Appellate Division affirms trial court’s denial of plaintiff’s motion for a new trial as plaintiff failed to demonstrate that jury interrogatories were “misleading, confusing, or ambiguous.”
The plaintiff visited the emergency department after experiencing several days of abdominal pain. The defendant performed a laparoscopic diagnostic procedure in anticipation of removing the plaintiff’s appendix, although diagnostic tests did not establish whether the plaintiff was indeed suffering from appendicitis. During the procedure, the defendant encountered an “abnormal lesion” on the colon near the appendix. Suspecting the lesion to have been the cause of the plaintiff’s pain and while the plaintiff was under general anesthesia, the defendant made a larger incision so as to examine the lesion further. He then performed an appendectomy and hemicolectomy, removing the portion of colon where the lesion was located, as well as other surrounding tissue. Ultimately, laboratory tests revealed the lesion was not malignant and that, although the appendix was abnormal, there was no evidence of acute or chronic appendicitis.
At trial, the plaintiff alleged that the defendant failed to obtain his informed consent for both the laparoscopic procedure and the hemicolectomy. The trial judge provided the jury with the following interrogatories: “[d]id 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?” and “[w]ould a reasonably prudent patient under the circumstances have consented to the surgery, had he been fully informed?” The jury unanimously found that the defendant failed to provide the plaintiff with all necessary information. Nevertheless, they concluded that, regardless, the plaintiff would have consented “to the surgery” had he been fully informed. The plaintiff moved for a new trial, arguing that the jury should have considered each informed consent issue separately as to the hemicolectomy and the appendectomy. The trial court denied the plaintiff’s motion, and the Appellate Division affirmed.
In so holding, the Appellate Division reiterated the long-standing rule that interrogatories, like any other jury instruction, are not grounds for reversal unless they are misleading, confusing or ambiguous. That was not the case here. Although it may have been preferable to provide the jury with separate interrogatories, the trial judge made clear that the surgery referenced in the interrogatory was “the surgery in its entirety, including both the appendectomy and the hemicolectomy.” The Appellate Division noted it was obvious that the jury refused to credit the plaintiff’s assertion that he would not have submitted to either surgery if properly informed.
Case Law Alerts, 2nd Quarter, April 2019
Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.