GALINA GRINBAUM v. STEVEN G. ROBBINS M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4979-09T2

GALINA GRINBAUM and

ZINOVY GRINBAUM, her

husband, VICTORIA

GRINBAUM and ELIE

GRINBAUM,

Plaintiffs-Appellants,

v.

STEVEN G. ROBBINS, M.D.,

CENTER FOR ORTHOPEDICS,

P.A.,

Defendants-Respondents,

and

ZIMMER HOLDINGS, INC., THE

PURDUE FREDERICK COMPANY, INC.,

d/b/a THE PURDUE FREDERIC COMPANY,

and STRYKER ORTHOPEDICS, INC.,

Defendants.

_______________________________________

April 14, 2011

Argued March 8, 2011 Decided

Before Judges Yannotti, Espinosa and Skillman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5912-06.

Alexander Shapiro argued the cause for appellants (Palant & Shapiro, P.C., attorneys; Mr. Shapiro, on the brief).

Gary L. Riveles argued the cause for respondents (Dughi & Hewit, attorneys; Mr. Riveles, on the brief).

PER CURIAM

In this action, plaintiff Galina Grinbaum (Grinbaum) alleged that defendant Dr. Steven G. Robbins (Robbins) deviated from accepted standards of orthopedic care by performing an unnecessary surgical procedure on her right knee. Grinbaum's husband, Zinovy Grinbaum, asserted a per quod claim for loss of services, society and consortium.1 The matter was tried before a jury, which returned a verdict for Robbins and defendant Center for Orthopedics, P.A., the entity under which he practices. Plaintiffs appeal from the final judgment entered on May 20, 2010. We affirm.

I.

Grinbaum is a registered nurse. In May 1998, while working at a hospital, Grinbaum slipped on a wet floor and fell face down. She lost consciousness and injured her right knee. Grinbaum was admitted to the hospital as a patient. On May 19, 1998, Dr. William Crutchlow (Crutchlow) performed surgery to repair Grinbaum's kneecap.

On October 2, 1998, Crutchlow performed arthroscopic exploratory surgery on Grinbaum's knee. In his operative report, Crutchlow noted that he had observed a defect known as a "chondral lesion," which measured eight millimeters by eight millimeters "to bone" as well as certain "degenerative changes" that appeared to be "nontraumatic."

Thereafter, Grinbaum continued to experience pain in her kneecap. In October or November 1998, she consulted with Robbins about treatment options. According to Grinbaum, Robbins mentioned four options, including total knee replacement and a patellectomy or removal of the kneecap, both of which would result in weakness and impaired motion. Robbins also mentioned autologus chondrocyte procedure, in which cells from the knee are extracted and used to grow new cartilage which is implanted into the knee.

On December 17, 1998, Robbins performed arthroscopic surgery on Grinbaum's knee and concluded that she was a candidate for the autologus chondrocyte procedure. On December 31, 1998, Robbins performed that procedure. In his operative report, Robbins wrote that Grinbaum's "entire medial femoral condyle had very thin flaky cartilage over it" and he "excised in an elliptical manner the thick, abnormal cartilage." Robbins measured the defect, or chondral lesion, to be one and a half centimeters in width by two centimeters in length.

Robbins testified that the growth in the lesion to about double its size was not unexpected because "once you start a cascade of events . . . it just gets worse, it can't get better [because] cartilage can't heal." Robbins' expert, Dr. Wendell R. Scott (Scott), a board-certified orthopedic surgeon, testified that, at this point, there was a "more extensive change in" Grinbaum's "medial compartment," and that by December 1998, Grinbaum was suffering from "two compartment disease."

Robbins continued to treat Grinbaum after the December 1998 procedure. Grinbaum testified that, after the surgery, her knee felt better but in the spring of 2001, her pain levels returned, although she was able to walk and did not have any limitations upon her ability to extend or flex the knee. During the two years after the autologus chondrocyte procedure, Robbins took multiple x-rays of Grinbaum's knee and also saw her several times for follow up visits.

On October 2, 2001, Robbins performed another arthoscopic surgery on Grinbaum's knee. In his operative notes, Robbins wrote that there "was some scarring" but that "[t]he rest of the knee was unremarkable." Robbins wrote in his patient notes that he had "stabilized" Grinbaum's chondral defect. However, in his May 28, 2002, patient notes, Robbins wrote that Grinbaum was "[p]lagued with chronic knee pain."

On June 21, 2002, a CAT scan was performed on Grinbaum's knee. The scan revealed "cystic spaces in the right tibia" which may have been "due to mild degenerative changes" as well as "two sclerotic densities in the right tibia possibly bone islands." Robbins testified that the cysts were evidence of degenerative disease of the cartilage. In his patient notes, Robbins stated that he had recommended a knee replacement.

On November 11, 2002, Robbins performed a total knee replacement. Robbins testified that, at the time he performed this procedure, Grinbaum's condition had developed into tri-compartmental knee disease, meaning that the three main joints of the knee (the patella femoral, femoral tibial and lateral femoral tibial) were degenerating into severe arthritis.

Scott testified that, at the time of the June 2002 CAT scan, Grinbaum had "three-compartment disease," specifically "tibial disease, femoral disease, and patella femoral disease." Scott said that total knee replacement was a "necessary procedure" because it "effectively deals . . . with three-compartment disease."

Grinbaum's expert, Dr. Cary Skolnick (Skolnick), a licensed orthopedic surgeon, disagreed with Scott's opinions. He stated that the operative reports of December 1998 and the June 2002 CAT scan indicated that a total knee replacement was not necessary because Robbins had indicated that "the weight-bearing surface of both the femur and tibia were normal."

Skolnick also said that Robbins deviated from the accepted standard of care by performing a total knee replacement on what Skolnick said was a "normal joint." Skolnick testified that Robbins should have considered performing a patellectomy rather than a total knee replacement.

Grinbaum stated that, as result of the total knee replacement, she had been in continuous pain for many years. She said that the range of motion of her knee was completely limited. Grinbaum stopped seeing Robbins in 2005. Thereafter, other doctors performed multiple surgeries on her knee, including a patellectomy.

At the charge conference, the court indicated that, because the evidence showed that Grinbaum had a preexisting condition to her knee, it intended to charge the jury according to Scafidi v. Seiler, 119 N.J. 93 (1990), which allows the jury to apportion responsibility for a plaintiff's ultimate harm between a preexisting condition and a defendant's negligent treatment. Plaintiffs' attorney objected and stated that the court should give the jury a conditional charge, which would require the jury to first determine whether Grinbaum had a preexisting condition that was exacerbated and, if so, to consider the Scafidi analysis. The court denied the application and included a Scafidi charge in its instructions.

The jury returned a verdict finding that Robbins had not deviated from accepted standards of care. The court entered judgment for defendants in accordance with the jury's verdict. This appeal followed.

II.

Plaintiffs argue that the trial court erred by charging the jury according to Scafidi. Defendants disagree, arguing that this is the "classic" Scafidi-type case.

In Scafidi, the Court noted that "[t]o recover damages for the negligence of another, a plaintiff must prove that the negligence was a proximate cause of the injury sustained." Scafidi, supra, 119 N.J. at 101. Because "[t]he language of the standard charge assumes that the defendant's negligence began a chain of events leading to the plaintiff's injury[,]" where the "plaintiff has a preexistent injury or disability and is then adversely affected by a defendant's negligence, the standard by which the jury evaluates causation must be expressed in terms consistent with the operative facts." Id. at 102.

The Court stated that "[e]vidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result." Id. at 108. This analysis, however, is "limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm as distinguished from cases in which the deviation alone is the cause of harm[.]" Id. at 108-09.

Plaintiffs contend that Robbins's alleged negligence did not combine with a preexisting condition to create the ultimate harm. Instead, plaintiffs contend that Robbins's negligence was the sole cause of the ultimate harm, which was the replacement of a knee that should not have been replaced. In support of these contentions, plaintiffs rely upon Anderson v. Picciotti, 144 N.J. 195 (1996).

In Anderson, the plaintiff was a diabetic who injured her right big toe. Id. at 199. A bone scan was performed and the defendant doctor diagnosed osteomyelitis. Id. at 199-200. The doctor amputated the toe, but before doing so did not obtain a bone biopsy. Ibid. The plaintiff brought suit against the doctor, alleging that he deviated from accepted standards of medical care in amputating the toe. Id. at 200-01.

At trial, neither the plaintiff's nor the defendant's expert could opine whether the plaintiff had osteomyelitis. Id. at 201. The plaintiff's expert stated that the defendant deviated from the accepted standard of care by performing the amputation on the basis of the bone scan, without other clinical signs and symptoms. Id. at 200. The defendant's expert stated that the defendant had an adequate basis for a diagnosis of osteomyelitis. Id. at 201.

The Supreme Court stated that the purpose of the Scafidi-type charge is intended to limit a physician's liability to "'the value of the interest damaged[.]'" Id. at 209 (quoting Scafidi, supra, 119 N.J. at 113). Depending on the circumstances, the charge may be requested by either the plaintiff or the defendant. Id. at 211. A plaintiff seeking the Scafidi charge "has the burden of proving that defendant's negligence caused an increased risk of harm to plaintiff and that the increased risk was a substantial factor in causing the ultimate harm." Id. at 210.

"[W]hen it does not clearly appear that a Scafidi charge is required and a plaintiff resists such a charge, then a defendant has the burden of persuading the trial court that a Scafidi charge is appropriate." Id. at 211. The defendant has the burden of establishing the existence and identity of the preexistent disease or condition. Ibid. "A preexistent condition or disease is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant." Ibid.

The Anderson Court held that the evidence in that case was insufficient for a Scafidi charge. Id. at 208. The Court pointed out that the plaintiff's claim was that the defendant had misdiagnosed osteomyelitis and that but for the misdiagnosis "the toe would not have been amputated." Ibid. The Court noted that the Scafidi charge is provided in order to limit the plaintiff's recovery "'to the value of the lost chance of avoiding harm.'" Id. at 211 (quoting Scafidi, supra, 119 N.J. at 111). The Court stated that there was insufficient evidence in the record to enable the jury to apportion damages between the plaintiff's preexisting condition and defendant's negligence in order to determine the percentage value of the plaintiff's "lost chance." Id. at 208-09.

In our view, the facts of this case are analogous to those in Anderson. Here, as in Anderson, there is no dispute that Grinbaum had a preexisting condition in her right knee. However, there was a genuine issue of material fact as to whether the condition of the knee had deteriorated to the point where total knee replacement was indicated, as Scott testified, or whether the "joint" was essentially normal and a patellectomy should have been performed, as Skolnick said. As in Anderson, the critical question was whether defendant misdiagnosed Grinbaum's condition and negligently performed a procedure that was not indicated. We therefore are convinced that the court erred by providing the jury with a Scafidi charge.

We are nevertheless satisfied that the error was harmless. Here, the court instructed the court on Scafidi and provided the jury with a verdict sheet with a series of questions. The first question asked the jury to determine whether plaintiffs had proven by a preponderance of the evidence that Robbins deviated from the accepted standard of medical care. The jury was instructed that, if the answer to this question was "No," it was to cease deliberations.

The verdict sheet further instructed that if the answer to this question was "Yes," the jury should move on to the following questions which required it to make the apportionment of responsibility in accordance with the Scafidi instructions. As we noted previously, the jury answered the first question in the negative, ceased its deliberations and never addressed the causation issues. Thus, the erroneous charge had no bearing on the jury's verdict.

Plaintiffs argue, however, that the court's erroneous Scafidi charge tainted the jury's finding on negligence because the issues of negligence and causation were "inextricably" linked. We disagree. The court instructed the jury on the issue of negligence and told the jury it was to address that issue first before turning to the questions related to the apportionment of responsibility between the preexisting condition and defendant's negligence. The instructions made abundantly clear that the issues of negligence and causation were separate and distinct.

Our decision in Tindal v. Smith, 299 N.J. Super. 123 (App. Div.), certif. denied, 150 N.J. 28 (1997), supports this conclusion. In that case, the plaintiff alleged that she developed a post-operative infection as a result of an unnecessary surgical procedure. Id. at 124. The court provided the jury with a Scafidi charge. Id. at 135. The jury found that, although the plaintiff had suffered from a preexisting condition, that condition was not a contributing factor in her post-operative infection. Id. at 126. The jury also found that the defendant doctors did not deviate from accepted standards of medical care. Id. at 124.

On appeal, the plaintiff argued that the jury charges and verdict sheet were "'needlessly complex and misleading[.]'" Id. at 133. The plaintiff maintained that the Scafidi charge should not have been given because there was no evidence that her preexisting condition could have progressed to her later infection "without the intervention of the surgery." Id. at 135. She asserted that the jury interrogatories conflated the issue of deviation and causation. Ibid.

We held that the trial court erred by providing the jury with the Scafidi charge but concluded that the erroneous instructions on proximate cause did not require a new trial because, based on the evidence, the issues of negligence and proximate cause "were entirely distinct and separate." Id. at 138. In our view, the same conclusion applies in this case.

Plaintiffs argue, however, that this case is distinguishable from Tindal because the questions on the verdict sheet pertaining to the Scafidi findings dealt with Robbins's liability in the context of a preexisting injury. According to plaintiffs, the charge unfairly informed the jury that Grinbaum's preexisting injury had been established as a fact.

However, as we stated previously, the first question on the verdict sheet dealt with whether Robbins deviated from accepted standards of medical practice and did not mention anything about a preexisting condition. The questions on proximate cause did not indicate that Grinbaum's preexisting injury had progressed to the point where a total knee replacement was indicated. The evidence admitted during the trial made clear that there was a sharp disagreement between the experts on that point. The Scafidi instructions and the verdict sheet did not instruct or suggest how the jury should resolve that issue.

III.

Next, plaintiffs argue that the trial court made three erroneous evidentiary rulings, each of which requires a new trial. We find no merit in these contentions.

First, plaintiffs contend that the court erred by limiting the jury's consideration of certain statements that Robbins allegedly made to her. Plaintiffs' argument arises from the following testimony:

Q. Did Dr. Robbins ever tell you about using a custom prosthesis?

A. Yes, he did. In fact, he said that at that time in 1998, the total knee replacement wouldn't work on me because I had very little of my original patella left. But, technology moves and with the progress, if we waited several years, there is a new technology on the horizon where they would be able, [the] company, would be able to make a customized patella that would accommodate my existing little bit of kneecap left.

At this point, the court interjected and stated that Grinbaum's assertion as to what Robbins told her was hearsay, which could be considered as it affected her state of mind, but not "for the truthfulness of the statement."

Plaintiffs' attorney did not object to the court's instruction. Therefore, we consider whether the instruction was erroneous and, if so, whether it constituted plain error, which is an error "clearly capable of producing an unjust result." R. 2:10-2.

We agree with plaintiffs that N.J.R.E. 803(b) permitted the admission of Robbins's statements and allowed the jury to consider those statements for their truth, not only as they may relate to plaintiff's state of mind. However, we are not convinced that this error had the capability of producing an unjust result because the statements attributed to Robbins did not bear directly on the key question in this case, which was whether he misdiagnosed the condition of plaintiff's knee and negligently performed a total knee replacement.

Next, plaintiffs contend that the court erred by refusing to permit Skolnick to testify at trial regarding his review of Robbins's deposition transcript, and his physical examination of Grinbaum, which occurred after the discovery end date. Skolnick did not address these points in his expert report and plaintiffs did not amend their discovery responses pursuant to Rule 4:17-7 to include these issues.

We are satisfied that the trial court did not abuse its discretion by refusing to allow Skolnick to testify on these matters, particularly since defendants would have been unduly prejudiced by this previously undisclosed testimony. The court's ruling was consistent with the principle that our discovery rules are intended to "'eliminate the element of surprise at trial by requiring a litigant to disclose the facts upon which a cause of action or defense is based.'" McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001) (quoting McKenney v. Jersey City Med. Ctr., 330 N.J. Super. 568, 588 (App. Div. 2000)).

In addition, plaintiffs argue that the court erred by limiting Skolnick's testimony about the lesion in Grinbaum's knee. Again, we disagree.

Here, plaintiffs' attorney asked Skolnick why the lesion doubled in size after Robbins took over the case. Defendants' attorney objected to the question. At a sidebar conference, plaintiffs' counsel stated that the response to the question was not critical to plaintiff's case. However, defendants' attorney stated that the answer would be significant if it indicated that Robbins had not correctly measured the size of the lesion or made it larger when he treated it.

The court found that testimony by Skolnick on this point would be significant since it suggested that some action by Robbins caused the lesion to grow. The court pointed out that there was nothing in Skolnick's report or testimony indicating that Robbins was responsible for the change in the size of the lesion. The court determined that the question could not be asked.

We are satisfied that the court's ruling was not a mistaken exercise of discretion. Plaintiffs were not unfairly precluded from responding to defendants' position that the lesion had increased in size on its own. As the court correctly pointed out, plaintiffs had the opportunity to cross-examine Robbins about the size of the lesion, but chose not to do so.

A

1 We note that plaintiffs' children, Victoria Grinbaum and Elie Grinbaum, also were named as plaintiffs in the complaint, and an amended complaint was filed naming Zimmer Holdings, Inc., The Purdue Frederick Company, Inc. and Stryker Orthopedics, Inc., as defendants. It appears that, at some point, the children's claims and those against these other defendants were dismissed.