Pelose v. GreenPelose v. Green
This is an appeal from the dismissal of a medical malpractice case at the end of plaintiffs’ case. The faсts relevant to this appeal can be simply and briefly stated.
Defendants, Dr. Robert Green, a neurosurgeon, and Dr. Leo Kelly, Jr., an orthopedic surgeon, performed a cervical laminectomy on plaintiff Anthony Pelose. Dr. Green was the principal surgeon; Dr. Kelly assisted. As the assistant, Dr. Kelly not only assisted in peripheral matters (tying knots, cutting, suturing, suctioning blood, retracting muscles, and the like) but actively participatеd in removing lamina from the spinal column. Plaintiff developed quadriparesis (weakness of all four limbs).
Yes, I believe that [it] did ... sustain some damage to the spinal cord, some surgical damage during this operation.
While it is unclear from this answer whether Dr. Fager was saying that Dr. Kelly‘s participation was a proximate cause of the damage to plaintiff‘s spinal cord, we assume for the purpose of this appeal that he was saying that. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
The trial judge granted a motion to dismiss at the end of plaintiff‘s case. On appeal plaintiff makes the following contentions:
POINT I
THE TRIAL JUDGE FAILED TO CONSIDER THE LEGITIMATE INFERENCES AS TO CAUSATION ARISING FROM (a) DR. KELLY‘S TOTAL LACK OF SKILL; and (b) FROM THE STRICKEN EVIDENCE OF DR. FAGER‘S EXPERIENCE WHEN ALL TRAUMA WAS ELIMINATED.
POINT II
DR. KELLY‘S LACK OF SKILL INCREASED THE RISK OF QUADRIPARESIS, WHICH OCCURRED, THUS PRESENTING A PRIMA FACIE CASE UNDER RESTATEMENT (SECOND) OF TORTS § 323(a).
POINT III DR. FAGER‘S OPERATIVE RESULTS WERE RELEVANT AS TO THE WEIGHT TO BE GIVEN HIS OPINION ON CAUSATION.
Judge Coburn dismissed the complaint because he found that while there was evidence that it was malpractice for a surgeon of Dr. Kelly‘s qualifications (or lack thereof) to have actively participated in the removal of the lamina, there was no evidence that he had caused any harm to plaintiff. We agree — substantially for the reasons given in his oral opinion of December 11, 1986.
I.
As Judge Coburn noted, Dr. Fager was unequivocal in his opinion that there was no malpractice if the unfortunate result came about because of Dr. Green‘s surgical activity. Dr. Fager acknowledged that this was a dangerous and difficult procedure in which increased neurological deficits occur in 10% of the cases — and, indeed, with severe myelopathy2 in 14% of the cases. While acknowledging other possible causes for plaintiff‘s quadriparesis3, Dr. Fager testified that the major cause is surgical damage to the spinal cord in attempting to removе the bone — i.e., trauma from the rongeur or the lamina, the latter either being moved against the cord or moving by way of rebound — and expressed an opinion that surgically induced trauma was the cause in plaintiff‘s сase.
Even if we assume that Dr. Fager was correct in his opinion that plaintiff‘s condition was caused by surgically induced
The mere fact that he participated in the laminectomy during crucial parts of the operation to me indicates that he did damage the cord.
....
Knowing ... that Doctor Green has done this operation a number of times ... that he has expertise in this area, that he is skillful in this area ... it would be my feeling that it‘s far less likely that the damages came from Doctor Green‘s surgery than from Doctor Kelly‘s surgery.
Dr. Fager acknowledged that he could not identify what happened with any particularity:
I can‘t tell you at what point the cord was injured.
....
I can‘t tell you at some particular point Dr. Kelly put a rongeur in and bruised the spinal cord. I wasn‘t there. I can‘t tell you that ... I can‘t tell you that at some particular moment his instrument may have slipped against the spinal cord.
He could only say it was caused by surgical trauma and since Dr. Kelly lacked the еxpertise, he caused it. This is no more than speculation — speculation surrounded by expertise but, nonetheless, speculation. Interestingly enough, Fager himself recognized this.
There‘s no way that I can spеculate as to exactly when and how this injury occurred. I can only say that on the basis of my experience ... this unfortunate result comes about from surgical trauma to the spinal cord.
II.
In addition to arguing that Dr. Fager‘s conclusion resulted from and is supported by logical inferences from thе evidence, plaintiff contends that the difficulty in identifying the negligent causative act in this case justifies the application of a more flexible standard of causation set forth in 2 Restatement, Torts 2d, § 323(a) at 135 (1965). See Evers v. Dollinger, 95 N.J. 399, 412-417 (1984). Section 323(a) provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increased the risk of such harm....
Here again, we agree with Judge Coburn. Sectiоn 323(a) is not applicable. That section assumes a nexus between the increased risk and the negligence has already been established — it does not create that nexus. Here, as noted, there was no еvidence Dr. Kelly failed to exercise reasonable care in the manner he performed the procedures.
Section 323(a) is a more flexible standard for “identifying, defining and proving injury” in cases where thеre has been negligently caused injury but the extent of that injury cannot be quantified. See Evers, supra at 408, 413-417. It finds particular application where a failure to diagnose or a misdiagnosis clearly delayed proper treatmеnt, but the resulting harm cannot be quantified. These are cases in which it cannot be determined with any assurance what the ultimate course of the disease would have been for the particular patient with earlier
III.
Plaintiffs finally contend that the trial judge errеd in excluding Dr. Fager‘s testimony with respect to his experience in his operations over the past years. He argues that the testimony supported Dr. Fager‘s testimony that surgical trauma produces post-operative increased neurological deficit. While Dr. Fager‘s experience and the results of his new techniques might have had relevance to that question, the value of that evidence was clearly outweighed by the risk the jury would be misled into believing a failure to use his technique was a deviation from acceptable medical standards. See
Affirmed.