THOMAS NELSON and KATHLEEN NELSON v. ANDREW S. BLACKSTONE, D.O., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4576-03T54576-03T5

THOMAS NELSON and KATHLEEN

NELSON, husband and wife,

Plaintiffs-Appellants,

v.

ANDREW S. BLACKSTONE, D.O.,

MARCELLA NACHMANN, D.O. and

JEANNE LLENADO, D.O.,

Defendants-Respondents.

__________________________________

 

Argued October 11, 2005 - Decided

Before Judges Skillman and Levy.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-0208-02.

John A. Klamo argued the cause for appellants.

Sharon K. Galpern argued the cause for respondents Andrew S. Blackstone, D.O. and Marcella Nachmann, D.O. (Stahl & DeLaurentis, attorneys; Ms. Galpern, on the brief).

Thomas F. Marshall argued the cause for respondent Jeanne Llenado, D.O.

PER CURIAM

This is a medical malpractice action.

Plaintiff Thomas Nelson injured his penis in July 1999 as a result of engaging in sexual relations with his wife. Plaintiff failed to undergo treatment immediately and thereafter developed scarring and progressive curvature of his penis. He also experienced persistent pain and was only able to achieve partial erections.

Plaintiff first sought medical treatment on November 29, 1999, when he went to defendant Andrew S. Blackstone, D.O. Dr. Blackstone diagnosed plaintiff as having suffered a "penile fracture" and recommended surgery. Dr. Blackstone and defendant Marcella Nachmann, D.O., with defendant Jeanne Llenado, D.O., assisting, performed a surgical procedure on January 3, 2000, which was described as a "penile exploration" with "excision of tunica albuginea corporal scar" and reconstruction of the scar with "Repliform."

Plaintiff continued to suffer pain and a significant curvature of his penis after this surgery, and Drs. Blackstone and Nachmann, with defendant Dr. Llenado again assisting, performed a second surgery on May 4, 2000. This surgery involved a revision of the graft on plaintiff's penis and its replacement with a larger Repliform graft. After the second surgery, plaintiff still had a significant curvature of his penis and continued to suffer pain. Thereafter, plaintiff was referred to another urologist, but his problems persisted.

Plaintiff and his wife subsequently brought this medical malpractice action against Drs. Blackstone, Nachmann and Llenado. After the completion of discovery, defendants moved for summary judgment on the ground that the expert report submitted by plaintiff did not explain how defendants' alleged malpractice contributed to his injury. The trial court granted the motion, concluding in an oral opinion that the opinions of plaintiff's expert regarding the causal connection between defendants' alleged malpractice and plaintiff's injuries were "net opinions."

Plaintiff filed a motion for reconsideration supported by a revised report from his expert. The trial court denied this motion, concluding that plaintiff had not shown any grounds for reconsideration. The court also indicated that even if it were appropriate to consider the revised expert report submitted in support of the motion, the conclusions set forth in that report were still net opinions that would not defeat summary judgment.

Plaintiff appeals. Although the notice of appeal only refers to the order denying plaintiff's motion for reconsideration, the case information accompanying the notice clearly indicates plaintiff's intent also to appeal from the order granting summary judgment. Consequently, we reject Drs. Blackstone's and Nachmann's argument that the appeal should be deemed to be limited to the denial of the motion for reconsideration.

When plaintiff sought treatment from defendants, he was already suffering from a penile fracture and "Peyronie's" disease. Plaintiff alleges that defendant's alleged malpractice increased the risk that this preexisting condition would not be cured.

Under Scafidi v. Seiler, 119 N.J. 93 (1990), a modified standard of causation governs cases in which a defendant's alleged malpractice is deemed to have increased the risk of harm from a preexisting condition. Id. at 108-09. In such a case, a plaintiff is not required to show that the defendant's alleged failure to properly treat the preexisting condition was a probable cause of plaintiff's eventual condition. Id. at 107-08. The plaintiff is only required to present "[e]vidence demonstrating within a reasonable degree of medical probability that [the defendant's alleged] negligent treatment increased the risk of harm posed by a preexistent condition[.]" Id. at 108. If the plaintiff presents such evidence, this "raises a jury question whether the increased risk was a substantial factor in producing the ultimate risk." Ibid.

The kind of expert opinion evidence that will satisfy this modified standard of causation is illustrated by Gardner v. Pawliw, 150 N.J. 359 (1997), in which the alleged malpractice consisted of an obstetrician's failure to perform diagnostic tests on a pregnant woman that could have revealed fetal stress that may have led to the early induction of labor for birth of a fetus that died in utero. In Gardner, plaintiff's expert was unable to express an opinion whether either of the two tests he claimed the defendant doctor should have performed would have shown fetal distress. In response to questions on cross-examination, the doctor gave the following testimony:

Q. Now, a nonstress test is either reactive or nonreactive, is that correct, sir?

A. That is how it is qualified, yes.

Q. Would it be fair to say, sir, that you cannot state within a reasonable degree of medical probability that a nonstress test, had one been done on December 21, 1988, would have been nonreactive?

A. I cannot state that, that is right, since one wasn't done.

. . . .

Q. Correct me if I am wrong, doctor, but it is my understanding that a biophysical profile is either reassuring or non-reassuring, is that the terminology that you used, sir?

A. That is one way to describe it, but you can also quantify it perhaps a little bit better.

Q. Would it be fair to say, sir, that you cannot state within a reasonable degree of medical probability that had a biophysical profile been performed on December 21, 1988 it would have been non-reassuring?

A. I can't state that because one wasn't done.

[Id. at 369.]

At the close of defendant's case, the trial court granted defendant's motion to dismiss on the ground that plaintiff's expert could not state that there was a "probability" either a nonstress or biophysical test would have revealed that the fetus was in distress and that the mere "possibility" one of these tests would have revealed a problem was insufficient to establish liability. Id. at 372-73. This court affirmed, concluding that "a remote possibility or slight chance that the failure to order the tests increased the risk of ultimate harm was insufficient to meet plaintiff's burden of proof of causation." Id. at 375.

However, the Supreme Court reversed, concluding that the Scafidi "increased risk of harm" standard of causation could be satisfied even if the diagnostic tests that the defendant doctors failed to perform "are helpful in a small proportion of cases." Id. at 387; see also Reynolds v. Gonzalez, 172 N.J. 266, 290 (2002). The Court also rejected this court's conclusion that the testimony of plaintiff's expert "was a 'bare conclusion' insufficient to establish the requisite legal standard of causation." Gardner, supra, 150 N.J. at 390. The Court held that the expert's testimony that those tests "might have detected a 'smoldering' uterine environment, which would have indicated either the need for continued closer monitoring by the obstetrician or an early induction of labor[,]" was sufficient to require submission of plaintiff's claim to the jury. Id. at 390-91; see also Greene v. Mem'l Hosp. of Burlington County, 304 N.J. Super. 416, 419-20 (App. Div. 1997).

Plaintiff's penal fracture and the resulting Peyronie's disease was a preexisting condition, and defendants' alleged malpractice consisted of failing to provide treatment that would have maximized plaintiff's opportunity for a cure of that condition. Therefore, this case is governed by the modified Scafidi standard of causation.

Plaintiff alleged that defendant deviated from the accepted standard of medical care for his condition in three respects: (1) by failing to inform plaintiff that a non-FDA-approved product would be used during surgery; (2) by failing to visualize plaintiff's penis in the erect state after the corrective surgery; and (3) by failing to wait one year before surgically repairing the injury. We consider whether the report of plaintiff's expert, Dr. Eric Hochberg, provided a sufficient explanation of the causal relationship between each of these alleged acts of malpractice and the condition for which plaintiff seeks recovery from defendants.

Dr. Hochberg's January 20, 2004 report, which was the report plaintiff relied upon in opposing defendants' motion for summary judgment, contains the following discussion of defendants' use of a non-FDA-approved product in performing the skin graft on plaintiff's penis:

[I]f surgery for Peyronie's disease is undertaken repairs with or without the use of grafts may be selected. Dr. Andrew Blackstone, Dr. Marcella Nachman and Dr. Jeanne Llenado utilized Repliform grafts for [plaintiff's] two operations January 3, 2000 and May 4, 2000. The Repliform graft is FDA approved for urological indications including the surgical treatment of urinary stress incontinence and pelvic floor weakness in women. It is not approved for the correction of Peyronie's disease. When a physician utilizes a product that is not widely advocated for a non-FDA-approved indication, he or she should inform the patient. Medical records do not document that [plaintiff] was apprised of this information necessary for truly informed consent. The use of a product of unproven safety and efficacy represents a deviation from acceptable standards of care and was a proximate cause of injuries sustained by [plaintiff].

Dr. Hochberg's opinion that the use of the Repliform graft "was a proximate cause of [plaintiff's] injures" is wholly conclusionary, without any explanation of how the use of this material increased the risk of harm to plaintiff. Therefore, this part of his report constitutes a "net opinion" that cannot support the imposition of liability upon defendants. See Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

Dr. Hochberg's expert report contains the following discussion of defendants' failure to visualize plaintiff's penis in an erect state after the corrective surgery:

Certain principles apply to surgical repairs of Peyronie's disease. Included among them is the surgeon's direct visualization of the erect state prior to correction. In addition, once the repair is completed, revisualization of the erection to assess for residual curvature is essential. This was not performed at [plaintiff's] initial surgery on January 3, 2000, and may have contributed to the need for subsequent surgery.

The failure to visualize the penis in the erect state after surgical correction of Peyronie's disease represents a deviation from acceptable standards of care and was a proximate cause of injuries sustained by [plaintiff].

However, Dr. Hochberg's report does not explain how defendants' failure to visualize plaintiff's penis after the first surgery contributed to his injuries. It does not say, for example, that if such visualization had been performed, it would have disclosed that the procedure had been unsuccessful and that additional surgery could then have been performed that would have corrected or improved the condition.

Dr. Hochberg's report contains the following discussion of defendants' failure to wait a year before performing any surgery on plaintiff:

Peyronie's disease . . . may develop secondary to trauma during sexual activity that causes localized bleeding within the penis. Patients with Peyronie's disease may develop penile pain and curvature causing difficulty with intercourse. Medical experts suggest delaying surgical intervention for at least one year to allow for spontaneous plaque resolution or stabilization. Nonsurgical treatment options that may be utilized during this "waiting period" include vitamin E, para-aminobenzoate, intralesional Verapamil injection, radiation therapy and others.

Men who sustain penile trauma during sexual activity may sustain penile fracture. This refers to a tear of the tunica albuginea. Urgent exploration and surgical repair is often recommended. If untreated, scarring and curvature, hallmark features of Peyronie's disease may develop. Once Peyronie's disease is present, a delay in surgical intervention is advised. For symptomatic patients, nonsurgical treatment options should be considered.

Surgery by Dr. Andrew Blackstone and Dr. Marcella Nachmann was performed approximately 4 months after penile trauma was sustained by [plaintiff]. It can be stated to a reasonable degree of medical certainty that this represented a deviation from the accepted standards of care and was a proximate cause of injuries sustained by [plaintiff]. The condition may have resolved with time and no treatment at all may have been necessary. Even if the condition would not have resolved with time, it can be stated that a four-month period is insufficient to allow for stabilization of the condition.

Thus, this part of Dr. Hochberg's report expresses an opinion that if defendants had waited a year before performing the surgery, rather than performing it only four months after the penile trauma, the condition could have resolved by itself without any treatment, and that defendants' alleged malpractice deprived plaintiff of the opportunity for his condition to improve without surgery. Although Dr. Hochberg did not express any opinion regarding the probability plaintiff's condition could have improved without surgery, Gardner indicates that such an opinion is unnecessary in this kind of case.

In addition, Dr. Hochberg's report states that a four-month period "is insufficient to allow for stabilization of the condition." Although Dr. Hochberg did not expressly indicate in his initial report what benefit plaintiff could derive from stabilization of his condition, we believe it was implicit in that report that Dr. Hochberg's opinion is that the surgery defendants performed had a lesser chance of success than if it had been performed a year after the trauma because it was performed before the condition had stabilized. In fact, Dr. Hochberg concludes his report with a statement that "[t]hese deviations [from the accepted standards of care] increased the likelihood that cure was not realized and that future surgery with its associated potential complications would be needed." Under Scafidi, such an opinion provides a sufficient foundation for the causation element in a preexisting condition case because it could support a finding of a lost chance of recovery.

Accordingly, we reverse the summary judgment dismissing plaintiff's complaint and remand the case for trial.

 

The actual period between the penile trauma and the surgery was five to six months. However, this discrepancy does not affect Dr. Hochberg's opinion because he stated the defendants should have waited at least one year before performing the surgery.

This implication is made explicit in Dr. Hochberg's March 3, 2004 supplemental report that plaintiff submitted in support of his motion for reconsideration, which stated:

When surgery is performed before the condition stabilizes, further progression of Peyronie's disease after the surgery results in a recurrence of the curvature and the need for additional treatment.

(continued)

(continued)

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A-4576-03T5

October 26, 2005