GAIL H. CHEETY v. SUMMIT BREAST CARE, LLC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3574-06T53574-06T5

GAIL H. CHEETY and ALBERT

CHEETY, her husband,

Plaintiffs-Appellants,

v.

SUMMIT BREAST CARE, LLC

and NADINE PAPPAS, M.D.,

Defendants-Respondents.

__________________________________________________________

 

Argued April 9, 2008 - Decided

Before Judges Parker, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-282-04.

James Hely argued the cause for appellants (Weiseman Hely DiGioia, attorneys; Mr. Hely, on the brief).

Jay Scott MacNeill argued the cause for respondents (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Mr. MacNeill, of counsel and on the brief; Thomas J. Pyle, Jr., on the brief).

PER CURIAM

Plaintiffs Gail H. Cheety and her husband, Albert Cheety, appeal from a judgment of no cause for action in a medical malpractice matter. The jury determined by a vote of 6-1 that defendant Nadine Pappas, M.D. deviated from the applicable standard of care, but it further determined that the deviation did not increase the risk of harm to the patient plaintiff, Gail H. Cheety. Thus, the jury awarded no damages. The judgment of no cause for action was entered and filed by the trial court on January 31, 2007, and this appeal ensued. We affirm.

In early 2002, Mrs. Cheety became concerned with changes to the skin on her right breast. On February 21, 2002, she saw her gynecologist, Dr. Azin Khanmohamadi, to address her concerns. Dr. Khanmohamadi confirmed that Mrs. Cheety's breast did indeed exhibit skin changes. According to the patient, these skin changes had originated in December 2001, and they became more pronounced when she was menstruating. Dr. Khanmohamdi diagrammed the changes and described the skin's appearance as having "peau d'orange." Dr. Khanmohamadi also referred Mrs. Cheety to defendant, Dr. Nadine Pappas, a breast care specialist.

Dr. Pappas examined Mrs. Cheety on March 5, 2002. On that same date, Dr. Pappas sent a letter to Dr. Khanmohamadi. The letter indicated that the right breast flushing was not problematic and that Mrs. Cheety required no additional follow-up examination, unless some other condition developed. Dr. Pappas included a copy of a diagram she drew of Mrs. Cheety's right breast, which looked quite similar to Dr. Khanmohamdi's original diagram.

In November 2002, Mrs. Cheety went for her annual mammogram. Upon review of the mammogram, the radiologist's office contacted Dr. Khanmohamadi to report suspicious findings. Later in November 2002, Dr. Khanmohamadi diagnosed Mrs. Cheety with inflammatory breast cancer.

On January 12, 2004, Mrs. Cheety and her husband filed a medical malpractice complaint against Dr. Pappas and Dr. Pappas' employer, Summit Breast Care, LLC. The complaint alleged that defendants failed to render care with the skill ordinarily used by medical doctors and that defendants "deviated from accepted standards of medical care in not properly following up in treatment of plaintiff's complaints involving her right breast, thereby delaying a diagnosis." The complaint further alleged that "[t]his delay in diagnosis had significant impact upon the treatment, prognosis, and well-being of GAIL H. CHEETY." The second count of the complaint asserted on behalf of plaintiff Albert Cheety a claim for loss of consortium and services. The matter went to trial on January 10 and on January 17, 2007, the jury returned its verdict.

At trial, the parties presented testimony from several medical witnesses. A summary of the testimony of those witnesses is provided below.

Dr. Nadine Pappas

Defendant, Dr. Pappas, the treating physician, was called as a witness by plaintiffs. She testified that she began practicing medicine in 1994. At the time of Mrs. Cheety's visit on March 5, 2002, Dr. Pappas was in private practice, specializing in diseases of the breast. After reviewing Mrs. Cheety's chart and prior to the first examination, Dr. Pappas narrowed the likely problem to three possibilities: (1) inflammatory breast cancer, (2) infection, or (3) a dermatological change.

On the date of Mrs. Cheety's visit, Dr. Pappas ruled out inflammatory breast cancer and infection. She drew a diagram of Mrs. Cheety's breast, indicating "blanching around the right nipple." Dr. Pappas denied seeing any peau d'orange, which she testified occurs when "the lymphatics become so blocked, . . . there's something in those lymph channels that's blocking the fluid so they become so engorged that it actually ripples up and it looks like the skin of an orange." Dr. Pappas noted that Mrs. Cheety's breasts appeared asymmetrical, with the right breast appearing fuller than the left. She found no evidence of breast cancer.

Describing the impressions of the March 5, 2002 examination more fully, Dr. Pappas testified:

I actually have a fairly good recollection of that visit. Most because of, you know, my impression going into the room and then what I actually found was quite a relief for me. So I do recall that I told her that I didn't think that this pinkish discoloration or pigment change on the lower part of her breast was anything to be concerned about. It didn't really look like a rash, I didn't think she needed a skin biopsy or anything from a dermatologic point of view. That the symptoms of the tenderness and the changes with her period were hormonally related. And I didn't see anything that was a problem and to, you know, be reassured and to let me know if anything changed, and that we were here for her.

On November 22, 2002, the date of Mrs. Cheety's follow-up visit to Dr. Pappas, "the situation was dramatically different." The doctor noticed "that the area of erythema ha[d] worsened." Dr. Pappas was of the opinion, however, that the worsened area was wholly independent of the area examined on the March 5, 2002 visit. Although Dr. Pappas testified she was absolutely comfortable that there was no diagnosable breast cancer as of March 5, 2002, she acknowledged that there was probably an underlying cancer developing. She elaborated as follows:

Okay, in regards to inflammatory breast cancer, we talk about that it has only about a three month window where it goes from nothing to full blown.

Now, from point zero to where you see nothing you know that there has to be cancer cells transforming in the breast. It doesn't -- all of a sudden you don't erupt with five million breast cancer cells. There are a cell or two cells that begin the transformation process. And that occurs months to years before actually you would see a breast cancer.

Now, inflammatory breast cancer is extremely aggressive, so to say that inflammatory breast cancer is present ten years before it's seen, there's nothing, no literature to substantiate that. But for your typical average breast cancer that presents as a lump, yes, we know that can take six, even ten years before you can feel that lump.

So six to ten years prior to that lump there were breast cancer cells there. So yes, I would say that there were cancer cells present in that breast in March, but they were beginning to transform, and that it was not in any way diagnosable or detectable.

In November 2002, Dr. Pappas recommended an open surgical biopsy on the right breast in order to analyze not only the skin but also the tissue underneath. The results of that biopsy confirmed inflammatory breast cancer for which Dr. Pappas recommended a course of aggressive chemotherapy first, then possible surgery.

At trial the doctor explained that inflammatory breast cancer is a very rare and very unique form of breast cancer. It does not normally present as a lump or a mass. "It presents with a swollen red, very red, very edematous or what we call thickened breast where the skin can even look ripply." Comparing inflammatory breast cancer to typical breast cancer, Dr. Pappas stated:

Your normal or typical breast cancer that you would read about basically presents as either a mass which a physician or the woman herself can feel, or a finding on the mammogram where you can see either a distortion of the tissue, a cluster of calcium deposits that appear abnormal, or something in that nature where it seems to be confined to one area.

Dr. Pappas gave her reasons for not conducting further tests prior to November 2002. She did not perform a biopsy because "[t]here was no focus or abnormality so you would most likely just get back normal breast tissue." Also she explained, "If you do random biopsies, . . . you're just going in there and sticking away or cutting . . . and taking out pieces of tissue, you have no knowledge whether you're in the right place or not. So then you're subjecting that person to an invasive procedure without being sure that your information is going to ever be usable." She did not conduct a magnetic resonance imaging (MRI) of the breast because it was a "very limited technology". The doctor indicated she would have performed a mammography, ultrasound and probably a biopsy before she would have ordered an MRI. Dr. Pappas further explained that she did not request a repeat mammogram in March 2002 because Mrs. Cheety had just received one about four months earlier.

At the conclusion of Dr. Pappas' testimony, one of the jurors asked "if cancer was present in March '02, would anything have been indicated in a blood test?" The doctor answered, "No. There is no blood test currently available to detect cancer in its very early stages." Another juror wanted to know whether Dr. Pappas ever had other patients with inflammatory breast cancer and, if so, at what stage it was diagnosed. Dr. Pappas indicated she had several patients with inflammatory breast cancer. She testified that "by definition when you have inflammatory breast cancer it is considered a stage three. And the staging is determined because of the skin involvement of the tumor, and because there's usually many lymph nodes involved. So it's automatically, if you have inflammatory cancer, it's automatically stage three."

Dr. Barry Singer

The testimony of Dr. Singer, plaintiffs' oncology expert, was presented via recorded videotape. Dr. Singer has been in private practice since 1973. He is currently on staff at the Norristown Regional Cancer Center where about seventy percent of his practice is devoted to medical oncology. He was called to the stand to testify regarding Mrs. Cheety's condition, not to opine whether Dr. Pappas deviated from accepted medical standards. In preparation for his testimony, Dr. Singer reviewed Mrs. Cheety's treatment records, depositions and expert reports. At the time treatment began for Mrs. Cheety, the doctors believed there to be total nodal involvement. She had stage three B inflammatory breast cancer with a ninety to ninety-five percent probability of recurrence even with aggressive treatment.

Dr. Singer testified that "the discomfort and fullness she felt in the breast and the changes in the skin were a sign of the underlying breast cancer, but not an inflammatory breast cancer." The original skin changes of which she complained to Dr. Khanmohamadi could have been related to an underlying breast cancer, not necessarily one of the inflammatory nature. According to Dr. Singer, any type of cancer can cause the change of the skin referenced as peau d'orange "the thought is the growth of the cancer inside the breast pulls the skin in and causes changes on the surface of the skin." Although Dr. Singer agreed that inflammatory cancer arises suddenly and usually takes only a few months - even two or three weeks - to develop, he believed that Mrs. Cheety's prognosis would have differed had her cancer been diagnosed in March 2002. In his opinion Mrs. Cheety had breast cancer in March 2002 but not
"what we would call inflammatory breast cancer."

Dr. Singer expressed the opinion that if Mrs. Cheety had been biopsied in March 2002, they would have found stage two B cancer and she would have had about a seventy percent probability of cure. He testified:

I believe at that time they would have biopsied the breast; they would have found stage 2b breast cancer. What I mean by 2b is that she would have had a tumor somewhere between two and five [centimeters] in size with or without a limited number of lymph nodes, less than four, and that would put her at a stage 2b. And, generally, with aggressive chemotherapy - she would have been treated with surgery first, which is the normal route, and then chemotherapy - I believe her prognosis would have been very good, around 70 percent probability of cure, with surgery, adjuvant chemotherapy, and radiation therapy, whatever treatment was necessary at the time.

Dr. Singer agreed that if Mrs. Cheety had had a diagnosable cancer in March 2002, she still would have had a mastectomy, chemotherapy, radiation and essentially the same course of treatment she underwent following her diagnosis in November 2002.

Dr. Bert Peterson

Plaintiffs called Dr. Peterson as a witness as well. He was recruited by Beth Israel Medical Center in New York City to develop a breast cancer program. He spent ten years at that hospital, and his practice was ninety-eight percent breast cancer related. When he left in 2004, he became Chief of Breast Surgery and Co-director of Breast Cancer Services at Hackensack University Medical Center in New Jersey. He left that post in 2006 to develop a comprehensive cancer center in the Virgin Islands.

Dr. Peterson thoroughly reviewed Mrs. Cheety's medical history. He indicated that "specifically when someone uses the term peau d'orange the thing that usually comes up for you as a cancer specialist or breast cancer specialist would be whether or not the patient has inflammatory breast cancer." The combined symptoms of an enlarged breast and the skin color change signified the "possibility that there could be a process that's developing in this breast which may need further investigation or treatment."

Dr. Peterson was concerned about the lack of differential diagnosis performed for Mrs. Cheety. A differential diagnosis is the process whereby a doctor evaluates on a relative basis the likelihood of various potential causes of the condition. According to Dr. Peterson, ". . . in your differential diagnosis you definitely want to include what would be the most dangerous thing to the patient, because ultimately you don't want to miss something that could be harmful to the patient." If this type of diagnosis is not performed, it would be a deviation from accepted medical standards. Dr. Peterson concluded that

because the diagnosis of inflammatory breast cancer has to be entertained and because that diagnosis can be so dangerous and so severe to the patient's health if that diagnosis is missed, I felt that it was a deviation from good and acceptable care to . . . only reassure the patient and not insist that the patient come in for follow-up to confirm that those -- that those findings on the right breast were in fact benign.

According to Dr. Peterson, if Dr. Pappas believed inflammatory breast cancer was a possibility at the time of her first visit, the doctor should have scheduled a follow-up visit with Mrs. Cheety. If a follow-up visit had taken place and the doctor found no difference or worsening of the condition, the doctor should have employed the triple test. This includes a clinical breast exam, a mammogram or radiological studies and a biopsy. "At . . . that point it would have been close to six months since her last mammogram, it would have been appropriate at that point to then repeat a mammogram and see if there were any changes seen on the mammogram." A mammogram or ultrasound may reveal swelling, an indication of inflammatory breast cancer. Unlike Dr. Pappas, Dr. Peterson believed that an MRI could often identify changes to the breast otherwise unseen in the mammogram. He believed a biopsy should have been performed. "[S]pecifically for inflammatory breast cancer, you need to biopsy the skin of the breast where the redness is to see if you can see cancerous changes within the skin, and specifically within the lymphatics under the skin."

Dr. Peterson believed that Mrs. Cheety's cancer was "more of a developing breast cancer" in March 2002, and that it was starting to show some inflammatory signs. However, it was not full blown inflammatory breast cancer at that time. He opined, however, within a reasonable degree of medical certainty, that a March 2002 mammogram would have shown evidence of breast cancer. He likewise opined that a biopsy would have shown breast cancer. He saw no evidence in the medical records, however, that Mrs. Cheety had ten or more affected lymph nodes in March 2002.

In Dr. Peterson's opinion, if Mrs. Cheety had been diagnosed with stage three B inflammatory breast cancer in March 2002, her prognosis for five-year survival would have been between forty and forty-five percent. As the cancer metastasized to the spine in the spring of 2006, her chance of survival declined. Dr. Peterson knew of no patient in a similar condition who had achieved long term survival. In Dr. Peterson's opinion, if Mrs. Cheety had received the proper care in the spring of 2002, she would have had an estimated survival rate "closer to sixty percent."

Dr. Charles Farber

Dr. Farber was called as an expert by the defense. He testified that he specializes in taking care of patients with disorders of their blood system and patients with cancers and malignancies. He is board certified in internal medicine, medical oncology and hematology. Dr. Farber estimated that he sees one to two patients a year diagnosed with inflammatory breast cancer. He testified, not as to whether Dr. Pappas deviated from any accepted standard of care, but rather for the purpose of explaining how breast cancer evolves. He described inflammatory breast cancer as "a special situation which fortunately doesn't occur that often whereby the breast cancer cells have an affinity and line up in the narrow channels of the breast that typically drain into the lymph nodes." With this type of cancer, there is extensive involvement of the lymphatic system which tends to obstruct the drainage from the breast. The lymph nodes are involved at an early stage in this cancer. Patients will develop symptoms over a short period of time, within a few weeks or months, and those symptoms will include a thickened, tender, hot, discolored or swelling breast area.

In Dr. Farber's medical opinion, if peau d'orange of the breast were left untreated, it would not disappear. He also explained the staging of breast cancer, a means of assessing how advanced the cancer is within the body and within the local area:

In the case of breast cancer, as in many cancers we use something called a TNM staging system. We divide up the different areas of the body and see if there's cancer there, and if so, how extensive. T stands for tumor which tells us about the extent of disease within the breast. N stands for lymph nodes. And that tells us how extensive, how extensively involved the lymph nodes in the axilla typically are. Which can also include lymph nodes in the middle of the chest. Not all the breast cancer migrates to the armpit, some of it moves medially toward the center of the chest.

And finally you have metastasis.

So there's sub-classifications to each of the TNM stages. If a person has no evidence of disease in their breast, it [sic] has disease elsewhere in the body, it could be T zero. If they have a tumor that is relatively small, less than two centimeters, we call it T one. And it's so refined that we have a T one A, T one B and T one C . . . .

There's a T two, which is between two and five centimeters. There's T three which is greater than five centimeters. And there's T four in which case there's inflammatory breast cancer. Obviously that's the most locally advanced disease.

Similarly, we have N zero, there are no lymph nodes involved. If you have N one which is one to three. This is pathologic. This is after a woman who has had definitive surgery because you can't really tell how many lymph nodes are tainted with metastatic deposits until you remove them, a section and stain them and have a qualified individual look at that under a microscope.

You have N two, which is four to nine. You have N three, which is greater than ten.

M thankfully is very simple. There are only two. M zero which is no metastasis or if they have M one they do have a positive metastasis.

Relevant for Mrs. Cheety:

Stage two would be for patients who have T two disease, N zero, M zero. It could be TA -- I'm sorry, two A, then there's a two B which would be say a T two N one, and by taking combinations of one T, one N and one M, we come out with all the different stages.

. . . .

A stage three is -- well, it's a stage three A, stage three B and stage three C. The stage three C would be N three. Greater than two ten [sic] lymph nodes. Stage three B would be any lymphatic or skin involvement that would make it at least a stage three B, so these would be T four.

Dr. Farber expressed the opinion that about sixty to seventy percent of stage two patients can be cured while only twenty to thirty percent of stage three patients will be. In the case of Mrs. Cheety, Dr. Farber opined that she had stage three B, inflammatory breast cancer. He did not believe that a skin pigment change in the breast would be consistent with inflammatory breast cancer, but if she had inflammatory breast cancer in March 2002, she would have been at a stage three B then, as she was in November 2002. The stage would not have changed over time according to Dr. Farber. Asked to assume that Mrs. Cheety had the same treatment in March that she got in November - chemotherapy, radiation and surgery - Dr. Farber opined her prognosis would not have been different. "She would have had stage three B or stage three C disease. She would have had fewer cells there but it would have been the same stage, the same treatment and unfortunately the same outcome." When asked by a juror when would the cancer have had to have been detected in order for Mrs. Cheety to have a sixty percent chance that she had anything less than stage three disease in March 2002, Dr. Farber could not answer that question exactly. He estimated, however, that "It would have been a year and a half or so previously to take her from a stage three on to a stage two. Probably would have happened at a much earlier time."

Dr. Farber believed that Mrs. Cheety had some form of advanced breast cancer in March 2002 but not inflammatory breast cancer. After she received aggressive chemotherapy, her surgery in the following year, March 2003, revealed that all of the fourteen lymph nodes removed were positive. Dr. Farber extrapolated and estimated "she would have had somewhere between ten, eleven, twelve and fourteen lymph nodes eight months earlier." In his opinion, eight months would not have significantly changed the number. According to him, the overall prognosis for an individual diagnosed with inflammatory breast cancer is "rather poor. No more than perhaps twenty to thirty percent of [such] patients can be cured of their disease." With regard to Mrs. Cheety, Dr. Farber declined to estimate how long she would live. But he testified "she's not going to be cured. She will die of her disease at some point."

Dr. Michael Osborne

Dr. Osborne was a defense expert witness. He had been trained in medical school at the University of London, but was an attending physician at Memorial Sloan Kettering for eleven years; for six or seven years he was the head of Sloan Kettering's breast cancer research laboratory. For fourteen years he has been the Chief of Breast Service at New York Presbyterian Hospital, Cornell Medical Center, and he is president of the Strang Cancer Prevention Center in New York. Prior testifying in this case, Dr. Osborne thoroughly reviewed Mrs. Cheety's medical history as well as all related depositions. He characterized inflammatory breast cancer as extremely rare, about three percent of all breast cancer cases. "It's always a very acute presentation with redness of the breast[,]" and is frequently mistaken for an infection. In contrast to noninflammatory breast cancer, Dr. Osborne stated that the symptoms for inflammatory breast cancer last thirty days on average. In the case of inflammatory breast cancer, the redness on the breast resembles an acute infection, "deep red, bright red." Inflammatory breast cancer may often be diagnosable by the "clinical appearance of the redness, the thickening and the swelling." It may often take months or years after the first cancer cell develops for the cancer to become detectable.

Typically, to diagnose inflammatory breast cancer, "you need to see the redness of the skin and what you would be doing is . . . what's called a punch biopsy. That's just when a tiny piece of skin is cored out with something that resembles a very tiny cookie cutter. And that piece of skin tissue is sent to a pathology laboratory" for review.

He testified that inflammatory cancer does not progress through stages like other forms of cancer. Dr. Osborne also denied that another form of cancer such as infiltrating ductile carcinoma can convert itself into an inflammatory cancer. With a combination of pre-operative chemotherapy, surgery and radiation therapy, the five-year survival rates of inflammatory breast cancer patients have reached thirty to forty percent.

After reviewing the account of Mrs. Cheety's diagnosis and treatment, Dr. Osborne concluded that Dr. Pappas did not deviate from the accepted standards of medical care. He testified "[t]he signs and symptoms of inflammatory breast cancer were not apparent given what is described in her record and what you've read. You have to have something to go on. A little pinkness and flushing of the breast is common enough, . . . and it's not enough to initiate further testing." Dr. Osborne did not believe a biopsy would have been helpful because the patient's condition did not allow a focus area for the test. He conceded that cancer cells were most likely present in Mrs. Cheety's body in March 2002. He stated there was extensive lymph node involvement in March just as there was in November 2002. Dr. Osborne characterized early diagnosis as "crucial" for treatment of most cancers, but added "[t]here is nothing worse than inflammatory breast cancer." Consequently, in his opinion, Mrs. Cheety's prognosis would have remained extremely poor even if diagnosed in March 2002. Dr. Osborne believed that the cancer first became diagnosable in late summer 2002. Regardless, the outcome of the disease would have been the same.

The Jury Charge

At the conclusion of testimony and closing statements, the court charged the jury. Prior to the charge, the parties discussed whether the court should also give a Gardner charge, that is, a charge consistent with the holding of Gardner v. Pawliw, 150 N.J. 359 (1997). The trial court decided that the Scafidi charge was appropriate, without the Gardner charge. Scafidi v. Seiler, 119 N.J. 93 (1990). Regarding Dr. Pappas' decision not to order follow-up tests in March 2002, the court tailored the charge as follows:

Mr. and Mrs. Cheety also claim that Mrs. Cheety had observable symptoms on her right breast and that Dr. Pappas did not order any follow-up tests and did not request to see Mrs. Cheety again at any specified time to continue to observe the symptoms.

Mr. and Mrs. Cheety further claim that Dr. Pappas was negligent and that as a result of that negligence, a diagnosis of Mrs. Cheety's breast cancer was delayed until November 2, 2002 and is now likely to cause her death.

If you determine that Dr. Pappas was negligent, then you must also decide what the chance is that Mrs. Cheety would not be dying of inflammatory breast cancer if Dr. Pappas had not been negligent.

Thus, if you decide that Dr. Pappas was negligent, then you must decide to what extent were Mrs. Cheety's injuries caused by her pre-existing medical condition, and to what extent were the injuries caused by Dr. Pappas' negligence.

When Mrs. Cheety went to see Dr. Pappas on March 5, 2002, she had a pre-existing condition known as breast cancer which by itself had a risk of causing her the harm she ultimately experienced in this case. However, Mrs. Cheety claims that Dr. Pappas' negligence increased the risk of harm and continued to the ultimate injury which is that the breast cancer developed into inflammatory breast cancer and spread to her spine and hip and is now likely to cause her death.

To establish that Dr. Pappas' negligence was a cause of her injuries or damages, Mrs. Cheety must first prove that Dr. Pappas' negligence increased the risk of harm posed by her pre-existing condition.

Second, Mrs. Cheety must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. If the negligent act was only remotely or insignificantly related to the ultimate harm or injury, then the negligent act does not constitute a substantial factor.

However, Dr. Pappas' negligence need not be the only cause or even the primary cause of an injury for the negligence to be a substantial factor in producing the ultimate harm or injury. Whether the increased risk was a substantial factor is to be reflected in the apportionment of damages between the increased risk and the pre-existing condition.

If under all of the circumstances here, you find that Mrs. Cheety may have suffered lesser injuries if Dr. Pappas was not negligent, then Dr. Pappas is liable for Mrs. Cheety's increased injuries.

On the other hand, if you find that Mrs. Cheety would have suffered the same injuries even if Dr. Pappas was not negligent, then Dr. Pappas is not liable to Mrs. Cheety.

At this point, the approved version of the Model Jury Charge (Civil) 5.50E Pre-existing Condition Increased Risk/Loss of Chance Proximate Cause, recommended insertion of the following language, based upon Gardner, where the allegation was that the failure to perform a diagnostic test increased the risk of harm from a preexisting condition:

If you determine that the defendant was negligent in not having a diagnostic test performed, in this case [here indicate the test(s)], but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm. In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases.

The "Note to Judge" that precedes the recommended language of the model charge is couched in seemingly mandatory terms. It reads ". . . the trial court must also give that portion of the charge derived from Gardner, supra, as indicated below." The trial court, nevertheless, elected not to include the Gardner charge. Instead, the court moved on to explain to the jury the reduced burden of proof placed upon the plaintiff, and the shift of the burden to defendant to apportion damages if the jury determined, as it did, that the doctor had deviated from the standard care. Thus, the trial court instructed:

If you find that Mrs. Cheety has proven that Dr. Pappas was negligent, she's not required to quantify or put a percentage on the extent to which Dr. Pappas' negligence added to all of her final injuries.

In cases where Dr. Pappas' negligence accelerated or worsened Mrs. Cheety's pre-existing condition, Dr. Pappas is responsible for all of Mrs. Cheety's injuries, unless Dr. Pappas is able to reasonably apportion the damages.

Now, since Dr. Pappas claims that all or part or Mrs. Cheety's injuries would have occurred anyway, then she and not Mr. and Mrs. Cheety has the burden of proving what percentage of Mrs. Cheety's injuries would have occurred, even if she had not been negligent. She meaning Dr. Pappas.

If the injuries can be so apportioned, then Dr. Pappas is responsible only for the amount of ultimate harm caused by her negligence.

For example, if Dr. Pappas claims that Mrs. Cheety would have died of inflammatory breast cancer even if treated earlier, and if she can prove that an apportionment can be reasonably be made, separating those injuries Mrs. Cheety would have suffered anyway even with timely treatment from those injuries she suffered due to the delay in treatment, then Dr. Pappas is only liable for that portion or percentage of the injuries she proves is related to the delay in treatment of Mrs. Cheety's original condition.

On the other hand, if you find that Dr. Pappas has not met her burden of proving that Mrs. Cheety's injuries can be reasonably apportioned, then she is responsible for all of Mrs. Cheety's injury or harm.

When you're determining the amount of damages to be awarded to Mrs. Cheety, you should award damages for all of her injuries. Your award should not be reduced by your allocation of harm. And the adjustment in damages which may be required will be performed by the court.

The jury deliberated and determined that defendant Dr. Pappas deviated from accepted medical standards, but that the deviation did not increase the risk of harm to plaintiff. Plaintiffs filed a timely notice of appeal from the judgment of no cause for action entered on the basis of the jury verdict. They assert they are entitled to a new trial, except on the issue of negligence. They urge the following grounds as error:

POINT I: THE JUDGE'S DECISION NOT TO INSTRUCT THE JURY REGARDING THE SIGNIFICANCE OF THE FAILURE TO DO DIAGNOSTIC TESTS WAS FATAL TO A CLEAR JURY DETERMINATION ON THE INCREASED RISK OF HARM.

POINT II: THE FACT THAT A DELAY IN CANCER TREATMENT ALMOST INVARIABLY LEADS TO AN INCREASED RISK OF A SERIOUS PROGNOSIS HAS ALREADY BEEN JUDICIALLY NOTICED BY THE APPELLATE DIVISION AND AN INSTRUCTION ON THAT ISSUE SHOULD HAVE BEEN GIVEN TO THE JURY.

After carefully reviewing the relevant law, pertinent facts and trial testimony, we affirm the judgment of the Law Division.

We will first address plaintiffs' second argument, that the judgment should be reversed because the trial court failed to take judicial notice that a delay in cancer treatment invariably leads to a more grim patient prognosis. N.J.R.E. 201(b) provides that

[f]acts which may be judicially noticed include (1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute, (2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute, (3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and (4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.

Plaintiffs' argue for the use of judicial notice in this instance because this court stated in Okulicz v. Ragazzo that "[i]n the instance of pre-existing cancer, it is commonly known that delay in treatment almost invariably leads to an increased risk of serious prognosis." 361 N.J. Super. 320, 330 (App. Div. 2003) (emphasis added). That is not an unqualified statement. Moreover, even if there is some correlation between delay in treatment and increased risk to the patient, the relationship between such delay and success of treatment does not rise to a level "so universally known that [it] cannot reasonably be the subject of dispute." See N.J.R.E. 201(b).

In the matter at hand, the issue was vigorously disputed. The jury and the trial court heard from five specialists. Each witness offered a slightly differing opinion regarding Mrs. Cheety's condition and prognosis. The doctors did not uniformly agree that Mrs. Cheety suffered from inflammatory breast cancer in March 2002. Most agreed that cancer cells, detectable or not, were present at the time. The witnesses indicated that inflammatory cancer would progress quite rapidly. Dr. Farber reasoned deductively and stated that "[k]nowing that the patient had that extensive disease in November, she would have had very extensive disease back in March." In the end, however, the doctors disputed the degree to which inflammatory cancer could be treated or prevented, even if that diagnosis had been made at an early point in time.

"The purpose of judicial notice is to save time and promote judicial economy by precluding the necessity of proving facts that cannot seriously be disputed and are either generally or universally known." State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007) (citing RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 711 (App. Div. 1988)). Facts that can be reasonably questioned or disputed may not be judicially noticed. Ibid. The trial court had no obligation to take judicial notice of a disputed factual proposition even if, on its face, the proposition appeared logical and reasonable. The failure to take judicial notice is an exercise of sound judicial discretion and it was most certainly not an improper exercise of discretion for the court to allow the jury to consider and weigh the competing opinions of the various witnesses who testified.

Plaintiffs' main argument on appeal is that the trial court's failure to give the Gardner charge prejudicially impacted the jury's ultimate decision. Plaintiffs correctly argued that "[i]n situations where the deviation includes the failure to do diagnostic tests, the plaintiff need only demonstrate to a reasonable degree of medical probability that the failure to perform the test increased the risk of harm from the pre-existing condition." Gardner, supra, 150 N.J. at 387. Plaintiffs argued, however, that the jury needed to be told as well that "plaintiffs' only burden is to show that the test would have been positive . . . in a proportion of the cases a small proportion of the cases." Defendants argued, and the trial court ruled, that under the circumstances of this case, the Gardner charge was unnecessary and that the Scafidi charge was the appropriate charge.

"It is axiomatic that clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error. 'A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations . . . .'" Das v. Thani, 171 N.J. 518, 527 (2002) (quoting State v. Martin, 119 N.J. 2, 25 (1990)). "The court must explain the controlling legal principles and the questions the jury is to decide." Ibid. When an appellant raises error in the jury charge, the charge must be considered as a whole. The court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). Moreover, no party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971); Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988). If, however, the trial court's instructions to the jury "fell short of fully presenting the applicable law", we may vacate the jury verdict and remand the case for a new trial. Baboghlian v. Swift Elec. Supply, 393 N.J. Super. 187, 200-02 (App. Div. 2007).

It will be helpful to set forth here certain general principles that pertain to this type of case. To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation as a proximate cause of the injury. Gardner, supra, 150 N.J. at 375 (internal citations omitted). In cases where the plaintiff was suffering from a preexisting condition that is alleged to have been enhanced or adversely affected by the negligence of a treating physician, the traditional burden of proof is lessened. Thus, "[a] plaintiff suffering from a preexistent condition must prove that, as a result of a defendant's negligence, she experienced an increased risk of harm from that condition and that the increased risk of harm was a substantial factor in causing the injury ultimately sustained." Ibid. (citing Anderson v. Picciotti, 144 N.J. 195, 210 (1996)).

"Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexisting condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result." Scafidi, supra, 119 N.J. at 108. The approach under Scafidi is as follows:

the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Assuming that the jury determines that the deviation increased the risk of harm from the preexistent condition, we use the "substantial factor" test of causation because of the inapplicability of "but for" causation to causes where the harm is produced by concurrent causes. The "substantial factor" standard requires the jury to determine whether the deviation, in the context of preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.

[Id. at 108-09.]

In this appeal, plaintiffs rely on Gardner, supra, and Reynolds v. Gonzales, 172 N.J. 266 (2002) and contend that the jury was not properly charged on the significance of the failure to follow up or to conduct diagnostic tests. Plaintiffs emphasize more specifically that they were not required to prove that the diagnostic tests, if performed, would have resulted in avoiding the harm. While the language of the "Note to Judge" concerning the model charge indicates a trial judge should give the Gardner charge where the allegation is that the failure to perform a diagnostic test increased the risk of harm, we do not agree with plaintiffs that the failure to include that portion of the charge is grounds for a new trial in this case. See, e.g., Fischer v. Canario, 143 N.J. 235, 254 (1996) (noting that "reversible error . . . will not be found 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.").

Gardner involved a high risk pregnancy that ended in the delivery of a dead fetus. When Mrs. Gardner had noticed a significant decrease in the frequency of fetal movement and a watery vaginal discharge, she reported it to her obstetrician and gynecologist, Dr. Pawliw. However, Dr. Pawliw attempted to reassure Mrs. Gardner by explaining that the fetus was sleeping and that there was nothing wrong. The Gardners alleged that the doctor's failure to perform diagnostic tests had caused an increased risk that the fetus would not survive and that the increased risk was a substantial factor in the fetus's death.

Following a three-day trial, the court in Gardner granted defendant's motion for dismissal, pursuant to Rule 4:40-1. The court ruled as a matter of law that plaintiffs had failed to show a causal connection between the failure to administer tests and the death of the fetus in light of the testimony of plaintiff's expert that unless there was a negative test there was no reason for medical intervention. This court affirmed the dismissal of the complaint, but on review the Supreme Court reversed. In doing so, the Court expressed its concern that in cases where a defendant failed to perform a diagnostic test, "that very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of medical probability concerning what might have occurred had the test been performed." Gardner, supra, 150 N.J. at 380. Accordingly, the Court announced a new standard for such situations:

When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties of the failure to test created.

[Id. at 387 (emphasis added).]

In Gardner, the Court also noted that in Olah v. Slobodian, 119 N.J. 119 (1990), the companion case to Scafidi, it had disapproved the imposition of a requirement that the plaintiff's proofs quantify the likelihood that the physician's failure to perform diagnostic tests on the date of the patient's collapse, would have avoided her death. The Court explained that the possibility of avoiding harm was subsumed in the jury's conclusion that the failure to test deviated from accepted practice and increased the risk of harm. It observed that "as long as there was proof to a reasonable degree of medical probability that the failure to test increased the risk of harm, the significance of that increased risk should be determined by the jury under the second prong of Scafidi. Gardner, supra, 150 N.J. at 386-87.

In Reynolds v. Gonzalez, the plaintiff sustained serious injuries to his left leg in a dirt bike accident. An emergency room physician made an initial diagnosis of tibial plateau fracture of the left leg with a possibility of compartment syndrome, a painful condition that occurs when there is swelling inside an enclosed compartment in the body. As a result of a subsequent fall, plaintiff's foot was "'locked in,' paralyzed and 'curled.'" 172 N.J. 266, 274 (2002). Plaintiff filed a medical malpractice action in which he alleged, among other things, that defendant "was negligent for failing to properly monitor him for compartment syndrome, not performing intra-compartmental pressure measurements, and by casting the fractured leg when the compartment pressures were elevated." Id. at 275. The matter was tried twice and in each trial the jury found that defendant had deviated from accepted medical standards of care by failing to test for compartment syndrome and that the deviation increased the risk of the ultimate harm, but both juries concluded that the increased risk was not a substantial factor in producing plaintiff's paralysis and related complications. Ibid.

Following the denial of his motion for a third trial, plaintiff appealed, arguing that the substantial factor test was confusing and should be abolished or modified. We affirmed the denial of the motion for a new trial, disclaiming authority to modify or eliminate the substantial factor test. The Supreme Court granted plaintiff's petition for certification and modified the instruction on substantial factor causation in increased risk cases to clarify a plaintiff's burden of proof. The Supreme Court concluded that the trial court had

failed to instruct the jury on the significance of defendant's failure to perform [certain diagnostic] tests even in the absence of evidence indicating what such tests would have revealed. Without a charge consistent with Gardner v. Pawliw, 150 N.J. 359, 387-91, 696 A.2d 599 (1997), the jury may have determined that defendant's failure to perform the required diagnostic tests insulated defendant from liability.

[Id. at 289.]

To rectify that situation, the Court stated:

[I]n cases where the prevailing standard of care indicated that a diagnostic test should have been performed and it was a deviation not to perform the test, but it is also unknown whether the test would have helped to diagnose or treat the preexistent condition, the first prong of Scafidi increased risk test would be satisfied if the plaintiff demonstrated to a reasonable degree of medical probability that the failure to perform the test increased the risk of harm from the preexistent condition.

[Id. at 290.]

Based on the holdings in Gardner and Reynolds, plaintiff has a right to have the jury consider the effect of the failure to perform diagnostic tests; even if the results of the tests are not known, the issue would be submitted to the jury. Ibid. To have the case submitted to a jury, a plaintiff does not have to prove that the tests would have revealed the cancer, just that the failure to perform them increased plaintiff's risk of injury. The significance of the test result may be considered by the jury for purposes of determining whether the doctor's actions or inactions were a "substantial factor in causing the ultimate harm sustained." Ibid.

Verdicchio v. Ricca is also instructive in this regard. 179 N.J. 1 (2004). The plaintiffs in Verdicchio sued a doctor for medical malpractice based on his failure to timely diagnose cancer. Id. at 8. After trying the case to completion, the jury awarded a substantial verdict in favor of plaintiff, finding that the doctor had been negligent in his treatment of plaintiff patient; that his negligence increased the risk of a poor prognosis to plaintiff; and that the increased risk was a substantial factor in causing the ultimate harm suffered by plaintiff. Ibid. The defense moved for judgment pursuant to Rule 4:37-2b and Rule 4:40-1, as to which the trial court had reserved decision and for judgment notwithstanding the verdict pursuant to Rule 4:40-2(b). All three motions were granted by the trial court because plaintiff's expert had not been able to establish whether or not the patient's cancer had metastasized at the time of the deviation. We affirmed and the Supreme Court granted cross-petitions for certification and reinstated the jury verdict.

The Court explained that the plaintiff's proofs were to be treated as uncontradicted on the motions and they were entitled to the benefit of all legitimate inferences. "Moreover, the jury was free to conclude that even if [the doctor's negligence was not the only cause or even primary cause of plaintiff's] suffering and death, neither was it remote or inconsequential and that it was relevant and significant in bringing about the final injury. Id. at 32-33. Thus, the Court reiterated what would be required for a jury to find in plaintiff's favor:

[Plaintiffs] were required only to show that [the doctor's] failure to perform an examination that would have led to the discovery of the cancer increased the risk that [the patient] would lose the opportunity for treatment at an earlier stage. They were not required to prove the results of examinations and tests that [the doctor] neglected to administer. Gardner, supra, 105 N.J. at 387, 696 A.2d 599. Although [the plaintiffs'] expert was unable to render an opinion whether the cancer had metastasized by [a certain date], his testimony was clear that, as a matter of medical probability, [the doctor's] delay increased the risk that [plaintiff] would lose the opportunity for effective treatment of the cancer. In fact, we recognized in the failure to diagnose cancer case of Evers that the "passage of time" with concomitant "[d]elay in treatment almost invariably results in a more serious prognosis." Evers, supra, 95 N.J. at 409 n.4

[Id. at 32.]

Plaintiffs in the instant case carried the threshold burden of demonstrating that the defendant's failure to perform diagnostic tests in March 2002 could have led to a more grim diagnosis for Mrs. Cheety. For that reason, they were entitled to and did have their case submitted to the jury.

Essentially, the case turned on a battle of the experts. Each party presented expert testimony regarding the possibility of diagnosis and the ultimate survival rates based on the date of diagnosis. In Das, supra, the Supreme Court reversed a jury verdict because the court failed to narrowly tailor the jury instructions to the facts and legal theories presented. 171 N.J. at 524. We are satisfied that the instruction given here (earlier quoted at length) was sufficiently tailored to the facts, and even with the exclusion of the language of the model charge derived from Gardner, it adequately and fairly conveyed the law.

Plaintiff's experts indicated that biopsies, MRIs or mammograms may have detected the cancer in March 2002. They likewise testified that Mrs. Cheety's prognosis for long term survival may have greatly increased if her condition had been diagnosed early. In contrast, the defense experts opined that Mrs. Cheety's prognosis would have remained extremely poor even if diagnosed in March of 2002, and that the treatment and outcome would have been the same whenever diagnosed. The jury was required to determine whether follow-up and the chance, however small, of an earlier diagnosis and treatment would have made a difference in the patient's prognosis and outcome. The jury clearly accepted the view espoused by the defendant that it would not have made a difference.

Viewing the charge as a whole, we do not perceive that the failure to include the recommended Gardner charge in the jury instructions could have clouded the jury's ability to make a reasoned decision on the evidence presented. The charge informed the jury that plaintiff was "not required to quantify or put a percentage on the extent to which Dr. Pappas' negligence added to all of Mrs. Cheety's injuries." The court made clear that "if Dr. Pappas' negligence accelerated or worsened Mrs. Cheety's pre-existing condition, Dr. Pappas [would be] responsible for all of Mrs. Cheety's injuries, unless Dr, Pappas [was] able to reasonably apportion the damages."

Jury verdicts carry a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977); Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div. 2008). Hence, jury verdicts should be set aside only with reluctance and then, only in cases showing clear injustice. Baboghlian v. Swift Elec. Supply, 393 N.J. Super. 187, 200 (App. Div. 2007), certif. denied, 194 N.J. 445 (2008). In this case, we are constrained to conclude that the charge as a whole adequately informed the jury of the standard to be applied and that it is unlikely that the jury was misled or confused.

Affirmed.

(continued)

(continued)

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A-3574-06T5

October 30, 2008