Opinion
DOCKET NO. A-5868-11T1
08-19-2014
SHARON PARKER, Plaintiff-Appellant, v. JOSEPH ORTIZ, M.D., and NEVYAS EYE ASSOCIATES, P.A., Defendants-Respondents.
Mitchell J. Makowicz, Jr., argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Makowicz, on the brief). Walter F. Kawalec, III, argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec and Lynne N. Nahmani, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Nugent, and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0280-08. Mitchell J. Makowicz, Jr., argued the cause for appellant (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Makowicz, on the brief). Walter F. Kawalec, III, argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec and Lynne N. Nahmani, on the brief). PER CURIAM
Plaintiff Sharon Parker appeals the Law Division's August 9, 2011 order granting partial summary judgment to defendants Joseph Ortiz, M.D., and Nevyas Eye Associates, P.A. (Nevyas Eye), and its June 15, 2012 order denying her motion for a new trial. We affirm in part, reverse in part, and remand for a trial on the previously dismissed claim.
I.
We discern the following facts and procedural history from the record on appeal.
In June 2005, Parker went to her optometrist, Robert G. Snyder, M.D., complaining about "floaters" in her right eye and blurry vision in both eyes that were affecting her ability to read. Snyder measured the intraocular pressures in both eyes and determined that they were within the normal range. He did not observe any signs of glaucoma. Addressing the problem of blurriness, he tested Parker's vision and found that she needed reading glasses because of slight farsightedness in her left eye.
A floater is "a small opacity, a small spot, a small piece of eye protein loose in the main chamber of the eye."
Glaucoma is a condition in the eye related to an optic neuropathy, which is damage to the optic nerve, typically with some associated visual loss and often, but not always, a condition of elevated pressure inside the eye.
Parker obtained reading glasses as prescribed by Snyder. At the end of August, she returned to Snyder's office and reported that she was unable to see well out of her left eye despite the new reading glasses. Parker was seen by someone other than Snyder. The results of that visit are not in the trial record.
In December 2005, Parker was driving her car when she experienced distortion and a temporary loss of vision in her left eye. The incident lasted for only a couple of seconds, but Parker found it frightening. A friend recommended that she contact an eye specialist at Nevyas Eye in Cherry Hill. Parker made an appointment for January 20, 2006, and was seen by Ortiz, an ophthalmologist who specializes in the treatment of glaucoma.
On January 26, Ortiz performed an iridotomy on Parker's left eye. An iridotomy is a surgical procedure performed with a laser, during which a small hole is made in the iris. Parker went home following the procedure. That evening, she noticed two white lines with a white glare within them in her left eye's field of vision. The lines were "[b]right white . . . like somebody's shining a flashlight into them." When Parker raised her eyelid and exposed her eye to light, the glare appeared, and when she lowered but did not close her eyelid, the glare lines moved. When she closed her eyelid, the glare lines disappeared. The condition was not resolved after further examination and treatment.
In January 2008, Parker filed a medical malpractice complaint against Ortiz and Nevyas Eye. She alleged claims sounding in deviation from the applicable standard of care and lack of informed consent. Defendants answered and discovery ensued.
In May 2011, defendants filed a motion for partial summary judgment on the informed-consent claim. They argued that Parker's claim was precluded as a matter of law because she had signed consent-for-treatment forms prior to the procedure and had failed to procure evidence that the risk of the injury suffered by Parker was known in the medical community at the time Ortiz performed the procedure.
The motion judge heard oral argument on August 5. Following argument, the judge granted the motions, explaining her reasons in a written decision with further oral explanation. She relied primarily on Parker's failure to provide expert medical evidence that the risk of her specific injury was known to the medical community in January 2006. An implementing order was entered on August 9.
The remaining claim was tried before a jury over six trial days in April 2012. In their testimony, Parker and Ortiz gave very different versions of what occurred at and after Ortiz examined and tested Parker's eyes on January 20, 2006.
During the trial, Parker and Ortiz stipulated that Parker was abandoning her deviation claim against Nevyas Eye.
According to Parker, Ortiz told her that she needed laser iridotomy surgery because she had "narrow angles" glaucoma in both eyes. Ortiz also advised Parker that the laser surgery should be performed very soon in order to avoid blindness. According to Parker, there is no history of glaucoma in her family, and she had never been diagnosed as having glaucoma before she saw Ortiz.
The eyeball contains a fluid called the aqueous fluid, which circulates within the eyeball through ductwork that passes around the eye's iris. The openings of this ductwork are called "angles."
The angles may be open, narrow, or closed. Open angles permit the free flow of fluid throughout the eyeball and they lessen the possibility of glaucoma involving the angles because they do not allow the intraocular pressure to rise. Closed angles prevent the free flow of fluid and present an emergent situation with pressure buildup that can result in glaucoma injury to the optic nerve. Narrow angles restrict but do not preclude the flow of fluid in the eyeball. Narrow angle glaucoma may result where the narrow angle closes, thus increasing the intraocular pressure. Narrow angle glaucoma leads to "impaired vision, and ultimately blindness."
An iridotomy creates a small opening in the iris to help reopen an angle. In effect, an iridotomy provides a "safety valve in the iris for the fluid to drain out" and thus precludes a pressure buildup and prevents glaucoma injury.
Parker testified that Ortiz told her specifically that she had "narrow angle glaucoma." She also testified that Ortiz "mentioned something about [her] irises being so large that they block the holes, the drainage holes or something like that." When Parker asked about treatment options, Ortiz told her that medications would not help and that only an iridotomy would cure her condition. Parker further testified that Ortiz did not tell her the nature of the risk that someone with narrow angles would develop glaucoma.
Parker testified that she became "worried" and "scared" about what Ortiz told her. She "opted to have the iridotomy because that was really the only option that he gave [her] other than going blind." According to Parker, Ortiz wanted to do the surgery right away, so he scheduled the iridotomy for the left eye for the following week and for the right eye one week later.
In contrast, Ortiz testified that Parker did not have glaucoma. However, based on his examination of Parker's eyes, he concluded that she had narrow angles and a condition called "plateau iris configuration" in both eyes. Plateau iris configuration is a formation or structure of the iris in which its center is thicker and its sides drop off sharply, increasing the negative impact of narrow angles on intraocular pressure. According to Ortiz, plateau iris configuration is a congenital condition. It does not go away or resolve itself absent surgery.
Ortiz also testified that Parker had a "mild nuclear sclerotic" condition that affected her lenses. That condition involved the early stages of cataracts and resulted in Parker's complaints about blurry vision. He stated that he told Parker that she had "baby cataracts" and that her condition should be monitored.
Ortiz noted that he also told Parker that she had narrow angles that opened and closed repeatedly, causing microscopic injury to the ductwork in her eyes, along with a slight increase in intraocular pressure. He advised Parker to return in six months for a re-evaluation so he could monitor her situation. When Parker asked why she needed monitoring, Ortiz explained that although she did not have glaucoma at that time, she was more likely to develop it because of her narrow angles, elevated intraocular pressures, farsightedness, and gender. In response to Parker's inquiry about the chances of someone in her condition developing glaucoma, Ortiz told her that the chances of such development were "slim, less than ten percent."
During his testimony, Ortiz also stated that he told Parker they could either monitor her condition for six months or "do a surgical procedure." According to Ortiz, Parker responded that she did not want to "come here every six months to a year" and that she "cannot walk around thinking I'm going to have a glaucoma attack." After Ortiz told Parker that the iridotomy surgery would preclude any risk of her "developing a glaucoma attack in the future," she elected to proceed with the iridotomy. Ortiz also told Parker that, if she had "any doubts about doing this[,] by all means see someone else for another opinion."
Parker testified that she did not seek a second opinion because she trusted Ortiz and thought him "knowledgeable enough to . . . lead me in the right direction." In addition, Parker explained that Ortiz cautioned her "not to go anywhere else to have my eyes dilated [be]cause I could instantly go blind."
When Parker appeared at Ortiz's office on January 26, 2006, she signed two consent forms for the iridotomy. The first was a consent to laser treatment, which detailed the possible outcomes of the procedure, including loss of vision. The second was a "Consent for Treatment of Acute Glaucoma Peripheral Iridotomy," which detailed possible complications of the procedure. Neither consent form warned that a result of the procedure could be a white-line glare affecting vision. Ortiz testified that he explained that risk to Parker orally. The trial judge precluded Parker from disputing that assertion.
During the procedure, Ortiz placed the iridotomy hole below Parker's upper eyelid, at about the eleven o'clock position. There is no allegation in this litigation that the iridotomy was not performed according to accepted medical standards. Ortiz's post-operative reports reflect a pre-operative and post-operative diagnoses of Parker's condition as "narrow angle glaucoma" and "glaucoma."
As previously mentioned, Parker noticed the two white lines with a white glare in her left eye the evening of the day she had the procedure. Parker called Ortiz's office the next morning and made an appointment for January 30. Because Ortiz was not in the office that day, Parker's appointment was with his colleague Mitchell Stein, M.D.
Stein's examination on January 30 revealed that the angles in Parker's untreated right eye had a "narrow approach," while the angles in her left eye were "much more open than the angle in her right eye." According to Parker's medical expert, a "narrow approach means that the access of fluid into that angle is not wide open but the angle is essentially open." Stein did not record that Parker had the plateau iris configuration reported by Ortiz.
According to Parker, Stein told her that the glare lines occurred because of light entering the iridotomy hole. She testified that Stein also told her there was no need to have the scheduled iridotomy on the right eye. Stein prescribed eye drops and told Parker to "give it some time, a month or whatever and it would eventually go away." Stein directed her to return to him in three or four weeks for further evaluation.
Following Stein's direction, Parker returned to see him on February 20. Stein recorded that Parker "state[d] she is seeing distinct white lines" in her left eye and is "very anxious." Stein advised Parker to continue applying the eye drops and to schedule an office appointment with Ortiz in four weeks.
Parker saw Ortiz on March 17. She complained of a white, two-line glare in her left eye's field of vision, along with a "lot of headache over [her eye]brow." Ortiz tested the angles in Parker's left eye and found that they were open. Realizing that Parker was "quite upset" about the glare problem, Ortiz told her that "[i]t goes away. It goes away within a few months because what happens is . . . that the brain adapts to it." Because she did not appear to accept this prognosis, Ortiz scheduled an appointment for Parker on March 29 at the Glaucoma Service at Wills Eye Hospital in order to obtain a second opinion. Ortiz also scheduled a return visit with him on May 5.
On March 29, Parker saw Tricia Thomas, M.D. She complained of glare lines that impaired her vision and gave her headaches. According to Ortiz's medical expert, Thomas's testing revealed that the angles of Parker's left eye were wide open and those of her right eye were open. Thomas found that the angles in both of her eyes were not threatened with closure or occlusion. Thomas noted that it was not necessary to have an iridotomy in Parker's right eye. Thomas's report did not reflect a finding that Parker had a plateau iris configuration.
According to Parker, Thomas recommended "colored contact lenses and . . . a patch that they do in England." Because Thomas told Parker she could go to her own optometrist for the contact lenses, she made an appointment to see Snyder.
When Parker saw Snyder on April 4, she complained about the "white line glare" in her eye. Snyder noted that Parker was "very upset" and that she "[a]ctually sees light coming through iridotomy." Snyder examined and tested her eyes, determining that she did not have glaucoma or plateau iris configuration. He reported that, although the angles in both eyes were "slightly narrow," they appeared open and were not subject to occlusion. He found no reason to refer Parker to a glaucoma specialist. Snyder's treatment plan was to "[t]ry color opaque contact[]" lenses in order to cover the iridotomy hole and shield it from light. He ordered contact lenses for Parker and gave her a pair of lenses to try.
Parker did not keep her appointment with Ortiz on May 5. Ortiz testified that, had Parker kept the appointment, he would have advised her of treatment options for her white-line glare problem, including contact lenses, hole-closure surgery, and corneal tattooing. On cross-examination, Ortiz remembered that he had advised Parker that tattooing was an available treatment option. He admitted that he did not include that in his answers to interrogatories.
Parker returned to Snyder's office on May 9, and told him that the contact lenses were not working and that her vision was blurry. Over the next few months, Snyder tried different contact lenses without success. Although Parker was able to adapt to and tolerate the lenses, her distance vision remained blurry. Parker eventually discontinued her efforts to use contact lenses.
On September 20, Parker returned to Snyder's office and was seen by Snyder's associate, Freddie Davis, O.D. Davis examined and tested Parker's eyes. He reported that her angles were open and that she did not have glaucoma. Davis did not note a plateau iris configuration. Parker made no other visits to Snyder's office. She testified that her glare problem continued as of the time of trial.
Parker's expert ophthalmologist, Joel Confino, M.D., testified that Parker did not have narrow angles or a plateau iris configuration and that the iridotomy was unnecessary "because there was no risk of angle closure glaucoma." According to Confino, Ortiz deviated from the accepted standard of care because "[t]here were no anatomic findings that would have justified performing an iridotomy." Instead, the proper treatment option would have been to follow Parker over time to determine whether her vision deteriorated and medical intervention was necessary. He testified that it is not within the standard of care to perform an iridotomy where the patient's angles are open and the threat of pressure buildup is negligible.
Confino agreed, however, that it is within the medical standard of care to perform an iridotomy to relieve intraocular pressure where a patient has closed angles. He further agreed that it is within the standard of care to perform an iridotomy where the patient has narrow angles in order to "prevent a potential angle closure attack" that may cause glaucoma injury.
Ortiz's expert ophthalmologist and glaucoma specialist was Edie Miller-Ellis, M.D. She had not examined Parker, but based her opinion on medical records. Miller-Ellis testified that Ortiz was justified in performing the iridotomy because Parker exhibited symptoms of "intermittent angle closure," the symptoms of which are "some blurred vision, transient vision loss, . . . headaches, discomfort with their vision whether it be at distance or near." Miller-Ellis also testified that, even though no other physicians had observed narrow angles or a plateau iris configuration, it was possible for Ortiz to have done so when he examined Parker.
The jury found that Ortiz had not deviated from the accepted standard of medical care in his treatment of Parker. The trial judge entered judgment in favor of Ortiz.
On May 8, 2012, Parker filed a motion for a new trial, arguing that the motion judge had erred in dismissing the informed-consent claim and that the jury's verdict was against the weight of the evidence. The trial judge heard oral argument on June 15, following which he denied the motion in an oral decision. He declined to reconsider the motion judge's dismissal of the informed-consent claim. Although noting his "surprise[]" at the verdict, the judge determined that, because there was evidence in the record to support the verdict, he was unable to find that the verdict was "clearly and convincingly . . . a miscarriage of justice." An implementing order was entered the same day. This appeal followed.
II.
On appeal, Parker argues that the motion judge erred in dismissing her informed-consent claim. She also contends that the verdict was against the weight of the evidence.
A.
The motion judge determined that Parker failed to establish a prima facie case of lack of informed consent because she did not present an expert opinion that the risk of developing white-line glare following an iridotomy was known within the medical community at the time Ortiz operated on her. The judge concluded that, absent such proof, Parker's claim was legally untenable. In arriving at that conclusion, the motion judge rejected Parker's assertion that Ortiz's deposition testimony that he was aware of the risk and so advised Parker provided the necessary proof.
At trial, Parker's expert, Confino, was permitted to testify that it was known in the medical community of ophthalmologists in January 2006 that white-line glare could result from an iridotomy.
"We review the trial court's grant of defendant's motion for summary judgment de novo, applying the same legal standard as the trial court under Rule 4:46-2(c)." Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Under that standard, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
In Teilhaber v. Greene, 320 N.J. Super. 453, 465 (App. Div. 1999) (emphasis omitted) (quoting Bennettt v. Surgidev Corp., 311 N.J. Super. 567, 572 (App. Div. 1988)), we held that
[t]o establish a prima facie case for medical negligence premised on a theory of liability for lack of informed consent, a plaintiff must show "(1) the physician failed to comply with the applicable standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries."
Under the first part of that test, the "information a doctor must disclose depends on what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 548 (2002). "[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." Ibid. That is, "the informed—consent basis of malpractice . . . rests . . . in the [physician's] failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each." Eagel v. Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999).
Concerning the risks that must be disclosed by a physician, "[t]he case law is clear. A plaintiff alleging lack of informed consent has the burden of producing expert testimony to establish that the risk cited was one that the defendant should have been aware of because it was known to the medical community at the time." Tyndall v. Zaboski, 306 N.J. Super. 423, 426 (App. Div. 1997), certif. denied, 153 N.J. 404 (1998). "[I]t must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community. . . . [P]roof of a risk recognized by the professional community must come from a qualified expert." Febus v. Barot, 260 N.J. Super. 322, 327-28 (App. Div. 1992).
Parker argues, and we agree, that such expert testimony was not required in this case because Ortiz conceded that he knew of the risk and, in fact, told Parker about it prior to performing the procedure. In Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 156-57 n.3 (App. Div. 1978), aff'd, 82 N.J. 321 (1980), a majority of this court observed that expert evidence would be required to prove the existence of a risk "unless of course the existence and magnitude of the risk was admitted."
In affirming the majority, the Supreme Court determined that the use of, among other documents, a defendant's deposition could be a viable method of proving the existence of the risk.
Plaintiff asserts that he intends to sustain this burden by the use of extensive medical literature. We note that Evidence Rule 9(2)(e), which provides for judicial notice of "specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources o[f] reasonably indisputable accuracy" may be applicable to plaintiff's proffered evidence on remand. Plaintiff also refers to medical reports of treating physicians, and defendant doctors' depositions in which they state that they gave plaintiff warnings as to possible hazards in the injections. Without passing on the admissibility or adequacy of the particular proofs, we conclude that the existence and extent of the risk of harm involved in the administration of the vaccine could be established by this means.
[Id. at 325 (emphasis added).]
In Tyndall, we noted that "[a]n exception to that rule [requiring expert evidence] applies where the defendant concedes that the risk was known, but claims that the patient in fact was informed of that risk." Tyndall, supra, 306 N.J. Super. at 426.
At his deposition, Ortiz described the choice presented to physicians in deciding whether to place the iridotomy hole in an unexposed area of the iris under an eyelid or in an exposed area not covered by an eyelid. Ortiz explained that, at the time he performed the iridotomy on Parker, his practice was to place the hole in an unexposed area in order "[t]o cut down on postoperative problems with the patient." When asked what type of post-operative problems his patients were having, Ortiz responded:
I have had a few people prior to [Parker] that complained that they had a line, a line in the, in front of their vision whenever they're looking in any particular direction, and they were very vocal about it.
But it subsided, it went away up to a few months and it was not uncommon [in] the literature that that was mentioned. But it was also mentioned for patients who had another, unexposed parts of the eye too.
[(Emphasis added).]
In response to the question whether, in 2006, he "had patients who had the iridotomies done in exposed areas who complained about a line in their vision," Ortiz responded that he had patients who complained but he could not recall whether their iridotomies were in exposed or unexposed areas. He agreed, however, that prior to performing Parker's iridotomy in 2006, he "had other patients who had complained about a line in their vision, and were very vocal about it."
Ortiz was then asked whether it was his "understanding or belief back in January of 2006, that the patients who had complained about a line in their vision and were very vocal about it, had the iridotomies performed in exposed areas of the iris," to which he responded
No. The literature mentioned that one would get, patients complained from the spot, laser spot being in exposed as well as not exposed areas of the eye.He then agreed that his "goal back in 2006 was to perform the iridotomy in an unexposed area so as to reduce these postoperative complaints." In addition, Ortiz testified that he informed Parker of that risk prior to performing her iridotomy.
And, at that time I was -- the percentage of people according to the literature who had less complaints, had it underneath the eyelids.
But, I had patients who complained -- I only had three patients, two or three patients before Ms. Parker complain about this. And I would mention it to all my patients, because I would -- one would never know who was it going to be that would complain about it.
[(Emphases added).]
At his deposition, Ortiz clearly conceded his knowledge that there was a risk that a patient could have white-line glare as a result of having an iridotomy and that risk was set out in medical "literature." Ortiz relied upon the medical literature in assessing the risk to his patients and positioning the iridotomy holes in an effort to minimize the number of complaints of white-line glare. He also felt it appropriate to warn Parker about the risk.
The motion judge concluded that Ortiz's deposition testimony did "not demonstrate that he admitted that the risk of developing white lines/glares was known to the medical community. He was not asked to opine about the knowledge of the medical community." While it is true that Ortiz was not directly asked to "admit" at his deposition that the risk was "known to the medical community," a reasonable factfinder could conclude from his testimony that it was, even if Ortiz were to testify otherwise at trial.
Ortiz inaccurately asserts that, at his deposition, "he specifically noted that there was no consensus" in the medical community concerning whether the risk of white-line glare was known in the medical community in 2006. He merely stated that there was no consensus in the medical community concerning the proper placement of iridotomy holes.
We conclude that Parker provided prima facie proof that Ortiz conceded that the risk was known in the medical community and that he advised Parker of the risk. Tyndall, supra, 306 N.J. Super. at 426. That was sufficient to defeat a motion for summary judgment. Brill, supra, 142 N.J. at 540. We reverse the order dismissing Parker's claim based on lack of inferred consent and remand for trial on that claim.
We need not consider the retroactivity of Newmark-Shortino v. Buna, 427 N.J. Super. 285 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013), because it is well established that a plaintiff can present alternative theories of liability to the jury, as long as there is sufficient evidence for both in the record. Caputo v . Nice-Pak Prods ., Inc ., 300 N . J . Super . 498, 504 (App. Div.) (citing R. 4:5-6), certif . denied, 151 N . J . 463 (1997).
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B.
We turn next to Parker's argument that the trial judge erred in denying her motion for a new trial.
Rule 4:49-1(a) provides that a trial judge shall grant a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." A jury verdict should be set aside "only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
A judge may not vacate a jury verdict unless he or she determines "that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). Such a determination must be "carefully reasoned and factually supported (and articulated)," and may be made only after the judge has "canvass[ed] the record and weigh[ed] the evidence." Id. at 597.
In denying the motion, the judge noted that he was "surprised by the verdict," but reasoned that it did not clearly appear to him that the verdict was a miscarriage of justice. He concluded that the jurors "believed Dr. Ortiz and didn't believe the other doctors. That's within their province and I'm going to deny the application."
The first question on the jury verdict sheet was "[d]id the defendant, Dr. Joseph Ortiz, deviate from accepted standards of medical practice." During their deliberations, the jurors asked the judge to expand on the meaning of this question. After repeating the question, the judge told the jury:
The analysis really is what was in, what was the condition of Ms. Parker's, of [Parker's] eye on January 20, 2006. What was seen [by Ortiz]. Okay. And was an occludable angle seen [by Ortiz] or was there no occludable angle [seen by Ortiz]. And Dr. Miller-[Ellis] said one thing and Dr. Confino said another, and the other medical records that were talked about and some may go back with you had some opinions about that, too. So that's the focus of your analysis.
Later, the jury made another inquiry concerning the first verdict-sheet question, to which the judge responded:
I'm going to rephrase the question and hope that this statement I make answers your question, okay, for [verdict-sheet] question number one. Focus on January 20th, 2006. If, in fact, there was an occludable angle in Ms. Parker's eye on January 20th, if, in fact, you find from the evidence that there was an occludable angle in Ms. Parker's eye on January 20, 2006 you would say that Dr. Ortiz did not deviate. If, in fact, you find that on . . . that date there was no occludable angle in Ms. Parker's left eye, you would find that there was a deviation. The focus is what was in her eye on that date. Okay. If an occludable angle, no
deviation. If no occludable angle, deviation. That's the first question you must answer.
Subsequently, the jury made another inquiry concerning the first question on the verdict sheet, to which the judge responded:
And I talked to both counsel and this is going to be the response, okay, agreed to by everybody. If there was no occludable angle, the iridotomy should not have been performed and there was a deviation. If there was an occludable angle, there was no deviation, okay, and you should find for [Ortiz]. I'll say it one more time. If there was no occludable angle in [Parker's] eye on January 20th, 2006, the iridotomy should not have been done and there was a deviation which means you would find for [Parker]. If there was no occludable angle -- I'm sorry -- if there was an occludable angle in [Parker's] eye on January 20th of 2006, there was no deviation, and you should find for [Ortiz]. Okay.The jury subsequently returned its verdict, finding that Ortiz had not deviated from the accepted standards of medical practice.
Just real quickly, did defendant, Dr. Joseph Ortiz, deviate from accepted standards of medical practice. Your answer is yes if there was no occludable angle in the eye on that date, and your answer is no if there was an occludable angle in that eye on that date.
Although there was testimony that no physician other than Ortiz saw the occludable angles, Ortiz testified that he saw them and produced evidence documenting his claim. In addition, Miller-Ellis testified, based on her review of the records, that Parker's angles were narrow and were already undergoing periods of intermittent angle closure. We agree with the trial judge that the verdict reflects the jury's decision to credit Ortiz and Miller-Ellis's testimony over that given by Parker, Confino, Thomas, and Snyder. Because the verdict was adequately supported in the record, the trial judge correctly determined that there was no clear injustice and appropriately denied the motion for a new trial.
III.
In summary, we affirm the trial judge's denial of Parker's motion for a new trial, but reverse the motion judge's order dismissing her claim based on lack of informed consent. We remand for trial on the latter claim.
Affirmed in part, reversed in part, and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION