DEBORAH NORTHUP v. GREGORY M. BRACCIA, M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1277-08T21277-08T2

DEBORAH NORTHUP and

CLIFFORD NORTHUP,

Plaintiffs-Appellants,

v.

GREGORY M. BRACCIA, M.D.,

Defendant-Respondent.

________________________________

 

Argued October 6, 2009 - Decided

Before Judges Skillman, Gilroy and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4036-04.

Mark S. Levy argued the cause for appellants (Levy, Baldante, Finney, Rubenstein, Cohen & Chizmar, P.C., attorneys; Mark R. Cohen and Mr. Levy, on the brief).

Timothy M. Crammer argued the cause for respondent (Crammer, Bishop, Marczyk & O'Brien, attorneys; Mr. Crammer, on the brief).

PER CURIAM

In this medical malpractice action, plaintiffs Deborah Northup and Clifford Northup, her husband, appeal from the September 17, 2008 order that dismissed their complaint based on a jury verdict of no cause of action. They also appeal from the order of October 24, 2008 denying their motion for a new trial. We affirm.

I.

On December 21, 2004, plaintiff filed a complaint against defendant Gregory Braccia, M.D., a board-certified pain management specialist, alleging that defendant had deviated from the required standard of care by recommending and performing a discogram to determine the source of plaintiff's pain. Plaintiff contended that defendant's negligence damaged her spinal nerves, causing Reflex Sympathetic Dystrophy (RSD), a chronic pain syndrome. However, plaintiff did not claim negligence in the manner defendant performed the discogram.

The parties tried the matter to a jury on diverse dates between September 8, 2008, and September 17, 2008. On the last day of trial, the jury found defendant not negligent, that is, defendant had not deviated from the standard of care required of pain management specialists in recommending and performing the discogram. On September 17, 2008, the trial court entered a confirming order dismissing plaintiff's complaint. On October 7, 2008, plaintiff filed a motion for a new trial. The court entered an order supported by an oral decision denying the motion on October 24, 2008.

II.

Approximately twenty-five years prior to August 2002, plaintiff had undergone a fusion to repair a herniated disk at the L4-L5 or L5-S1 level. Plaintiff returned to the workforce as a waitress approximately one year later. On August 31, 2002, plaintiff, then a fifty-two-year old nurse's aide, injured her back while lifting a patient at a nursing home facility. Immediately following the incident, plaintiff received emergency room treatment at a nearby hospital. On September 4, 2002, the employer's workers' compensation carrier referred plaintiff to a physician for an examination. The carrier's physician recommended that plaintiff be examined by an orthopedic physician and undergo a Magnetic Resonance Imaging (MRI) study of her lower back. Plaintiff underwent the MRI on September 12, 2002. The MRI disclosed a "focal disk herniation at the L5-S1 level centrally and to the right."

On October 9, 2002, plaintiff next saw Dr. George Glenn, Jr., an orthopedic surgeon. Dr. Glenn provided plaintiff with two prescriptions, one for physical therapy and one to obtain a "lumbar epidural steroid injection" to calm down the inflammation at the L5-S1 disk level.

Defendant first saw plaintiff on November 1, 2002. Following his examination, defendant noted in his records that he was planning to perform the epidural injection, but that if the epidural injection was unsuccessful, he would give consideration to performing a provocative discogram. Defendant administered the epidural injection on November 11, 2002. The procedure exacerbated plaintiff's pain, causing her to stay in bed for the next five days.

On December 3, 2002, Dr. Glenn reported to plaintiff's workers' compensation insurance provider that he had "failed to notice any improvement in spite of any form of treatment" and plaintiff was "not in any way a candidate for surgery." Dr. Glenn also explained to plaintiff that she was "not a candidate for any type of invasive procedures," that she had "reached her maximum medical improvement." The doctor's final diagnosis was "[p]robable disk herniation at L5-S1 level with residual radiculopathy, sensory only."

On December 6, 2002, plaintiff returned to Dr. Glenn's office where she was examined by Dr. Glenn's associate, Dr. Robert Taffet. Plaintiff complained to Dr. Taffet that she had attempted to return to work that day, but was unable to do so because the "pain in her back and pain radiating down the right leg was too severe." Dr. Taffet advised plaintiff that she should try a second epidural injection, and "to try to stay away from surgical intervention and try to stick with conservative management for [the problem]."

On December 19, 2002, defendant again saw plaintiff. Defendant recommended to plaintiff that he perform a discogram "to gather more information." According to defendant, immediately following his examinations of plaintiff on November 1, and December 19, 2002, he telefaxed copies of his examination notes to Dr. Glenn, including his statements that a discogram may be required.

Defendant testified that although the MRI had indicated an abnormality at the L5-S1 level, he did not believe the MRI was conclusive because a "disk can be abnormal appearing on [an] MRI and not hurt [and] conversely, . . . appear normal . . . and be the source of pain."

According to defendant, plaintiff was suffering from lumbar discogenic syndrome. He described the condition as:

Conversely, with lumbar discogenic pain or painful internal disk disruption, pain radiating distribution is not specific to each disk. In other words, the disk at the top of the low-back region, L1-2, can give you the exact same symptoms as the disk at the L5-S1, and both of them cause low-back pain that radiates into the buttocks continually classically, or as in terms of what the textbook will tell you, into the posterior aspect of the legs to the level of the thigh. Now, what gets confusing or gets complicated about this situation is these individuals with lumbar discogenic syndrome will also tell you they occasionally feel numbness and tingling, and you'll look at their studies in some cases and you'll see no evidence of nerve decompression.

So getting back to my original point, and I'm thinking you're pretty much aware that nerve injury pain either from a disk pressing on it or a disk not pressing on it but leaking chemicals [onto] the nerve can give you back pain to a lesser extent, but mostly numbness and tingling pain in the leg. So just based on a patient's symptoms, one cannot really determine whether it's one condition or both, but based on the fact that Miss Northup really focused on the low-back pain, the lumbar discogenic syndrome in my opinion was the primary source of her back pain.

Believing that a discogram was "the only other next test" that could have helped plaintiff "move forward with the treatment," the doctor testified:

I indicated that I thought Miss Northup had lumbar discogenic syndrome. I specified that based on -- not just based on my interpretation of the MRI and so forth and her physical examination, that it was likely limited to the L5-S1 intervertebral disk, and the reason I use that terminology is because if you understand the condition lumbar discogenic syndrome, one knows that there is no study other than a discogram that provides information as to the integrity of the internal aspect of the disk. Myelography, when you hear this test, which is the best test, is this better than that, it depends on the condition you're concerned about. Myelograph, myelogram is injection of dye into the spinal fluid and gives you a nice outline of the nerves. So if you're interested in the nerves, myelograph is what you do. MRI gives you some information about the nerves, it gives you a lot of information about the contour, the shape of the intervertebral disk, but very little information as to the internal, integrity of the internal aspect of the intervertebral disk.

. . . .

I thought we needed to gather more information, and thinking that the primary source of the pain was lumbar discogenic syndrome, the obvious test to glean that sort of information specifically and as accurately as possible would be a discogram. There's no other test that will tell you whether a disk hurt[s] or whether it doesn't hurt.

On January 13, 2003, defendant performed the discogram. Plaintiff left the surgical center in severe pain, with burning and swelling of her lower right leg and foot. After the discogram, plaintiff's pain continued to worsen "in her right lower extremity" such that she was readmitted to the hospital on January 30, 2003. Defendant last saw plaintiff in February 2003. After continued pain and discomfort, plaintiff was diagnosed with RSD of her right foot. Plaintiff has not returned to work.

On December 21, 2004, plaintiff filed her medical malpractice complaint against defendant. Although the complaint contained numerous allegations, plaintiff's primary assertion was that defendant deviated from the standard of care required of pain management specialists in choosing to perform the discogram and that the procedure was the proximate cause of her RSD. In support of her claim, plaintiff presented testimony of Dr. Clifford Gevirtz, M.D., a board certified anesthesiologist and pain management specialist. Defendant countered by presenting testimony of Dr. Richard North and Dr. Peter Staats, also board certified pain management specialists.

At trial, Dr. Gevirtz testified that defendant had deviated from the standard of care by performing a discogram before exploring other options. The doctor explained that the standard of care required a risk/benefit analysis before performing a discogram, which, according to the North American Spine Society ("NASS"), "should be viewed as an invasive test to be used . . . when results from other tests are equivocal or inconsistent in a patient with symptoms severe enough to require further evaluation."

Dr. Gevirtz found plaintiff's MRI to be unequivocal in identifying a source of pain consistent with her expressed symptoms. Given the MRI and the recommendations from plaintiff's treating orthopedist that she "stay away from surgical intervention," the doctor opined that the risks of "aggravating [plaintiff's] preexisting conditions" and injuring nerve roots outweighed any diagnostic benefit, particularly where additional conservative therapies were still available to her.

Dr. Gevirtz further testified as to practice guidelines for pain management of "post-surgical patients," developed by the American Society of Interventional Pain Physicians (ASIPP). According to the doctor, the ASIPP guidelines state that a discogram performed on a post-surgical patient, like plaintiff, can result in a "false positive," indicating an abnormality in a disk "adjacent" to a previously surgically repaired disk. Additionally, the doctor stated that ASIPP guidelines recommend a percutaneous nonendoscopic adhesiolysis (PNA) for a post-surgical patient with the kind of pain experienced by plaintiff to "break up" scar tissue as the appropriate next step after performing an epidural block and prior to considering a discogram.

Dr. Richard North testified that the ASIPP guidelines relied upon by Dr. Gevirtz did not establish a standard of care for "what you do for a patient in this situation who has radicular pain post-surgery and the epidural didn't help." Dr. North stated that conducting a PNA is "popular in some corridors," but the guidelines represent just one option. The doctor opined that a positive MRI may not necessarily correlate to the source of the patient's pain and that a discogram may be required to determine the source. Lastly, the doctor testified that defendant had not deviated from the required standard of care for a pain management physician in considering performing a provocative discogram and in actually going forward in administering the diagnostic procedure.

Dr. Peter Staats also testified that the guidelines concerning post-surgical patients described by Dr. Gevirtz were not intended as a standard of care. As to the issue of whether or not defendant should have performed the discogram, Dr. Staats stated that "reasonable doctors [could] differ." Presented with a hypothetical based on plaintiff's history, Dr. Staats testified that defendant had several options to offer plaintiff, including "potent medications," additional epidural blocks, more physical therapy, or a discogram. In light of these options, Dr. Staats opined that performing the discogram "was a very reasonable thing to do at that time."

At the conclusion of the trial, the court provided the jury the following medical judgment instruction:

In exercising the knowledge and skill that the law requires any doctor to exercise, as I mentioned to you, the law recognizes that medicine is an art as well as a science and that different doctors faced with the same factual scenario may, within the standard of care, elect one or more different manners of approaching the diagnosis and treatment of a patient, and what the law has in mind by that is the concept of what is called medical judgment, and it means that a doctor may choose between alternate treatments or diagnoses if they are each consistent with an accepted standard medical practice. If a choice of treatment falls below the applicable standard and is objectively unreasonable, the doctor would be negligent. What does that mean in this case? The essential dispute here for the purpose of this focus, the question of deviation, is whether the decision by Dr. Braccia to recommend and then to perform the discogram procedure was or was not a deviation from the standard of care, meaning, that the average pain management specialist in this area faced with these facts would not have done that. That's the focal point of the issue. If you are satisfied that, indeed, on these facts the average pain management specialist would not have done this procedure under these circumstances, then you would conclude that the doctor deviated and that he would be negligent. If, on the other hand, you are satisfied that reasonable doctors on the basis of the knowledge, training and experience could have come to either a decision to do it or not do it on these facts, and if you are satisfied that either decision would thus be consistent with the standard of care, then, in the exercise of the doctor's medical judgment, then the decision to do it would not be a deviation from the standard of care. . . . So the point here is not whether the decision was right or wrong in that respect; the judgment -- the question is whether the judgment to do it was a deviation because no reasonable practitioner in the area under these circumstances would have made that judgment.

The jury found that defendant had not deviated from the required standard of care by recommending and performing the discogram. On September 18, 2008, the court entered judgment in favor of defendant.

On October 7, plaintiff filed a motion for a new trial arguing that the court erred in providing the jury with a medical judgment charge, in failing to tailor the medical judgment charge to the facts of the case, and in permitting defense counsel to cross-examine her with non-testifying doctors' medical records containing complex, medical diagnoses. The court denied the motion on October 24, 2008.

III.

On appeal, plaintiff raises the same arguments she presented on her motion for a new trial. Plaintiff first argues that the trial court improperly provided the jury with a medical judgment charge because defendant failed to demonstrate that his course of treatment was "a legitimate judgment call or an 'equally acceptable approach'" to two or more generally accepted courses of treatment. Plaintiff contends that the inclusion of the medical judgment instruction "had the capacity to mislead and confuse the jury, and effect the ultimate verdict." We disagree.

"[C]lear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error." Das v. Thani, 171 N.J. 518, 527 (2002). "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[.]" Velazquez v. Portadian, 163 N.J. 677, 688 (2000) (internal quotations and citations omitted). Accordingly, "a trial court must not only administer the exercise of judgment charge solely in cases where the charge is appropriate, but it must also separate out those aspects of the medical care that involved judgment and those that did not." Ibid. Nonetheless, we will not overturn a jury verdict based on a trial court's instructional error "'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

In a medical malpractice action, the court first instructs the jury on the general standard of care, that is, "that a physician must exercise the standard of care appropriate to the average member of the profession practicing in that field." Das, supra, 171 N.J. at 527; see also Model Jury Charge (Civil), 5.50A, "Duty And Negligence" (March 2002). In so doing, the court decides whether to provide the jury with a medical judgment charge. Das, supra, 171 N.J. at 527.

A decision implicating medical judgment "involve[s] 'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Ibid. (quoting Velazquez, supra, 163 N.J. at 687). Where a physician's decision involves a choice of alternatives, "the course of treatment followed must be an 'equally acceptable approach' in order not to be considered a deviation from the appropriate standard of care." Id. at 527-28 (quoting Velazquez, supra, 163 N.J. at 690). Thus, a judgment charge is inappropriate where a physician's chosen avenue does not have "substantial support as proper practice by the medical profession," Schueler v. Strelinger, 43 N.J. 330, 346 (1964), or where the central issue is performance of a particular procedure. See, e.g., Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 632 (1999) (holding medical judgment not implicated because issue was "skill exhibited by defendant in effectuating" a laparoscopic tubal ligation); Patton v. Amblo, 314 N.J. Super. 1, 9 (App. Div. 1998) (holding medical judgment charge inappropriate where issue was the depth of defendant's scalpel incision). In such cases, to instruct a jury to focus on medical judgment allows a physician "to avoid responsibility for ordinary negligence." Das, supra, 171 N.J. at 528 (quoting Aiello, supra, 159 N.J. at 632).

Plaintiff argues that the case was not tried on the basis of medical judgment. To a limited extent, we agree. Plaintiff presented evidence that a discogram was not indicated because the MRI was unequivocal and defendant deviated from the required standard of care by recommending and performing the discogram. However, although defendant countered that he followed the required standard of care, he also presented evidence that he exercised his medical judgment in performing the discogram.

Defendant testified that he believed plaintiff was suffering from lumbar discogenic syndrome and that a discogram was needed to determine if plaintiff's source of pain was emanating from a disk other than the one at the L5-S1 level where an abnormality was noted by the MRI. Dr. Staats testified that in treating plaintiff, defendant needed to choose between continuing unsuccessful courses of conservative treatment, such as physical therapy and epidural blocks, or to administer a discogram. Thus, there were several equally acceptable medical paths available to defendant in treating plaintiff. There was a factual dispute as to whether Dr. Glenn, plaintiff's orthopedic physician, approved or rejected the recommendation to proceed with the discogram; however, according to Dr. Staats, Dr. Glenn's evaluation was not the deciding factor, as the discogram was indicated for pain management purposes, not for surgical purposes.

Plaintiff argues next that, assuming the court correctly provided the jury with a medical judgment charge, the court erroneously failed to tailor the charge to the facts of the case. Although the trial court failed to address the conflicting opinions expressed by the experts, we find that the failure does not warrant reversal.

A trial court should tailor the medical judgment charge "to the theories and facts presented in the case," Das, supra, 171 N.J. at 528; the court should advise the jury as to which issues implicate medical judgment and which do not. Ibid. Failure to "specify what action may qualify as an appropriate exercise of judgment may result in an overly broad charge that has 'the potential to improperly insulate defendants from liability.'" Ibid. (quoting Valazquez, supra, 163 N.J. at 690-91).

We conclude that the medical judgment charge provided to the jury substantially conformed to the Model Jury Charge (Civil), 5.50G "Medical Judgment" (March 2002). Consistent with Velazquez and Das, the court instructed the jury to determine whether defendant established that two medically accepted alternative approaches existed in treating plaintiff. If so, defendant was entitled to have his decision to recommend and perform a discogram evaluated in terms of his medical judgment. The trial court properly instructed the jury that if defendant failed to prove that two alternative treatments, "each consistent with an accepted standard medical practice," were available in his treatment of plaintiff, the jury was not to consider defendant's decision to administer the discogram as one of medical judgment. Likewise, the court instructed the jury that if it found defendant deviated from the required standard of care, it could not excuse defendant's negligence on the basis of medical judgment.

We are satisfied the trial court did not need to further tailor the charge than it did. This was not a case such as Velazquez, in which there were multiple defendants and multiple malpractice claims, only one of which was governed by medical judgment, and thus the trial court had an obligation to limit the jury's consideration of the medical judgment rule to that one claim. 163 N.J. at 689-91. Here, there was only one defendant and only one claim -- that defendant deviated from the required standard of care in performing the discogram. The court's medical judgment instruction provided the jury with adequate guidance in answering this single, straightforward question. Contrary to Velezquez, the court's instruction was not so broad to where it had "the potential to improperly insulate [the defendant] from liability." Id. at 690-91.

Lastly, plaintiff argues that the trial court erred in permitting defense counsel to cross-examine her with non-testifying physicians' medical records that contained complex medical diagnoses and opinions. Not so.

On appeal, a trial court's evidentiary rulings are subject to deference and are reviewed under the abuse of discretion standard. Brenman v. Demello, 191 N.J. 18, 31 (2007). A trial court's evidentiary ruling should stand unless it is "so wide off the mark that a manifest denial of justice results." Ibid. (quoting Greene v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

N.J.R.E. 612 governs the use of writings to refresh witnesses' memories. The rule provides:

Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying.

For a trial court to permit a witness to refresh his or her recollection by reviewing a writing, the proponent must establish that "the witness had prior knowledge that could be refreshed by the information," Lautek Corp. v. Image Business Sys. Corp., 276 N.J. Super. 531, 545 (App. Div. 1994), but that the witness' memory of that knowledge is presently impaired. Ibid; State v. Williams, 226 N.J. Super. 94, 103-04 (App. Div. 1988). Once the threshold requirement of impaired memory has been established, a witness may examine any document to refresh his or her memory. State v. Caraballo, 330 N.J. Super. 545, 557 (App. Div. 2000); Williams, supra, 226 N.J. Super. at 103. This is so even though "the witness did not author the writing." Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 612 (2010).

The "admissible evidence is the recollection of the witness, and not the extrinsic paper." Lautek Corp., supra, 276 N.J. Super. at 545. Thus, where a witness has demonstrated no prior knowledge of the matter contained within the document, "[the] witness may not merely parrot a statement used to refresh recollection, thus making admissible a portion of a document that itself may be inadmissible." Id. at 546. A trial court, in its discretion, may disallow use of a document to refresh a witness' recollection "where the danger of undue suggestion outweighs the probable value of the evidence." State v. Carter, 91 N.J. 86, 123 (1982).

Here, plaintiff could not recall matters concerning her past medical history relevant to the issue of causation of RSD. The documents shown to her were effective in reviving her memory as to certain matters. Because defense counsel established plaintiff's inability to recall portions of her medical history until her recollection was revived by viewing non-testifying treating physicians' medical records, it was not error for the court to have allowed counsel to question plaintiff as to a prior RSD diagnosis by a non-testifying physician. Williams, supra, 226 N.J. Super. at 104.

We agree with plaintiff that a party may not use N.J.R.E. 612 as a subterfuge to place before the trier of fact otherwise inadmissible evidence. See Agha v. Feiner, 198 N.J. 50, 63 (2009) (providing that N.J.R.E. 703 does not allow expert testimony to be used as a "vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence'"). We are satisfied that that did not occur. What is more, to the extent that some inadmissible evidence may have been placed before the jury in refreshing plaintiff's recollection, that testimony does not warrant the grant of a new trial. The information in the medical records concerned causation of plaintiff's RSD; however, the jury decided the case on the issue of liability, determining that defendant had not deviated from the required standard of care in treating plaintiff.

 
Affirmed.

Plaintiff Deborah Northup sued for personal injuries, and plaintiff Clifford Northup sued per quod. For purpose of this opinion, unless otherwise expressed, the term "plaintiff" shall only refer to Deborah Northup.

A discogram, also known as a diskogram or diskography, is defined as a "roentgenography of the spine for visualization of an intervertebral disc, after injection into the disc itself of an absorbable contrast medium." Dorland's Illustrated Medical Dictionary, 465 (25th ed. 1974).

The parties also refer to the procedure as a "provocative discogram" because part of the procedure administered by defendant intentionally induced pain by pressurizing the disc in an attempt to duplicate the pain experienced by plaintiff on a daily basis.

Defendant countered plaintiff's assertion that she was informed by her orthopedic physician not to undergo any invasive procedures with plaintiff's deposition testimony that Dr. Glenn had told her she needed a discogram. At trial, however, plaintiff testified that she told defendant on December 19, 2002, she could not undergo surgery or any other kind of invasive procedures, and that at the time of her deposition when she testified that Dr. Glenn had told her she needed a discogram, she was confused because of the medication she was then taking.

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A-1277-08T2

June 30, 2010