## Facts

- Thomas Tanski, a 34-year-old industrial electrician, tore his right biceps tendon while bowling and sought treatment from orthopedic surgeon Brian Van Grouw, D.O., and his practice, Van Grouw Orthopedic Associates, Inc.
- Dr. Van Grouw ordered an MRI, which confirmed a distal biceps tendon tear at the radius insertion, and recommended surgical repair.
- Dr. Van Grouw told Tanski that surgery was optional and that one alternative was not to have the surgery; Tanski understood he might not regain full strength in his right arm without surgery.
- The parties disputed the pre-surgery risk discussion: Tanski did not recall being told about a risk of nerve injury, while Dr. Van Grouw testified he told Tanski nerve damage was possible but did not discuss the percentage likelihood.
- Tanski signed a standard hospital consent form stating he had been advised of possible significant risks and complications; the form did not list nerve injury as a specific risk.
- After surgery, Tanski sustained a serious nerve injury involving the lateral antebrachial cutaneous nerve and developed severe chronic pain described as causalgia and complex regional pain syndrome/reflex sympathetic dystrophy.
- Tanski later underwent another operation performed by a different surgeon, who reported that the biceps tendon had not been properly repaired and that there was a surgical nerve injury.
- Tanski and his wife, Stacey Tanski, sued Dr. Van Grouw and his practice asserting (1) medical malpractice in performance of the surgery and (2) failure to obtain informed consent based on nondisclosure of the risk of nerve injury.
- The jury found for defendants on the malpractice claim (no negligent performance) but for plaintiffs on the informed-consent claim, finding that a reasonable person in Tanski’s circumstances would not have consented to surgery if informed of the nerve-injury risk.
- The trial court entered judgment on the verdict, including prejudgment interest that included interest calculated on future pain-and-suffering damages.
- Defendants appealed challenging the informed-consent verdict and the interest award; plaintiffs cross-appealed on additional issues.

## Issues

1. Whether the evidence permitted a reasonable jury to find that the risk of nerve injury was a material risk requiring disclosure under New Jersey’s informed-consent law and that a reasonable patient in plaintiff’s circumstances would have declined surgery if informed.
2. Whether the informed-consent verdict was against the weight of the evidence such that defendants were entitled to judgment notwithstanding the verdict or a new trial.
3. Whether the trial court erred by awarding prejudgment interest on the portion of the verdict allocated to future pain and suffering.
4. Whether any issue raised on plaintiffs’ cross-appeal required modification of the judgment in plaintiffs’ favor.

## Decision

- The Appellate Division affirmed the judgment for plaintiffs on the informed-consent claim.
- The court held the case was properly submitted to the jury on materiality and causation under the reasonable-patient test and rejected defendants’ challenges to the sufficiency of the proof and to the result as against the weight of the evidence.
- The court modified the judgment to eliminate prejudgment interest calculated on future pain-and-suffering damages.
- The court rejected plaintiffs’ cross-appeal and otherwise left the judgment intact as modified.

## Legal Principles

- New Jersey applies a reasonable-patient (prudent-patient) standard for informed consent: a physician must disclose material risks that a reasonable patient would consider significant when deciding whether to undergo a proposed procedure.
- To recover for lack of informed consent, a plaintiff must prove (1) failure to disclose a material risk, and (2) that a reasonable person in the patient’s position would have declined the treatment if properly informed.
- Informed-consent liability is distinct from malpractice in performance; a defense verdict on negligent treatment does not bar a plaintiff from prevailing on a disclosure-based claim when the proof supports it.
- Conflicts in testimony about what the physician said and what the patient understood are generally for the jury to resolve, along with the significance of the risk to a reasonable patient making the decision.
- Prejudgment interest is meant to compensate for delay in payment on past losses; it may not be assessed on future damages such as future pain and suffering.

## Conclusion

Tanski v. Grouw upheld a jury’s finding that Dr. Van Grouw failed to obtain informed consent for biceps tendon repair because the jury could conclude that the risk of nerve injury was significant to a reasonable patient and that a reasonable person in Tanski’s situation would have refused the surgery if told of that risk, even though the jury rejected malpractice in the surgical performance; the Appellate Division, however, corrected the judgment by removing prejudgment interest on future pain-and-suffering damages and denied plaintiffs’ cross-appeal.


Tanski v. Grouw, 2012 N.J. Super. Unpub. LEXIS 700, 2012 WL 1057970 (Super. Ct. NJ, App. Div. 2012)