Shortino v. Buna
427 N.J. Super. 285
| N.J. Super. Ct. App. Div. | 2012Background
- Plaintiffs Laurie and Marc Shortino sued Dr. Andrei Buna for medical negligence; jury found negligence but not proximate causation.
- The trial court declined to submit lack of informed consent to the jury.
- Plaintiffs appealed arguing: informed consent, proximate cause, multiple negligence theories, alteration of records, and J.N.O.V./new trial.
- The appellate panel reversed the lack of informed consent issue and remanded for a new trial on that claim.
- The court affirmed the verdict on other issues and denied J.N.O.V.; alteration of records remains a trial issue for remand.
- Key factual posture: equivocal pregnancy diagnoses (ectopic vs intrauterine) and Dr. Buna’s treatment choices influenced by these uncertainties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of informed consent should have been submitted to the jury | Newmark-Shortino argued consent failure existed. | Buna argued informed consent not applicable due to misdiagnosis focus. | Reversed trial court; remanded for informed consent jury issue. |
| Whether proximate cause was properly submitted to the jury | If negligent, likely caused injury despite other findings. | Proximate cause remains a jury question given conflicting evidence. | Harmless error standard; submission upheld as not dispositive. |
| Whether separate jury questions were required for each negligence theory | Separate questions needed for deviation and informed consent. | Single negligence interrogatory sufficient. | Court affirmed single negligence question; no error in lack of separate inquiries. |
| Whether the court should have instructed on alteration of records | Evidence supported alteration of records as a credibility/护it issue. | Insufficient direct proof to justify instruction. | Not reversible; remanded on informed consent, issue to be revisited at new trial. |
| Whether the denial of judgment notwithstanding the verdict was proper | Verdict logically inconsistent. | Evidence supported jury’s findings. | No reversible error; verdict supported given alternative evidence. |
Key Cases Cited
- Linquito v. Siegel, 370 N.J. Super. 21 (App. Div. 2004) (informed consent limited where diagnosis negates consent analysis; reliance on misdiagnosis framework)
- Farina v. Kraus, 333 N.J. Super. 165 (App. Div. 1999) (informed consent not applicable where failure concerns diagnostic testing rather than treatment options)
- Eagel v. Newman, 325 N.J. Super. 467 (App. Div. 1999) (informing about treatment options for an equivocal diagnosis; informed consent under treatment choices)
- Teilhaber v. Greene, 320 N.J. Super. 453 (App. Div. 1999) (distinguishes deviation from standard of care vs. informed consent within negligence claims)
- Matthies v. Mastromonaco, 160 N.J. 26 (1999) (principles on when informed consent applies within negligence claims)
- Bennett v. Surgidev Corp., 311 N.J. Super. 567 (App. Div. 1998) (elements for prima facie informed consent claim)