ALVEIRO VARGAS v. RAMON LEDON, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1072-07T11072-07T1

ALVEIRO VARGAS and

MARIA VARGAS,

Plaintiffs-Appellants,

v.

RAMON LEDON, M.D.,

Defendant-Respondent,

and

GREGORY CHARKO, M.D.,

Defendant.

__________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Docket No.

L-3331-04.

Douglas S. Grossbart argued the cause for

appellants (Leifer Levine & Associates, attorneys;

Dr. Grossbart, of counsel and on the brief).

James B. Sharp argued the cause for respondent

(James B. Sharp & Associates, attorneys; Mr. Sharp,

of counsel; Arleen G. Richards and Melissa Knitter,

on the brief).

PER CURIAM

In this medical malpractice action, plaintiff Alverio Vargas appeals from a no cause jury verdict in favor of defendant, gastroenterologist Ramon Ledon. Plaintiff alleged Dr. Ledon negligently prescribed excessive amounts of a steroid known as prednisone, causing him to develop avascular necrosis of the hips. Plaintiff thereafter underwent multiple surgeries to address the problem. Plaintiff also alleged that he did not make an informed decision to submit to this treatment, because Dr. Ledon did not adequately apprise him of the risks associated with the prolonged use of this steroid.

Plaintiff now appeals arguing that the trial court: (1) improperly limited the testimony of his rheumatology expert; (2) failed to give Scafidi and Gardner jury charges; (3) committed numerous errors that distracted and prevented the jury from fairly evaluating the evidence showing that Dr. Ledon deviated from the relevant standard of care; (4) improperly admitted a defense expert's net opinion; and (5) failed to provide a curative instruction to counterbalance defense counsel's inappropriate statements on summation.

We reject these arguments and affirm. We derive the following facts from the evidence presented at trial.

I

On January 27, 2000, plaintiff consulted with a gastroenterologist identified in the record as Dr. Delgado, complaining of lower abdominal and colic-like pain, diarrhea, and rectal bleeding. On February 7, 2000, Dr. Delgado ordered plaintiff to undergo a colonoscopy. At a follow-up visit ten days later, Dr. Delgado diagnosed plaintiff as suffering from pancolitis, a form of ulcerative colitis.

According to Dr. Daniel H. Present, plaintiff's expert witness in the field of gastroenterology, ulcerative colitis is a disease involving inflammation of the lining or mucosa of the colon or large intestine. This type of inflammatory bowel disease ("IBD") is "fairly rare." It most commonly affects people in their late teens or early twenties, producing such symptoms as abdominal discomfort, diarrhea, bleeding, severe weight loss, and fevers. The inflammation usually starts in the rectum and may extend into the upper parts of the colon.

Because of its complexities, gastroenterologists are, ordinarily, the only physicians who care for persons suffering from ulcerative colitis. Persons diagnosed with ulcerative colitis face life-long hardship. Although it can be managed, under the current status of scientific achievement, ulcerative colitis remains incurable.

Pancolitis refers to the inflammation of the entire colon. Dr. Delgado initially treated plaintiff's pancolitis with daily dosages of three grams of Azulfidine and forty milligrams of prednisone. Azulfidine is a combination of a sulfa antibiotic and a relative of aspirin called five-aminosalicylic acid ("5-ASA"), also described as a sulfa aspirin combination of acetyl salicylic acid and sulphasalazine, which was a standard therapy for IBD at the time.

Prednisone is a synthetic corticosteroid, which can be used to treat inflammation. Dr. Delgado instructed plaintiff to take forty milligrams a day of prednisone for two weeks, thirty milligrams a day for the next two weeks, and then twenty milligrams a day for two weeks. Plaintiff next visited Dr. Delgado on March 30, 2000. According to plaintiff, he ran out of prednisone ten days earlier, and complained of cramping pain and more frequent stools. Dr. Delgado prescribed another 120 ten-milligram tablets of prednisone, and instructed plaintiff to take four tablets per day. Plaintiff was to return in two months. Plaintiff did not see Dr. Delgado again, stating at trial that he did not "trust in him."

Plaintiff's first encounter with Dr. Ledon occurred on October 31, 2000, approximately six months after he last saw Dr. Delgado. He was thirty-three years old at the time. Plaintiff characterized this visit with Dr. Ledon as merely seeking a second opinion of Dr. Delgado's diagnosis and treatment mode.

Dr. Ledon is board certified in internal medicine and gastroenterology. At the time he saw plaintiff, he had a private practice in gastroenterology. Plaintiff advised Dr. Ledon that he had been treated by another gastroenterologist who prescribed three milligrams of Azulfidine and forty milligrams of prednisone a day. This treatment had not resulted in much improvement, and plaintiff was also suffering from the side effects of the prednisone, including anxiousness and tremulousness. Plaintiff's complaints to Dr. Ledon included diarrhea, small weight loss, and lack of normal bowel movements, including bleeding. Plaintiff told Dr. Ledon that he had unilaterally stopped taking the medications prescribed by Dr. Delgado a month earlier. Plaintiff also gave Dr. Ledon the film from the colonoscopy study ordered by Dr. Delgado.

Dr. Ledon reviewed the results of plaintiff's colonoscopy, performed abdominal and rectal examinations, and found blood in the stool. He also ordered a base-line blood work-up; the lab results were normal. Dr. Ledon did not prescribe corticosteroids at this time. On November 15, 2000, Dr. Ledon performed a colonoscopy to personally examine plaintiff's colon. The colonoscopy revealed changes consistent with "mild to moderate ulcerative colitis, pancolitis."

At trial, Dr. Ledon testified that the mildest form of ulcerative colitis involved only the rectum; the disease could spread, however, to the splenic flexure (left-sided colitis) and the entire colon (pancolitis). Those suffering from the most serious form of the disease were more likely to develop "toxic megacolon or a fulminant colitis," which did not respond to any medications, and had a seventy-to-eighty-percent mortality rate, with a twenty-fold increased risk of developing bone cancer after seven years. Patients who developed cancer required a colectomy. In his twenty years of practice, he had only two patients who needed a colectomy.

According to Dr. Ledon, he made it a practice to tell his patients with ulcerative colitis that their condition could only be managed, not cured. Thus, he considered a successful outcome when a patient kept his or her colon, without developing cancer. Because of the risks involved, he also told his patients that they could not "play" with their medications, and had to follow his directions strictly. If a patient were to stopped treatment on their own, the disease would "flare," causing toxic megacolon.

After the outpatient colonoscopy, Dr. Ledon prescribed Asacol, a non-steroid 5-ASA compound. Both Dr. Ledon and his expert witness in the field of rheumatology described Asacol as a standard therapy for colitis. This was a newer drug without sulfa antibiotics and its concomitant side effects. Dr. Ledon explained that he did not prescribe Azulfidine because it did "bad things to the sperm count in men," was less effective, and had more side effects. He also did not prescribe steroids because they should not be taken long term. In this case, plaintiff did not need steroids because he had minimal bleeding and moderate colitis with no abdominal findings to suggest otherwise.

Dr. Ledon next saw plaintiff on December 1, 2000. Plaintiff reported having regular bowel movements. He was taking the Asacol as prescribed, which he said was helping. Dr. Ledon continued the medication, adding only a multi-vitamin with iron. Plaintiff returned to Dr. Ledon On January 5, 2001, complaining of bloody bowel movements for the past four weeks, up to six per day. This left him feeling very weak, tired, and without an appetite (he had not eaten for the past two days); he also had very dry lips.

Dr. Ledon's examination revelaed that plaintiff was "severely tender" and had "localized rebound," meaning severe inflammation. He administered an intramuscular injection of steroids, and prescribed sixty milligrams of prednisone (two tablets of ten milligrams each three times a day) for two weeks, along with Metronidazole, an antibiotic. Plaintiff continued to take prednisone as prescribed for two weeks. Thereafter, his prescription indicated that he was to take thirty milligrams (1 tablet of ten milligrams three times a day) for another two weeks. Plaintiff refilled his prescription on February 2, 2001, and again on April 3, 2001. Plaintiff testified that he only followed Dr. Ledon's instructions, and did not read the directions from the pharmacy.

Dr. Ledon testified that he would normally prescribe corticosteroids for patients with ulcerative colitis, "[o]n every flare." Some patients would flare once every two to three years, and others flared the moment they were taken off a steroid. In these cases, he usually prescribed sixty milligrams, and often used that dose to treat cases of severe allergic reactions. However, he would try to get the patients off the drug as quickly as possible. Dr. Ledon testified that he told plaintiff that, depending on his response, he was going to taper him off the prednisone.

According to Dr. Ledon, he discussed with plaintiff the side effects of prednisone, explaining that plaintiff needed to be followed closely to check his blood sugar and to prevent or address any side effects. It was thus his office practice to walk the patients to the front office, tell the secretary to schedule the patient for a return visit, give the patient a card indicating the date of the next visit, and check off the diagnosis and new appointment date on the chart. Plaintiff disputed this testimony; he did not recall Dr. Ledon ever telling him about the risks or benefits of taking prednisone, or of the availability of other treatment options.

At trial, Dr. Ledon produced his billing sheet for plaintiff's visit of January 5, 2001. This record indicated that plaintiff was told to return in two weeks in the morning hours so the doctor could draw his blood and analyze it for sugar content. However, Dr. Ledon's patient chart did not indicate that plaintiff was to return in two weeks. In fact, plaintiff did not see Dr. Ledon again for another seven weeks.

Plaintiff next saw Dr. Ledon on March 1, 2001. He reported less diarrhea, no bleeding, soreness in his knees, and face swelling. He was also having trouble sleeping at night, and sometimes felt nervous. At that time, plaintiff was taking Metronidazole, Asacol, and prednisone, thirty milligrams daily. Dr. Ledon found the face and knee swelling to be normal side effects of prednisone, even on a low dose.

He tapered the prednisone by five milligrams, and continued to taper in five-milligram increments until it reached a total of five milligrams every other day. He did not order any blood work because plaintiff "was already down to 30, and I knew that before on 40, he had no problems. The blood work would have made sense at 60 after 2 weeks, but not then. I want blood work later on, not then." He told plaintiff to schedule a follow-up appointment in two months.

According to Dr. Ledon, doctors are reluctant to prescribe steroids because of their side effects. He decided to prescribe it here because, at the time, no other medication would put a patient with moderate or severe ulcerative colitis into remission. The side effects are serious. In addition to rare cases of aseptic necrosis, "almost all patients gain weight, develop acne, [and] their blood pressure will increase." Steroids also cause faces to swell. For these reasons, gastroenterologists use steroids to treat ulcerative colitis "for a very short period of time."

After the disease goes into remission, Dr. Ledon would switch to other medications that did not have these side effects. Dr. Ledon testified, however, that all medications used to treat ulcerative colitis and Crohn's disease (another IBD) could be potentially fatal. In his thirteen years of practice, he treated, on average, eight to twenty patients a week for IBD; none of his other patients have developed avascular necrosis.

When plaintiff next saw Dr. Ledon on May 4, 2001, he was taking five milligrams of prednisone, along with Asacol and Percocet for pain due to a kidney stone. He reported feeling well, with no problems. Dr. Ledon did not want him to stay on the steroids because he had had a flare up when he stopped taking prednisone the month before his first visit, and another flare up when he was on Asacol. Dr. Ledon thus decided to start plaintiff on an immunosuppressant called 6-Mercaptopurine ("6-MP") or Purinethol.

Because Purinethol takes between twelve and sixteen weeks to work, Dr. Ledon decided not to take plaintiff completely off the prednisone. It was also his practice to inform his patients about the complications of Purinethol, which include acute pancreatitis. In this light, he planned to do blood work in four weeks after the drug would have the maximum effect on plaintiff's bone marrow. Four weeks later showed plaintiff in good health; blood studies indicated that the red cells were slightly decreased, but the white count was not seriously affected.

On October 6, 2001, plaintiff went to Colombia; he returned three weeks later on October 27, 2001. During that time, he saw a person he described as an "herbal doctor." He brought natural medicines back to the United States with him. Sometime before his next visit, plaintiff's wife went to see Dr. Ledon. She told him that she was worried for her husband because he was drinking alcoholic beverages and was not taking his medications.

Plaintiff returned to Dr. Ledon on January 17, 2002, eight months after his last visit. He complained that the medicines made him nervous, bloated, and unable to sleep, and that he had headaches and dizziness. He did not mention any bone or joint pain. At that time, he was taking only the natural medicines he had brought back from Colombia; he did not show these "medicines" to Dr. Ledon, however. Dr. Ledon described plaintiff's physical appearance as cushingoid or "moon faced." He prescribed a new 5-ASA compound called Colazal and another steroid called Entocort EC. He decided not to prescribe prednisone, and reminded plaintiff of the importance of maintaining the medication regimen prescribed.

Plaintiff returned on April 10, 2002 complaining of dizziness, severe abdominal pain, diarrhea, and bleeding. He was taking only Colazal. Dr. Ledon increased the dosage of Colazal, prescribed forty milligrams of prednisone, and discontinued the Entocort.

On May 15, 2002, plaintiff reported feeling very weak; he had bad pain in his left leg, and trouble walking. Dr. Ledon's differential diagnosis was inflammatory arthritis or aseptic necrosis. He had been off prednisone for a week. Dr. Ledon prescribed Asacol and ten milligrams of prednisone, and ordered a bone scan and X-rays, both of which were negative for avascular necrosis. Based on his clinical examinations, however, Dr. Ledon believed that the results of the bone scan and X-ray were wrong.

Dr. Ledon saw plaintiff again on June 12, 2001. Plaintiff reported some rectal bleeding, diarrhea, and abdominal pain. Dr. Ledon continued to think that plaintiff had active colitis and early avascular necrosis. He continued the ten milligrams daily of prednisone, and recommended that plaintiff see Dr. Blair Lewis, an inflammatory valve disease specialist. He personally called Dr. Lewis and made an appointment for plaintiff to see him the following week; plaintiff did not keep this appointment.

On July 19, 2002, plaintiff returned to Dr. Ledon complaining of some rectal bleeding, a lot of abdominal pain, a fever, and dizziness. Dr. Ledon increased the prednisone to twenty milligrams, and made another appointment with Dr. Blair; again plaintiff failed to keep this appointment.

On July 25, 2002, plaintiff went to Robert Wood Johnson Hospital complaining of bleeding. He was admitted, and remained hospitalized until July 30, 2002, during which time he received prednisone. Plaintiff could not recall the dosage.

On August 8, 2002, plaintiff returned to Dr. Ledon complaining of pain in his hip and knees. At this time, he told Dr. Ledon that he had been hospitalized, and was taking Dexamethasone, also known as Decadron. Dr. Ledon described Decadron as the "strongest steroid known to man" or one hundred times stronger than prednisone. He did not use Decadron for ulcerative colitis, noting that the drug was given to people who experienced pain after a massive stroke. By this time, Dr. Ledon believed plaintiff had aseptic necrosis. He suggested that plaintiff see an orthopedist, and made an appointment for plaintiff to see Dr. Charko.

When Dr. Ledon next saw plaintiff on September 12, 2002, he was still taking Dexamethasone, and complained of severe pain in his left leg; his right leg was also starting to hurt. Dr. Ledon prescribed Remicade, at the time an expensive and not commonly used medication. This medication had performed well in clinical studies. At the time of trial, Remicade was commonly used to treat ulcerative colitis. According to Dr. Ledon, he prescribed Remicade because it was administered by infusions, which he could control to ensure that plaintiff was taking the medication.

Plaintiff saw Dr. Charko on October 1, 2002. He had his last visit with Dr. Ledon on October 29, 2002, to get "medical clearance for surgery" scheduled for the next morning.

II

Plaintiff underwent hip surgery at Union Hospital on October 30, 2002. Dr. Charko performed a core decompression, taking a cylinder of bone out of the femoral neck and head to decrease the pressure, thereby saving the bone. On December 12, 2002, plaintiff began seeing another gastroenterologist, Dr. Jiminez.

Plaintiff underwent left hip surgery on April 2, 2003. He returned for surgical revision of his left hip four months later, and had right hip replacement surgery, followed by additional surgery to correct a subluxation of his right hip. At some point, he also had a colectomy. According to plaintiff, he continued to take steroids in 2002 and 2003. When he tried to stop taking steroids in 2003, his bleeding and diarrhea returned. Dr. Jimenez also prescribed other medicine to try to wean him off the prednisone.

Plaintiff called two expert witnesses. The first, Rheumatologist Thomas A. Zizic, was a specialist on the use of corticosteroids. Dr. Zizic testified as to the causes of avascular necrosis, including cases associated with the excessive use of steroids. Based on his review of Dr. Delgado's medical records, Dr. Zivic opined, to a reasonable degree of medical certainty, that Dr. Ledon deviated from the standard of care by prescribing sixty milligrams of prednisone on January 5, 2001, and continuing the same dose until March 1, 2001. This deviation caused plaintiff to develop avascular necrosism requiring the hip replacement surgeries.

According to Dr. Zizic, gastroenterologists generally treated mild or moderate cases of ulcerative colitis with a low dose of twenty milligrams of prednisone, increasing to thirty milligrams for moderate to moderately severe cases. The side effects from these lower doses were short term, and generally disappeared when the patient stopped taking the medication.

While higher doses were used for the more severe cases, Dr. Zizic indicated that there were no studies showing that sixty milligrams is better than forty for treating ulcerative colitis. He noted that patients on high dosages were at a greater risk for avascular necrosis, infections, and osteoporosis. Dr Zizic also referred to studies performed in 1985 and 1987 that showed patients who received less than twenty-five milligrams of prednisone daily for two consecutive months did not develop avascular necrosis. For that reason, he believed it was important to evaluate each patient frequently, and take appropriate blood tests in order to reduce the dosage below twenty-five milligrams as soon as possible, or as he stated: "the sooner the better." In his view, patients should be offered the option of a colectomy as a cure to ulcerative colitis. This approach would also prevent the risk of developing cancer in young patients who suffer for years with this disease.

Dr. Zizic acknowledged, however, that even when steroids are used within the standard of care in terms of dosage and duration, a patient could develop avascular necrosis through no fault of the physician. He further agreed that, in some cases, even proper attempts to decrease prednisone might not be sufficient to prevent complications.

Plaintiff called Dr. Present as an expert in the field of gastroenterology. He agreed with Dr. Zizic that patients with ulcerative colitis could be treated with prednisone or other alternatives such as Azathioprine or the newer 5-ASA compounds. The goal of this treatment is to induce and maintain a complete remission with no symptoms. According to Dr. Present, 5-ASA compounds were the "drug of choice" in 2000 and 2001. Stated differently, these medications were the accepted standard of treatment for moderate ulcerative colitis. Corticosteroids, most typically prednisone, are used only if a patient did not respond to the 5-ASA compounds.

Dr. Present emphasized that a patient should be advised of the significant potential side effects of prednisone, such as hypertension, diabetes, inability to sleep, emotional difficulties, irritability, swelling of the face, a "buffalo hump" behind the neck, cataracts, increased susceptibility to infections, ulcer disease, and avascular necrosis where the hip joints collapse causing great pain and difficulty walking.

Against this record, Dr. Present opined that Dr. Ledon, as plaintiff's treating physician, should have obtained blood studies to characterize the disease's severity and determine the proper dosage of prednisone. In 2001, Dr. Ledon should have considered treating a case of severe ulcerative colitis with sixty milligrams of prednisone. In Dr. Present's view, although this dose had significantly more side effects, it gave a slightly better response. If the bleeding and diarrhea improved after two weeks, he would lower the dose and, if not, continue it for another week. If the patient failed to improve, he would have admitted plaintiff to a hospital for further treatment.

Based on his review of Dr. Ledon's medical records, Dr. Present opined that Ledon deviated from accepted standards of practice for gastroenterologists in 2001, by failing to adequately categorize his patient with laboratory tests, specifically blood studies, and by failing to maintain contact with his patient for a "very prolonged period of time" during which it was likely the dosage could have been lowered. In his view, sixty milligrams daily for two months was an "excessively high dose." He acknowledged, however, that it was "hard to be absolutely sure whether this treatment plan caused the aseptic necrosis."

In his experience, most patients who developed avascular necrosis of the hips generally had a high prolonged dose of steroids. In plaintiff's case, he saw no other predisposing factors to explain his development of avascular necrosis. On cross-examination, Dr. Present admitted that he was not familiar with the treatment plaintiff received from Dr. Delgado. He was also unaware of any billing record with a notation that plaintiff should return to see Dr. Ledon in two weeks.

Dr. Michael A. Samach testified on defendant's behalf as an expert in gastroenterology. Based on his review of Dr. Ledon's medical records, he opined that Dr. Ledon appropriately ordered blood work and performed a colonoscopy on plaintiff to confirm the diagnosis of pancolitis. While noting that Asacol was a "good drug" and the first line of medication used for ulcerative colitis, Dr. Samach also used prednisone to bring a patient's ulcerative colitis into remission.

Dr. Samach also reviewed plaintiff's pharmacy records, which indicated that Dr. Ledon prescribed sixty milligrams of prednisone for two weeks and thirty milligrams for another six weeks. While Dr. Ledon's office chart did not mention a follow-up appointment, Dr. Samach testified that a billing record showed the patient was to return in two weeks. Because plaintiff did not return for seven weeks, Dr. Samach could not determine how much prednisone plaintiff took from January to March, 2001.

According to Dr. Samach, Dr. Ledon's approach was "totally consistent" with accepted standards of practice. In his opinion, given that plaintiff had taken forty milligrams of prednisone for several months under Dr. Delgado's care and had not done well, it was appropriate for Dr. Ledon to increase the dose, provided that he reduce the high dose as quickly as possible. For that reason, Dr. Samach believed it was important to monitor the patient's clinical condition.

Although Dr. Samach believed that Dr. Ledon properly monitored plaintiff, he acknowledged on cross-examination that most doctors would have ordered another blood test in March. Because Dr. Samach believed that plaintiff's ulcerative colitis was not severe enough to warrant hospitalization, Dr. Ledon properly prescribed 6-MP in May 2001, a drug used to help patients wean from steroids.

Dr. Samach was also unable to offer an opinion as to whether the medicines plaintiff took in South America could have caused him to develop avascular necrosis. He noted that the medical records indicated plaintiff had started to show symptoms when he next saw Dr. Ledon in January 2002. He also noted that another gastroenterologist had put plaintiff on Decadron, which Dr. Samach considered "an extremely strong form of steroid," akin to taking 1,000 milligrams of prednisone.

To a reasonable degree of medical probability, Dr. Samach opined that the steroids were related to avascular necrosis, although there was some controversy over this relationship. In twenty-nine years of practice, Dr. Samach had had two patients with ulcerative colitis who developed avascular necrosis, and other patients who needed a colectomy. In his opinion, it was more likely that plaintiff developed avascular necrosis by taking forty milligrams of prednisone over a longer period of time, than by taking sixty milligrams for two weeks.

III

We will now address plaintiff's arguments on appeal. In Point I, plaintiff argues that the trial court erred in giving the jury a limiting instruction concerning Dr. Zizic's testimony. This issue arose from defense counsel's objection during Dr. Zizic's direct testimony, arguing that Dr. Zizic's trial testimony went beyond the scope of his written report, and opinions expressed at his deposition. Defense counsel relied on the following excerpts from Dr. ZiZic's deposition testimony.

Q. Okay. What I'd like you to do for me for the record is tell me the specific deviations from the standard of care that you ascribe to Dr. Ledon on that January 5th visit.

A. Starting high dose Prednisone 60 milligrams without obtaining a blood test. Not seeing the patient in a week or two to see how they're -- how they're responding. And if one were going to put the patient on that dose of Prednisone to be following the patient clinically and with blood tests closely for the next several months while you're tapering the Prednisone down as quickly as the clinical condition will allow, and so none of that was done here.

Q. Now, I want to make sure. Is that the entirety of your opinion in terms of deviation on that January 5th visit?

A. Yeah. No clinical or lab follow up for two months.

At trial, Dr. Zizic testified that Dr. Ledon deviated from the standard of care by prescribing sixty milligrams of prednisone without hospitalizing plaintiff. Defense counsel objected and moved for a mistrial. The court denied the motion. After conducting its own examination of Dr. Zizic outside the presence of the jury, the court issued the following instruction:

In this case, the only deviations from the standard of care which have been alleged by the plaintiff against the defendant, Dr. Ledon are: Number one; [sic] that Dr. Ledon prescribed too much prednisone for too long a period of time, for too little disease. And two; [sic] that there was no clinical or lab follow up from January 1, 2001 to March 1, 2001.

Any other opinion offered by this witness as to what should have been done is therefore only his personal opinion, and must be disregarded by you in your determination of whether or not Dr. Ledon deviated from the standard of care in this case.

Therefore, any references in this witness' testimony this morning as to the requirement that the patient be hospitalized and the nature and scope of the care that he could have received in the hospital, inclusive of intravenous prednisone, immunosuppressants, and possibly a colectomy are stricken from the record and must be disregarded by the jury. Okay.

We start our discussion by articulating the relevant standard of review. The admissibility of expert testimony lies in the sound discretion of the trial court. Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004). We will not disturb a trial court's determination regarding the admission or exclusion of expert testimony unless there has been a clear abuse of discretion. Little Egg Harbor Twp. v. Bonsanque, 316 N.J. Super. 271, 278 (App. Div. 1998).

A trial court may exclude expert testimony on a subject not covered in the expert's written reports or any other discovery material. Mauro v. Raymark Indus., Inc., 116 N.J. 126, 145 (1989); Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990); Gaido v. Weiser, 227 N.J. Super. 175, 192 (App. Div. 1988), aff'd, 115 N.J. 310 (1989). However, "when the testimony at issue is 'pivotal' to the case, a court should seek to avoid exclusion where possible." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000) (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 582 (App. Div.), certif. denied, 142 N.J. 574 (1995)).

A trial court should consider alternatives to the sanction of exclusion when the following factors are present: "'(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.'" Ibid. (quoting Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.) aff'd o.b., 78 N.J. 308 (1978)). A party cannot claim to be surprised when the expert's testimony contains the "logical predicates for and conclusions from statements made in the report." Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.), certif. denied, 170 N.J. 210 (2001) (quoting Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000)). It is not reasonable for a court to limit an expert "'to a statement of bare conclusion without giving the expert a chance to explain his or her reasons . . . .'" Ibid.

To establish medical negligence, a plaintiff must show by competent expert testimony that the defendant-physician deviated from accepted medical practices and that the deviation was a proximate cause of the patient's injury. Adamski v. Moss, 271 N.J. Super. 513, 518 (App. Div. 1994). Because average jurors lack the special knowledge, technical training and background, a medical practitioner's standard of care and deviations must be established by expert testimony. Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 103 (App. Div.), certif. denied, 170 N.J. 205 (2001); Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div. 1997).

In Gaido, supra, 227 N.J. Super. at 190, a medical malpractice and wrongful death action, the plaintiff's counsel objected to a hypothetical question on the ground that it went beyond the scope of the expert's written report. To determine the appropriate course of action, the trial court asked the expert to give his proposed response outside the jury's presence. Ibid. It then overruled the objection, but allowed counsel to take the expert's deposition that night, and directed that a written transcript be prepared to serve as a supplemental report. Id. at 190-91. The next day, the expert testified based on the contents of the supplemental report. Id. at 191.

Against these facts, we concluded that the expert's testimony did not introduce any unrelated issue or new line of defense, but merely sought to expand on an already familiar theory. Id. at 193. We determined that the opinion was a critical issue in the case, that the expert's trial testimony did not pose a danger of surprise or prejudice to the plaintiff, and that the plaintiff should have been fully prepared to deal with the expert's opinion on that issue. Ibid. We also found that the trial court's decision to allow this testimony, after an adjournment and deposition of the expert, was a "sound and effective way" to solve the problem, and avoid the sanction of testimonial exclusion. Id. at 192. We reached a similar result in Velazquez v. Jiminez, 336 N.J. Super. 10, 46 (App. Div. 2000), aff'd, 172 N.J. 240 (2002).

Here, the area of Dr. Zizic's testimony of greatest concern to defendant was his assertion that Dr. Ledon should have hospitalized plaintiff at the time he prescribed sixty milligrams of prednisone. Although Dr. Zizic did not refer to Dr. Ledon's failure to hospitalize his patient as a deviation at his deposition, he nonetheless said it was one of several treatments which Dr. Ledon should have done. The following colloquy taken from Dr. Zizic's deposition illustrates the point.

[Q]: Okay. Now, in January, he [Ledon] sees the patient on January 5, 2001, and at that time, he prescribes 60 milligrams of Prednisone daily, correct?

[A]: Correct.

[Q]: Okay. Do you disagree with the dosage that was prescribed at that time by Dr. Ledon?

[A]: Yes.

[Q]: Why?

[A]: Well, if he felt he was sick enough to use a higher dose of Prednisone than we normally do in ulcerative colitis, i.e., there is not good evidence that above 40 does any better than 40.

[Q]: Specifically for the treatment of ulcerative colitis you mean?

[A]: Specifically for the treatment of ulcerative colitis. And so if one is going to use 60, one should bring the patient in the hospital for intravenous cortico steroids [sic] for seven to ten days, and if the patient doesn't respond, then take the patient off cortico steroids and go to immunosuppressives for a period, and if that doesn't work, you go to colectomy, because just as in this man, colectomy is not a bad alternative, because after ten years of disease, there's about a half to 1 percent per year incidence of cancer of the colon in patients with ulcerative colitis. . . . And so if patients don't respond to medications that have their own toxicity, Azulfidine, that doesn't work, short course of cortico steroids [sic], if that doesn't work, Cyclosporin intravenously, if that doesn't work, colectomy, or some people would go right from cortico steroids [sic] to

colectomy. I have no problem with that.

Later in the deposition Dr. Zizic reiterated the importance of admitting a patient to the hospital when using a high dose of steroid:

[Q]: All right. Now, for Mr. Vargas, you indicated that on January 5, 2001, that an alternative would have been to admit him for IV cortico steroids [sic], correct?

[A]: If you were going to use high dose steroids, if you felt the patient was that sick that you needed to use 60 milligrams of Prednisone then you should admit that patient for intravenous steroids so you can observe him every day to see how he is clinically responding.

[Q]: Okay. And in your opinion, if that was done, what would be an appropriate IV regimen to put this type of a patient on?

[A]: Oh, 48 milligrams of Methylprednisone IV a day.

Dr. Zizic then listed two advantages of putting the patient in the hospital for IV Methylprednisone steroids as opposed to maintaining the patient out of the hospital on oral steroids: (1) to ensure that the steroid is absorbed across the mucosa of the bowel, bypassing the liver; and (2) to ensure that the physician can see the patient every day to follow his or her clinical response, and quickly taper the medication if the patient responds or try something else.

He also testified at his deposition that a patient on sixty milligrams of prednisone should be examined more closely and given more frequent blood work checks. In response to a question asking what type of blood work should be done, Dr. Zizic indicated that the physician should check the patient's CBC or white blood cell count, sedimentation rate, metabolic profile, and potassium level, and clinically check his or her blood pressure. When asked how frequently the standard of care required Ledon to check his patient's blood, he responded:

Well, again, it depends. There's no cook book here, you know. First of all, I mean how in the world can you put this patient on 60 milligrams of Prednisone and not have any blood tests for two months?

. . . . So you know, first of all, give me a baseline, and then get me a blood test in a week or two and let's see what it is, depending upon how the patient is doing as to how often--obviously initially you check them more frequently, because you want to see the response and you want to taper the Prednisone, you want to see that they maintain the response. Nothing was done in terms of blood tests whatsoever to check activity, and there wasn't any clinical indication of things that are checked and there wasn't any--hmm. There wasn't anything.

At trial, Dr. Zizic testified that Dr. Ledon deviated from the standard of care in his treatment of plaintiff from January to March 2001. He cited multiple reasons, including: (1) the lack of evidence showing sixty milligrams was better than forty for ulcerative colitis; (2) the absence of any blood tests; and (3) the failure to put his patient in the hospital.

When questioned by the court outside the jury's presence as to why he did not mention lack of hospitalization in his summary of deviations he gave in response to defense counsel's question, Dr. Zizic explained that he "wasn't encyclopedic in that summary," because he had spoken about the need for hospitalization earlier in the deposition.

Against this record, we are satisfied that the trial court erred in issuing the limiting instruction to the jury. There is no evidence to support that Dr. ZiZic intended to mislead or surprise defendant. Wymbs, supra, 163 N.J. at 544. Given the broad scope of Dr. Zizic's opinion in his report, and his subsequent deposition, it is unlikely that defendant was unaware of the details of his opinions. See Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 131 (App. Div. 1997).

When considered under all of the attendant circumstances, however, we are satisfied that this error did not have the capacity of producing an unjust result, because plaintiff was allowed to introduce similar evidence through another witness. Stated differently, given the availability of other expert opinion, the trial court's limitations on Dr. Zizic's opinion testimony was not material to or dispositive of the jury's assessment of plaintiff's case.

Specifically, the jury also had available Dr. Present's testimony, in which he opined that Dr. Ledon deviated from the standard of care by prescribing an excessively high dose of prednisone, by failing to order blood studies, and by failing to maintain contact with plaintiff between January and March 2001. Dr. Present told the jury that he would have considered treating a case of severe ulcerative colitis with sixty milligrams of prednisone, and that he would have hospitalized the patient if there was no improvement after three weeks. Despite this evidence, the jury returned a no cause verdict against plaintiff.

Plaintiff next contends that the trial court committed reversible error by failing to give Scafidi and Gardner jury charges. According to plaintiff, a Scafidi charge was required because Dr. Ledon's negligence, combined with plaintiff's preexisting condition, caused the harm at issue here. Plaintiff also argues that the court erred in failing to give a Gardner charge because Dr. Ledon failed to order any blood work to determine the extent of the underlying disease.

We reject these arguments. Even if the trial court erred in failing to give these charges, the error was harmless because the jury never reached the issue of causation due to its finding that there was no deviation from accepted standards of medical care. We will nevertheless address these arguments in the interest of completeness.

We begin our analysis of these issues by reaffirming certain fundamental principles. Proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002); Vasallo v. Bell, 221 N.J. Super. 347, 376 (App. Div. 1987). "Jury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Reynolds, supra, 172 N.J. at 289 (quoting Velazquez, supra, 163 N.J. at 688). A court commits reversible error when it fails to tailor a jury charge to the given facts of a case and a different outcome might have prevailed if the jury had been correctly charged. Ibid.

We will now directly address the issues at hand. During the charge conference, plaintiff's counsel requested a Scafidi charge based on plaintiff's preexisting condition, which he described as the use of prednisone to treat ulcerative colitis. Defense counsel objected, arguing that this was not a Scafidi case because there was no evidence that plaintiff had an undiagnosed preexisting condition, or that his ulcerative colitis caused him to develop avascular necrosis. Even if plaintiff had developed avascular necrosis as a result of the prednisone prescribed by Dr. Ledon, there was no evidence that Dr. Ledon was negligent. The court rejected plaintiff's application finding no evidence that plaintiff had developed avascular necrosis until October 2002.

We agree with the trial court. In medical malpractice cases, plaintiffs ordinarily have the burden of proving proximate cause with respect to damages. Anderson v. Picciotti, 144 N.J. 195, 209 (1996). The traditional "but for" test "'allow[s] for recovery only when the injury is one that would not have occurred "but for" the wrongful act.'" Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation 4.03 (West Group 2002)). That test, however, has limitations in situations where two or more forces bring about a certain result, any one of which would be sufficient. Id. at 24.

In Scafidi, supra, 119 N.J. at 109, the Court recognized that in medical malpractice cases where a defendant's negligence combined with the patient's preexisting condition to cause an injury, the standard "but for" jury charge on proximate cause could confuse and mislead a jury. The Court reduced the burden of proving proximate cause in these cases, by requiring the patient to show that the physician's negligence increased the risk of harm from the preexisting condition, and that the negligence was a "substantial factor" in causing the patient's injuries. Id. at 108-09; Linquito v. Siegel, 370 N.J. Super. 21, 38 (App. Div.), certif. denied, 182 N.J. 143 (2004). For purposes of a Scafidi charge, "[a] preexisting condition or disease is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant." Anderson, supra, 144 N.J. at 211.

Thus, in a Scafidi situation, "there is a likelihood of adverse consequences based on the preexisting condition alone, and the physician's negligence hastens or otherwise fails to stem the patient's downward course caused by the preexisting condition." Holdsworth v. Galler, 345 N.J. Super. 294, 300 (App. Div. 2001). The party requesting the Scafidi charge has the burden of persuading the court and jury that the evidence is sufficient to sustain such a charge. Anderson, supra, 144 N.J. at 209.

Here, under plaintiff's theory of liability, his ulcerative colitis alone did not cause his avascular necrosis. Rather, plaintiff contended that the avascular necrosis developed from the prednisone used to treat his colitis. No physician testified that the ulcerative colitis caused the ultimate harm. There also is no allegation that Dr. Ledon failed to diagnose plaintiff's ulcerative colitis.

Because we are satisfied that this was not a Scafidi case, we also reject plaintiff's argument under Gardner.

In Gardner, supra, 150 N.J. at 362, the plaintiffs, whose fetus was stillborn, alleged that the defendant-physician failed to perform diagnostic tests that would have revealed a defect in the umbilical cord. The Court reversed the dismissal of the complaint at the close of evidence, and remanded for a new trial. Id. at 363, 391. The Court held that the lower court should have permitted the plaintiffs to submit to the jury the questions of whether, based on the expert testimony, the failure to perform certain tests "increased the risk that the fetus's condition would not be detected, treated or corrected and whether that increased risk had been a substantial factor in causing her death." Id. at 389. Thus, in cases involving the alleged failure to perform a diagnostic test, the Court concluded that a plaintiff does not have to demonstrate a reasonable medical probability that the tests would have resulted in avoiding the harm, but that the failure to give the test increased the risk of harm from the preexisting condition. Here, plaintiff's experts testified that a patient with ulcerative colitis, who was given sixty milligrams of prednisone, should have been monitored with blood tests. Neither expert testified, however, that the failure to give these tests increased the risk of harm from the preexisting condition; neither expert argued that the failure to order blood tests prevented Dr. Ledon from diagnosing or treating the underlying condition.

The balance of plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Although Maria Vargas is also listed as a plaintiff, her per quod claims are derivative from her status as the spouse of Alveiro Vargas. We will thus refer to plaintiff in the singular.

Gregory Charko, an orthopedic surgeon, was originally named as a party defendant. He did not participate in the litigation, and is not a part of this appeal.

Scafidi v. Seiler, 119 N.J. 93 (1990); Gardner v. Pawliw, 150 N.J. 359 (1997).

Plaintiff did not sue Dr. Delgado, whose first name does not appear in the record. Plaintiff also did not call Dr. Delgado as a witness. All references to Dr. Delgado and the treatment he provided to plaintiff are taken from testimony of witnesses who reviewed his medical records.

Dr. Ledon used the term "aseptic necrosis" interchangeably with "avascular necrosis."

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37

A-1072-07T1

August 19, 2009