Shortino v. Buna

48 A.3d 401, 427 N.J. Super. 285, 2012 WL 3046240, 2012 N.J. Super. LEXIS 131
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 27, 2012
StatusPublished
Cited by9 cases

This text of 48 A.3d 401 (Shortino v. Buna) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shortino v. Buna, 48 A.3d 401, 427 N.J. Super. 285, 2012 WL 3046240, 2012 N.J. Super. LEXIS 131 (N.J. Ct. App. 2012).

Opinion

The opinion of the court was delivered by

SAPP-PETERSON, J.A.D.

Plaintiffs, Laurie Newmark-Shortino (“Laurie”) and her husband, Marc Shortino (“Marc”), appeal from the judgment of no cause entered following a jury verdict.1 The jury found that defendant, Andrei Buna, M.D., an obstetrician, was negligent but that his negligence was not the proximate cause of Laurie’s injuries. On appeal, plaintiffs contend:

POINT I
THE COURT BELOW ERRED BY FAILING TO SUBMIT THE INFORMED CONSENT CLAIM TO THE JURY.
POINT II
THE COURT BELOW ERRED BY SUBMITTING THE PROXIMATE CAUSE QUESTION TO THE JURY.
POINT III
THE COURT BELOW ERRED BY FAILING TO SUBMIT SEPARATE JURY QUESTIONS FOR EACH CLAIM OF NEGLIGENCE.
POINT IV
THE COURT BELOW ERRED BY FAILING TO CHARGE ALTERATION OF RECORDS.
POINT V
THE COURT BELOW ERRED BY NOT GRANTING [THEIR] MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE A NEW TRIAL.

We reject the arguments raised in Points II through V, but we are satisfied the trial court erred, as a matter of law, in declining [291]*291to submit plaintiffs’ claim of lack of informed consent to the jury. We therefore reverse and remand for a new trial on that claim.

I.

Laurie testified that on August 28, 2006, she went to her first appointment with Dr. Buna. During the physical examination, Dr. Buna noted she had no pain in her abdomen. After a pelvic exam, Dr. Buna informed her that she was about seven weeks pregnant; however, this did not reconcile with the time period when she believed conception occurred. He then told her to come back the next day at 7:30 p.m. for an ultrasound to determine exactly how far along she was in her pregnancy.

Laurie returned the next evening, as instructed, and brought along Marc, their daughter, and her mother, Ann Newmark, so they could all view the ultrasound together. When they arrived, Dr. Buna’s sonographer, Linda Ahlborn, performed a transabdominal ultrasound. Because she was “too early on[,]” there was no reading.

Ahlborn then performed a transvaginal ultrasound, during which Laurie and Marc recalled that Ahlborn’s facial expression changed, as if something were wrong, and she asked Ann to leave the room with the couple’s daughter. Ahlborn then pressed on Laurie’s stomach and asked if she felt pain. Laurie told her that she did not feel any pain but “when [Ahlborn] push[ed] on [her] side [she] fe[lt] a little discomfort.”

Ahlborn testified that after she performed the transvaginal ultrasound, she spoke to Dr. Buna on the phone and related to him what she observed on the ultrasound: a cystic mass in the right adnexa, an area which includes the fallopian tubes and ovaries. She also observed a “pseudosae” in Laurie’s uterus, which could have either been the beginnings of an early intrauterine pregnancy or could have been associated with an ectopic pregnancy.2 [292]*292From these observations, Ahlborn’s impression was that Laurie either had an eetopie pregnancy or a normal, early intrauterine pregnancy with a small right corpus luteum cyst, which is a type of ovarian cyst. At that point, she was “[absolutely” unable to make a conclusive determination. Ahlborn’s notes from the ultrasound state: “? Right Ectopic — vs—Early IUP[3] [with] Right Corpus Luteum Cyst — [P]seudosac in Uterus-No Viable IUP— Seen — No [F]ree [F]luid — Clinical Correlation Needed[.]” After the phone call, Ahlborn returned to the room and told Laurie that Dr. Buna would like to speak with her on the phone.

Laurie testified Dr. Buna told her she had an ectopic pregnancy and she needed to go to the hospital. She started to cry, dropped the phone, and then ran out the room. Marc testified he picked up the phone and asked Dr. Buna what was going on. Dr. Buna told him Laurie had an ectopic pregnancy and she was in imminent danger of rupturing her fallopian tube. Marc asked if Laurie possibly just had an early pregnancy and Dr. Buna responded, “ ‘It’s not possible. It’s ectopic.’ ” He then instructed Marc to have Laurie report to the fourth floor of Saint Clare’s Hospital at 7:30 a.m. the next day “ ‘to get a methotrexate shot to terminate the pregnancy.’ ”

Laurie, who is an attorney, had a court appearance the following morning. Because she was not experiencing any discomfort, she decided to first attend court to complete a matrimonial proceeding continuing from the previous day. As a result, she, Marc, and Ann arrived at Saint Clare’s three hours after the scheduled appointment with defendant. They also met Laurie’s brother, Benjamin, at the hospital. Dr. Buna scolded her for being late and informed her the methotrexate injection was ready. Laurie requested a second ultrasound. She testified she did not want to “rely just on [Dr. Buna’s] technician for this diagnosis to terminate this pregnancy.” Dr. Buna told her that she did not need another ultrasound, his technician had been performing ultra[293]*293sounds for twenty-five years, and he had been practicing for thirty years. He reiterated that she had an ectopic pregnancy whieh had to be terminated; otherwise, she could experience a rupture, with the worse case scenario resulting in her death.4

Laurie, however, insisted upon a second ultrasound. Dr. Buna arranged to have a colleague, Dr. Barbara Girz, a specialist in high-risk pregnancies, perform the ultrasound that afternoon. Dr. Buna was present in the room during the procedure, and Laurie heard Dr. Buna murmur something about a “pseudosac.” Dr. Girz, however, was silent.

Dr. Buna and Dr. Girz conferred, after which Dr. Buna reported to Laurie she had an ectopic pregnancy. Upon leaving the ultrasound room, he told Marc that Laurie’s ectopic pregnancy had been confirmed. He did not relay to Laurie and Marc that Dr. Girz’s report was equivocal as to whether she had an ectopic pregnancy. Nor did he advise them of Dr. Girz’s recommendation. In the report prepared by Dr. Girz, however, the doctor wrote there was a “small sac noted in the fundus.” Dr. Girz’s recommendation stated: “The patient is here with Dr. Buna. He will send her for quantitative beta-HCG[5] and re-evaluation for possible methotrexate treatment.”

After completing the ultrasound, Laurie asked Dr. Buna whether she could leave and return to the emergency room if she felt any pain. Dr. Buna responded there would not be enough time to [294]*294do so. He explained that if there were a rupture, it would happen very fast, and she could die or not be able to have any more children. He also informed Laurie her blood tests reported her beta-HCG level at 917. Beyond advising she could rupture at that number, Dr. Buna did not otherwise explain the significance of the beta-HCG level.

Because Laurie felt overwhelmed by the events, she went to the chapel, believing she was confronted with two options, leaving and possibly dying from a rupture, or taking the methotrexate injection to terminate the pregnancy. Meanwhile, Marc, who remained with Dr. Buna, testified that Dr.

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48 A.3d 401, 427 N.J. Super. 285, 2012 WL 3046240, 2012 N.J. Super. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shortino-v-buna-njsuperctappdiv-2012.