VIKKI BAUMANN GRISHAM v. PROSPECT WOMAN'S MEDICAL CENTER P.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0037-09T20037-09T2

VIKKI BAUMANN GRISHAM,

Administratrix Ad Prosequendum

for the ESTATE OF MARIE PATRICIA

BAUMANN and VIKKI BAUMANN and

JAMES BAUMANN, INDIVIDUALLY,

Plaintiffs-Respondents,

v.

PROSPECT WOMAN'S MEDICAL CENTER,

P.A. and ROBIN LEVAT, M.D.,

Defendants-Appellants,

and

NEW CENTURY IMAGING, JOEL

BUDIN, M.D.,

Defendants.

________________________________________________________________

Argued May 3, 2010 - Decided July 8, 2010

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9172-06.

James B. Sharp argued the cause for appellants (James B. Sharp & Associates, LLC, attorneys; Mr. Sharp, of counsel and on the briefs; Graig R. Avino, on the briefs).

Francis X. Dorrity argued the cause for respondents (Francis X. Dorrity Law Offices, attorneys; Mr. Dorrity and Tracey A. Dorrity, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff, Marie Patricia Baumann, alleged that defendant, Dr. Robin Levat, deviated from the accepted standard of care in treating her on two specific occasions, October 1, 2003 and October 8, 2004, failing to diagnose plaintiff's breast cancer, from which she ultimately died. In separate interrogatories, the jury was asked to determine whether defendant deviated from the accepted standard of care in October 2003 and in October 2004. The jury found no deviation in October 2003, but it found a deviation in October 2004, which it found increased the risk of harm to plaintiff from her preexisting condition. The jury also found that defendant failed to prove that plaintiff's death would have occurred even if the treatment in October 2004 was proper. The jury awarded damages of $106,000 for pain and suffering, $44,000 for lost wages, and $122,000 for loss of services and companionship.

Defendant moved for a judgment notwithstanding the verdict (JNOV). She argued that plaintiff's liability experts testified as to the applicable standard of care and her deviation from that standard with respect to the October 2003 treatment, but that plaintiff provided no expert opinion as to the standard of care and any deviation with respect to October 2004. The judge denied the motion, finding that the jury could have inferred a deviation in 2004 based on the evidence presented. The judge concluded that "[t]he entire presentation of plaintiff's experts was a unified theme that Dr. Levat's treatment in 2003 and 2004 was a deviation from the accepted standard of medical practice," and was, in effect, a "continuing deviation."

Defendant appeals from the denial of her JNOV motion. She argues that the judge erred because without expert opinion evidence of the applicable standard of care and of defendant's alleged deviation from it with respect to the October 2004 treatment, the jury's verdict cannot be sustained. We agree with defendant and reverse.

In early September 2003, plaintiff discovered during a self-examination what she perceived to be a lump in the outer section of her right breast. She made an appointment to see defendant, a specialist in obstetrics and gynecology (OB/GYN). On October 1, 2003, plaintiff presented to defendant as a new patient. Defendant recorded in her office notes that plaintiff's chief complaint was a "[l]ump on right breast times several months has gotten bigger."

After examining plaintiff, defendant noted "fibrocystic changes" in the area of concern. Defendant characterized the changes as superficial, stating that "no dominant mass [was] palpated." She diagramed the location of the "area of concern" in plaintiff's chart, highlighting the breast area between 6 and 9 o'clock, thus referencing the lower right quadrant of the breast.

Defendant prescribed a mammogram and ultrasound. The diagnosis code on the prescription form was for a "screening mammogram." The prescription form did not indicate the area of concern or even which breast was to be examined with particularized scrutiny. Plaintiff presented at New Century Imaging for these tests on October 8, 2003. The radiologist returned the results directly to defendant's office. Both reflected negative results. However, the mammogram report indicated that the upper right quadrant was examined with particularity. Defendant did not call the radiologist to rectify the inconsistency, either by confirming that the lower right quadrant was examined with particularity or ordering a repeat of the test for that purpose. She noted in plaintiff's record that the radiologist's findings were benign. Defendant advised plaintiff accordingly and told her to return in one year for a routine check-up.

Plaintiff returned to defendant on October 8, 2004. According to defendant's notes from that visit, plaintiff did not complain of a lump in her right breast. In later deposition testimony, plaintiff contended that she did report the presence of the lump at the October 2004 visit. In any event, defendant examined plaintiff and noted in plaintiff's chart the "area as above" with "increased density." Defendant later explained this comment in her testimony as meaning plaintiff presented with the same area of increased density, not that the density had changed from 2003 to 2004.

Following this examination, defendant prescribed another mammogram. This time, defendant did not order an ultrasound. As in October 2003, she also did not order a surgical consultation for a possible biopsy. Defendant later testified that she felt this was unnecessary because there had been no change in this area of increased density.

The mammogram was performed, and the radiologist reported to defendant that the results were negative. Defendant's office told plaintiff that "everything was okay, come back next year."

Plaintiff did not wait a year. About six months later, on April 6, 2005, she returned to defendant's office because of her continued concern about the lump in her breast, which she thought was getting larger. During this examination, defendant felt a mass in plaintiff's right breast. It was located in the same area where plaintiff had increased density noted in her right breast in October 2003 and October 2004. According to plaintiff's later testimony, defendant had stated that she felt the lump in October 2004, and that in the course of the April 2005 examination, defendant remarked that she thought the lump had gotten larger.

Defendant noted in plaintiff's chart the presence of a moderately firm, non-tender area. She prescribed a mammogram, an ultrasound of the lower right quadrant of plaintiff's right breast, and a consultation with a breast surgeon to determine whether a biopsy was indicated. Defendant diagramed the area of concern in the lower outer aspect of the right breast between 6 and 9 o'clock. This area was also noted on the prescription for the radiological studies. An April 25, 2005 biopsy of the lump in the lower outer quadrant of plaintiff's right breast revealed that she had invasive lobular carcinoma. The cancer was Stage IV. Plaintiff died from this cancer on August 25, 2008.

In support of her JNOV motion, defendant submitted to the trial court transcripts of the testimony of plaintiff's two liability experts, Dr. Richard Luciani, an OB/GYN expert, and Dr. Michael Drew, a general surgeon. In support of her appeal, defendant has submitted the same transcripts to us. She has not submitted transcripts of the remainder of the trial, which spanned thirteen days and included the testimony of six experts. Plaintiff argues that we should dismiss the appeal because defendant failed to provide transcripts of the "entire proceedings" as required by Rule 2:5-3(b). We reject this argument. The appeal is taken from denial of the JNOV motion, and defendant has submitted to us the same materials she submitted to the trial court in support of that motion. We are satisfied that we have been furnished with those parts of the record that "are essential to the proper consideration of the issues" involved in the appeal, which are limited to denial of the JNOV motion, as required by Rule 2:6-1(a)(1)(I).

In presenting his liability experts, plaintiff's counsel inquired of both of them only about the standard of care and deviations from that standard with reference to the October 2003 visit with defendant. Dr. Luciani opined that, in light of the circumstances presented in October 2003, defendant should have ordered a diagnostic mammogram, rather than a screening mammogram. With a diagnostic mammogram, the radiologist would test more thoroughly and scrutinize more carefully the area of concern reported by the referring physician. Dr. Luciani opined that defendant deviated from the standard of care by ordering only a screening mammogram. In addition, near the conclusion of his direct examination, plaintiff's counsel asked Dr. Luciani to reiterate his opinions. This was the colloquy:

Q Do you have an opinion with regard to the acceptable standard of care, as it existed in October, on October 1, 2003, regarding diagnosis of a breast lump, where the physician, the clinician, cannot feel the lump, and mammography and ultrasound is negative in its results?

. . . .

A Yes. The standard of care, obviously, in 2003, for this particular patient with these particular symptoms, required three things. Should I elucidate them?

Q Would you please give us your three opinions then?

A Number one, since there was an area of concern, both on the part of the patient and Dr. Levat in October of 2003 in the lower outer quadrant of the right breast, and the mammographic report actually looked at a different area, number one, Dr. Levat was obligated to speak with [the radiologist] and find out what was going on in the area that she was concerned about. She never did that.

Number two, since there was an area of a concern, by both the patient and by the doctor, it was a deviation to assume that that was a Fibrocystic change, and the patient should have been followed up by Dr. Levat within a short period of time to see if that area had resolved, if the patient complaint had resolved.

And, number three, if the area did not resolve or Dr. Levat was not comfortable following up herself, then she should have immediately referred Mrs. Bauman[n] for a Surgical evaluation to go further into diagnosing this area of concern.

Likewise, with Dr. Drew, plaintiff's counsel inquired only as to the applicable standard of care and deviation with respect to the October 2003 visit. When asked whether he formulated an opinion as to whether or not defendant deviated from the standard of care regarding plaintiff's complaint of a right breast lump, Dr. Drew stated:

My opinion that Dr. Levat did deviate from accepted standards of care by failing to refer Ms. Baumann to a breast surgeon on the first -- on their first encounter in 2003.

. . . .

. . . . I think the most important issue is that Ms. Baumann presented to Dr. Levat with a specific complaint of what she felt was a mass in her right breast. So this already elevates this into a different situation. This is not a woman going to her gynecologist on the yearly basis for a routine exam where maybe somebody feels something they don't. This is a patient presenting with a specific complaint in the breast. And that requires, I think, a certain behavior by a gynecologist, and I don't think that was met in this situation.

Dr. Drew was also critical of defendant for not reconciling the difference between the upper and lower outer quadrant as between defendant's records and the radiology report from 2003. Like Dr. Luciani, Dr. Drew was of the opinion that defendant should have specified in the prescription script for the mammogram in 2003 the specific location of the area of concern. He further opined that when defendant received back the radiologist's report which indicated a different area of concern, she had a duty to contact the radiologist to reconcile the discrepancy and, if necessary, have plaintiff retested.

With respect to the 2004 visit, Dr. Drew testified that defendant's records reflected an area of suspicion or abnormality, and that defendant "felt that area of increased density in the breast was the same as it had been the year before." Thus, another screening mammogram was ordered, which failed to demonstrate any abnormality. As with the October 2003 prescription, the mammogram prescription in October 2004 did not reference any particular area of concern.

However, Dr. Drew was not asked to render an opinion as to the standard of care under the circumstances that existed at the time of the October 2004 visit. He was asked specifically about the standard of care in October 2003, as well as causation derived from defendant's alleged negligence in October 2003. He summed up his testimony as follows:

Q Okay. Had Dr. Levat appreciated a problem in Patricia Baumann's breast back in October of 2003, and had the matter been referred to a competent breast surgeon, would that be within the standard of care as you understand it?

A It would be, yes.

Q And would it be a deviation, if in this case, Dr. Levat failed to refer Patricia Baumann to a breast surgeon?

A The basis of --

Q In October 2003?

A The basis of my report and where I was asked to comment about was basically just that. I think that, while I'm not a gynecologist, a physician, a gynecologist looking at a patient, like as in this case, for the first time, without a frame of reference to be able to say, oh, I've examined this wom[a]n for ten years and there's no change. This was her first visit, there was a question of something there. More importantly, it never went away for a year. Okay?

So to my way of thinking the correct way of managing this, the very first visit would have been to:

Number one, resolve the discrepancy with the radiologist, because I think there's a good chance had they looked at the right area of the breast in October of '03, they would have come to the same conclusion they did in '05, when they focused the sonogram on a correct area. So I think that would have been the first thing, and that's a deviation not to have done that.

And the second thing is you don't take a patient like this, who comes into your office with an area of, again, we can use the word concern, and tell her to come back in one year. If you're going to observe it, you ask the patient to come back in a month or six weeks and see if it's there. If it's still there that requires, I think, specialist input in this case, the breast surgeon.

And it's my opinion that a breast surgeon looking at this situation, and examining this breast would have biopsied it on first, you know, on first wash.

Q Had it been biopsied on October 2003, do you have an opinion as to the likelihood of the detection of cancer?

A I think it would have been detected. I mean it's way too much of a coincidence that everything here is of the same lesion, at 8:30, and the same breast. So I think there's every reason, that's not a very big stretch to assume that you would make a diagnosis. And certainly with 18 months earlier, or two years earlier, you have to assume that the mass would have been smaller. How much smaller is anybody's guess. But certainly, if we go by Dr. Levat's -- Levat's own notes when there was a question, we know that it was a very small lesion.

I think one of the issues that I focused on, and why I think it is important to use a specialist, is because when you look at this -- Mrs. Baumann at the time she had a diagnosis. Dr. Levat examined her in April of '05 and thought questionably the lesion was getting bigger. Three weeks later she was investigated by a breast surgeon, who felt the mass that was unreceptable for breast cancer, and the diagnosis was made.

So here are two doctors, competent doctors, but the difference is what we know. And I think, as I say, I'm not a gynecologist and I don't know how to handle ovarian tumors. And I don't think breast -- I don't think breast tumors and breast problems are best managed by gynecologists. And unfortunately, this case to me, is the poster for that kind of, you know, failure to get a proper specialist to look at this.

Q Doctor, are you able to render the opinions you've just given us within the bounds of reasonable, medical probability?

A Yes.

Q Do you have an opinion as to whether or not the delay in diagnosis, that would be from October 1, 2003 until April 13th on the mammography, or April 25th the surgical diagnosis 2005, do you have an opinion as to whether or [not] that delay caused or contributed to the growth of the tumor and the metastasis of the tumor to other body parts?

A There's absolutely -- there can be absolutely no question that the delay in diagnosing a breast cancer, or any cancer, but a breast cancer specifically only allows the tumor to get bigger and then spread. And it classically spreads from area to area. That's why early detection of breast cancer is so important. Because breast cancer doesn't usually -- doesn't go from a small lesion in the breast and metastasize to the bone or to the lung. It gets bigger first, then it classically goes to the lymph nodes under the arm, then it may go to the lung, bone. So time is of the essence. I mean that's the basis for early detection and screening mammograms and everything we do in breast cancer.

Dr. Drew acknowledged that defendant's records of the October 2004 visit did not reflect that plaintiff complained of the lump in her right breast while in the office. He also conceded that after plaintiff was diagnosed in 2005, and she went to Sloan-Kettering for treatment, there was no reference in the Sloan-Kettering records that she had felt the lump in her breast in 2004. However, Dr. Drew did not consider the absence of such a complaint in these records significant, because, in his view, plaintiff returned to defendant in October 2004 for "a scheduled visit to evaluate her complaint of '03 to return in a year." Therefore, in his view, "[s]he came back because she was told to come back in a year to re-evaluate that breast mass."

Although we have not been furnished with the applicable portion of the transcript, it is undisputed that at the end of plaintiff's case, defendant moved for a directed verdict with respect to the October 2004 visit because of a lack of expert testimony about the standard of care and alleged deviation as to that visit. The motion was denied. It is also undisputed that, at the charge conference, the defense requested specific interrogatories as to a deviation from the standard of care in October 2003 and October 2004, and plaintiff did not object to that procedure. As we have stated, the jury found no deviation with respect to October 2003, but found a deviation with respect to October 2004, upon which its damage award was based.

In a written decision denying defendant's JNOV motion, the trial court reasoned that Drs. Luciani and Drew rendered opinions regarding defendant's

treatment and its deficiencies from the initial visit in October 2003 to the third and final visit [in] April 2005, and are effectively sufficient to permit the jury to make a legitimate inference that Dr. Levat had deviated from the acceptable standards of medical practice with respect to Mrs. Baumann's second visit in October 2004.

The judge was of the view that, taking the evidence as a whole, "the jury could infer that Dr. Levat had deviated from the applicable standard of medical care in 2004 when the same situation as in 2003 existed, specifically the same that referenced fullness or density, was presented for a second time to the doctor in 2004." The judge concluded that "[t]he entire presentation of plaintiff's experts was a unified theme that Dr. Levat's treatment in 2003 and 2004 was a deviation from the accepted standard of medical practice in the care of Mrs. Baumann."

In ruling on a party's motion for JNOV pursuant to Rule 4:40-2, "[t]he trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The decision of the factfinder is "entitled to very considerable respect" and "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

However, a motion for JNOV "must be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in the plaintiff's favor." Riley v. Keenan, 406 N.J. Super. 281, 298 (App. Div.) (citing Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)), certif. denied, 200 N.J. 207 (2009). The court must accept all the evidence in favor of the party defending against the motion and grant it the benefit of all reasonable and legitimate inferences that can be deduced therefrom, and if reasonable minds could differ, the motion must be denied. Ibid. (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). In other words, the court must "'determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). The purpose of a JNOV is "to correct clear error or mistake by the jury," and not for the judge to "substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion." Ibid.

In reviewing such a ruling, an appellate court is to apply the same standard as the trial judge. Riley, supra, 406 N.J. Super. at 298 (citing Frugis v. Bracigliano, 177 N.J. 250, 269 (2003)); see also Baxter, supra, 74 N.J. at 596. However, "[a]n appellate court must pay deference to the trial court's 'feel of the case,' given that, on appeal, review is confined to 'the cold record.'" Johnson v. Scaccetti, 192 N.J. 256, 282 (2007) (quoting Baxter, supra, 74 N.J. at 600). In this regard, the trial court's findings of fact are upheld if "'the findings made could reasonably have been reached on sufficient credible evidence present in the record.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Nevertheless, an appellate court must still "'accept as true all the evidence supporting [plaintiff] and accord him all legitimate inferences.'" Raspa v. Office of the Sheriff of Gloucester, 191 N.J. 323, 334 (2007) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005)).

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. Although this rule is "primarily permissive," certain situations exist "in which expert testimony must be adduced in support of a proposition and absent such testimony the proposition will be rejected as a matter of law." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2010).

"Unlike the typical negligence case, where the jury can supply the applicable standard of care from its collective knowledge, in a medical malpractice case the standard of care to which a physician should adhere must be established by expert testimony." Ritondo ex rel. Ritondo v. Pekala, 275 N.J. Super. 109, 115 (App. Div.) (citing Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)), certif. denied, 139 N.J. 186 (1994). The reason for this rule is "that a jury generally lacks the 'requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.'" Rosenberg, supra, 99 N.J. at 325 (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)). If a plaintiff fails to produce such expert testimony in a medical malpractice case, the complaint will be dismissed. Sanzari, supra, 34 N.J. at 135. Moreover, because of their lack of knowledge, training, and background, "a jury of laymen cannot be allowed to speculate as to whether the procedure followed by a treating physician conformed to the required professional standards." Schueler v. Strelinger, 43 N.J. 330, 345 (1964) (finding that a lack of "competent proof" of what the exercise of normal medical care required called for withholding the question from jury consideration).

There is no feel-of-the-case issue here. Therefore, our review is essentially de novo. Unquestionably, plaintiff presented no expert testimony specifically directed to the standard of care and a deviation from the standard with reference to the October 2004 visit. We do not agree with the trial court's conclusion that the expert testimony regarding the standard of care and deviation with reference to the October 2003 visit provided a sufficient basis to allow the jury to infer the applicable standard and deviation a year later. It must be kept in mind that the jury found no deviation in 2003, notwithstanding plaintiff's expert testimony in that regard. Therefore, we cannot subscribe to the "continuing deviation" theory advanced by plaintiff and accepted by the trial court. Based upon the very evidence upon which plaintiff relied to support a deviation in 2004, the jury found no deviation in 2003. By the time of the October 2004 visit, plaintiff had not seen defendant during the intervening year. Thus, there could have been no deviation during that interim period.

The circumstances under which defendant evaluated plaintiff in 2004, although similar, were different. There is conflicting evidence as to whether plaintiff even complained of continuing to feel the lump at that time. Nevertheless, upon examination, defendant observed the same level of thickening as she had observed a year earlier. Of course, a year had passed. We will not speculate on what the standard of care was under those circumstances. It might be, as plaintiff argues, that the circumstances were sufficiently similar to 2003 to make the same standard applicable. Or, with the passage of time and (if believed by the jury) no change in the size and other characteristics of the area of increased density, the standard of care might be different.

The point is that the jury needed expert guidance on this issue. None was provided. We can therefore have no confidence that the verdict was based on competent evidence of the kind required in a non-common knowledge medical malpractice case. We note, for example, that although the trial court commented in its written decision denying the JNOV motion that in 2004, defendant did not order an ultrasound, "which is less than what was prescribed the prior year," at oral argument on the motion plaintiff's counsel conceded that no expert ever testified that the standard of care in 2004 required ordering an ultrasound. The jury might have followed a similar speculative path without the needed expert guidance.

Reversed.

 

Marie Patricia Baumann died during the pendency of the trial court litigation, after which a supplemental complaint was filed by Vikki Baumann as Administratrix Ad Prosequendum for the Estate of Marie Patricia Baumann and by Vikki and James Baumann individually. As supplemented, the complaint asserted survivorship and wrongful death claims. For ease of discussion, we will refer throughout this opinion to the decedent, Marie Patricia Baumann, as "plaintiff."

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