A New Jersey appellate court ruled for the plaintiff in a medical malpractice case involving a patient injured during a gallbladder operation. The first of two issues involved determining whether the physician that repaired the initial problem should have been permitted to testify regarding the standard of care when acting as an expert witness. Plaintiff Alexandra Granovsky brought a malpractice suit against Stephen A. Chagares, M.D. and Louis Mazzella, M.D. and Monmouth Medical Center. Granovsky underwent a laparoscopic cholecystectomy (gallbladder removal) when Dr. Chagares cut the incorrect duct.
Issue 1: Malpractice or Complication?
To determine if medical malpractice occurred, it was necessary to determine if the doctor’s cutting off the wrong duct was a complication of the procedure or a failure to meet the standards of care. Several days after the initial surgery, Granovsky arrived at Westchester Medical complaining of nausea and vomiting. After assessing the problem with the duct, Dr. Manuel Rodriguez-Davalos conducted an operation to repair the problem. Dr. Rodriguez-Davalos testified that surgeons commonly mistake the two similarly looking ducts. The plaintiff’s motion to strike this testimony was denied. The jury ultimately found that “no cause” existed and the defendant prevailed.
Plaintiff’s Liability Expert
Plaintiff expert Dr. Michael Drew said the defendant had deviated from the care standard when he did not properly view the cystic duct and artery before removing the gallbladder. Drew explained that Chagares used the infundibular approach, which was considered an outdated method of performing this surgery and was largely abandoned in the 1990s because of the likelihood of bile duct injuries. The defense cross-examined Drew, who conceded that he also would inform patients prior to conducting this procedure that a bile duct injury is a common complication and that generally, a complication and medical malpractice are different.
Issue 2: Informed Consent
The plaintiff did not file a claim of informed consent in this matter. In fact, they moved to disregard any evidence regarding consent from the action. The defendant, in efforts to prove his case, explained he had told the plaintiff prior to the operation that a common complication of this surgery was an injury to the common bile duct. His explanation implied that what resulted was a predetermined risk, thus not an example of medical malpractice. The appellate court also ruled for the plaintiff on this issue, stating that because no claim of informed consent was brought in the case, consent is not relevant testimony.
The court found that defendants may not use physicians who were involved in the treatment as expert witnesses for determining liability from deviating from the standard of care. They felt the trial court erred in allowing the defendant to discuss the evidence regarding informed consent. This testimony distracted the jury from the issue of whether malpractice occurred by suggesting that when Dr. Chagares told the patient of the potential duct complication, that the patient was essentially assuming the risk upon consenting to surgery. A new trial was deemed appropriate by the court.
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