On appeal from the Superior Court of New Jersey, Law Division, Salem County.
Approved for Publication November 25, 1996. As Amended January 17, 1997.
Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
Plaintiff, Sharon Day, appeals from a judgment entered on a jury verdict of no cause for action in the malpractice case she brought against defendant, Ronald B. Lorenc, M.D., arising out of surgery he performed to correct her deviated septum. *fn1
The case arose in 1988, when plaintiff filed a malpractice complaint against defendant alleging that his deviation from the appropriate medical standard caused her to lose her sense of smell. Defendant answered, denying the material elements of the complaint and discovery ensued. A trial was held in July, 1992. Four witnesses appeared: plaintiff, defendant and an expert for each. The jury returned a verdict of no cause for action which was vacated because of a trial error. In June, 1994, the case was retried.
The same four witnesses appeared at the second trial. Plaintiff's expert, Dr. John W. Grigg, explained that during the deviated septum surgery, defendant disrupted the nasal septal lining which, in turn, caused scar tissue to form. This disruption, in and of itself, was not evidence of any negligence; even the most skilled surgeons cannot always prevent scar tissue from forming. However, in Dr. Grigg's opinion, defendant's subsequent decision to out-fracture plaintiff's middle turbinates (in order to enlarge her airway) was a deviation from the standard of care in that the middle turbinates are so close in proximity to the septal lining that a bridge of scar tissue was able to form between them. Dr. Grigg opined that it was this bridge of scar tissue which caused plaintiff to lose her sense of smell.
Defendant's expert, Dr. Frank I. Marlowe, testified that a loss of smell can only be caused by destroying nerve endings; that the nerve endings for the sense of smell do not extend below the superior, or upper third of the turbinates; and that according to defendant's surgical notes, defendant did not go anywhere near the area where the nerve endings are located, only going as high as the middle third of the turbinates. Dr. Marlowe noted that scarring does not mean the procedure was done incorrectly and that nasal polyps often cause a loss of smell. He also pointed out that the report of a subsequent treating physician, Dr. Donald P. Shapiro, indicated that he observed multiple polyps within three months of the surgery in question. Dr. Marlowe concluded that the surgery and overall treatment rendered by defendant met the standard of care.
The second jury determined that defendant had not deviated from the accepted standard of care. Plaintiff filed a motion for a new trial which was denied. She appeals, contending that the following errors warrant reversal: (1) the trial Judge should have granted a mistrial when plaintiff's lawyer was unable to complete the trial *fn2; (2) the trial Judge should not have allowed Dr. Shapiro's report into evidence; and (3) the trial Judge improperly intruded into the case by cross-examining Dr. Grigg. We have carefully reviewed this record in light of these contentions and have concluded that a reversal is in order based on the admission of Dr. Shapiro's report into evidence.
Dr. Grigg wrote a report dated April 6, 1988 in which he concluded that defendant had been negligent. The report lists the materials he "studied" in formulating his opinion, including a letter from Dr. Shapiro to plaintiff's counsel. Shapiro had treated plaintiff for nasal polyps and performed some additional surgery on her subsequent to her surgery by defendant. Apparently, plaintiff's counsel had asked Dr. Shapiro to relate the details of plaintiff's condition and course of treatment. Shapiro sent him a two-page, single-spaced letter dated December 22, 1987. With the exception of the last paragraph, the letter essentially recounts Dr. Shapiro's treatment of plaintiff. The last paragraph of the report states:
Although there appears to be a relationship in time between the onset of Mrs. Day's anosmia [i.e., her loss of smell] and her nasal septal surgery on May 19, 1986, I could find no direct evidence of this. Scarring, or synechia, forming intranasally following nasal surgery is quite common. Usually this might lead to some breathing problems postoperatively, but to my knowledge I have never seen this cause a loss of smell. On the other hand, nasal polyposis quite often causes a loss of smell. Furthermore, loss of smell secondary to nasal polyposis may often persist even after adequate medical and/or surgical treatment.
At trial, defense counsel succeeded in obtaining from Dr. Grigg the acknowledgment that he had relied on Dr. Shapiro's report:
Q: No. You said that the polyps -- well, we'll get to that in a second. At the beginning of your testimony, doctor, you referred to your report, in fact I think you were handed a copy by counsel, and you read from that report what ...