Grasser v. Kitzis

Citations: 553 A.2d 346; 230 N.J. Super. 216

Court: New Jersey Superior Court; June 13, 1988; New Jersey; State Appellate Court

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Ginger Grasser and John Grasser appeal a final judgment in favor of Dr. Hugo Kitzis in a medical malpractice lawsuit following a jury trial that found no negligence in the doctor's performance of a dilation and suction evacuation (D.E) procedure. This procedure was conducted to remove the remains of non-viable fetal twins from Mrs. Grasser's uterus after complications arose during her second trimester. The Grassers argue that the jury was inadequately instructed on informed consent and proximate cause, and they claim entitlement to a new trial on damages. They also contest the jury's findings regarding the lack of negligence in both the recommendation and execution of the D.E. procedure, asserting these findings contradict the weight of the evidence.

The Grassers testified they were not informed of the risks associated with the D.E. procedure, specifically the possibility of uterine perforation or damage to the bowel, nor the potential impact on future fertility. In contrast, Dr. Kitzis contended that he presented the Grassers with three options for managing the situation and explained the risks involved, asserting that Mrs. Grasser preferred to proceed quickly due to her distress. The appellate court found that the jury's evaluation of witness credibility supported the verdict and that there was no manifest injustice in the trial court's denial of the motion for a new trial, affirming the jury's findings on negligence and informed consent issues.

An examination confirmed the fetuses were under four months, leading to a recommendation for a suction procedure, for which a consent form was signed by Mrs. Grasser, who claimed it was neither read nor explained to her. Hospital records noted she was given a sleeping pill before signing the consent. Dr. Kitzis testified that he explained the procedure and risks in the presence of a nurse when obtaining consent. The jury's verdict included findings of no negligence in the performance of the procedure, but acknowledged negligence in obtaining consent, with five jurors agreeing that a reasonably prudent patient would have refused consent had complete information been provided. However, the jury determined that this negligence was not the proximate cause of Mrs. Grasser's injuries, necessitating an affirmative answer to establish damages. The trial judge's instructions on proximate cause were conventional, aligning with precedents that require showing a prudent patient would have acted differently if adequately informed. The jury's determination that omitted information would have influenced a reasonable patient's consent established causation for this case. Dr. Kitzis conceded that the injuries to the uterus and bowel occurred during the procedure, reinforcing the connection between the operation and the injuries.

The Supreme Court has affirmed the adoption of the Canterbury objective test as established in Largey, rejecting Dr. Kitzis' claim regarding the jury's negative proximate cause finding. The jury's affirmative response to the objective inquiry demonstrated that, despite Dr. Kitzis’ argument, plaintiff Ginger Grasser likely would have opted for the D.E. procedure. The judgment in favor of the Grassers on liability is warranted to avoid a miscarriage of justice, as overwhelming evidence supports proximate causation. The case is reversed and remanded for a damages trial.

Key points include: 
1. Dr. Kitzis claimed to have discussed all treatment options with the Grassers, while they asserted they were only informed about induced labor and the D.E. procedure.
2. The jury was instructed on both "professional" and "prudent patient" standards, with the prudent patient standard being upheld in Largey v. Rothman.
3. The jury was tasked with determining whether Mrs. Grasser provided informed consent, which requires that a physician adequately explain the procedure, its risks, benefits, and alternatives in understandable terms.
4. The relevant question is what a reasonably prudent person would have decided if fully informed, not Mrs. Grasser's post-factum decision-making.
5. The standard assesses whether Dr. Kitzis disclosed all necessary information that a reasonable medical practitioner would have in similar circumstances.

If the jury concludes that Dr. Kitzis failed to provide adequate information leading a reasonable person to decline consent, they should find for Mrs. Grasser. Conversely, if he provided sufficient information or the omissions did not affect her decision, the verdict should favor Dr. Kitzis.