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Rosenberg v. Tavorath

June 27, 2002


On appeal from the Superior Court of New Jersey, Law Division, Essex County, ESX-L- 6783-98.

Before Judges Newman, Fall and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).


Argued: June 5, 2002

Plaintiff, Rita B. Rosenberg, the executrix and administratrix ad prosequendum of the estate of her deceased husband, David L. Rosenberg, appeals from the grant of an involuntary dismissal of the complaint at the close of plaintiff's case. The judge ruled that plaintiff's expert failed to delineate a standard of care or a departure from any standard, or that any alleged deviation of care was a proximate cause of decedent's death.

Decedent, a former smoker, suffered from laryngeal cancer, specifically stage III squamous cell carcinoma, which is treatable. In November 1997, he was referred to Dr. Elliot Strong, a cancer surgeon specializing in head and neck surgery, at Memorial Sloan-Kettering Cancer Center ("MSKCC") in New York City. Dr. Strong recommended treating the disease with two to three cycles of chemotherapy, a few weeks apart, and then determining what the results were in terms of shrinking the cancer which could then be radiated, as an alternative to surgery, in order to preserve the patient's larynx and ability to speak. In the event the prescribed course of treatment was not effective, Mr. Rosenberg would have the option of undergoing surgery for the removal of his larynx and the placement of a prosthetic voice box.

As Dr. Strong did not have anything to do with determining which chemotherapy drugs were used or the dosage, and he did not manage patients on chemotherapy, he referred Mr. Rosenberg to Dr. Karen Schupak, a radiation therapist who practiced at MSKCC's "satellite facility" at Northwest Covenant Medical Center ("Northwest") in Denville, New Jersey, which was closer to decedent's home. Dr. Schupak referred Mr. Rosenberg to defendant, Ranjana Tavorath, M.D., a board-certified medical oncologist also practicing at MSKCC's Northwest satellite facility.

In accordance with MSKCC's larynx preservation protocol ("LP protocol"), which sets forth the dosages and schedules for administering the chemotherapy, Dr. Tavorath's plan of treatment involved administering two cycles of chemotherapy, containing a combination of cisplatin and fluorouracil, over a three-to-four- week schedule. Every record of treatment by Dr. Tavorath was sent to both Drs. Strong and Schupak. Mr. Rosenberg was administered out-patient chemotherapy treatment over a five-day period beginning on December l7. Thereafter, he experienced complications including nausea, high fever, severe diarrhea, low blood count, and dehydration requiring his hospitalization from December 28 through January 2, 1998. During this hospitalization, he was treated by Dr. Ephraim S. Casper, Dr. Tavorath's supervisor and the Chief of MSKCC's site at Northwest.

On January 6, 1998, Dr. Tavorath evaluated Mr. Rosenberg for his second cycle of chemotherapy. She determined he was substantially recovered from the prior toxicities and administered an identical second round of chemotherapy beginning the next day through January ll, 1998.

On January 17, 1998, due to a 104E fever, Mr. Rosenberg was treated in the emergency room and placed on a respirator, before being admitted to the intensive care unit for management of what appeared to be a sepsis syndrome. He was diagnosed as suffering from "chemotherapy-induced neutropenic fever . . . complicated by dehydration" and septic shock. Despite treatment, his condition worsened. On January 19, 1998, decedent died as a result of septic shock, induced by chemotherapy neutropenia and toxicity, which caused multiple organ failure.

Plaintiff brought the instant medical malpractice action against Dr. Tavorath, MSKCC *fn1 and Northwest, and fictitiously pleaded MSKCC doctors, *fn2 seeking to recover damages for her husband's injuries, pain and suffering, and wrongful death, among other things, arising from the alleged malpractice of defendant Tavorath in failing to properly monitor decedent's response to chemotherapy and in failing to properly treat the complications which resulted from the treatment.

Plaintiff's theory at trial, as presented by her expert, Luis Villa, M.D., was that Tavorath's negligence in failing to modify the second course of chemotherapy caused decedent's death. Plaintiff also asserted that Dr. Tavorath violated MSKCC's LP treatment protocol which required a "team approach" by Drs. Strong, Schupak and Tavorath in evaluating her husband's condition after each cycle of chemotherapy, and that such violation was evidence of negligence. *fn3 The claims against MSKCC and Northwest were brought under the theory of respondeat superior. The first three counts alleged a wrongful death and survival action against Tavorath, MSKCC, and Northwest, respectively. The fourth count sought damages for decedent's pain and suffering. The fifth count alleged the negligence of various fictitiously pleaded tortfeasors pending amendment of the complaint to reflect their true identities. The sixth count sought damages for loss of consortium.

A jury trial was conducted before the Law Division on several dates between June 5 and June 11, 2001. Plaintiff and her adult son Stuart testified, along with Dr. Villa and an economist, Dr. Marcus. *fn4 Plaintiff's counsel also read into the record the deposition testimony of Drs. Strong, Tavorath, and Casper.

Following the close of plaintiff's evidence on liability, *fn5 but prior to testimony on damages, defendants moved for an involuntary dismissal on the ground that Dr. Villa's testimony was insufficient to establish a prima facie case of medical malpractice because: (1) he offered only his net opinion on the appropriate standard of care unsupported by reference to any medical literature or case studies; (2) he testified that there was no standard of care regarding dose modification, or, that it ranged from a 5% to 25% modification and, therefore, his testimony was too imprecise and lacking in parameters to assist the jury; and (3) his testimony on proximate cause was lacking because he did not supply "some percent . . . in reasonable medical probabilities" demonstrating that a dose reduction would have influenced the outcome.

Following oral argument, the trial court granted defendants' motion. A judgment dismissing the complaint was entered in accordance with the court's decision on June 25, 2001.

On appeal, plaintiff alleges that the court erred in dismissing the complaint because: (1) the testimony of her expert was sufficient to make out a prima facie case of medical malpractice for submission to the jury; and (2) the court failed to rule on plaintiff's "preserved claim" that Tavorath's violation of MSKCC's treatment protocol constituted negligence.


As to the first issue on appeal, plaintiff argues that the court erred in finding that Dr. Villa: (1) failed to establish a standard of care because he did not specify the basis of his opinion that dose modification was required and, by implication, that he offered only a "net opinion;" (2) failed to establish proximate cause because he did not precisely quantify the appropriate dose reduction and its corresponding effect on toxicity; and (3) exceeded the scope of his written report and deposition testimony in testifying that even a 5% reduction would have satisfied the standard of care. According to plaintiff, Dr. Villa established a standard of care, a deviation therefrom, and proximate cause, premised upon his own training and experience as an oncologist, and supported by reference to decedent's hospital records and articles authored by Dr. Marshall Posner, defendants' expert. In addition, plaintiff asserts that Dr. Villa did not testify outside his area of expertise or exceed the scope of his report or deposition testimony. Plaintiff further argues that Dr. Villa was not required to quantify his opinion that a dose reduction would have lessened the severity of the toxic effects of the chemotherapy since he explained why it was not possible to do so. Based on our review of the record and applicable law, we conclude that Dr. Villa's testimony was sufficient to submit the case to the jury. Furthermore, the trial judge did not rule on plaintiff's "preserved claim" that Tavorath's violation of MSKCC's treatment protocol constituted negligence. Accordingly, we reverse the judgment and remand the case for a new trial on all issues.

The trial court accepted Dr. Villa as a qualified expert in oncology. Dr. Villa opined that, based upon his review of decedent's hospital records, Dr. Tavorath deviated from the accepted standards of oncology in treating decedent by failing to reduce the dosage of the second round of chemotherapy. Plaintiff's expert maintained that decedent's death from the complications of chemotherapy was entirely avoidable had the second cycle been modified. According to Dr. Villa, the deviation occurred when Dr. Tavorath failed to recognize that the significant toxicity suffered by decedent following the first cycle of chemotherapy warranted a dose modification for the second cycle. Dr. Villa opined that a dose modification of about 10% to 25% would have avoided or lessened the ...

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