CYNTHIA A. STAUDER v. DAVID L. TAYLOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3321-05T53321-05T5

CYNTHIA A. STAUDER,

Executrix of the Estate of

Virginia V. Stauder, deceased,

Plaintiff-Appellant,

v.

DAVID L. TAYLOR,

Defendant-Respondent.

___________________________________

 

Argued February 6, 2007 - Decided May 3, 2007

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3880-02.

Lewis Stein argued the cause for appellant (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys; Mr. Stein, on the brief).

Beth A. Hardy argued the cause for respondent (Farkas & Donahue, attorneys; Evelyn C. Farkas, of counsel; Ms. Hardy, on the brief).

PER CURIAM

Plaintiff Cynthia Stauder, the Executrix of the Estate of her mother, Virginia V. Stauder (Mrs. Stauder), appeals from the no-cause verdict after jury trial in favor of defendant David L. Taylor, M.D., and the subsequent order dismissing her medical negligence and wrongful death complaint. On appeal, plaintiff asserts errors, stating the trial judge: (1) inappropriately used the exercise of medical judgment instruction; (2) erroneously allowed the use of a discovery deposition in lieu of live witness testimony; and (3) wrongfully excluded physician-witness testimony as to the causal relationship between the alleged surgical error and the patient's cause of death.

Our review determines the trial court's "failure to untangle the facts in relation to the medical judgment charge left the jury free to excuse defendant[] based on the evidence of judgment" in an instance where no judgment was exercised. Velazquez v. Portadin, 163 N.J. 677, 685 (2000). This error requires that the jury verdict be set aside and the matter remanded for a new trial.

I.

Mrs. Stauder, age eighty, met with defendant, a board certified urologist, to discuss the confirmed presence of a mid-grade ureteral tumor, significantly obstructing her right kidney. Treatment for this cancer required the excision of the kidney and ureter, the tube that carries urine from the kidney to the bladder, known as a nephroureterectomy. Defendant recommended the nephroureterectomy be done laparoscopically.

Hand-assisted laparoscopy involves opening small holes in the abdomen of a patient's body, called ports, inflating the abdomen with carbon dioxide to create a space between the abdominal wall and the abdominal structures, and inserting tubes into the ports. A lens connected to a video camera which is controlled outside the body, is inserted through one of the ports to project images onto a twenty-eight-inch television screen. Surgical cutting instruments, which are manipulated by hand, are inserted into another port. The third port allows the doctor to insert his other hand as needed during the surgery. This approach is meant to minimize the trauma to the body normally occurring after traditional open surgery, resulting in less recovery time and limiting possible surgical complications.

The laparoscopic surgery to remove Mrs. Stauder's cancerous right kidney and ureter was performed by defendant and two assisting surgeons, Deowall Chattar, M.D. and Ayal Kaynan, M.D., on August 20, 2001, at Morristown Memorial Hospital. The first part of the procedure, during which the ureter is detached from the bladder, was accomplished without incident. However, when defendant attempted to gain access to and remove the kidney he encountered adhesions, which had formed as a result of a prior surgery. The scar tissue limited defendant's view of Mrs. Stauder's internal organs, so defendant attempted to dissect the adhesions. During this phase of the surgery, Mrs. Stauder was turned on her side to allow gravity to pull the organs two to three inches away from the operative area. The bile duct is a four millimeter tube between the liver and the duodenum portion of the small intestine. Surgeons normally do not see the bile duct in the operative field during a nephroureterectomy because it is protected by other structures and rests on a different plane than the kidney. Defendant continued to cut what he thought were adhesions and, in the process, unintentionally transected Mrs. Stauder's bile duct and her right hepatic artery.

After this inadvertent incision, defendant recognized the injury and called for the assistance of a general surgeon, Aaron Chevinsky, M.D., to make the repair. While awaiting the arrival of Dr. Chevinsky, defendant completed the removal of Mrs. Stauder's kidney.

Dr. Chevinsky repaired the injured bile duct utilizing a "by-pass procedure," which he described as follows: "I took a piece of the small intestine . . . divided it, brought it up to [the bile duct] and sewed the small intestine to the bile duct and then reconnected it . . . so that the bile duct would flow into the intestine . . . ." After a combined surgery time exceeding four hours, Mrs. Stauder was taken to the recovery room. Hours later, her condition dramatically worsened. A second surgery was started by Drs. Kaynan and Chattar, which defendant joined, to determine the source of internal bleeding. Mrs. Stauder had developed disseminated intravascular coagulation (DIC), which prevented her blood from clotting. Despite their efforts, the surgeons were unable to stop the hemorrhaging and Mrs. Stauder died on the operating table.

II.

At trial, Drs. Taylor, Kaynan and Chevinsky testified; the court permitted portions of Dr. Chattar's discovery deposition to be read to the jury. See R. 4:16-1(c). Mrs. Stauder's cardiologist presented testimony regarding the status of her cardiac health as of February 2000, and both sides presented experts in urology and hematology to address whether defendant had deviated from accepted standards of medical practice when he severed the common bile duct while cutting the adhesions, and whether the bile duct injury caused the development of DIC resulting in Mrs. Stauder's death. Damage experts were also presented.

Defendant's deposition testimony, read to the jury, described what he encountered during the surgery:

[t]he reason there was difficulty was the adhesions were not to omentum, which is what I expected it to be at the time when I was taking the fat tissue off the interior abdominal wall[,] but in fact was . . . the hepatic duodenum ligament. . . . So I was deeper, even though I thought I was very close [to] the interior abdominal wall. I was deeper in the hepatic duodenum than anticipated.

Defendant testified that when he encountered the adhesions, he did not consider converting the laparoscopy to an open surgery procedure because "[a]dhesions are part of a surgeon's life," and at that time "the difficulty I was having wasn't with visualization" but "because of bleeding" and "the dense scar tissue" to be dissected to gain access to the kidney. Defendant explained that it made no difference whether the scar tissue was "whittled through" during an open procedure or through the laparoscope.

Mitchell Benson, M.D., a board certified urologist and Chair of the Urology Department at Columbia University, testified as plaintiff's expert. Dr. Benson opined that defendant deviated from accepted standards of care by operating in the wrong area and, as a result, transected the common bile duct. Dr. Benson opined that defendant did not know where he was operating and that he was actually cutting "deeper than he thought he was." Dr. Benson stated that because the pre-operative CAT scan revealed no evidence that "the common bile duct or hepatic artery was stuck to the anterior abdominal wall[,] . . . Dr. Taylor . . . thought he was on the anterior abdominal wall, but was not." Dr. Benson testified that if defendant's visualization of Mrs. Stauder's organs remained obscured by adhesions during the laparoscopic projection of images on the two-dimensional screen so that the surgery could not proceed safely, then defendant should have considered converting to an open surgical procedure with the ability to view the procedure in three dimensions. Dr. Benson concluded, "it's not consistent with the standard of care to proceed with an operation where you can't identify the structure you're operating up [sic] . . . . So, . . . the rule is you never cut something unless you know what you're cutting and, if you can't be sure what you're cutting, then to proceed is a violation of [the] standard of care."

Dr. Benson agreed Mrs. Stauder's cause of death was DIC. Acknowledging that no one can be certain of what caused the DIC, Dr. Benson offered his opinion that the cause of the DIC was sepsis, which resulted from the spillage of bile and the presence of bowel bacteria in the abdominal cavity after the emergency by-pass surgery, inasmuch as, the bowel, which was not initially intended to be cut, was not sterilized.

On cross-examination, Dr. Benson agreed that when a surgeon performs laparoscopic surgery, the surgical field is actually magnified on a screen and may provide better visualization than an open procedure. He further agreed that attempting to remove the adhesions was within the standard of care. However, he cautioned that cutting must be performed "bit by bit" to "pick at the area," proceeding carefully.

Defendant's expert Alexander Vukasin, M.D., a board certified urologist, disagreed with Dr. Benson's opinion that the common bile duct injury resulted from a deviation from an accepted standard of care. He was of the opinion that the adhesions, which resulted from the prior gall bladder surgery, "could have obscured . . . where the common bile duct is located," so that defendant encountered "altered anatomy." He suggested that scar tissue adhering to the colon "stuck the colon down in the area of the common bile duct" so that, in the course of dissecting the adhesions to expose the kidney, defendant inadvertently transected the common bile duct. He further opined that the injury to the common bile duct "was a recognized possible complication or a potential complication in doing this operation."

Dr. Vukasin also testified that when defendant encountered adhesions, he was not required to convert the laparoscopic procedure to open surgery because it is up to the surgeon's judgment to determine whether he feels he can dissect the scar tissue better laparoscopically or not. He testified that in all probability, converting to an open procedure would not have avoided the injury in this case because the surgeon's view of things "would have been the same" and defendant would still have had to dissect through the same adhesions to reflect the colon to expose the kidney, regardless of whether he continued or converted.

On cross-examination, when presented with defendant's testimony that while "removing adhesions from the anterior abdominal wall," he encountered the common bile duct, Dr. Vukasin agreed that if the bile duct was not abnormally positioned, defendant was cutting deeper into the abdomen than necessary.

Defendant also retained Ronald Sacher, M.D., a board certified hematologist, who testified that the common bile duct injury was not the cause of the development of DIC in Mrs. Stauder. In contrast, plaintiff presented Adam Ash, M.D., also a hematologist, who testified that the error in cutting the bile duct, combined with the repair, caused bacteria and blood loss, allowing the DIC to develop.

At the close of trial, plaintiff framed the issue as: Whether defendant deviated from the professional standard of care by cutting when he could not see, causing the injury to the common bile duct? Defendant's attorney characterized the issue as: Whether Mrs. Stauder's death resulted from defendant's exercise of medical judgment in choosing between two accepted surgical procedures, laparoscopy or open surgery?

Over plaintiff's objection, the trial court gave an instruction which essentially mirrored the Civil Model Jury Charge on the exercise of medical judgment:

You as jurors should not speculate or guess about the standards of care by which the defendant physician should have conducted himself in the treatment of [Mrs. Stauder,] rather[,] you must determine the applicable medical standard from the testimony of expert witnesses that you have heard in this case. And as I told you, there is a conflict, it is up to the jury to resolve that conflict. [sic]

When determining the applicable standard of care[,] you must focus on accepted standards of practice in the field of urology and not on the personal subjective belief or practice of the defendant doctor. [T]he law recognizes that the practice of medicine is not an exact science, therefore[,] the practice of medicine according to accepted medical standards may not prevent a poor or an unanticipated result. Therefore, whether the defendant doctor was negligent depends not on the outcome[,] but on whether he adhered to or departed from the applicable standard of care.

Now I'm going to speak to you about the concept of medical judgment in this matter, but the issue of judgment only comes in, in a very limited circumstance and you should restrict your evaluation of the concept of judgment to Dr. Taylor's decision to continue the operation laparoscopically and not convert to open surgery when he encountered adhesions during the operation.

So a doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative treatment choices must be in accordance with accepted medical standards. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to treatment alternatives and if so, whether the doctor actually - what he did to treat this patient was an accepted standard medical practice.

If you determine that the standard of care for treatment with respect to this type of surgery did not allow for choices or judgments that the defendant doctor made here, then the doctor would be negligent. If you find that the defendant doctor has complied with [the] accepted standard of care[,] then he is not liable to the plaintiff[,] regardless of the result. On the other hand[,] if you find that the defendant doctor has deviated from the standard of care resulting in the death of the plaintiff, then you should find the defendant negligent and return a verdict for the plaintiff.

The jury returned a verdict of no negligence. On appeal, plaintiff argues this charge was improper because defendant's surgery choice did not cause plaintiff's injuries; rather, defendant's deviation lay in the manner in which the surgery he chose was performed. Defendant, in contrast, reasons that he exercised his judgment by continuing the laparoscopy.

III.

A physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field. See Velazquez, supra, 163 N.J. at 686. The Model Jury Charge for medical malpractice, section 5.36A, expresses that governing standard of care as follows: "A person who is engaged in the general practice of medicine represents that he/she will have and employ knowledge and skill normally possessed and used by the average physician practicing his/her profession as a general practitioner." Model Jury Charge (Civil), 5.36A Medical Malpractice, Duty and Negligence (March 2002). "[R]ecognizing that 'medicine is not an exact science,' [that standard] holds physicians responsible for their negligence without making them guarantors of the health of their patients." Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626 (1999) (quoting Schueler v. Strelinger, 43 N.J. 330, 344 (1964)).

In Schueler, the Court first articulated the distinction between the exercise of medical judgment and the deviation from the accepted standard of care, stating:

So, if the doctor has brought the requisite degree of care and skill to his patient, he is not liable simply because of failure to cure or for bad results that may follow. Nor in such case is he liable for an honest mistake in diagnosis or in judgment as to the course of treatment taken. A physician must be allowed a wide range in the reasonable exercise of judgment. He is not guilty of malpractice so long as he employs such judgment, and that judgment does not represent a departure from the requirements of accepted medical practice, or does not result in failure to do something accepted medical practice obligates him to do, or in the doing of something he should not do measured by the standard above stated.

. . . .

It follows, therefore, that when a surgeon selects one of two courses, . . . either one of which has substantial support as proper practice by the medical profession, a claim of malpractice cannot be predicated solely on the course pursued.
 
[Id. at 344-46.]

The medical judgment rule does not apply to all medical malpractice actions. Adams v. Cooper Hosp., 295 N.J. Super. 5, 8 (App. Div. 1996). There is no one determination of what evidence must be presented in order to entitle a defendant to the exercise of judgment charge. Velazquez, supra, 163 N.J. at 688. When examining a physician's medical decision, application of the medical judgment rule generally has been limited to "misdiagnosis or the selection of one of two or more generally accepted courses of treatment." Id. at 687; Aiello, supra, 159 N.J. at 628-29; see also Patton v. Amblo, 314 N.J. Super. 1, 9 (App. Div. 1998). In the latter category, 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. Das v. Thani, 171 N.J. 518, 527-528 (2002). Following Velazquez, the Model Charge for medical negligence was again amended to provide that doctors may not rely on the "exercise of medical judgment" to avoid liability for ordinary negligence:

A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
 
[Model Jury Charges (Civil), 5.36G Medical Malpractice, Medical Judgment (March 2002).]

Given the relationship between medical judgment and the standard of care, whether the facts presented pose an issue of medical judgment becomes the troubling task of the trial judge, as gatekeeper, who must make a detailed factual analysis to discern whether and to what extent a medical judgment charge is applicable. Velazquez, supra, 163 N.J. at 688. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "If the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses physicians for 'mistakes' would enable the physician to avoid responsibility for ordinary negligence." Aiello, supra, 159 N.J. at 632. Therefore, the "[c]ourt and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the [medical judgment] charge is applicable at all and, if so, to which specific issues. The charge should then be tailored accordingly." Velazquez, supra, 163 N.J. at 690.

On appeal, plaintiff argues that the exercise of judgment instruction was inappropriate in this case because defendant's deviation from the standard of care concerned the manner in which the procedure was performed. Plaintiff asserts: "Simply put, if the surgeon thought he was cutting adhesions when he was cutting the bile duct and the hepatic artery, it was failure of observation and not of judgment. If he couldn't see where he was cutting, it was failure of technique not of judgment." We agree that a significant part of plaintiff's malpractice case "dealt with the skill [with] which [defendant] performed the surgery." See Patton, supra, 314 N.J. Super. at 9.

Defendant admitted that, in his attempt to excise the adhesions, he had cut deeper than he had thought and unintentionally cut the common bile duct. As we discussed in Patton, no judgment within the meaning of the "exercise of judgment" charge was exercised when defendant incised the skin:

Even if we accept defendant's admission that she made her initial incision too deep, it is clear that she did not employ any judgment when she was incising the skin. It was not her intention to pierce all three layers of skin. Regardless of the method in which she performed the incision, either by elevating the skin prior to the initial incision or by simply holding the skin taut, she simply cut too deep. She did not use her judgment to determine the depth. . . . Her incision of the peritoneum was a mistake and cannot be considered an exercise of judgment.

 
[Id. at 9.]

Plaintiff's second expressed theory of liability was that defendant should have converted to an open surgical procedure. If this was found by the jury to represent the objective standard of care and defendant failed to adhere to that standard, he remains subject to liability even if the failure resulted from the exercise of judgment. Morlino v. Med. Ctr. of Ocean County, 152 N.J. 563, 589 (1998). Put another way, an honest but mistaken exercise of judgment is negligence. Ibid.

The issue of whether to continue the laparoscopy was correctly identified by the trial court as one involving medical judgment, allowing the use the medical judgment charge. The trial court however should have separated each theory of liability when structuring the jury charge, differentiating between the two theories presented.

The charge used focused on the choice of surgery, directing the jury solely to the consideration of medical judgment in the choice of operation. It omitted to give appropriate credence to plaintiff's primary theory of medical negligence. Trial courts need to refine the charge by separating out those aspects of the surgery which involved judgment and those which did not, and then to frame the entire charge accordingly.

In this case, when tailoring the charge to the theories and facts presented, it was essential that the trial court explain to the jury that it must determine whether defendant was cutting in the correct area at the time he damaged the bile duct. Also, the question of whether the adhesions caused "altered anatomy" was introduced and needed to be resolved by the jury. Each party's expert agreed that if there was no altered anatomy then defendant cut in the wrong place, which was a deviation of the standard of care and did not involve medical judgment.

Another factual determination for the jury, based upon various testimony offered, was the extent of the adhesions and whether defendant deviated from the standard of care when he could not see where he was cutting. All experts stated the standard of care mandates that the safety of the patient dictates the nature of the surgeon's conduct. This too did not involve medical judgment.

Only in determining the issue of whether to change surgical procedure was "judgment" implicated. The charge used too broadly presented medical judgment to apply to the surgery in its entirety, making the jury charge erroneous. We conclude that this error was "clearly capable of producing an unjust result," R. 2:10-2, warranting reversal and we order a new trial.

In light of our decision to reverse and remand for a new trial, we see no need to fully address plaintiff's remaining issues on appeal which will abide trial. We briefly note, however, that the trial judge's ruling to allow the use of the discovery deposition of Dr. Chattar in lieu of live testimony does not appear sufficiently substantiated on this record. The witness' unavailability, must be established before the discovery deposition is used in lieu of the well-established preference for live testimony. See N.J.R.E. 804(b)(1).

 
Reversed and remanded for a new trial.

(continued)

(continued)

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A-3321-05T5

 

May 3, 2007