VIOLET GOFFNEY, et al. v. GREGORY G. MUKALIAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6679-03T56679-03T5

VIOLET GOFFNEY, Administratrix

and Administratrix Ad Prose-

quendum of the ESTATE OF

JACQUELINE CANNON and DALLAS

CANNON, INDIVIDUALLY,

Plaintiffs-Appellants,

v.

GREGORY G. MUKALIAN, D.O.,

and MARTIN D. GOODMAN, M.D.,

Defendants-Respondents,

and

DOMINADOR A. CO, M.D., DAVID

FLINKER, M.D., DAVID S. SHARE,

M.D., JOHN PETERSON, M.D., and

MEMORIAL HOSPITAL OF BURLINGTON

COUNTY,

Defendants.

________________________________________________________________

 

Argued May 23, 2006 - Decided June 23, 2006

Before Judges Lefelt, R. B.

Coleman and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Burlington

County, Docket No. L-769-00.

Richard Galex argued the cause for

appellants (Galex Wolf attorneys;

Mr. Galex, on the brief).

Sharon K. Galpern argued the cause

for respondent Gregory G. Mukalian,

D.O. (Stahl & DeLaurentis, attorneys;

Ms. Galpern, on the brief).

Stacy L. Moore, Jr. argued the cause

for respondent Martin D. Goodman, M.D.

(Parker McCay, attorneys; Mr. Moore,

on the brief).

PER CURIAM

Mrs. Jacqueline Cannon had a rare blood disorder known as thrombotic thrombocytopenic purpura (TTP). While she was being treated for this disorder, she required emergency laparoscopic surgery to remove her gallbladder. The surgery was conducted by defendant Dr. Gregory Mukalian with the assistance of defendant Dr. Martin Goodman. Several hours after surgery was completed, Dr. Mukalian determined that Mrs. Cannon was bleeding internally. The doctor conducted a second surgery during which he discovered, and attempted to repair, a laceration on the underside of the left lobe of her liver. Unfortunately, however, several days later Mrs. Cannon died from TTP complications.

Mrs. Cannon's administratrix, Violet Goffney, and her husband, Dallas Cannon, (plaintiffs) sued for malpractice. Eventually the matter came before Judge Harrington and a jury. After a three-week trial, the jury found no cause of action and plaintiffs appealed, claiming that the failure to give a res ipsa loquitor instruction was reversible error. Plaintiffs also claimed the defense expert, Dr. Eisenberg, presented a net opinion, and that the jury verdict was against the weight of the evidence. We reject all three of plaintiffs' claims and affirm.

Defendant Dr. David Flinker, a hematologist/oncologist, diagnosed decedent with TTP. This rare disorder affects the red blood cells and platelets. The body destroys the red blood cells, which increases the use of platelets. No one knows the cause of TTP. If left untreated, the disorder is 98%-100% fatal. If treated with plasmapheresis, which removes the patient's plasma and replaces it with normal plasma along with the patient's own red blood cells, the death rate is reduced to approximately 20%. This exchange of plasma gives the patient healthy clotting factors and removes the compromised plasma. The exchange must be accomplished every day for several weeks. TTP patients are also treated with steroids, which reduces bleeding.

Dr. Flinker had treated only three patients with TTP, including decedent. The doctor began treating Mrs. Cannon with plasmapheresis and steroids and planned to continue the plasmapheresis treatment for at least three weeks. After four days of treatment, Mrs. Cannon seemed to be responding favorably, but five days after the TTP diagnosis, she developed acute cholecystitis, where the gallbladder is infected and inflamed and must be removed or it becomes necrotic. If the gallbladder dies, it can perforate, which could be fatal.

After Dr. Flinker consulted with a surgeon, Dr. Mukalian, the doctors agreed that gallbladder surgery was necessary. Dr. Mukalian performed a laparoscopic cholecystectomy, which became the focus of the malpractice allegations.

During the surgery, the anesthesiologist was at the head of the operating table, Dr. Mukalian was positioned on the left side of the table, and Dr. Goodman, the assistant surgeon, was on the right side. Dr. Mukalian inserted four trochars, which are sharply pointed shafts, into Mrs. Cannon's abdomen. The first trochar is inserted just below the belly button. The second trochar is inserted under the breast bone. The other two trochars are inserted on the side under the rib margin. A small camera is then passed through the trochar in the belly button to view the surgical site.

The abdomen is then inflated with carbon dioxide so that the skin in the abdominal wall is separated from the organs. Laparoscopic surgery is usually performed with a laparoscopic pressure of fifteen millimeters of mercury pressure. Dr. Mukalian explained that, if pressure within the patient's veins is higher than the mercury pressure of the abdomen, bleeding will occur. Mrs. Cannon's blood pressure during the operation was 120 over 60, which meant that any bleeding from her arteries or veins would have been evident.

Once the trochars were in place, Dr. Mukalian used atraumatic graspers. These had a good grip but would not tear the tissue of the gallbladder. A pressure washer was inserted through one of the side trochars and saline was injected to wash the operative field. The other port contained an aspirator so it was possible to irrigate and aspirate the area at the same time.

Dr. Goodman used a grasper to grab the top part of the gallbladder and pulled it towards Mrs. Cannon's right shoulder, which splayed the gallbladder out so that it could be removed. By pulling and holding the gallbladder in this fashion, the bottom of the organ containing the bile ducts and vessels can be seen through the camera by the surgeon. According to Drs. Goodman and Mukalian, the graspers sometimes slip during the procedure. When the grasper holding the gallbladder slips, however, the right lobe of the liver, which is on top of the gallbladder, flops down and obscures the gallbladder.

Once the gallbladder was correctly splayed, Dr. Mukalian stripped the fat away, clipped the bile duct and the artery that leads to the gallbladder. The doctor then peeled the gallbladder from the liver, and cut the attachments to the liver bed, which were cauterized as he dissected the gallbladder.

The area was inspected for bleeding and once the last attachments were cut, the gallbladder was freed and the liver flopped back into its usual place. Dr. Mukalian then dragged the gallbladder across the intestines, cut into the gallbladder, suctioned out its contents, and pulled the emptied gallbladder through the belly button incision.

As the gallbladder was pulled through the incision, the carbon dioxide gas escaped, so Dr. Mukalian re-inflated the abdomen, put the camera back into the belly button port, and irrigated and re-inspected the area. At the very end of the surgery, the camera was panned over the abdominal contents for a final inspection, which did not, according to the doctor, reveal any bleeding.

The doctor sent Mrs. Cannon to the recovery room where she was closely monitored. Then she went to intensive care, where she was similarly monitored. There were no signs of internal bleeding.

Later that night, however, her condition changed. She foamed at the mouth and had low blood pressure. Her hemoglobin dropped from 9.8 to 5.1 (normal is 12 to 16), her platelet count went from 53,000 to 24,000 (normal is 150,000 to 375,000), and her hematocrit, which reflects hemoglobin, went from 28.0 to 14.8 (normal is 37 to 47). There was also oozing from the catheter site in her neck and Dr. Mukalian was concerned that one of the surgical clips may have come loose. He also thought she might be bleeding from the liver bed where the gallbladder had been removed, or from a trochar site.

Shortly thereafter, eight hours after the first surgery, Dr. Mukalian took Mrs. Cannon back to surgery. He entered her abdomen through the same trochar sites he had used during the first surgery. He saw free blood in her abdomen and at first thought it was coming from her spleen, which is located behind the far left lobe of the liver. Because he could not get to the spleen through the laparoscope, he opened the abdomen and inspected the abdominal cavity, which was filled with blood. He located the bleed in the liver. His operative report noted there was a hematoma, or clot of blood, in the liver with a four-centimeter laceration in the most lateral portion of the left lateral lobe of the liver, on the undersurface of the liver near the spleen. He sutured it closed.

According to plaintiff's hematologist, the stress of significant internal bleeding aggravated Mrs. Cannon's TTP, reversing the improvement that had occurred during the four days of treatment. Because Mrs. Cannon's liver was uninjured prior to the surgery, the hematologist believed that it must have been injured during the first surgery. After the surgery, the TTP continued to break Mrs. Cannon's red blood cells, which kept her platelet count low. Eventually, she bled into her brain and died.

The cause of the four-centimeter laceration, well out of the surgery area, to the left lobe of Mrs. Cannon's liver, was the focus of the res ipsa loquitor argument. In fact, Dr. Mukalian and the five experts essentially presented three causes for the laceration.

Dr. Mukalian believed that the traction on the right side of the liver must have caused the hematoma on the left lobe that ruptured. He was certain that the hematoma could not have been caused by any of the instruments used in the operation because of its location. According to the doctor, it would have been nearly impossible for him to contort his body to the necessary position to lacerate the left lobe because of the location of the trochars. If a grasper had slipped, it would not have gone across the abdomen to the opposite side of the body under the left lobe of the liver. He would have known instantly because the liver would have flopped back and obscured the operative field.

Defendants' hematologist, Dr. Goldberg, testified that TTP affects all of the tissues in the body and renders them fragile because it causes blood to accumulate underneath the surface of any tissue, including organs. The TTP causes purpura, or "blood blisters," to occur on the surface of the liver, kidney, brain, heart and lungs. This expert believed that Mrs. Cannon formed a hematoma underneath her liver which eventually, because of some traumatic, but non-negligent, injury "burst through and then result[ed] in an appearance of a laceration."

Plaintiffs' surgical expert, Dr. Sherwood, testified that a hematoma would cause a burst type of injury, such as a hole, not a linear laceration. He believed Mrs. Cannon's liver was lacerated because one of the graspers slipped off the gallbladder and went forward, across the abdominal cavity, striking the liver.

One of defendants' surgical experts, Dr. Eisenberg, testified that Dr. Sherwood's grasper theory was nearly impossible because there was too much organ material between the gallbladder and the left lobe of the liver. The grasper would have injured the stomach and perhaps the pancreas before it reached the underside of the left lobe of the liver. Dr. Eisenberg further explained that if the grasper slipped, it would go in the opposite direction of the left lobe because the gallbladder is being pulled toward the right and not the left. Also, the grasper would not make a laceration, but would have created a rough tear or gouge. He believed that, because the left lobe of the liver is tethered to the right lobe, retracting the right lobe of the liver to get to the gallbladder caused a tear in the left lobe. He said this happens frequently in open cholecystectomy. Dr. Eisenberg did not believe that Dr. Mukalian used excessive force, but rather Mrs. Cannon's liver was particularly vulnerable to this type of injury because of the TTP.

Dr. Rose, a surgeon testifying on behalf of Dr. Goodman, explained that when the liver is retracted, there is bruising. If the liver was bruised by a grasper, bleeding would not be immediate. The liver could be bleeding internally. If the bruise was big enough, however, the liver would gradually expand until it caused a tear in the liver. Dr. Rose believed that the most likely cause of Mrs. Cannon's injury was that a grasper caused a bruise to the left lobe of the liver. This occurred due to normal manipulation of the liver during surgery and was not evidence of negligence.

Based on this evidence, the trial court denied plaintiffs' application to charge res ipsa loquitor. The court stated that, according to Roper v. Blumenfeld, 309 N.J. Super. 219, 229-30 (App. Div.), certif. denied, 156 N.J. 379 (1998), plaintiffs' evidence must establish that the occurrence alleged to be medical malpractice ordinarily bespeaks negligence. The court also cited Buckelew v. Grossbard, 87 N.J. 512, 527 (1981), explaining that for the doctrine to obviate "the need for establishing medical standards of care and deviation, [plaintiffs must present] expert testimony to the effect that the medical community recognizes that the injury would not have occurred without negligence."

Plaintiffs do not argue for a different standard. Instead, they assert that Dr. Sherwood's testimony was sufficient to meet the applicable standard for the application of res ipsa loquitor. If the doctrine applies, the jury may draw an inference that the mishap would not have occurred if the person in control of the instrumentality that caused the injury had exercised due care. Jerista v. Murray, 185 N.J. 175, 193 (2005). The doctrine, however, "is not meant to be applied in every situation in which a medical procedure has an untoward result with an unknown cause." Smallwood v. Mitchell, 264 N.J. Super. 295, 298 (App. Div.), certif. denied, 134 N.J. 481 (1993). "[T]he required basis for res ipsa loquitur application is that the medical community recognizes that such a result does not occur in the absence of negligence." Ibid.

If plaintiffs make such a showing, then in a case such as this, where the actual cause of the injury is disputed, the jury can be instructed to "consider res ipsa loquitur only if it finds that the accident occurred in the manner which fits the doctrine." Saks v. Ng, 383 N.J. Super. 76, 91 (App. Div.), certif. denied, ___ N.J. ___ (2006). But, such a conditional charge is not required when plaintiff has not established that the injury ordinarily bespeaks negligence. Id. at 91-92. Unfortunately for plaintiffs, that is the case here.

Although we agree that it should not be necessary to specifically parrot the medical community standard, the plaintiffs' evidence must be "to the effect that the medical community recognizes" that such an injury would not have occurred absent some negligence. See Bucklew, supra, 87 N.J. at 527. Here, Dr. Sherwood testified that in his opinion the doctors deviated from accepted standards of medical care in two respects. First, they caused the laceration and second they failed to discover the laceration during the first surgery. This is not enough to establish the foundation required by Saks and Bucklew. See also Hemmen v. Atl. City Medical Ctr., 334 N.J. Super. 274, 280-81 (Law Div. 1999), aff'd, 334 N.J. Super. 160 (App Div. 2000).

Dr. Sherwood never explained that it was generally accepted by the medical community that laceration to the left, underside lobe of the liver of a patient with TTP during a laparoscopic cholecystectomy does not generally occur absent negligence. In fact, the cause of the laceration was debatable. In a portion of Dr. Sherwood's deposition testimony, which was read to the jury, the doctor explained how hard even he found it to determine how this injury occurred. He stated that he had been "mulling over lots of different possibilities of how [the laceration] could have occurred because it's not a usual thing that you see." The doctor further explained that he took various possible mechanisms "play[ed] with it for a while and [threw] it in and [threw] it out over a period of time. Then [he] develop[ed] what [he felt was] the causation." In fact, the doctor admitted that at the time he wrote his report, he "did not have a definitive [] idea of what the causation was." The rather theoretical nature of the alleged malpractice was also made clear in Dr. Sherwood's deposition when he conceded that the graspers could have slipped off the gallbladder without negligence. In short, the circumstances of this injury, though perhaps suspicious, were not clearly those that ordinarily bespeak negligence.

We do not agree with plaintiffs that Yerzy v. Levine, 108 N.J. Super. 222, 229 (App. Div.), aff'd, 57 N.J. 234 (1970), and Magner v. Beth Israel Hosp., 120 N.J. Super. 529, 534-35 (App. Div. 1972), certif. denied, 62 N.J. 199 (1973) require a res ipsa instruction in this case. In Yerzy, plaintiff's physician severed her common bile duct during gallbladder surgery. Supra, 108 N.J. Super. at 224-25. In Magner, plaintiff was burned during a procedure to remove a mole or lesion on her neck. Supra, 120 N.J. Super. at 531-32. Both cases are distinguishable from plaintiffs' case. Yerzy involved the discovery rule in a statute of limitations situation. Supra, 108 N.J. Super. at 226. In Magner the trial court gave the res ipsa instruction and the jury returned a no-cause verdict, which we held to be a miscarriage of justice. Supra, 120 N.J. Super. at 534-35. The focus was not only whether the instruction should have been given. Accordingly, the trial court correctly rejected the res ipsa doctrine, and its refusal to so instruct was not error.

Plaintiffs further argue that the verdict must be vacated because Dr. Eisenberg's testimony constituted a net opinion and the verdict was against the weight of the evidence. We disagree on both counts.

Expert conclusions unsupported by factual evidence are inadmissible. Lanzet v. Greenberg, 126 N.J. 168, 195-96 (1991). "An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003).

An expert opinion is not net opinion where it is based upon surgical reports prepared by other physicians. Creanga v. Jardal, 185 N.J. 345, 360-61 (2005) (citing Vitrano ex rel. Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div. 1997)). Additionally, an expert's testimony is not net opinion where it is based on "'references to defendant's office records, the hospital record and [the expert's] own experience.'" Ibid. (quoting Nguyen v. Tama, 298 N.J. Super. 41, 49 (App. Div. 1997)).

Dr. Eisenberg had forty years experience dealing with trauma, lacerations, and dissections of the liver and has published on the subject. He was the only expert witness who had both surgical experience and experience operating on TTP patients, and had seen liver lacerations in open cholecystectomies that occurred due to traction of the liver and the direct retraction of the left lobe of the liver, which occurs in open procedures. He based his opinion on operative reports, Dr. Mukalian's deposition testimony, hospital reports, and his own experience. His opinion was not net. See Creanga, supra, 185 N.J. at 360-61.

In fact, all experts gave the "why and wherefore" of their opinions, see Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996), and we see little difference between the bases for Dr. Eisenberg's opinion and those of Dr. Sherwood.

The trial court denied plaintiffs' motion for a new trial, finding that there was substantial evidence to support the jury's verdict of no cause of action. In this case, five experts testified regarding a variety of theories explaining how the injury to Mrs. Cannon's liver occurred. Plaintiffs' expert, Dr. Sherwood, testified that the graspers caused the injury to the left lobe of the liver. However, Dr. Eisenberg flatly rejected this theory and offered different theories that the jury could have found more credible. Dr. Mukalian demonstrated that it would be almost physiologically impossible for him to make the movement necessary for the grasper to cut across the abdomen to the left lobe of the liver. Expert testimony supported Dr. Mukalian because of the distance the grasper would be required to travel as well as the placement of the organs in the human body. Finally, Drs. Mukalian and Goodman testified that, if the grasper slipped off the gallbladder, the liver would flop back into its natural position and the operative field would be obscured.

 
In conclusion, there was ample evidence before the jury to sustain its verdict, which was reached after approximately five hours of deliberation. R. 4:37-2(b); R. 4:40-1; Dolson v. Anastasia, 55 N.J. 2, 5 (1969). To the extent the jurors reached their verdict because they found defendants' experts to be more credible than those presented by plaintiffs, the record provides ample support for that view. Our review of the record in light of the pertinent law causes us to reject all of the arguments plaintiffs have advanced to overturn the jury verdict and the judge's denial of plaintiffs' motion for a new trial as we cannot conclude that a miscarriage of justice has occurred. R. 2:10-1.

Affirmed.

We have obtained the spelling of defendant's name from the operative report, which he signed. The answer to plaintiffs' complaint, however, refers to the doctor as Mulkalian.

(continued)

(continued)

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A-6679-03T5

June 23, 2006