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Kimmel v. Dayrit

June 5, 1997


On appeal from the Superior Court of New Jersey, Law Division, Salem County.

Approved for Publication June 5, 1997.

Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Wecker, J. S.c. (temporarily assigned). Humphreys, J.A.D. Concurring in part and Dissenting in part. Stern, J.A.D. (concurring).

The opinion of the court was delivered by: Wecker

The opinion of the court was delivered by

WECKER, J. S.C. (temporarily assigned).

Plaintiff Sylvia Kimmel, as executrix of the estate of her late husband, Elias M. Kimmel, appeals from a judgment dismissing her wrongful death and survival action and denying a new trial after a jury found no negligence in this medical malpractice action. Plaintiff's arguments, both on the new trial motion and on appeal, though somewhat inartfully presented, rely on the contention that the jury verdict represented a "miscarriage of Justice." Plaintiff contends that "there is a pervading sense of 'wrongness' surrounding the jury verdict. . . ." Because the verdict was against the weight of the evidence, we reverse. R. 2:10-1. Our reasons, however, differ somewhat from plaintiff's contentions.

Plaintiff alleges negligence in Dr. Pedro Dayrit's failure on two separate occasions to obtain the results of a blood test, the carcino-embryonic antigen ("CEA") test, and his failure to order the CEA test on a regular basis after decedent's diagnosis and surgical treatment for colon cancer. Plaintiff argues on appeal that the verdict was inconsistent with the evidence and must have been the product of prejudice, mistake or confusion; that the trial Judge erred in allowing the defense to cross-examine plaintiff's expert and to offer its own expert's testimony with respect to an article published years after defendant's care and treatment of plaintiff's decedent; and that the trial Judge erred in allowing a defense expert to testify that his opinion was supported by scientific literature generally, without naming specific authorities.

On plaintiff's new trial motion, the trial Judge correctly noted that the jury was presented with conflicting expert testimony on the standard of care with respect to regular CEA testing. The Judge concluded that the jury had a full opportunity to weigh the expert testimony, and:

[they] could find either way and they did make a finding on that question. And it was that he was not negligent in that standard of care. And I find that there is no evidence that they failed in their obligations when they answered that interrogatory question. . . . And, therefore, I am going to deny the motion for a new trial.

The Judge did not address the inconsistency between the verdict of no negligence and defendant's undisputed failure on two occasions to obtain the results of the CEA tests that he ordered, first in January 1984 and again in April 1989. The 1989 test would have revealed a metastasis that Dr. Kimmel learned about four months later, just two months before his death from metastatic disease. Defendant as well as his expert witnesses admitted his mistake with respect to the April 1989 test. As we said in Eyoma v. Falco, 247 N.J. Super. 435, 444, 589 A.2d 653 (App. Div. 1991):

To decide if a miscarriage of Justice has occurred, we give deference to the trial court with respect to factors that are not apparent in the record on appeal such as the credibility and demeanor of witnesses. Beyond those considerations, a reviewing court may independently scrutinize the record in order to determine whether the result was just. See Carrino v. Novotny, 78 N.J. 355, 360-61, 396 A.2d 561 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98, 379 A.2d 225 (1977); R. 2:10-1. (emphasis added).

We have scrutinized the record and conclude the result was not just.

The material facts with respect to the decedent's medical history are not in dispute. Dr. Kimmel, an optometrist, had a family history of colon cancer, his mother having died of that disease. In 1979 he had rectal bleeding and underwent a sigmoidoscopy and barium enema. The results of both were normal. The bleeding was attributed to hemorrhoids. A sigmoidoscopy was repeated with normal results in 1981 and 1983. However, as a result of a shadow appearing on a barium enema in 1983, Dr. Kimmel was referred to Dr. Dayrit, a gastroenterologist, for colonoscopy, in which a longer flexible instrument allows visualization of the entire colon. During the colonoscopy on January 9, 1984, Dr. Dayrit discovered and removed a polyp. His written report of the procedure indicates that the polyp was growing along the wall of the colon rather than on a stalk and appeared to be cancerous. The tissue report of the laboratory examination indicated "adenocarcinoma intermediate grade . . . there is invasion beyond the muscularis interna . . . there are no segments of deeper muscle wall noted" in the specimen. It appeared that all of the cancer had been removed, and scans and x-rays performed at the time showed no sign that the cancer had spread.

Because of the nature and depth of the polyp, Dr. Dayrit referred Dr. Kimmel to a surgeon who performed a partial anterior resection of the sigmoid colon on January 13, 1984 to remove that section of colon where the polyp had grown. Dr. Dayrit had ordered a CEA test, as the standard of care required, and blood was drawn for that test on January 10. The results of the January 10 CEA test apparently were never received, and the test was not repeated for six months. Experts for both sides agreed that the standard of care required a CEA blood test within seven days of the surgical removal of the cancerous polyp and that a physician normally has a duty to obtain the results of a test he orders. One of plaintiff's claims is that Dr. Dayrit was negligent in failing to follow up the January 10 test either by promptly obtaining the results or by redoing the test. As a result, plaintiff claims Dr. Kimmel lost the opportunity to have a CEA test result within seven days of the tumor's removal.

The purpose of the seven-day CEA test is to learn whether the patient's cancer is of the type that produces the antigen which can be a marker for a recurrence or a spread of colon cancer. The seven-day period relates to the half-life of the antigen. If the CEA level is elevated within seven days before or after surgical removal of the cancer, and a later test is normal, then any subsequent test showing an elevated CEA level could be a sign of recurrence or spread. If the original colon cancer does not produce the marker antigen, subsequent CEA testing is ineffective for detecting a spread of that cancer.

Dr. Kimmel continued under the care of Dr. Dayrit after the surgery. On July 2, 1984 Dr. Dayrit again ordered a CEA test and performed a total colonoscopy. The results of both the blood test and the colonoscopy were normal. Dr. Dayrit performed colonoscopies on Dr. Kimmel in January 1985, January 1986, April 1987 and May 1988. A non-cancerous polyp was removed during the 1987 procedure. Otherwise no abnormalities appeared. Between July 1984 and April 1989 Dr. Dayrit never ordered CEA testing or liver function studies. Plaintiff's allegations at trial included the contention that the failure to order regular, periodic CEA testing was a violation of the requisite standard of care. *fn1

After the negative colonoscopy in May 1988, Dr. Dayrit recommended a repeat examination in two years, which would have been May 1990. However, in April 1989 Dr. Kimmel developed abdominal symptoms and Dr. Dayrit admitted him to the hospital, suspecting either a peptic ulcer or gallbladder disease. Dr. Kimmel had previously suffered from gallbladder disease. For the first time since July 1984, Dr. Dayrit then ordered a CEA test. However, once again he never received or requested the results. When Dr. Kimmel's symptoms worsened in August, he learned for the first time, from another doctor, that the April 1989 CEA test revealed a highly-elevated antigen level of 1,595, which all expert witnesses agreed was an indication of serious metastatic disease. *fn2 In August a repeat CEA test showed an extremely high 7,000.

By September it was obvious that Dr. Kimmel had metastatic liver disease that had spread from the colon. It is undisputed that the most likely area for metastasis of colon cancer is to the liver. Each of the expert witnesses agreed that the cancer must have spread to the liver before the polyp was removed in January 1984, even though it was not detectable at the time. The spread remained dormant for most of the time between 1984 and 1989; however, once it began to grow it became a fast-growing tumor. *fn3 By August 1989 it had spread throughout the liver, was not amenable to surgery, and despite chemotherapy in September, Dr. Kimmel died of metastatic liver disease in October 1989.

Plaintiff's expert oncologist, Dr. Gerald Sokol, testified that three omissions constituted deviations from the accepted standard of care, and that separately and together they reduced Dr. Kimmel's chances for a better outcome. Chronologically, the first claimed deviation was defendant's failure to obtain the results of the January 10, 1984 CEA test or to repeat the test within seven days after the cancerous polyp was removed. The next alleged deviation was defendant's failure after the colon resection to do regular CEA testing at intervals ranging between six weeks and six months. Finally, plaintiff's expert opined that defendant was negligent in failing ever to obtain the results of the April 1989 CEA test, which only became known four months later.

Defendant's expert witnesses disputed the first two allegations. They admitted, however, as did the defendant himself, that it was a mistake not to seek the results of the 1989 CEA test, but testified that knowing the results and the liver metastasis four months sooner would have made no difference to the outcome for Dr. Kimmel. Plaintiff argues that even if earlier diagnosis would not have extended Dr. Kimmel's life, it probably would have allowed more effective palliation and certainly would have given him the opportunity to plan his remaining time. Plaintiff testified to the circumstances of her husband's final two months of life and their inability to attend to the sale of his practice during that time. Plaintiff also adduced testimony from a business consultant that if Dr. Kimmel had had the additional time to plan, it would have allowed him to market his optometry practice more favorably. The jury could have found from the evidence that the sale of the practice after Dr. Kimmel's death brought less than its appraised value before his death.

The verdict sheet that was given to the jury requested a "yes" or "no" answer to the first four of the following interrogatories" *fn4 :

1. Did defendant Dr. Pedro Dayrit deviate from accepted standards of medical practice in his care and treatment of the late Elias M. Kimmel, O.D.?

2. Did defendant Dr. Pedro Dayrit's deviation increase the risk of harm posed by Dr. Kimmel's pre-existing condition by causing him to lose a chance of being cured and/or a chance of an improved quality of life for a period beyond that which he experienced?

3. Was the increased risk a substantial factor in bringing about the premature death of Dr. Kimmel?

4. Was the increased risk a substantial factor in causing the late Dr. Kimmel to lose a chance of an improved quality of life for a period beyond that which he experienced?

5. What amount of money will fairly and reasonably compensate plaintiff in this case?

The jury was instructed to go no further if the answer to either interrogatory 1 or 2 was "no," and to proceed to the final question only if it answered "yes" to question 3 or 4. The jury answered "No" to the first question, apparently rejecting all three of plaintiff's allegations of negligence and concluding that Dr. Dayrit did not deviate from the appropriate standard of care in any respect. Having found no negligence, the jury did not reach the proximate cause questions posed under Evers v. Dollinger, 95 N.J. 399, 416-17, 471 A.2d 405 (1984), *fn5 or the damages question.

We have reviewed plaintiff's contention that the verdict reflects a miscarriage of Justice in light of the testimony of the several expert witnesses. Experts on both sides agreed that the standard of care required a seven-day CEA blood test that would reveal whether the patient's cancer was one that produced an identifiable antigen marker. Defendant's expert gastroenterologist agreed that a physician who orders a particular test has a duty to obtain the result. In light of the seven day half-life of the antigen, the undisputed importance of the test's timing, and a physician's duty to obtain the results of tests he ordered, Dr. Dayrit was required by the applicable standard of care either to obtain the results, or to repeat the test, within seven days of the polypectomy. Nevertheless, there was insufficient evidence at trial that the missing January 1984 test result itself was a proximate cause of harm to Dr. Kimmel, and we would not reverse on that ground alone.

With respect to Dr. Dayrit's failure to obtain the abnormal results of the CEA test he ordered in April 1989, and that Dr. Kimmel did not learn until August, the experts all agreed that Dr. Dayrit had a duty to obtain the test result within a reasonable time. Dr. Dayrit himself testified that it was a "mistake" for him not to notice that he did not have the test report. Referring to the mistake in his summation, defense counsel said:

And, you're right. He forgot it. Everybody knows that. He forgot to get the test results and he forgot to pass them onto [sic] the family. That was a mistake. Dr. Dayrit admits it was a mistake. No one is going to deny it.

When the April test result was finally obtained in August by another doctor, it revealed a CEA level of 1,595, which is evidence of significant metastasis. The experts disagreed as to whether the delay made a difference, in that the cancer may well have metastasized too extensively even in April to permit surgical resection. However, the experts agreed that while chemotherapy is not a cure, it can shrink a tumor that responds, thereby palliating symptoms and improving the quality of the patient's remaining life. Dr. Creech testified that Dr. Kimmel did not respond to chemotherapy in September 1989, a month before he died, implying ...

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