ALEXANDRA GRANOVSKY VS. STEPHEN A. CHAGARES, M.D., Â(L-3717-10, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0090-15T2
ALEXANDRA GRANOVSKY,
Plaintiff-Appellant/
Cross-Respondent,
v.
STEPHEN A. CHAGARES, M.D.,
Defendant-Respondent/
Cross-Appellant,
and
LOUIS MAZZELLA, M.D. and
MONMOUTH MEDICAL CENTER,
Defendants.
___________________________
Argued September 28, 2016 – Decided August 15, 2017
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 pre-
trial 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
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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
3 A-0090-15T2
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 re-
route 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
4 A-0090-15T2
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. Rodriguez-
Davalos'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
5 A-0090-15T2
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."
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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. Rodriguez-
Davalos'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.
7 A-0090-15T2
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
8 A-0090-15T2
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
9 A-0090-15T2
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."
10 A-0090-15T2
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
11 A-0090-15T2
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. Rodriguez-
Davalos'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
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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.
13 A-0090-15T2
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
1
Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995).
14 A-0090-15T2
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
15 A-0090-15T2
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
16 A-0090-15T2
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."
17 A-0090-15T2
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 Carchidi
v. 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
for 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. at
382-83, 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.
18 A-0090-15T2
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.
19 A-0090-15T2
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. Rodriguez-
Davalos as 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 he
tells 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
20 A-0090-15T2
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
21 A-0090-15T2
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.
22 A-0090-15T2
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
23 A-0090-15T2
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 timeframe,'" 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
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.
24 A-0090-15T2
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
25 A-0090-15T2
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 Velazquez
v. 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
26 A-0090-15T2
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.
27 A-0090-15T2
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
28 A-0090-15T2
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).
We note, however, that the scope of cross-examination
concerning bias is also broad, and that N.J.R.E. 607 expressly
permits a party to introduce extrinsic evidence for the purpose
of impairing the credibility of a witness. If what the trial
judge characterized as Dr. Fischer's "political views" informed
his opinion on the standard of care, then those views would
appear a proper subject of cross-examination, the standard being
its effect "upon substantial justice." Glenpointe Assocs. v.
Twp. of Teaneck, 241 N.J. Super. 37, 55 (App. Div.), certif.
denied, 122 N.J. 391 (1990).
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
29 A-0090-15T2
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.
30 A-0090-15T2