be negligent.
[(Emphasis supplied).]

There was ample testimony from Gorcey and the experts regarding the assessment of the size and shape of the lipoma, and the standard of care relevant to its removal. Gorcey testified that he weighed the risks of the two courses of treatment, and ultimately chose to attempt the snare removal because he determined that Ashkenazi was not a good candidate for open surgery. Although there was varying testimony on the size and shape of the lipoma, Gorcey testified that he believed the lipoma was pedunculated. Plaintiff's and defendants' experts agreed that if the lipoma was a large mass and not pedunculated with a narrow stalk, then the removal by snare with cautery procedure should not have been used. By including the words "by a snare during the colonoscopy" in the jury charge, the court eliminated the opportunity for the jury to determine if the lipoma was, in fact, pedunculated, if its size and shape rendered snare removal an acceptable removal alternative, and precluded the jury from determining essential facts relevant to the theory of liability. Given the experts' testimony and the factual dispute regarding whether the lipoma had a stalk, this essential factual determination had to be made by the jury. As given, the charge was too narrow and, therefore, erroneous. We conclude that this error was "clearly capable of producing an unjust result," R. 2:10-2, warranting reversal and a new trial. For the medical judgment charge to be properly considered, the charge should be more specifically tailored to the facts and the jury instructed to determine the size and shape of the lipoma.

We turn now to plaintiff's second argument, that the court, by improperly merging two theories of liability into the one jury charge and interrogatory, failed to tailor a specific charge as to plaintiff's second theory of liability concerning the continuation of cautery after the snare became entangled.

"Regardless of how clearly trial counsel may have articulated their arguments to the jury, the ultimate responsibility rests with the court to instruct the jury regarding the appropriate law that is applicable to the evidence." Das, supra, 171 N.J. at 530 (citing Robinson, supra, 165 N.J. at 42). During the charge conference, the court ruled that the medical judgment charge did not apply to the excessive cautery claim. Thus, the jury had to determine if Gorcey deviated from the applicable standard of care when he increased the cautery. However, the court's only reference to the cautery issue was during the medical judgment charge.

This charge, which I'm going to give you, is not applicable to the other claims made by the plaintiff, that is the plaintiff's claim that the defendant's technique in removing the lipoma was negligent. You will recall that the plaintiff claims that the defendant used too much cautery during the attempted removal, and this is denied by the defendant. This charge doesn't really apply to that claim.
[(Emphasis supplied).]

Rejecting plaintiff's request to specifically charge this theory of liability, the court determined that it would not pose the cautery theory on the verdict sheet as a separate interrogatory. The court ruled that:

The way he performed the procedure is what the deviation is. You can argue that there are two mistakes that were made but I wouldn't put that on the jury verdict sheet twice. If someone was driving you know, fast and on the wrong side of the road, you asked the jury was the defendant driving the vehicle negligently. You don't delineate that out.

We conclude that the trial court's failure to affirmatively charge the jury with respect to plaintiff's second theory of liability, amplified by its failure to give a separate interrogatory on the claim, deprived the jury of the opportunity to consider the appropriate law applicable to the evidence adduced at trial. These errors constitute reversible error.

Finally, plaintiff's informed consent claims are based on Gorcey's failure to provide plaintiff the opportunity to make an informed decision about his care, specifically, whether to have the lipoma removed, if necessary, either during the colonoscopy procedure using the snare and cautery or by open surgery, and the court's failure to properly define the procedure at issue on the jury interrogatory.

"Like the deviation from a standard of care, the physician's failure to obtain informed consent is a form of medical negligence." Matthies v. Mastromonaco, 160 N.J. 26, 39 (1999).

The physician's duty to inform the patient of alternatives is especially important when the alternatives are mutually exclusive. If, as a practical matter, the choice of one alternative precludes the choice of others, or even if it increases appreciably the risks attendant on the other alternatives, the patient's need for relevant information is critical.
[Ibid.]

In Matthies, the Court found that "[b]y not telling the patient of all medically reasonable alternatives, the physician breaches the patient's right to make an informed choice." Ibid.

"[T]o sustain a claim based on lack of informed consent, the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 548 (2002) (citing Perna v. Pirozzi, 92 N.J. 446, 460 (1983)).

Here, although plaintiff signed a consent form for the colonoscopy, Gorcey testified that he advised plaintiff that there were no alternatives to a colonoscopy. Further, Gorcey acknowledged that he did not discuss the possibility of lipoma removal, or any removal alternatives with Ashkenazi prior to the colonoscopy. Gorcey's failure to advise plaintiff of the risks and alternatives to lipoma removal, and the failure to obtain full and complete informed consent, constitute medical negligence.

"Ordinarily, 'a trial court's interrogatories to a jury are not grounds for reversal unless they were misleading, confusing, or ambiguous.'" Ponzo v. Pelle, 166 N.J. 481, 490 (2001) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997)). "Interrogatories are meant to serve particular purposes: 'to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Id. at 490-91 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)). Furthermore, when a case involves multiple claims, "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." Id. at 492 (citations omitted).

The trial court's instruction on informed consent was consistent with Model Jury Charge (Civil), 5.50C, "Informed Consent" (2002). However, the jury interrogatories did not clearly define which procedure or treatment the informed consent related to. As previously noted, plaintiff's multiple requests for specificity and clarification were denied. Additionally, in response to an inquiry by the jury during their deliberations, the court re-read the informed consent charge in its entirety.

Plaintiff submitted a proposed jury verdict sheet requesting that the "procedure" or "treatment" be referred to as "snare cautery removal of a lipoma," and Gorcey proposed that the procedure be defined as the "colonoscopy." The court used the generic terms "procedure" and "treatment."

Although the jury found that Gorcey failed to provide Ashkenazi the information required to make an informed decision on whether to proceed with "the procedure," they also found that a reasonable person under the circumstances of this case would have submitted to "the treatment" rendered had he properly been informed of the risks and alternatives.

The vagueness of the instruction and interrogatory coupled with the denial of plaintiff's request for a poll of the jury, make it unclear as to whether the jury's verdict on informed consent related to the colonoscopy procedure, in general, or the snare removal of the lipoma. The unclear and ambiguous jury interrogatories on informed consent may have confused or misled the jury. The court's failure to provide clear interrogatories on informed consent was improvident, and we conclude that this error was "clearly capable of producing an unjust result," R. 2:10-2, warranting reversal and a new trial. The court should clarify the issue in its instructions to the jury when the case is retried.

III.

Gorcey raises two "conditional" points on appeal. Gorcey asks this court to limit plaintiff's right to a claim for loss of consortium and argues that the court erred by limiting Dr. Starker's testimony to factual issues. We find insufficient merit in Gorcey's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these additional comments.

Dr. Paul Starker was named by the defense as a fact witness, and his testimony was limited in a pretrial motion to his knowledge concerning Dr. Befeler's experience. During his deposition, plaintiff asked Starker questions regarding his own experiences with colonoscopies and the removal of lipomas. Gorcey moved to name Starker as an expert witness, stating that he intended to ask Starker, among other things, whether he's ever done surgery to remove a lipoma in the colon, the reasons why he would remove a lipoma and what problems removing a lipoma can cause. The court denied the motion.
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Our Supreme Court has determined that "the remarriage of a spouse is not a factor to be considered by the jury in their determination of the damages to be awarded for the wrongful death of a deceased spouse." Dubil v. Labate, 52 N.J. 255, 261 (1968). Gorcey concedes that Dubil is binding precedent, but nonetheless suggests the holding for it is unrealistic and contrary to our system of justice, because it permits a double award of damages for the same loss. There is no basis in law to support this position.

Next, Gorcey cites no authority to support the claim that the court abused its discretion in limiting Starker's testimony, but rather posits that the restriction was contrary to the interests of justice. "Evidentiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). Here, Gorcey has failed to demonstrate that the trial court abused its discretion.

Reversed and remanded for a new trial consistent with this opinion. We do not retain jurisdiction.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION