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| Glucker v. Barbalinardo, A-3567-15 (App. Div. 2017)
http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a3567-15.pdf Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2373- 13. Ernest P. Fronzuto argued the cause for appellants (Fronzuto Law Group, attorneys; Mr. Fronzuto, of counsel and on the briefs; Casey Anne Cordes, on the briefs). Louis A. Ruprecht argued the cause for respondents (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Daniel B. Devinney, on the brief). PER CURIAM In this medical malpractice case, plaintiffs Kim Glucker and her husband, Oyvind Karlsen,1 appeal from the March 18, 2016 Law Division order granting the summary judgment dismissal of their claims against defendant Robert Barbalinardo, M.D., a boardcertified general surgeon, and his surgical group, defendant Montclair Surgical Associates, P.A. Plaintiffs also appeal from an order, entered the same day, which denied their cross-motion for waiver, pursuant to N.J.S.A. 2A:53A-41(c).2 Plaintiffs filed suit after plaintiff suffered a ruptured spleen during a routine colonoscopy performed by defendant. Because we conclude plaintiffs satisfied the good faith standard of the waiver provision of the Patients First Act, we reverse both orders under review and remand for trial. These are the most pertinent facts. On December 5, 2011, plaintiff went to defendant for a routine colonoscopy. Defendant, a board-certified general surgeon who performs colonoscopies, does not have a sub-specialty. Plaintiff alleges that defendant negligently ruptured her spleen during the course of the colonoscopy. Following the colonoscopy, plaintiff experienced increasing abdominal pain and went to the emergency room at Mountainside Hospital, where doctors diagnosed an injury to her spleen. On December 6, 2011, surgery to repair the injury proved unsuccessful, and the next day, plaintiff underwent an exploratory laparotomy and the removal of her spleen. Plaintiff remained in intensive care until December 11, and went home on December 12, 2011. After plaintiffs filed their complaint, they timely served an affidavit of merit (AOM) from a general surgeon, Peter Sarnelle, M.D., and an AOM from a gastroenterologist, Maxwell Chait, M.D. Plaintiffs then moved to confirm that both experts qualified to submit AOMs, pursuant to N.J.S.A. 2A:53A-41. On October 25, 2013, the court ruled that Dr. Sarnelle's AOM satisfied plaintiffs' AOM requirements, but that Dr. Chait's AOM did not. In March 2014, Dr. Sarnelle withdrew as an expert due to illness. On February 9, 2015, plaintiffs served two reports from proffered experts: Dr. Chait and an infectious disease expert, Richard K. Sall, M.D. On February 18, 2015, defendants filed a motion to bar the report of Dr. Chait. Plaintiffs filed a cross-motion to allow for an exception under N.J.S.A. 2A:53A-41(c). The motion judge barred Dr. Chait from testifying as an expert and denied plaintiff's cross-motion for an exception. However, the judge extended discovery for ninety days and advised plaintiffs' counsel he could return to have the court further address his request for an exception, after completing additional searching for a replacement expert. On July 7, 2015, plaintiffs' counsel again filed a motion to permit a waiver under N.J.S.A. 2A:53A-41(c), citing a "good faith" effort since "none of the seventeen (17) potential surgical experts" he contacted "were able to provide an opinion in this matter." On August 7, 2015, the same judge heard oral argument, initially found that plaintiffs "technically . . . met" the requirements of N.J.S.A. 2A:53A-41(c) by "checking off the boxes." However, the judge expressed concern that the certification of plaintiffs' counsel lacked details about why the seventeen other potential doctors could not serve as experts, and thus, he could not discern a "good faith effort." On these grounds, the judge denied the motion, but gave plaintiffs' counsel thirty days to provide a supplemental certification, explaining, "I want more information on why the experts turned you down." On September 1, 2015, plaintiffs' counsel submitted a supplemental certification, detailing his extensive efforts to secure a substitute expert for Dr. Sarnelle. These efforts "included contacting attorney acquaintances, contacting the memberships of attorney organizations and contacting a service [which] finds experts for medical malpractice review." While the expert witness service had fifty-eight general surgeons in its databank, "most were excluded immediately since they do not perform screening colonoscopies." The seven general surgery experts who did perform colonoscopies "were all sub-certified in colo-rectal surgery." Plaintiff's counsel then contacted a second expert witness referral service, which had forty-nine active general surgery experts in its database. None of the experts proved capable of providing the required testimony. Plaintiff's counsel then summarized his efforts to obtain a substitute board-certified general surgeon expert: In all, my firm has contacted colleagues, attorney organizations and two expert referral services, which represents a broad crosssection of referral sources for a medical expert referral. From the expert referral services alone, we know that over 100 general surgery experts were considered; however the did not meet the case specific qualification requirements. This, of course, does not include the pool of general surgery experts that cannot be quantified from colleagues and attorney organization contacts, which informally reviewed their potential general surgery expert pool and determined that there was not a fit for this case so as to not provide a referral. Ultimately, notwithstanding our diligent efforts, we have been unable to locate a general surgery expert that meets the qualifications requirements of this case." On November 20, 2015, the judge heard oral argument, and remained unsatisfied with the supplemental certification and continued to deny plaintiffs' waiver motion. The judge expressed concerns plaintiffs were circumventing the statute, but denied defendants' motion for summary judgment, citing "some alternatives . . . short of summary judgment." On February 2, 2016, defendants again moved for summary judgment. On March 2, 2016, plaintiffs again cross-moved for a waiver under N.J.S.A. 2A:53A-41(c). On March 18, 2016, the case came before a different judge (the second judge) for oral argument. Plaintiffs' counsel again argued his certification set forth sufficient good faith efforts to warrant the grant of a waiver: This is a case where a general surgeon is doing a screening colonoscopy. Most general surgeons, that is not within the scope of what they do. . . . [T]he vast majority of screening colonoscopies are done by gastroenterologists. . . . . And then we had . . . those expert referral services, they have . . . over 100 general surgery experts within their database. None of them met the case specific qualifications required in this case. General surgeon, not sub-certified in any other field, [who] performs screening colonoscopies. The second judge agreed with plaintiffs, ultimately acknowledging that a waiver was proper in this case. However, apparently believing the law of the case doctrine precluded him from granting the waiver, the second judge denied plaintiffs' waiver request and granted defendants' motion for summary judgment. This appeal followed. II In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). A. In 2004, the Legislature enacted the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42. The Act set forth detailed standards for testifying experts, "generally requiring the challenging expert to be equivalently-qualified to the defendant[.]" Ryan v. Renny, 203 N.J. 37, 52 (2010). However, the Act further provided "for waiver of the newly-tightened requirements in certain circumstances[.]" Id. at 53. Specifically, [a] court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine. [N.J.S.A. 2A:53A-41c]. In Ryan, our Supreme Court reversed the decision of this court "declaring that [the plaintiff] failed to satisfy the good faith standard of the waiver provision of N.J.S.A. 2A:53A- 41(c)[.]" Ryan, supra, 203 N.J. at 61. In reversing, the Court found that a plaintiff satisfied the required good faith standard and permitted a non-board-certified physician to testify that the actions of a board-certified specialists did not meet the standard of care. Id. at 45. The Court determined that counsel for the plaintiff undertook efforts that were sufficient for the good faith effort requirement. Id. at 56. The Court emphasized the plain language of the waiver provision, which "directs the judge to focus on the 'effort' the moving party made to obtain a statutorily-authorized expert, and not on the reasons why a particular expert or experts declined to execute an affidavit." Id. at 55. Indeed, the very existence of the waiver provision makes it obvious to us that the Legislature did not intend a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert. If that were the case, the Legislature would not have provided for waiver or, at the very least, would have declared that waiver was somehow limited by the substance of an expert's refusal to execute an affidavit. It did not do so. By the broad waiver provision, the Legislature explicitly recognized that there would be legitimate malpractice claims for which a plaintiff would not be able to obtain an affidavit of merit from an equivalentlyqualified expert or even from an expert in the same field. It thus created a safety valve for those cases by providing the judge with broad discretion to accept an expert with "sufficient training, experience and knowledge to provide the testimony[,]" but only if plaintiff made a good faith effort to satisfy the statute. The Legislature left it to the "satisfaction of the court" to determine whether an honest "effort" was made to identify an expert in the same specialty or subspecialty. It is the "effort" of the movant that is the focal point of the waiver provision. [Id. at 55-56] B. The principal issue on this appeal is whether the second judge properly applied the law of the case doctrine in upholding the decision of the first judge, denying plaintiffs a waiver under N.J.S.A. 2A:53A-41(c). Plaintiffs argue the second judge erroneously applied the law of the case doctrine by following the previous ruling that plaintiffs failed to meet the requirements for a waiver pursuant to N.J.S.A. 2A:53A-41c. The law of the case doctrine provides "that a legal decision made in a particular matter 'should be respected by all other lower or equal courts during the pendency of that case.'" Lombardi v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg, 126 N.J. 168, 192 (1991)); State v. Reldan, 100 N.J. 187, 203 (1985). Although non-binding, the doctrine is "intended to 'prevent relitigation of a previously resolved issue'" in the same case, "by a different and co-equal court." Lombardi, supra, 207 N.J. at 538-39 (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). However, the law of the case "doctrine is not an absolute rule as 'the court is never irrevocably bound by its prior interlocutory ruling[.]'" Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. Div. 2012) (citations and internal quotation marks omitted). Thus, when "there is substantially different evidence" from that available at the time of the prior decision, "new controlling authority, or the prior decision was clearly erroneous[,]" the doctrine does not apply. Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). The rule is discretionary, and the doctrine is "applied flexibly to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985). Here, we conclude the second judge mistakenly failed to exercise his discretion when he declared himself "bound by" the first judge's previous ruling. Pursuant to the above principles, he was not required to follow the previous decision. See State v. Hale, 127 N.J. Super. 407, 411 (App. Div. 1974). Because the prior decision was clearly erroneous, and the second judge agreed with plaintiffs that the record supported the grant of a waiver under N.J.S.A. 2A:53A-41(c) but incorrectly believed he could not grant the waiver, the second judge's failure to exercise his discretion warrants reversal of both orders under review. The record here clearly establishes that plaintiffs made an honest effort to identify an expert in the same specialty or subspecialty as defendant. As Justice Long explained in Ryan, "It is the 'effort' of the movant that is the focal point of the waiver provision." Ryan, supra, 203 N.J. at 56. Plaintiffs' efforts to identify and retain a qualified expert here were extensive, and significantly greater than the efforts found adequate in Ryan. Ibid. Contrary to Ryan, the first judge mistakenly focused on "the reasons why a particular expert or experts declined" to serve. Id. at 55. Reversed and remanded. We do not retain jurisdiction. 1 For ease of reference, we refer to Kim Glucker individually as plaintiff and Dr. Barbalinardo as defendant. 2 N.J.S.A. 2A:53A-41(c) is part of the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act or Act), N.J.S.A. 2A:53A-37 to -42. One provision of the Act, N.J.S.A. 2A:53A-41, "'establishes qualifications for expert witnesses in medical malpractice actions' and 'provides that an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care provider, unless waived by the court.'" Nicholas v. Mynster, 213 N.J. 463, 479 (2013) (quoting Assembly Health & Human Services Committee, Statement to Assembly Bill No. 50 at 20 (Mar. 4, 2004)). Commonly referred to as "the waiver provision," N.J.S.A. 2A:53A-41(c) "allows an alternative to the kind-for-kind specialty requirement if a plaintiff has made a good faith effort but failed to identify an expert physician in the specialty area available to testify." Id. at 484. . Chagares, A-0090-15 (App. Div. 2017) http://njlaw.rutgers.edu/collections/courts/appellate/a0090-15.opn.html Before Judges Alvarez, Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 3717-10. Hugh M. Turk argued the cause for appellant/cross-respondent (Sullivan, Papain, Block, McGrath & Cannavo PC, attorneys; Mr. Turk, of counsel and on the brief). Richard A. Amdur argued the cause for respondent/cross-appellant (Amdur, Maggs & Shor, PC, attorneys; Mr. Amdur, on the brief). PER CURIAM Plaintiff Alexandra Granovsky appeals from the jury's no cause verdict on her medical malpractice claim against defendant Stephen A. Chagares, M.D. Defendant cross-appeals from a pretrial ruling preventing the surgeon who repaired the injury inflicted by defendant from offering opinions on the standard of care. Because we conclude evidentiary error deprived plaintiff of a fair trial, we reverse. We find no merit to the cross appeal. Defendant operated on plaintiff, a thirty-four-year-old pharmacist, to remove her gallbladder by performing a laparoscopic cholecystectomy. There is no dispute that in the course of that procedure, defendant, a general surgeon, cut the wrong duct, resulting in plaintiff's injury. The issue at trial was whether that was a recognized complication of the surgery, as defendant argued, or a deviation from the standard of care. The gallbladder is a storage facility for bile, which is produced in the liver to aid in the digestion of fatty foods. The liver is located in the upper right abdomen. The gallbladder is underneath it. The liver and the gallbladder each have ducts, which connect the two organs, and carry the bile into the small intestine. The liver has two ducts, one from the left lobe and the other from the right lobe, which merge to form the common hepatic duct. The duct descending from the gallbladder is called the cystic duct. The cystic duct from the gallbladder merges with the common hepatic duct from the liver to form the common bile duct, which empties bile into the duodenum, the start of the small intestine. To remove the gallbladder, the surgeon frees it from the liver by clipping and cutting the cystic duct and the cystic artery, the main blood supply to the gallbladder. It is undisputed that clipping and cutting the common bile duct is not part of the procedure and will, if not repaired, result in serious harm to the patient. Defendant testified he put five clips on what he believed to be the cystic duct, two clips close to the gallbladder and three lower down and cut between them. After he cut what he believed to be the cystic duct, he put six clips on what he believed to be a bifurcated cystic artery, one on each branch close to the gallbladder and two lower on each branch and cut both branches between the clips. Although defendant wrote in his post-operative report that the surgery was performed without complications, he conceded at trial that he inadvertently clipped and cut plaintiff's common bile duct causing her injury. A few days after the surgery, plaintiff went to an emergency room in New York complaining of nausea, vomiting and jaundice. She was transferred to Westchester Medical Center, where Dr. Manuel Rodriguez-Davalos performed an open surgical procedure and discovered that plaintiff's common bile duct had been severed. Dr. Rodriguez-Davalos repaired the problem by performing a Roux-en-Y hepaticojejunostomy, a procedure to reroute plaintiff's biliary system by attaching the common hepatic duct directly to the jejunum, the middle section of the small intestine. At Dr. Rodriguez-Davalos's de bene esse deposition, the parties stipulated the doctor was testifying as plaintiff's treating physician and not as an expert on liability. Following the deposition, plaintiff filed a pre-trial motion to strike certain non-responsive comments in which the doctor expressed the opinion that defendant did not deviate from the standard of care. Judge Quinn granted the motion, reasoning that the witness was not "produced as an expert on liability." The judge accordingly struck those portions of the testimony in which the doctor expressed the view that defendant had removed plaintiff's gallbladder "in an appropriate fashion," that "some abnormalities . . . sometimes are difficult [for surgeons] to identify," "that the hepatic duct and the common bile duct are very close to the cystic duct. . . . So it is not uncommon that . . . these structures, can be confused or again because of the small size and the fact that they can run parallel, can be misidentified," and that cutting the wrong duct was not an "uncommon" problem and "could happen to any surgeon in the country." Judge Quinn subsequently denied defendant's motion for reconsideration. Shortly before a scheduled trial date, defendant subpoenaed Dr. Rodriguez-Davalos for a second deposition. Over plaintiff's objection, Judge Quinn entered an order which permitted the deposition to proceed, but prohibited "questions on standard of care." Defendant was permitted to question the doctor "only on [the] surgery he did." Defendant's counsel did not schedule Dr. RodriguezDavalos's second deposition until just prior to a rescheduled peremptory trial date. At a pre-trial conference, counsel advised the judge assigned to try the case of the scheduled deposition and Judge Quinn's prior rulings regarding its scope. The trial judge advised counsel he would not disturb Judge Quinn's prior rulings regarding the deposition or its limited scope. The other pre-trial ruling with significance for the issues on appeal involved informed consent. Plaintiff did not bring an informed consent claim. Anticipating defendant would attempt to introduce his consent form and that he advised plaintiff of the risk of common bile duct injury, plaintiff made a motion in limine to exclude all evidence of informed consent at trial. She contended the absence of an informed consent claim made evidence of consent both irrelevant and unfairly prejudicial because of its risk of confusing the jury. Defendant countered that showing the jury that he informed plaintiff before the surgery that injury to the common bile duct can occur, constituted proof that such an injury was a known risk and its occurrence was not a deviation from the standard of care. The trial judge denied plaintiff's motion, finding no New Jersey case law on point and the cases from other jurisdictions "not precedent for the conclusion the plaintiff asks me to draw here." Instead, the judge pronounced himself convinced that excluding reference to the preoperative discussions "would certainly result, could certainly result in the same type of prejudicial inferences that the plaintiff is concerned with[,] being visited upon the defendant." The judge explained: [Plaintiff has] the burden of proof. But the defendant has a right to defend himself, and that would substantially impede his ability to do so. . . . You're talking about inferences that would lead a jury to infer that Dr. Chagares took no steps to explain the procedure, or could lead to the conclusion that a juror or all the jurors could infer that there was a lack of explanation of the significance of the surgery. And I don't see any way of separating the two. The judge concluded his ruling on the issue by saying that he was "not going to preclude the defendant from effectively advancing a defense to the complaint that's been made against him." At trial, plaintiff presented the video of Dr. RodriguezDavalos's first deposition, redacted in accordance with Judge Quinn's order, to explain the surgeon's discovery of plaintiff's transected common bile duct and its repair. Plaintiff's liability expert, Dr. Michael Drew, testified defendant deviated from the standard of care by failing to obtain a critical view of both the cystic duct and the cystic artery entering the gallbladder before clipping and cutting either structure. He further claimed defendant should have realized his error before concluding the procedure. Based on defendant's post-operative report, Dr. Drew concluded defendant never obtained that critical view of both structures entering the gallbladder, but instead clipped and cut what he thought was the cystic duct before the cystic artery was visible. Dr. Drew explained that defendant's technique was "the old way of doing it, what's called the infundibular approach." He claimed that approach resulted in "more common bile duct injuries than surgeons had seen in the previous 30 or 40 years in the first couple of years" of laparoscopic procedures. Dr. Drew claimed the number of common bile duct injuries occurring as a result of the infundibular approach resulted in its abandonment in the mid-1990s when it was replaced by the critical view method. Defendant operated on plaintiff in 2009. Defendant's counsel cross-examined Dr. Drew about his preoperative discussions with patients and defendant's informed consent form. Counsel got the doctor to concede there is "a difference between a complication and medical malpractice" and that he tells his patients that "a possible complication is damage to the common bile duct." Defendant's experts, Dr. Richard Koehler and Dr. Josef Fischer, both testified that cutting the common bile duct was a recognized complication of laparoscopic cholecystectomy and not a deviation from the standard of care. Defendant's counsel elicited testimony from each of them that they tell their patients that injury to the common bile duct is a risk of complication of the procedure and that it is in every consent form. Over plaintiff's objection, the judge admitted Dr. Koehler's consent form, which includes "possible injury to common bile duct requiring endoscopic or surgical repair" as one of the risks of the procedure. Dr. Koehler testified that although transecting the common bile duct was "very uncommon," he includes injury to the common bile duct in his standard consent form because "[i]t is a part of the human anatomy that has wide variations" and "I want to make sure the patient understands that." Dr. Koehler agreed with plaintiff's counsel that "when he tell[s] a patient one of the risks, for example is injury to a bowel or a blood vessel or to the bladder, [he] certainly [isn't] telling them that [he's] going to commit malpractice." Dr. Koehler testified that in his opinion, a surgeon seeing and cutting what he thinks is the cystic duct, but instead is the common bile duct is not negligence, because "misidentification is not malpractice." The trial judge prohibited plaintiff's counsel from impeaching Dr. Koehler on cross-examination with the Society of American Gastrointestinal and Endoscopic Surgeons Manual, notwithstanding the doctor had acknowledged it as authoritative during his deposition, based on the judge's understanding that plaintiff's counsel "had an obligation to provide [his adversary with what he planned to reference] in the form interrogatories." Dr. Fischer, a distinguished professor at Harvard Medical School and author of textbooks on surgery, testified that injury to the common bile duct during laparoscopic gallbladder surgery is "a complication that can happen in the best of hands." He contended that only thirty-five percent of gallbladders are in the configuration contained in textbooks and that anomalies such as a short cystic duct, limitations on a surgeon's field of view in a laparoscopic procedure, and the presence of fat, which "obscures your view" all contribute to a surgeon not correctly identifying the structures to be clipped and cut. Dr. Fischer testified that although common bile duct injuries are reported to occur in .4 to .7 percent of laparoscopic gallbladder cases, new research suggests it is as high as 1.9 to 4 percent. He testified, "[n]ow if there are injuries to the common duct or whatever they are of 4 percent, then it becomes something which is a matter of course of that operation and not practice below the standard." On cross-examination, Dr. Fischer testified that in his view, defendant erred by not looking for the cystic duct and the cystic artery when he should have. I think that was the error in this, he went first and clipped what turned out to be the common duct. I think that was the error. And then, if you read the [operative] note carefully and it's a difficult [operative] note to read, then he went and he looked at the cystic artery and what he thought was the cystic duct. And then concluded that the cystic artery bifurcated and that is a known anomaly. When plaintiff's counsel asked why that was not malpractice, Dr. Fischer responded: Well, you know, if we have incidents of injury to common ducts and other aspects and we've been doing laparoscopic cholecystectomies for 20 years. And we still have a significant incidence of injury to the common duct. And these are people who are experienced people. I think what you have to say [is] that there's something wrong with the operation, which is my view. And why I have suggested to [the] American College of Surgeons is that we stop doing laparoscopic cholecystectomies until we can come to some conclusion with the legal profession as to what is appropriate for compensation and get it out of the court system. We have done that with other things. Plaintiff's counsel followed up by asking the witness if he had "ever spoken before [any] committees, State Legislatures, [or] Congress on the topic of tort reform?" Defendant immediately objected. The court sustained the objection and also sustained defendant's objection to plaintiff's next question, which was "You think there's a better way to handle the medical malpractice cases[?]" The court ruled that plaintiff would be permitted to cross-examine the doctor "as to his opinion and his direct testimony but this is an explanation of his political views." Although the trial judge had already denied defense counsel's motion to play the unredacted tape of Dr. RodriguezDavalos's first de bene esse deposition when plaintiff put it in evidence, ruling that Judge Quinn's pre-trial order remained law of the case, the trial judge permitted defendant to read the doctor's second deposition to the jury in the defense case, notwithstanding that it contained comments nearly identical to the ones excised by Judge Quinn. Specifically, plaintiff's counsel objected to inclusion of the following testimony. Q: How often do you find or does the literature reflect finding any variations in the anatomy? Is that very rare that there are variations in the biliary anatomy, or it is well known that there are such variations? A: As I mentioned, it's well known. It's not rare. And again, any board certified surgeon in the country knows that these variations exist. And we know that, all of us that do biliary surgery or everybody that does cholecystectomies know that these are variations that are hard to define preoperatively and, therefore, all of us are at risk of having a complication. That's what makes this surgery so serious. Q: Serious in what — can you elaborate a little bit more by what you mean by "that's what makes this surgery so serious"? A: Right. Because if you have a surgery that is performed, you know, so commonly and you have an injury of zero point four to zero point six percent, then you know that there's a large number of patients that will have bile duct injury on series that have been described nationwide and internationally. We know that this is one of the common things we face as surgeons, not only hepatobiliary surgeons, like myself, but any general surgeon that does gallbladder surgery knows. And we discuss this with our patient before going to the operating room that, you know, there is a zero point four to zero point six percent chance of having an injury, and the injury can be across the spectrum. It can be a small injury that may just require a drainage, like [plaintiff] had at the beginning. It could be injury that actually transects or divides the whole ductile system. There are cases where, not only the common bile duct and the common hepatic duct are injured, but also the hepatic artery, the portal vein. There are patients that need a transplant because of this type of surgery. So, therefore, it is a serious complication, although it’s a complication that can happen to any surgeon that performs laparoscopic cholecystectomy or open cholecystectomy. The trial judge permitted the testimony, although noting "[i]f it was standard of care rather than diagnosis maybe my ruling would be different." The judge ruled the testimony was "placing in context . . . the treatment [plaintiff] received before. And putting into context her complaints to him so he's in a position to assess those. I think that's all part of the diagnosis and prognosis that Stigliano1 talks about." The judge also permitted defense counsel to read to the jury what Dr. Rodriguez-Davalos testified he advises his own patients regarding the risks attendant to a laparoscopic cholecystectomy and that bile duct injuries "can really happen to any surgeon[,] [e]ven surgeons with very high expertise." Plaintiff appeals, contending the trial judge erred in permitting Dr. Rodriguez-Davalos to offer liability opinions contrary to Stigliano and two prior orders in the case, in admitting evidence of informed consent in a case in which there was no informed consent claim, and in improperly limiting her cross-examination of the defense experts. She also contends the defense experts offered net opinions without factual support. Because we agree with plaintiff's first two points, we reverse the verdict and deny defendant's cross-appeal that the pre-trial orders relating to Dr. Rodriguez-Davalos' testimony were issued in error. We address plaintiff's remaining arguments only for guidance on re-trial. The law regarding the limits of a treating physician's testimony at trial is well settled. As our Supreme Court recently observed, "[o]ur courts have long permitted treating physicians to offer medical testimony regarding the diagnosis and treatment of their patients, pursuant to N.J.R.E. 701." Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 576 (2016); Stigliano, supra, 140 N.J. at 314. The Court established that precedent in Stigliano, which continues to guide questions regarding the trial testimony of treating doctors. Delvecchio, supra, 224 N.J. at 577-79. In Stigliano, the plaintiffs' child experienced a seizure after her pediatrician administered a DPT shot. 140 N.J. at 307. The plaintiffs subsequently took the child to three pediatric neurologists for diagnosis and treatment. Id. at 308. All three concluded the child suffered from a chronic or primary seizure disorder, not caused by the DPT shot. Ibid. In the plaintiffs' suit against the pediatrician and the maker of the DPT vaccine, the plaintiffs secured a pre-trial ruling barring the treating neurologists from testifying as to their opinions as to the cause of the child's seizures. Id. at 309-10. The Supreme Court disagreed, holding the neurologists, although no doubt experts in their field, were fact witnesses in the case who "may testify about their diagnosis and treatment of [the child's] disorder, including their determination of that disorder's cause." Id. at 314. The Court reasoned that "[b]ecause the determination of the cause of a patient's illness is an essential part of diagnosis and treatment, a treating physician may testify about the cause of a patient's disease or injury." Ibid. In holding a treating doctor may be called by a defendant to testify about the cause of the plaintiff's illness, the Court distinguished Piller v. Kovarsky, 194 N.J. Super. 392 (Law Div. 1984) and Serrano v. Levitsky, 215 N.J. Super. 454 (Law Div. 1986), two cases in which trial courts had prohibited treating physicians from offering opinions regarding the negligence of the defendant doctors. The Court observed that "Piller and Serrano differ significantly on the facts. In those cases, the defendant-doctors sought to ask the treating physicians not about their treatment of the plaintiffs, but about the defendant's alleged malpractice." Stigliano, supra, 140 N.J. at 315. Defendant did the same thing here. Plaintiff consulted Dr. Rodriguez-Davalos for diagnosis and treatment of her symptoms of nausea, vomiting and jaundice several days post a laparoscopic cholecystectomy. Upon conducting an open surgical procedure, he discovered her common bile duct had been transected. Upon making that diagnosis, Dr. Rodriguez-Davalos treated plaintiff by effecting a surgical repair. The doctor could certainly testify that the cause of plaintiff's problem was a severed bile duct. How it happened and why it happened, or that it could have happened to the best of surgeons, however, are beyond the scope of what this fact witness could offer the jury and should not have been permitted. See N.J.R.E. 701; Stigliano, supra, 140 N.J. at 314. Judge Quinn was correct to excise all statements by Dr.Rodriguez-Davalos regarding the difficulties faced by surgeons performing laparoscopic cholecystectomies and the standard of care, including that cutting the wrong duct was not an"uncommon" problem and "could happen to any surgeon in the country." The trial judge erred in not staying that course when he permitted defendant to read into the record nearly identical comments from Dr. Rodriguez-Davalos's second deposition. The comments went well beyond the doctor's own diagnosis or treatment of plaintiff, and defendant could not fairly use this fact witness to "plac[e] in context . . . the treatment [plaintiff] received before." Simply stated, medical malpractice defendants may not use the plaintiff's treating doctors to provide expert testimony relating to deviation from the standard of care. See Carchidiv. Iavicoli, 412 N.J. Super. 374, 382 (App. Div. 2010). "[T]hat Dr. Rodriguez-Davalos's substantial experience leads him to describe the common bile duct as being so close to and running parallel to the cystic duct that it is not uncommon for them to be confused and misidentified," as defendant argues, is no basis f or the admission of that testimony from a treating doctor. Those opinions were plainly not "inextricably intertwined" with Dr. Rodriguez-Davalos's "examination, diagnosis, treatment plan and cause determination," Carchidi, supra, 412 N.J. Super. at382-83, but concerned only defendant doctor's alleged malpractice, and were thus inadmissible. Having reviewed the record, we cannot dismiss the error as harmless. See R. 2:10-2; Hisenaj v. Kuehner, 194 N.J. 6, 12(2008). In crafting the rule established in Stigliano, the Court recognized that "[a] jury could find the treating doctors' testimony to be more impartial and credible than that of the retained experts" as they could very likely be "the only medical witnesses who have not been retained in anticipation of trial."Stigliano, supra, 140 N.J. at 317. In making his closing argument to the jury, defense counsel told the jury over and over that Dr. Rodriguez-Davalos, who "is not involved in this suit in any way other than he does the repair," who "certainly doesn't have any interest in getting involved in this and criticizing anybody," who is just here to"tell the truth," who "doesn't have any reason to favor anyone in this case," and that "[t]his is his patient," said, "[t]his could happen to anyone, I read it to you yesterday. This could happen to anyone. All of us are at risk of having a complication. It's a complication that can happen to any . . .surgeon that performs this operation." Counsel went on to quote Dr. Rodriguez-Davalos on the number of gallbladder surgical injuries annually, the vagaries of the biliary system and his view of an intraoperative cholangiogram, a technique employed in the course of a laparoscopic cholecystectomy to delineate the anatomy of the biliary ducts that Dr. Drew opined defendant could have used here. Given how extensively the doctor was permitted to testify beyond the scope of his own diagnosis and treatment and defense counsel's reliance on that testimony in summing up to the jury, we conclude the error was "clearly capable of producing an unjust result" and entitles plaintiff to a new trial. See R. 2:10-2. We also conclude the court erred in admitting evidence of informed consent in a case in which there was no informed consent claim. Over plaintiff's objection, the trial judge admitted defendant's testimony regarding his discussion with plaintiff of the risk of injury to the common bile duct prior to surgery; Dr. Koehler's consent form and what he tells his patients of the risk of bile duct injury; Dr. Fischer's testimony that a common bile duct injury is part of every gallbladder surgeon's consent form; testimony by Dr. RodriguezDavalosas to his consent form and his advice to patients of the risk of injury to the bile duct prior to surgery; and the cross examination of plaintiff's expert, Dr. Drew, regarding what retells his own patients about the risk of complications to the common bile duct in the course of laparoscopic cholecystectomy. The trial judge admitted the testimony based on his belief that excluding it "would lead a jury to infer that [defendant] took no steps to explain the procedure, or could lead to the conclusion that a juror or all the jurors could infer that there was a lack of explanation of the significance of the surgery."The judge ruled he would not "preclude . . . defendant from effectively advancing a defense to the complaint that's been made against him." Although we certainly agree that defendant is entitled to defend himself against the complaint "made against him," the question is whether he may mount such a defense when plaintiff has made no such complaint. A patient's right to be informed about medically reasonable treatment alternatives and their attendant risks is separate and distinct from a cause of action predicated on a physician's breach of a standard of care, notwithstanding both are a form of medical negligence. Matthies v. Mastromonaco, 160 N.J. 26, 39(1999). Although when the claims are brought together the facts underlying them can be "intertwined," there is no question but that they are different claims having different elements of proof. See Newmark-Shortino v. Buna, 427 N.J. Super. 285, 303-04, 308 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013)."[T]he informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each." Eagel v. Newman, 325 N.J. Super. 467,474-75 (App. Div. 1999). Relying on out-of-state authority, plaintiff contends that her having been advised of the risk of bile duct injury and having consented to the laparoscopic cholecystectomy is irrelevant to the issue of whether defendant deviated from the standard of care in performing the procedure. She claims the extensive testimony and evidence presented on informed consent unduly prejudiced her in two ways. It diverted the jury's attention from the claim she actually brought, that is whether defendant deviated from the standard of care in performing the surgery, and it allowed defendant to implicitly make the improper argument that having been advised of the possibility of bile duct injury and having consented to the surgery, she assumed the risk. Defendant counters that "[w]hile plaintiff frames the references" made at trial "to the various surgical consent forms and the explanations" provided plaintiff of the risks of surgery, including bile duct injury, "as attempts to convert the case to one of informed consent, the clearly expressed basis for that evidence was to show the jury that bile duct injury was a known and recognized risk of a laparoscopic cholecystectomy."Defendant cites Dr. Koehler's testimony that injury to the common bile duct, though uncommon, is a recognized complication of the procedure and thus must be discussed with the patient as an example of how such testimony was relevant even in the absence of an informed consent claim. In a recent decision considering whether the admission of informed consent evidence in the absence of an informed consent claim is reversible error, we followed the unanimous view of the state courts that have considered the question that such evidence is irrelevant to whether the doctor provided negligent treatment and that its admission risks undue prejudice to patients. See Ehrlich v. Sorokin, ___ N.J. Super. ___ (App. Div. 2017) (slip op. at 11-15). The plaintiff in Ehrlich claimed the defendant doctor negligently performed a colonoscopy and polypectomy procedure, burning her colon and causing a perforation. Id. at 4. She did not bring an informed consent claim. Ibid. The doctor denied any negligence, claiming any colonoscopy carries a risk for perforation, and "burning a colon is a 'known complication of the use of [the APC] [Argon Plasma Coagulation] for the performance of colonoscopy.'" Id. at 7. The trial court denied plaintiff's in limine motion to exclude evidence of informed consent and, over her objection, permitted the jury to review the informed consent forms she signed in its deliberations. Id. at 4-5, 7-8. Correcting his earlier statement that the documents went "to the standard of care," the judge ruled that "in a fundamental sense, there could be no way to have a fair trial that would allow the plaintiff to explore this treatment . . . , including almost every single statement written by Dr. Sorokin, and exclude the informed consent." Id. at 8. We disagreed. Relying on a recent case from the Pennsylvania Supreme court finding that a patient's agreement "'to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent time frame,'" as well as several other out-of-state cases holding generally that evidence of informed consent is irrelevant and potentially prejudicial where the issue is negligent treatment, we reversed.2 Id. at 12-13 (quoting Brady v. Urbas, 111 A.3d 1155, 1162 (Pa. 2015)). We reasoned in line with that general authority that Ehrlich's acknowledgment of the risk for perforation "had no bearing" on the only issue at trial, whether Dr. Sorokin "use of the APC without a saline lift deviated from the standard of care." Id. at 14. We also concluded the evidence had the capacity to mislead the jury into reasoning that Ehrlich's consent to the procedure implied a consent to the resulting injury, making it lose sight of the central question of whether the defendant doctor's actions conformed to the standard of care. Id. at 15. We agree with the reasoning of Ehrlich and follow it here. Plaintiff's knowledge of the risk of bile duct injury in the course of a laparoscopic cholecystectomy is entirely irrelevant to whether defendant performed the procedure in accordance with the applicable standard of care. As the Supreme Court of Virginia has succinctly explained: Knowledge by the trier of fact of informed consent to risk, where lack of [in]formed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff's consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the surgery was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. [Wright v. Kaye, 593 S.E.2d 307, 317 (Va. 2004).] We reject defendant's argument that the informed consent evidence could assist in either establishing the standard of care for the procedure or bolstering his claim that plaintiff's transected bile duct resulted from a recognized complication of the procedure and not negligence. A patient's knowledge of the risks of a surgical procedure obviously cannot establish the standard of care for the physician performing it. See Velazquezv. Portadin, 163 N.J. 677, 686 (2000) (defining a physician's standard of care as "that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field").Likewise, that a recognized complication of a surgical procedure occurred says nothing about whether it could have been avoided by the surgeon's exercise of reasonable care. Certainly, the known risks of a surgical procedure are relevant to the standard of care applicable to a surgeon performing the procedure. See Hayes v. Camel, 927 A.2d 880, 890(Conn. 2007) (noting that "evidence of the risks of a surgical procedure is relevant in the determination of whether the standard of care was breached"). And defendant is, of course, free to argue to the jury that common bile duct injuries can occur in the course of a laparoscopic cholecystectomy in the absence of negligence. We, however, agree with those courts that have determined that presenting such evidence through the vehicle of informed consent poses enormous risks of jury confusion. See Ehrlich, supra, slip op. at 15-16. Such evidence can readily be presented clearly and without confusion through the testimony of a defense expert regarding the risks of the procedure, without reference to what advice the expert provides patients or what plaintiff was told of the risks of the surgery. See, e.g., Hayes, supra, 927 A.2d at 890; Waller v.Aggarwal, 688 N.E.2d 274, 276 (Ohio Ct. App. 1996). We agree with plaintiff that the informed consent evidence at trial was unduly prejudicial to her. In addition to the informed consent testimony elicited from defendant and all of the experts in the case, defendant's counsel highlighted the testimony and defendant's advice to plaintiff regarding the risks repeatedly in his closing argument, asking the jury: Do you think he's telling her, hey I may commit malpractice on you? Or is he telling her the possible risks, known risks and complication[s] which he has a duty to do which he did do. Although defendant undoubtedly has the right to defend himself against the complaint made against him, he does not have the right to set up a straw man argument against the complaint he would rather defend, diverting the jury's attention from the negligent treatment claim plaintiff brought, and improperly suggesting to the jury that having been advised of the possibility of bile duct injury and having consented to the surgery, plaintiff assumed the risk. Given our disposition of the appeal, we need not resolve plaintiff's remaining points of error. We comment briefly only on those issues that might occur on re-trial. Regarding the use of learned treatises, the Supreme Court in Jacober v. St. Peter's Medical Center, 128 N.J. 475, 490-91 (1992) established that experts may "refer on direct examination to statements from learned treatises if they relied on those treatises in forming their opinions." See N.J.R.E. 803 (c)(18). With regard to Dr. Drew's reliance on sections of the Mastery of Surgery text edited by Dr. Fischer, one of defendant's experts, we are not aware of any requirement that such reliance must be demonstrated exclusively in the expert's report, as opposed to his deposition testimony. As for plaintiff's employment of the Society of American Gastrointestinal and Endoscopic Surgeons Manual on cross-examination of Dr. Koehler, because plaintiff employed it to impeach the witness, notice was not required. See Form A(1) Uniform Interrogatories #10, Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17-1 at www.gannlaw.com (2017). Regarding the trial judge's refusal to allow plaintiff's counsel to cross-examine Dr. Fischer on his views of tort reform after he testified that he had "suggested to [the] American College of Surgeons . . . that [surgeons] stop doing laparoscopic cholecystectomies until we can come to some conclusion with the legal profession as to what is appropriate for compensation and get it out of the court system," we need not decide whether we would reverse such a ruling in light of the trial court's broad discretion to control cross-examination. See Delgaudio v. Rodriguera, 280 N.J. Super. 135, 141 (App. Div. 1995).
Finally, we address plaintiff's contention that Dr. Fischer's was a net opinion because it was without factual support in the record. Because defendant did not move to strike Dr. Fischer's testimony at trial, the issue is not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). If such a motion is made on re-trial, the court must consider whether there is any factual support in the record for Dr. Fischer's opinion that plaintiff had a short cystic duct in light of defendant's testimony that "it looked like a perfectly appropriate cystic duct. There was no indication [that it was shorter than normal]." See Townsend v. Pierre, 221 N.J. 36, 55 (2015) (holding an expert opinion that is unsupported by the factual record or based on an expert's speculation that contradicts that record constitutes net opinion). Reversed and remanded. We do not retain jurisdiction. Footnotes: 1 Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995). 2 We also relied on our own analogous precedent in Gonzalez v. Silver, 407 N.J. Super. 576, 593-95 (App. Div. 2009), in which we barred on re-trial plaintiff's statement to defendant doctor that plaintiff injured his elbow "car surfing" because of the statement's irrelevance to the diagnosis and treatment of plaintiff's elbow injury and its "enormous potential for prejudice," outweighing the worth of the evidence for impeachment purposes. Ehrlich, supra, slip op. at 13-14. Directory: cmsAdmin -> uploads uploads -> Farmers State Bank Real Estate uploads -> Farmers State Bank Real Estate uploads -> Farmers State Bank Real Estate Download 2.17 Mb. Share with your friends:
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