                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2008

Hinman v. Russo
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3814




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"Hinman v. Russo" (2008). 2008 Decisions. Paper 1772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1772


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                                       NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 06-3814


                  EMRETTA HINMAN;
                  WILLIAM HINMAN,

                                             Appellants

                            v.

             M.D. JOSEPH DELLO RUSSO;
             NEW JERSEY EYE CENTER;
                   JOHN DOES 1-10;
              ABC CORPORATIONS 1-10

                     _____________

      On Appeal From the United States District Court
               For the District of New Jersey
              (D.C. Civil No. 03-CV-00768)
       District Judge: Honorable William G. Bassler
                       ____________

        Submitted Under Third Circuit L.A.R. 34.1(a)
                   on January 8, 2008
                     ____________

Before: FISHER, HARDIMAN AND ALDISERT, Circuit Judges

                 (Filed January 10, 2008 )




                        OPINION
ALDISERT, Circuit Judge

       Because we write exclusively for the parties and the parties are familiar with the

facts and proceedings below, we will not revisit them here.

                                             I.

       Informed consent concerns a physician’s duty “to disclose to a patient information

that will enable [the patient] to ‘evaluate knowledgeably the options available and the

risks attendant upon each’ before subjecting that patient to a course of treatment.”

Matthies v. Mastromonaco, 733 A.2d 456, 461 (N.J. 1999) (quoting Perna v. Pirozzi, 457

A.2d 431, 438 (N.J. 1983)). In New Jersey, claims of medical malpractice and failure to

obtain informed consent are “sub-groups of a broad claim of medical negligence.”

Howard v. Univ. of Med. and Dentistry of N.J., 800 A.2d 73, 77 (N.J. 2002) (quoting

Teilhaber v. Greene, 727 A.2d 518, 523 (N.J. Super. Ct. App. Div. 1999)). Under New

Jersey law,

              [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 [reasonably-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
              plaintiff’s injuries.

Id. at 79 (quoting Teilhaber, 727 A.2d at 524).

       Here, we are satisfied that Ms. Hinman gave informed consent to Dr. Dello Russo

                                             2
to perform the LASIK procedure. In addition, we are satisfied that under existing New

Jersey law Dr. Dello Russo was not required to provide Ms. Hinman with a copy of the

Patient Information Booklet in order to obtain her informed consent. The testimony at

trial revealed that Ms. Hinman discussed the risks of the procedure with Dr. Dello Russo

and a nurse on his staff. The consent form signed by Ms. Hinman indicated that she was

fully aware of the risks of the procedure, that she had obtained satisfactory answers to all

of her questions and concerns regarding the procedure, and that she had rejected

alternatives to the LASIK procedure. Additionally, the Hinmans presented no evidence

that Dr. Dello Russo’s failure to provide her with the Patient Information Booklet was a

proximate cause of her injuries. The form signed by Ms. Hinman detailed the risks of the

procedure, and the risks discussed on the consent form were substantially similar to those

discussed in the Patient Information Booklet.

       Therefore, exercising plenary review, we are satisfied that the District Court did

not err in denying the Hinmans’ motion for judgment as a matter of law and did not abuse

its discretion in denying the Hinmans’ motion for new trial. W.V. Realty, Inc. v. N. Ins.

Co., 334 F.3d 306, 311 (3d Cir. 2003). We also deny the Hinmans’ motion to certify the

question to the New Jersey Supreme Court.

                                             II.

       We are similarly satisfied that the District Judge did not abuse his discretion by

denying the Hinmans’ motion to recuse. Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir.



                                              3
1987). A judge must recuse himself if “a reasonable person, with knowledge of all the

facts, would conclude that the judge’s impartiality might reasonably be questioned.” In re

Kensington Int’l Ltd. and Springfield Assocs., LLC, 353 F.3d 211, 220 (3d Cir. 2003)

(citing 28 U.S.C. § 455(a)). A judge must also recuse himself “[w]here he has a personal

bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts

concerning the proceeding.” 28 U.S.C. § 455(b)(1).

       Here, the District Judge explained on the record that, after two days of trial, he

learned from his independent, adult daughter that she obtained the services of Dr. Dello

Russo for a LASIK procedure approximately four years prior to the trial. Upon learning

this, the District Judge terminated the conversation. The District Judge had no

independent recollection of his daughter’s decision to use Dr. Dello Russo for the

procedure and took no part in her decision to do so. We are thus satisfied that the District

Judge did not abuse his discretion in denying the motion to recuse because a reasonable

person with knowledge of these facts would not reasonably question his impartiality nor

did he have knowledge of any disputed facts of this case, namely whether Dr. Dello

Russo obtained Ms. Hinman’s informed consent for her procedure.

                                             III.

       Finally, the Hinmans argue that the District Court’s instruction to counsel

regarding Ms. Hinman’s behavior on the witness stand warrants a new trial. Because the

Hinmans’ failed to object to the instruction at trial, we apply the plain error standard of



                                              4
review. Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 136 (3d Cir. 1997). Applying

the precepts of plain error review, see United States v. Olano, 507 U.S. 725, 732-734

(1993), we do not find it unreasonable for the District Court to seek to have the jury

evaluate evidence presented by a level and composed witness. The written transcript

reveals that the District Court did not want the jury to be manipulated by appeals to

emotion and sympathy and therefore sought to curb what it perceived to be Ms. Hinman’s

excessive crying. The transcript indicates that the jury was excused from the courtroom

prior to the District Court’s instruction. The exchange between the District Court and

counsel for the Hinmans also suggests that Ms. Hinman was not present in the courtroom

and therefore was not intimidated or otherwise influenced by the instruction. Thus, we are

satisfied that no error that affected the outcome of the proceedings occurred.

       We have considered all of the contentions raised by the parties and have concluded

that no further discussion is necessary.

       Accordingly, the judgment of the District Court will be affirmed.




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