MICHELE A. LOPEZ v. ELLIOT J. RAND, D.D.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5190-04T55190-04T5

MICHELE A. LOPEZ,

Plaintiff-Respondent,

v.

ELLIOT J. RAND, D.D.S.,

Defendant,

and

ANTONIO DELVALLE, D.D.S.,

Defendant-Appellant.

________________________________________________________________

 

Argued April 4, 2006 - Decided May 4, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2893-02.

Stephen H. Schechner argued the cause for appellant (Mr. Schechner and Ronald L. Langman, on the brief).

Marc E. Lesser argued the cause for respondent (Kronisch & Lesser, attorneys; Mr. Lesser, on the brief).

PER CURIAM

Defendant, Dr. Antonio Delvalle, an oral and maxillofacial surgeon, appeals from an adverse verdict in this dental malpractice case. Defendant's motions for a judgment notwithstanding the verdict or a new trial were denied. Defendant argues on appeal that the trial judge erred in allowing Dr. Vincent Ziccardi, the treating physician of plaintiff, Michele A. Lopez, to testify as an expert and that Ziccardi's expert opinion constituted an impermissible net opinion. We reject these arguments and affirm.

On September 16, 2000, defendant extracted plaintiff's two bottom wisdom teeth. It is a recognized risk of the procedure that nerve damage might occur, resulting in pain and numbness to the tongue and oral area. This risk was properly explained to plaintiff prior to the procedure. Following the procedure, plaintiff experienced numbness on the right side of her tongue and left lower lip area and some throbbing. Plaintiff had follow-up visits with defendant on September 23, October 7 and October 21, 2000. She reported these symptoms to him. By October 7, the pain in her lip had almost completely resolved, but plaintiff was continuing to experience pain and numbness in her tongue. Defendant performed tests on plaintiff's tongue on September 23, 2000, and explained that there was numbness, but it would likely improve with time. More tests were performed during the October 7, 2000 visit, and defendant advised plaintiff there was slight improvement.

According to plaintiff, defendant never advised her that further improvement might be attained by microsurgical nerve repair. Defendant contended that he did advise plaintiff of the microsurgery option in October 2000. The parties stipulated that it was defendant's duty to advise plaintiff after the extraction procedure of the option of microsurgery to repair the nerve within three to six months following the extraction, and that failure to give that advice would constitute a departure from accepted standards of dental practice.

Thus, the theory of plaintiff's claim was not that defendant was negligent in the manner in which he performed the extraction or in the advice he gave regarding the potential complication which she ultimately experienced. Her claim was based upon defendant's failure to advise her after the extraction that microsurgical nerve repair might improve her condition. She contended that failure constituted professional negligence and caused her damages.

On December 28, 2001, plaintiff consulted a new dentist, Dr. Pamela Alberto, who referred plaintiff to Ziccardi for evaluation of the continued pain and numbness in her tongue. Ziccardi is an oral and maxillofacial surgeon and medical doctor with particular experience and expertise in microsurgical nerve repair. According to plaintiff, she learned about the microsurgical option for the first time from Ziccardi, who advised her that because such a long time had elapsed since her extraction it was questionable whether she would obtain much or any benefit from an attempted nerve repair. Plaintiff opted for the surgery, and on February 1, 2002, Ziccardi performed a microsurgical nerve repair of plaintiff's lingual nerve.

The procedure is designed to remove obstacles to nerve regeneration, accomplished in this case by removing the peripheral external scar tissue to allow the nerve the opportunity to regenerate and return some of the lost sensation. Ziccardi described that there was "dense scar tissue surrounding and compressing the nerve . . . which prevent[ed] normal flow of electrical connectivity along that nerve, hence her diminished perception of sensation." Ziccardi explained that the timing of such a procedure is very important in the expected degree of success. He explained it this way:

Nerve[s] respond to injury compressive or traction injuries with a diminished blood flow by fibrosis or scar[r]ing. That is a normal physiological response to this type of injury. And the microsurgery that was done in Ms. Lopez's case was to relieve that scar tissue to allow the circulation to reappear. So it wasn't as if a new nerve was growing. It was allowing the surviving nerve cells to re-innervate the end organ which happens to be her tongue.

Ziccardi opined, to a reasonable degree of medical probability, that he would have expected a better result if his surgical procedure had been performed sooner rather than later. He explained that once the nerve cell dies, it will not regenerate later. After the surgical repair, plaintiff no longer experienced the pain in her tongue, and the numbness diminished by about fifty percent. That level of numbness has continued and is expected to continue permanently.

Ziccardi opined that optimal treatment is reached if the patient has the microsurgery within three to four months after the extraction. If performed within that time, he would expect a fifty to eighty percent improvement in "neuro-sensory function." Ziccardi based this estimate on "a compilation of literature, human retrospective studies [and] some of [his] own clinical experience." He further observed that "all nerve injuries, the sooner we treat them, the better the prognosis is for sensory improvement."

Plaintiff claimed two categories of damage. One was the extended period of temporary pain occasioned by the delay in receiving the microsurgical repair. The second was a greater degree of residual numbness caused by the lost chance of better improvement as a result of the delay. The jury found that plaintiff carried her burden of proving that defendant failed to inform her of the microsurgery option, thus establishing negligence on defendant's part. For the temporary pain, the jury awarded $25,000. The jury determined that the total value of the residual numbness was $250,000, but that eighty percent of the condition was pre-existing. Therefore, that portion of the award was reduced by eighty percent to $50,000. Pre-judgment interest of $8,545.89 was added to the total $75,000 verdict. As we stated, defendant's motions for a judgment notwithstanding the verdict or a new trial were then denied. This appeal followed.

The arguments raised on appeal do not implicate the $25,000 portion of the award. The arguments focus on the propriety of allowing Ziccardi to render expert opinions regarding plaintiff's lost chance of a better result caused by the delay. Defendant contends that Ziccardi was not offered as an expert witness and that he provided no expert report. Thus, defendant argues that Ziccardi should not have been allowed to offer expert testimony to the jury. We find this argument unpersuasive.

Preliminarily, we make two observations that, in our view, significantly detract from the genuineness of the defendant's argument. Defense counsel conducted a discovery deposition of Ziccardi. Although we have not been furnished with a transcript of that deposition as part of the appellate record, we presume that counsel explored with Ziccardi the consequences of the delay. It was so represented to us by plaintiff's counsel at oral argument. Certainly, defense counsel had the opportunity to do so. And, we note that defendant's objection to Ziccardi's opinion testimony at trial was not based upon surprise. Secondly, the very theory of plaintiff's case, predicated upon the stipulation that failure to advise a patient of the need for the microsurgical repair within three to six months constitutes negligence, clearly frames the issue in the case. Obviously, if it is negligence to fail to inform a plaintiff that improvement might be obtained if the procedure is done quickly, it logically follows that if the procedure is not done quickly there will be adverse consequences. Indeed, in arguing the post-verdict motions, defense counsel commented upon Ziccardi's testimony that the earlier the corrective surgery is performed the better the likely result, and then said: "I'm not going to take issue with that, because I think that's, you know, for a lack of a better thing, it's common sense." That is what this trial was all about. If the jury believed plaintiff that there was a failure to advise her that microsurgery was an option and that it should be performed within three to six months, what damage was caused by the delay?

In the context of this medical malpractice claim, involving a pre-existing medical condition, causation is proved by establishing loss of chance or increased risk of harm that was a substantial factor in producing the ultimate harm. See Verdicchio v. Ricca, 179 N.J. 1, 24 (2004); Scafidi v. Seiler, 119 N.J. 93, 108 (1990); Evers v. Dollinger, 95 N.J. 399, 417 (1984). As a treating physician, Ziccardi was properly allowed to furnish testimony regarding causation. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995). "Because 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. As we have stated, there was no surprise occasioned by Ziccardi's testimony, and, as permitted by Stigliano, there was no error in allowing Ziccardi to render opinions regarding causation.

Defendant further takes issue with Ziccardi's opinion testimony on the issue of loss of chance for a better result, contending it was pure speculation and amounted to a net opinion. Defendant points to Ziccardi's testimony that improvement in the range of fifty to eighty percent would be expected if the microsurgical repair was conducted in a timely fashion, but he could not quantify what better degree of success would be anticipated if the repair was delayed beyond the three to six month window. Further, defendant argues that because plaintiff received a fifty percent improvement, she fell within the range expected even if the repair had been done sooner, and there was therefore no basis upon which the jury could reasonably find that twenty percent of plaintiff's residual damage was caused by the delay. We do not agree with these contentions.

A net opinion is "an opinion based on bare conclusions untethered to facts." Creanga v. Jardal, 185 N.J. 345, 349 (2005). Ziccardi's opinion regarding the fifty to eighty percent range was based upon literature in the field, human retrospective studies, and his own extensive clinical experience. It was his opinion that there would have been a "better outcome in sensory improvement had [he] done the surgery at an earlier time." Thus, Ziccardi provided an adequate basis to support his opinion.

The fifty to eighty percent range described by Ziccardi encompassed the expected improvement for a broad range of nerve injuries, including those "ranging from what I would consider more on the milder scale, a compressive type of injury like [plaintiff] had to a more severe injury which would be a complete injury." Thus, it is logical to infer that a patient with a mild nerve injury, such as plaintiff, would be expected to obtain improvement in the higher end of the fifty to eighty percent range if the procedure was timely done. Consistent with Ziccardi's opinion, which the jury was free to accept, and that logical inference, which the jury was free to draw, the loss of an additional twenty percent improvement caused by the delay was a finding firmly rooted in the evidence.

Finally, any burden to quantify the reduced degree of improvement occasioned by the delay was on defendant, not plaintiff. Verdicchio, supra, 179 N.J. at 38.

 
Affirmed.

(continued)

(continued)

10

A-5190-04T5

May 4, 2006