Hot topics in new jersey medical malpractice law

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THE 21^st ANNUAL

HOT TOPICS IN

NEW JERSEY MEDICAL

MALPRACTICE LAW

Moderator:

Abbott Brown, Esq.
Panelists:

Dennis Donnelly, Esq.

William Gold, Esq.

Jon Lomurro, Esq.

Emily McDonough, Esq.

Thomas Pyle, Esq.

Gary Riveles, Esq.

Paul Schaaff, Esq.

Renee Sherman, Esq.

NEW CASES
Abrahamson v. Bram, A-3390-14T1 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a3390-14.opn.html

Afonso v. Bejjani, A-1623-15T4 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a1623-15.opn.html

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a2392-15.opn.html

A.T. v. Cohen, A-0589-14 (App. Div. 2016); appeal pending N.J. (2016

http://njlaw.rutgers.edu/collections/courts/appellate/a0589-14.opn.html

Awuku v. Zapiel, A-2195-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a2195-14.opn.html

Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16), N.J. (2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a-11-16.opn.html

Blake v Alaris Health at Essex, A-1254-15T1 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a1254-15.opn.html

Brugaletta v. Garcia, 448 N.J. Super. 404 (App. Div. 2017), certif. granted N. J. (2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4342-15.opn.html

Conn v. Rebustillo, 445 N. J. Super. 349 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a1421-15.opn.html

De Laroche v. Advanced Laparoscopic Associates, A-5403-14 (App. Div. 2017)

http://www.judiciary.state.nj.us/opinions/a5403-14.pdf

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a2781-15.opn.html

Estate of Abuaf v. Saint Barnabas Medical Center, A-3468-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a3468-14.opn.html

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a1642-15.opn.html

Estate of Gamma v. Cedar Hill Health Care Center, A-3544-13T4 (App. Div. 2017)

www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a3544-13.pdf

Estate of Russo v. Somerset Medical Center, A-4347-14T2 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4347-14.opn.html

Franzen v. Kierce, A-4128-14T2 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a4128-14.opn.html

Giacinto v. IJKG, A-5969-13 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a5969-13.opn.html

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)
Ginsberg v. Quest Diagnostics, Inc., 223 N.J. 553 (2016),

http://njlaw.rutgers.edu/collections/courts/supreme/a-33-34.opn.html

affirming Ginsberg ex rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super.198 (App. Div. 2015).)
Glucker v. Barbalinardo, A-3567-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a3567-15.opn.html

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a0090-15.opn.html

Heredia v Piccininni, A-5714-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a5714-14.opn.html

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4196-14.opn.html

In re Accutane Litigation, N.J. Super. (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4698-14.opn.html

Lipinski v. Krupp, A-0256-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a0256-15.opn.html

Marpaka v. Patel, A-0181-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a0181-15.opn.html

Mckay v. Parkview Holdings, A-0702-14T4 ( App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a0702-14.opn.html

Onyekaomelu v. University of Medicine and Dentistry, A-4448-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4448-15.opn.html

Patterson v. Care One, A-4358-15 (App. Div. 2017)

http://www.judiciary.state.nj.us/opinions/a4358-15.pdf

Qualantone v. Newton Memorial, A-5005-14 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a5005-14.opn.html

Portes v. Tan, A-5686-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a5686-14.opn.html

Ressler v. Hoyt, A-4351-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4351-15.opn.html

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4137-14.opn.html

Rosenblatt v. Stripto, A-0177-15 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a0177-15.opn.html

Serico v. Rothberg, M.D., 448 N.J. Super. 604, 613 (App. Div.), certif. granted, __ N.J. __ (2017);

http://njlaw.rutgers.edu/collections/courts/appellate/a1717-15.opn.html

Sheridan v. Lehman, A-1573-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a1573-14.opn.html

Smith v. Datla, N. J. Super. (App. Div. 2017)

http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a1339-16.pdf

Smolinski v. Dickes, A-0037-15 (App. Div. 2017)
Trepkau v. St. Clare's Hospital, A-4069-14T4 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4069-14.opn.html

Trezza v. Lambert-Wooley, A-1672-15 (App. Div. 2017)

http://www.judiciary.state.nj.us/opinions/a1672-15.pdf

Warren v. Muenzen, A-1949-15 (App. Div. 2017)

http://www.judiciary.state.nj.us/opinions/a1949-15.pdf

Williams v. Atlanticare Regional Med. Ctr., A-4939-14 (App. Div. 2017)

http://njlaw.rutgers.edu/collections/courts/appellate/a4939-14.opn.html

NEW ARTICLES:
The Use and Abuse of Informed Consent, 223 N.J.L.J. (2017)
Wrongful Death Cases Revisited: Not every Mistake is Fatal, 223 N.J.L.J. 2171 (2017)
Physician Assistants Will Play Increasing Role in Malpractice Litigation, 223 N.J.L.J. (2017)

TABLE OF TOPICS AND CASES
AFFIDAVIT OF MERIT:

A.T. v. Cohen, N. J. Super. (App. Div. 2016) appeal pending N.J. (2016)

Blake v Alaris Health at Essex, A-1254-15T1 (App. Div. 2017)

De Laroche v. Advanced Laparoscopic Associates, A-5403-14 (App. Div. 2017)

Glucker v. Barbalinardo, A-3567-15 (App. Div. 2017)

Portes v. Tan, A-5686-14 (App. Div. 2017)

Trepkau v. St. Clare's Hospital, A-4069-14T4 (App. Div. 2017)

Williams v. Atlanticare Regional Med. Ctr., A-4939-14 (App. Div. 2017)
APPARENT EMPLOYMENT

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)
ARBITRATION:

Patterson v. Care One, A-4358-15 (App. Div. 2017)
CHOICE OF LAW:

Ginsberg v. Quest Diagnostics, Inc., 223 N.J. 553 (2016), affirming Ginsberg ex

rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super.198 (App. Div. 2015).)
DUTY OF CONFIDENTIALITY:

Smith v. Datla, N. J. Super. (App. Div. 2017)
DAMAGES:

Qualantone v. Newton Memorial, A-5005-14 (App. Div. 2016)
DISCOVERY OF HOSPITAL INVESTIGATIONS:

Brugaletta v. Garcia, 448 N.J. Super. 404 (App. Div. 2017) certif. granted N. J. (2017)

Conn v. Rebustillo, 445 N. J. Super. 349 (App. Div. 2016)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)
DISMISSAL FOR FAILURE TO PROVIDE DISCOVERY:

Franzen v. Kierce, A-4128-14T2 (App. Div. 2016)

Giacinto v. IJKG, A-5969-13 (App. Div. 2016)
DUTY OF AN EXPERT:

Portes v. Tan, A-5686-14 (App. Div. 2017)
EMPLOYER/EMPLOYEE:

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)
EXPERT TESTIMONY - CHANGE OF OPINION

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

EXPERT TESTIMONY - CROSS EXAMINATION:

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)
EXPERT TESTIMONY - NET OPINION

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

Estate of Russo v. Somerset Medical Center, A-4347-14T2 (App. Div. 2017)

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

In re Accutane Litigation, N.J. Super. (App. Div. 2017)

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)
EXPERT TESTIMONY - SCOPE OF OPINION

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)
EXPERT TESTIMONY - QUALIFICATIONS OF EXPERTS:

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

Smolinski v. Dickes, A-0037-15 (App. Div. 2017)
HIGH-LOW SETTLEMENTS:

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

HOSPITAL INVESTIGATIONS:

Brugaletta v. Garcia, 448 N.J. Super. 404 (App. Div. 2017) certif. granted N. J. (2017)

Conn v. Rebustillo, 445 N. J. Super. 349 (App. Div. 2016)

Hunt v. Virtua Health, A-4196-14 (App. Div
INFORMED CONSENT:

Abrahamson v. Bram, A-3390-14T1 (App. Div. 2016)

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

Onyekaomelu V. University of Medicine and Dentistry, A-4448-15 (App. Div. 2017)
INSURANCE:

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)

JACOBER:

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

JUDGMENT CHARGE

Estate of Abuaf v. Saint Barnabas Medical Center, A-3468-14 (App. Div. 2017)
JURY CHARGES:

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

JURY DELIBERATIONS:

Lipinski v. Krupp, A-0256-15 (App. Div. 2017)
LEARNED TREATISES:

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)
LEGAL MALPRACTICE:

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

Ressler v. Hoyt, A-4351-15 (App. Div. 2017)

Rosenblatt v. Stripto, A-0177-15 (App. Div. 2017)
OFFER TO TAKE JUDGMENT:

Serico v. Rothberg, M.D., 448 N.J. Super. 604, 613 (App. Div.), certif. granted, __ N.J. __ (2017);
NET OPINION:

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

Estate of Russo v. Somerset Medical Center, A-4347-14T2 (App. Div. 2017)

In re Accutane Litigation, N.J. Super. (App. Div. 2017)

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)
NURSING HOME LIABILITY:

Estate of Gamma v. Cedar Hill Health Care Center, A-3544-13T4 (App. Div. 2017)
NURSING OPINION RE PROXIMATE CAUSATION

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)
PROXIMATE CAUSATION:

Awuku v. Zapiel, A-2195-14 (App. Div. 2017)

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

Rosenblatt v. Stripto, A-0177-15 (App. Div. 2017)
QUALIFICATION OF EXPERTS:

Afonso v. Bejjani, et al. A-1623-15T4 (App. Div. 2017)

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

Smolinski v. Dickes, A-0037-15 (App. Div. 2017)
REASONABLE MEDICAL PROBABILITY

Marpaka v. Patel, A-0181-15 (App. Div. 2017)
REMITTITUR

Onyekaomelu v. University of Medicine and Dentistry, A-4448-15 (App. Div. 2017)
SELF-CRITICAL ANALYSIS:

Brugaletta v. Garcia, 448 N.J. Super. 404 (App. Div. 2017) certif. granted N. J. (2017)

Conn v. Rebustillo, 445 N. J. Super. 349 (App. Div. 2016)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)
SUMMATIONS:

Sheridan v. Lehman, A-1573-14 (App. Div. 2017)
STANDARD OF CARE / EXISTENCE OF DUTY:

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

Mckay v. Parkview Holdings, A-0702-14T4 ( App. Div. 2016)
STATUTE OF LIMITATIONS:

Smith v. Datla, N. J. Super. (App. Div. 2017)

Warren v. Muenzen, A-1949-15 (App. Div. 2017)

Williams v. Atlanticare Regional Med. Ctr., A-4939-14 (App. Div. 2017)
TORT CLAIMS

Ben Elazar v. Macrietta Cleaners, Inc. (A-11-16), N.J. (2017)
VOIR DIRE:

Estate of Gamma v. Cedar Hill Health Care Center, A-3544-13T4 (App. Div. 2017)

Estate of Abuaf v. Saint Barnabas Medical Center, A-3468-14 (App. Div. 2017)

Heredia v Piccininni, A-5714-14 (App. Div. 2017)

WITNESSES, UNAVAILABILITY:

Trezza v. Lambert-Wooley, A-1672-15 (App. Div. 2017)

Ressler v. Hoyt, A-4351-15 (App. Div. 2017)
WRONGFUL BIRTH:

Ginsberg v. Quest Diagnostics, Inc., 223 N.J. 553 (2016), affirming Ginsberg ex

rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super.198 (App. Div. 2015).

TABLE OF TOPICS, SPEAKERS AND CASES
1: AFFIDAVIT OF MERIT:

By: Gary Riveles, Esq.

A.T. v. Cohen, N. J. Super. (App. Div. 2016) appeal pending N.J. (2016)

Blake v Alaris Health at Essex, A-1254-15T1 (App. Div. 2017)

De Laroche v. Advanced Laparoscopic Associates, A-5403-14 (App. Div. 2017)

Glucker v. Barbalinardo, A-3567-15 (App. Div. 2017)

Portes v. Tan, A-5686-14 (App. Div. 2017)

Trepkau v. St. Clare's Hospital, A-4069-14T4 (App. Div. 2017)

Williams v. Atlanticare Regional Med. Ctr., A-4939-14 (App. Div. 2017)

2: DISCOVERY OF HOSPITAL INVESTIGATIONS:

By: Jon Lomurro, Esq.

Brugaletta v. Garcia, 448 N.J. Super. 404 (App. Div. 2017) certif. granted N. J. (2017)

Conn v. Rebustillo, 445 N. J. Super. 349 (App. Div. 2016)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

3: INFORMED CONSENT AND WRONGFUL BIRTH:

By: Dennis Donnelly, Esq.

INFORMED CONSENT

Abrahamson v. Bram, A-3390-14T1 (App. Div. 2016)

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

Onyekaomelu V. University of Medicine and Dentistry, A-4448-15 (App. Div. 2017)

WRONGFUL BIRTH:

Ginsberg v. Quest Diagnostics, Inc., 223 N.J. 553 (2016), affirming Ginsberg ex

rel. Ginsberg v. Quest Diagnostics, Inc., 441 N.J. Super.198 (App. Div. 2015).?
4: EXPERT TESTIMONY:

By: William Gold, Esq
NET OPINION

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

Estate of Russo v. Somerset Medical Center, A-4347-14T2 (App. Div. 2017)

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

In re Accutane Litigation, N.J. Super. (App. Div. 2017)

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)

QUALIFICATIONS OF EXPERTS:

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

Smolinski v. Dickes, A-0037-15 (App. Div. 2017)

CHANGE OF OPINION OF EXPERTS

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

SCOPE OF OPINION OF EXPERTS

Rodriguez v. Wal-Mart Stores, Inc., N. J. Super. (App. Div. 2017)

CROSS EXAMINATION OF EXPERTS:

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

TREATING PHYSICIAN AS AN EXPERT

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)

LEARNED TREATISES:

Granovsky v. Chagares, A-0090-15 (App. Div. 2017)
5: PROXIMATE CAUSATION:

By: Renee Sherman, Esq.
PROXIMATE CAUSATION:

Awuku v. Zapiel, A-2195-14 (App. Div. 2017)

Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017)

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

Rosenblatt v. Stripto, A-0177-15 (App. Div. 2017)
REASONABLE MEDICAL PROBABILITY

Marpaka v. Patel, N.J. Super. (App. Div. 2017)

NURSING OPINION RE PROXIMATE CAUSATION:

Hunt v. Virtua Health, A-4196-14 (App. Div. 2017)

6: TRIAL ISSUES INCLIDING VOIR DIRE AND JURY CHARGES

By: Paul Schaaff, Esq.
OFFER TO TAKE JUDGMENT:

Serico v. Rothberg, M.D., 448 N.J. Super. 604, 613 (App. Div.), certif. granted, __ N.J. __ (2017);

HIGH-LOW SETTLEMENTS:

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

VOIR DIRE:

Estate of Gamma v. Cedar Hill Health Care Center, A-3544-13T4 (App. Div. 2017)

Estate of Abuaf v. Saint Barnabas Medical Center, A-3468-14 (App. Div. 2017)

Heredia v Piccininni, A-5714-14 (App. Div. 2017)

WITNESSES, UNAVAILABILITY:

Trezza v. Lambert-Wooley, A-1672-15 (App. Div. 2017)

Ressler v. Hoyt, A-4351-15 (App. Div. 2017)

JUDGMENT CHARGE

Estate of Abuaf v. Saint Barnabas Medical Center, A-3468-14 (App. Div. 2017)

JURY CHARGES:

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

SUMMATIONS:

Sheridan v. Lehman, A-1573-14 (App. Div. 2017)

JURY DELIBERATIONS:

Lipinski v. Krupp, A-0256-15 (App. Div. 2017)
DAMAGES:

Qualantone v. Newton Memorial, A-5005-14 (App. Div. 2016)

REMITTITUR

Onyekaomelu V. University of Medicine and Dentistry, A-4448-15 (App. Div. 2017)
7: THE DUTIES OF A HEALTH CAR PROVIDER OR LAWYER

By: Thomas Pyle, Esq.
STANDARD OF CARE / EXISTENCE OF DUTY:

Ehrlich v. Sorokin, N. J. Super. (App. Div. 2017)

Mckay v. Parkview Holdings, A-0702-14T4 ( App. Div. 2016)
DUTY OF CONFIDENTIALITY:

Smith v. Datla, N. J. Super. (App. Div. 2017)

DUTY OF AN EXPERT:

Portes v. Tan, A-5686-14 (App. Div. 2017)

APPARENT EMPLOYMENT:

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)

LEGAL MALPRACTICE:

Angelo v. Bergman, A-2392-15T2 (App. Div. 2017)

Ressler v. Hoyt, A-4351-15 (App. Div. 2017)

Rosenblatt v. Stripto, A-0177-15 (App. Div. 2017)

8: STATUTORY DUTIES

By: Emily McDonough, Esq.
STATUTE OF LIMITATIONS:

Smith v. Datla, N. J. Super. (App. Div. 2017)

Warren v. Muenzen, A-1949-15 (App. Div. 2016)

Williams v. Atlanticare Regional Med. Ctr., A-4939-14 (App. Div. 2017)

TORT CLAIMS

Ben Elazar v. Macrietta Cleaners, Inc. N.J. (2017)

NURSING HOME LIABILITY:

Estate of Gamma v. Cedar Hill Health Care Center, A-3544-13T4 (App. Div. 2017)

ARBITRATION:

Patterson v. Care One, A-4358-15 (App. Div. 2017)

INSURANCE:

Gil v. Clara Maass Med. Ctr., N. J. Super. (App. Div. 2017)

DISMISSAL FOR FAILURE TO PROVIDE DISCOVERY:

Franzen v. Kierce, A-4128-14T2 (App. Div. 2016)

NEW CASES

Abrahamson v. Bram, A-3390-14T1 (App. Div. 2016)

http://njlaw.rutgers.edu/collections/courts/appellate/a3390-14.opn.html

Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4319-10.
Chase, Kurshan, Herzfeld & Rubin, LLC, attorneys for appellant (Peter J. Kurshan and Sharyn Rootenberg, on the brief).
Law Offices of Joseph A. DiCroce, LLC, attorneys for respondent (Regina G. DiStefano, on the brief).
PER CURIAM

The discreet issue on appeal from the February 26, 2015 jury verdict in favor of defendants is whether the trial court erred in declining to provide an informed consent instruction to the jury. We agree with plaintiff Rabbi Eliezer Abrahamson1 that this requested charge should have been provided to the jury and therefore reverse and remand for a new trial.

This medical malpractice litigation arose from complications plaintiff suffered as a result of epidural pain injections he received to treat back pain. While receiving treatment from defendants, plaintiff developed cauda equina syndrome (CES),2 which ultimately left him with permanent urinary and bowel incontinence, as well as sexual dysfunction. No evidence was presented that any medical provider, including defendant Dr. Harris Bram, advised plaintiff of the risk of developing CES.

In 2007, plaintiff sought treatment for back pain. Initially, he was treated by an orthopedic surgeon who, following an MRI, magnetic resonance imaging, informed plaintiff that he had a large herniated disc, and ultimately referred plaintiff to defendant Spine and Pain Medicine (Spine & Pain) for epidural injections. Plaintiff first went to Spine & Pain on May 1, 2008 and met with defendant Dr. Harris Bram regarding a course of treatment. Dr. Bram testified that he never discussed CES with his patients because it was such a rare side-effect of epidural injections. On May 8, 2008, plaintiff returned to Spine & Pain for his first epidural injection. Plaintiff signed a consent form prior to receiving the injection that included the following language:

You have a pain problem that has not been relieved by routine treatments. A procedure, specifically an injection or operation, is now indicated for further evaluation or treatment of your pain. There is no guarantee that a procedure will cure your pain, and in rare cases, it could become worse, even when the procedure is performed in a technically perfect manner. The degree and duration of pain relief varies from person to person, so after your procedure, we will reevaluate your progress, then determine if further treatment is necessary.

. . . .

Alternatives to the procedure include medications, physical therapy, acupuncture, surgery, etc. Benefits include increased likelihood of correct diagnosis and/or of decrease or elimination of pain. Risks include infection, bleeding, allergic reaction, increased pain; nerve damage involving temporary or permanent pain, numbness, weakness, paralysis or death; air in lung requiring chest tube; tissue, bone or eye damage from steroids. Nerve destruction with phenol, Botox, alcohol, or radiofrequency energy has risks of nerve and tissue damage. Specific risks pertaining to each specific procedure are as follows . . . .
Epidural/Facet Joint . . . : Low blood pressure, temporary weak/numb arm or leg, headache requiring epidural blood patch.

. . . .

The incidence of serious complications listed above requiring treatment is low. Your physician believes the benefits of the procedure outweigh its risks or it would not have been offered to you, and it is your decision and right to accept or decline to have the procedure done.
I have read or had read to me the above information including the Pre-Procedure Patient Instruction page. I understand there are risks involved with spinal procedure, to include rare complications, which may not have been specifically mentioned above. The risks have been explained to my satisfaction and I accept them and consent to any procedure.
I also understand that one of the greatest risks involved with pain management procedures involves various medications taken, allergies and my general medical condition. I will inform the doctor of any blood thinning medication taken or any changes in other medications, allergies or medical condition prior to any procedure.3
Plaintiff looked the form over, but did not go over its substance with anyone in the office. Dr. Bram explained that his typical practice on the date of the injections was to briefly address the risks of the procedure again, not to have the same thorough conversation that he might have in the initial consultation.
One week later, plaintiff returned to Spine & Pain for his second injection. He executed a new copy of the same consent form. Dr. Bram attempted to perform the same procedure as on May 8, but after poor visualization from the initial dye spread tests, he did not inject the L5-S1 segment. A week later, plaintiff began suffering worse pain than he had reported on his initial visit.
On June 12, 2008, plaintiff returned to Spine & Pain, and informed Dr. Bram that the pain had returned. According to plaintiff, he advised Dr. Bram that he was suffering from "leg and back pain." Dr. Bram prescribed Vicodin. Dr. Bram also gave plaintiff a prescription for an orthopedic spine evaluation, which was eventually scheduled for July 14. Dr. Bram placed in his notes that he discussed the risks and benefits of a third and final injection with plaintiff. Dr. Bram testified that he had "concern that [plaintiff] had reached the point where surgery may be indicated." He also testified that he had likely discussed surgery as an option throughout the treatment, but this was the first time that he documented referring plaintiff to a spine surgeon for an evaluation.
Following the June 12, 2008 appointment, Dr. Bram scheduled an appointment for four days later to conduct the final epidural injection. Plaintiff signed a third consent form before receiving this injection. After the injection, plaintiff had difficulty sitting and standing, and his pain level increased. He contacted Spine & Pain and was advised to take Vicodin to treat his pain. Dr. Bram testified that he believed the pain was a normal occurrence resulting from the epidural injections.
On Friday, June 20, plaintiff awoke in pain, and later in the day realized that for the first time his penis felt numb. Plaintiff again contacted Spine & Pain, and the person answering the phone took a message and indicated to plaintiff that his call would be returned. A registered nurse in Dr. Baum's office spoke with plaintiff's wife, who explained that plaintiff was still in pain and was feeling numbness in his genitals. There is a dispute in testimony as to whether the nurse advised plaintiff at this time to go to the emergency room if he developed bowel or bladder problems. Both parties agree that the nurse spoke to Dr. Bram afterwards to relay plaintiff's symptoms.
Dr. Bram testified that, after hearing the nurse's report, he first concluded that plaintiff should go to the emergency room, but because plaintiffs were resistant to that idea, and because he had concluded that the numbness was injection-related, he decided to prescribe Neurontin.4
The nurse called back later Friday with Dr. Bram's prescription and again spoke to plaintiff's wife. According to plaintiff's wife, she asked if her husband should go to the emergency room and the nurse told her he did not need to. The nurse denied advising plaintiffs that they did not need to go to the emergency room. The nurse explained that plaintiff's wife was "trying to avoid the emergency room due to the upcoming Sabbath," which was to begin at sundown and end at sundown the next day. Plaintiff's wife denied having mentioned the Sabbath.
Later that Friday night, plaintiff awoke to discover that while he was sleeping he had urinated in bed. According to plaintiff, he was still suffering from back pain and his penis remained numb. The next day, Saturday, plaintiff was still in pain and suffering from numbness. He was also dripping urine from his penis. Plaintiff did not call Dr. Bram, believing that the dripping was associated with the numbness. That Saturday evening, plaintiff began suffering from pain in his genitals and on the front of his thighs. Plaintiff then called Spine & Pain and left a message with the answering service.
Later that evening, Dr. Charles Daknis responded to the call. After plaintiffs informed him of the symptoms, Dr. Daknis stated that "it sounds like you should go to the emergency room." According to plaintiff's wife, she asked if they needed to go immediately, and she is positive that Dr. Daknis advised it could wait until morning. Dr. Daknis did not recall the specific conversation, but stated that he would have definitively told plaintiffs to go to the emergency room if presented with plaintiff's symptoms. Plaintiff ultimately decided not to go to the emergency room until Sunday morning because going late on Saturday night would inconvenience his family. On the morning of Sunday, June 22, plaintiff went to Monmouth Medical Center, where he had emergency surgery.
Dr. Leena Mathew, who was admitted as an expert in anesthesiology and pain management, testified for plaintiffs. She stated that a pain management physician should advise the patient of what could go wrong from treatment. Dr. Mathew testified that in her practice she would generally discuss the risks and benefits of several other procedures before doing injections. Offering a description of the various nerves and vertebrae in the spine, Dr. Mathew also specifically described the "cauda equina" as a group of nerves at the tail of the spine and stated a pain management physician has to be on "high alert" for CES. She explained that "all pain physicians are trained" to ask questions about numbness, bowel or bladder issues. Dr. Mathew acknowledged that CES happens rarely, but the results are "catastrophic." She stated that:
the only absolute surgical emergency in -- in -- in pain medicine pertaining to disk herniations or disk herniations especially or back pain, the only, like, real clear emergency is a cauda equina syndrome. So high alert and a really high index of suspicion is needed. You -- you try to rule that out. You try to decide that it’s not cauda equina before you try to rule other things in. But you want to make sure that it’s not the more dangerous thing before you just ascribe it to being a less dangerous thing.
Dr. Mathew also explained that the signs and symptoms of CES are diverse, and that intervention must happen early. She opined that the nurse's recommendation to go to the emergency room if symptoms progressed was a deviation from the standard of care, and the nurse should have advised plaintiff to go immediately. As to plaintiff, Dr. Mathew stated, to a reasonable degree of medical certainty, that he now suffers from permanent symptoms including bowel and bladder incontinence, and sexual dysfunction.
Dr. Mathew conceded on cross-examination that the orthopedic surgeon who plaintiff saw in April 2008 attempted to use conservative treatments prior to sending plaintiff to Spine & Pain for epidural injections. Dr. Mathew also conceded that the orthopedist discussed surgery with plaintiff on multiple occasions, although she was unsure of the exact number. She testified that according to his files Dr. Bram did perform an evaluation, and did discuss the risks and benefits of epidural injections with plaintiff.
Defendants offered the testimony of Dr. Christopher Gharibo, a board certified anesthesiologist and pain medicine physician. Dr. Gharibo testified that defendants did not deviate from the standard of care. Dr. Gharibo further averred that the physical examination provided by Dr. Bram for plaintiff was thorough and proper. Dr. Gharibo stated that pain and numbness after an injection are normal symptoms and would not prompt an emergency room visit. He opined that CES first developed when plaintiff became incontinent on June 21, 2008. Dr. Gharibo testified that plaintiff should have been instructed to go, and should have gone to the emergency room at that point.
On cross-examination, Dr. Gharibo stated that physicians have an obligation to consider rare and unusual consequences when clinical circumstances indicate. He acknowledged that physicians in pain management do focus on CES, and that Dr. Bram did so in his initial evaluation on May 1, 2008, when Dr. Bram asked about bowel and bladder incontinence. Most significantly, Dr. Gharibo also stated that epidural injections can cause CES.
Plaintiff requested an informed consent charge. The trial court stated:
[A]s I read [Dr. Mathew's] expert report and as I recall her testimony, it’s not – she testified that it was a deviation from the standard of care not that there was a failure to give informed consent. And quite frankly, the Plaintiff testified that he read the forms, signed the forms. It’s not an issue of informed consent. The Plaintiff elicited the testimony of Dr. Mathew, which is -- which suggests the deviations from the standard of care. And you can argue it in that context, but I don’t see that there’s an issue of informed [consent].
The trial judge deferred his decision until the following day, and ultimately declined to give the charge:
I don't believe it to be an informed consent case. The expert's report certainly didn't indicate that there was a claim of informed consent in my estimation. I know you're arguing to the contrary it appears to be a deviation based upon a failure to referral -- to refer and that appears to have been the claim that was made and that was the basis of the testimony that's before the jury. The informed consent appears to be somewhat an afterthought. It wasn't included in the -- even in your verdict sheet. So I'm not going to change my mind on that. I'm not going to give the informed consent instruction.
Plaintiffs argue that "Dr. Bram was duty bound to ensure that Abrahamson understood . . . the risk of developing CES absent surgery." Defendants' main contention in response is that plaintiff was informed that surgery was an alternative to the epidural injections by the orthopedist and through the consent forms plaintiff executed prior to each procedure. Defendants contend that this case is a negligence case involving deviation from the standard of care, and the principles of informed consent are not implicated.
A proper charge is essential to a fair trial. Pressler & Verniero, Current N.J. Court Rules, comment 3.3.2. on R. 2:10-2 (2016). In clear, understandable language, the jury charge should explain the law that applies to the issues at trial. Toto v. Ensuar, 196 N.J. 134, 144 (2008). The charge "is a road map that explains the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'" Ibid. (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)).
Our Supreme Court has recognized that a patient has three avenues of relief against a physician: "(1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002). "Although each cause of action is based on different theoretical underpinnings, 'it is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.'" Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div. 1999)).
The doctrine of informed consent is based on a physician's duty to provide patients with sufficient information to enable them to "evaluate knowledgeably" the available options and their respective risks before submitting to a particular procedure or course of treatment. Perna v. Pirozzi, 92 N.J. 446, 459 (1983) (quoting Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed.2d 518 (1972)). "If a physician withholds facts that are necessary to form the basis of an intelligent consent to proposed treatment, the physician has not discharged his duty to the patient." Jarrell v. Kaul, 223 N.J. 294, 311 (2015). To establish negligence premised on a theory of liability for lack of informed consent, a plaintiff must make a prima facie case that:

(1) the physician failed to comply with the [prudent patient] 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 [the] plaintiff's injuries.

[Teilhaber, supra, 320 N.J. Super. at 465 (quoting Bennett v. Surgidev Corp., 311 N.J. Super. 567, 572-73 (App. Div. 1998)).]
"Plaintiff is required to show only that the warning was inadequate and that the harm would have been prevented by an adequate warning." Draper v. Jasionowski, 372 N.J. Super. 368, 373 (App. Div. 2004). Importantly, the right to informed consent is "predicated on the patient's right to self-determination." Canesi v. Wilson, 158 N.J. 490, 503-04 (1999). "Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients," and physicians "have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances." Matthies v. Mastromonaco, 160 N.J. 26, 34 (1999).
"The breadth of the duty to disclose risks is measured by a standard that is not personal to the physician or to the patient." Jarrell, supra, 223 N.J. at 312. "[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." Howard, supra, 172 N.J. at 548. "[T]he decisive factor [in any informed consent analysis] is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presents the material facts so that the patient can make an informed decision." Matthies, supra, 160 N.J. at 36. "The test of materiality is simply whether a reasonably prudent patient, 'in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether to forego the proposed therapy or to submit to it.'" Caputa v. Antiles, 296 N.J. Super. 123, 134 (App. Div. 1996), certif. denied, 149 N.J. 143 (1997) (quoting Largey v. Rothman, 110 N.J. 204, 211-11 (1988).
Concerning the risks that must be disclosed by a physician, "[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).

The informed consent doctrine does not apply where the claim is that the physician failed to diagnose the patient's condition. See Farina v. Kraus, 333 N.J. Super. 165, 178-79 (App. Div. 1999) (failure to perform sufficient diagnostic testing), certif. denied, 164 N.J. 560 (2000); Eagel v. Newman, 325 N.J. Super. 467, 474-75 (1999) (failure to take adequate medical history). As our Supreme Court has stated, however, there is no "bright line separating the significant [risks] from the insignificant . . . [w]henever non-disclosure of particular risk information is open to debate by reasonable-minded men, the issue is one for the finder of facts." Largey, supra, 110 N.J. at 213 (alterations in original) (quoting Canterbury, supra, 464 F. 2d at 788).

The underlying facts giving rise to an informed consent claim were sufficiently established at trial to entitle plaintiffs to submit to the jury the question of whether Dr. Bram failed to provide plaintiff "with adequate information regarding the risks of a given treatment." Eagel, supra, 325 N.J. Super. at 474-75.5
Both parties' experts testified that CES is well-known in the medical community, and the defense expert, Dr. Gharibo, testified that epidural injections may cause CES. Dr. Bram admittedly never discussed this possibility with plaintiff. Nor is CES mentioned in the consent form plaintiff signed. Reasonable minds may well have differed on whether the information provided was sufficient, and the issue should have been presented to the jury.

Further, Dr. Bram's failure to provide plaintiff information regarding CES could have increased the level of harm plaintiff ultimately suffered by contributing to plaintiff's failure to go the emergency room sooner. An abundance of testimony respecting the debilitating effect of CES on a patient, the urgent nature of the need for treatment, and the permanent nature of the injury was presented to the jury. These facts are important to the determination of whether a reasonable person would have chosen surgery instead of injections. Dr. Mathew established that the failure to pursue surgery caused the permanent symptoms now suffered by plaintiff. "The issue of informed consent often intertwines with that of medical malpractice," Matthies, supra, 160 N.J. at 40, and here the jury should have been instructed to consider both theories of liability.

Reversed and remanded for further proceedings. We do not retain jurisdiction.
1 References to plaintiff in the singular refer to plaintiff Eliezer C. Abrahamson. Plaintiff Shaundy Abrahamson, his wife, also sued derivatively.
2 CES occurs when the group of nerves that runs from the lower back to the lower extremities become compressed. CES causes pain, muscle weakness, “saddle area” numbness, bladder and/or bowel incontinence, and/or sexual dysfunction.
3 The underlined portion was written in bold text.
4 According to Dr. Bram, Neurontin is an anti-seizure medication, "routinely used in the practice of pain medicine to treat nerve-related pain syndromes."
5 Plaintiff did not plead a cause of action for informed consent in his complaint. However, this failure does not bar presentment of the issue to the jury, so long as the issue is presented during trial. See Newmark-Shortino v. Buna, 427 N.J. Super. 285, 302, 308 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013).

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