On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-11072-99.
Before Judges Carchman, Wecker and
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal requires us to consider whether a defendant doctor is entitled to compel a plaintiff to undergo an invasive procedure to allow the doctor to defend the underlying medical malpractice action. We hold that such an application requires a motion judge to carefully balance whether the probative value of the proposed invasive procedure outweighs any danger or extraordinary discomfort to plaintiff that may be associated with the procedure. Where a R. 4:19 medical examination involves an invasive procedure, we conclude that if plaintiff moves for a protective order, R. 4:10-3 and R. 4:19, the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiff's health or is of such a nature that it will create substantial discomfort or distress; thereafter, the burden shifts back to defendant to establish the safety and reasonableness of the procedure. The judge must then engage in the weighing process that we have described, and if the judge concludes that the benefits outweigh the risks as we define them, the judge may issue an appropriate order having due regard for plaintiff's safety and comfort. In all instances, the judge must consider whether such application or objection is made in good or bad faith.*fn1
We reverse and remand. We conclude that here, the motion judge failed to consider all of the appropriate factors and to make sufficient findings, and thus did not adequately engage in this weighing process. We further conclude that she abused her discretion when she barred plaintiff's claim if plaintiff failed to submit to the procedure. We hold that a defendant's remedy, where defendant has failed to meet his burden to compel such an examination, is to challenge plaintiff's expert on cross-examination. Where a plaintiff fails to submit to an invasive procedure that a judge has determined to be warranted, possible remedies include, but are not limited to, questioning both parties' experts as to the nature of the proposed procedure and commenting to the jury as to plaintiff's refusal to submit to the procedure. Only in the exceptional case may a judge impose the sanction of barring plaintiff's claim.
On October 31, 1997, Plaintiff Carolyn Il Grande*fn2 underwent a cesarean section at St. Barnabas Hospital to deliver her baby. During the surgery, defendant Robert DiBenedetto, M.D. incised plaintiff's cervix and bladder instead of the uterus, resulting in lacerations of the dome of the bladder. The incisions were noticed post-delivery and repaired by Caterina Gregori, M.D., the surgeon summoned for an intraoperative consult.
During her follow-up visits to Dr. Gregori, plaintiff was found to be"healing well," and normal recovery of plaintiff's bladder was expected; two months after the surgery, plaintiff told Dr. Gregori"that her bladder was working okay." On June 25, 1998, plaintiff complained of pain during sexual intercourse, but Dr. Gregori's medical notes indicated no complaints of"inadequate bladder capacity," frequency or painful urination either then or on plaintiff's next two visits, on December 17, 1998, and August 5, 1999. Thereafter, on October 29, 1999, plaintiff filed a complaint against defendant. Among her allegations was that defendant's negligence"caused [her] to sustain severe and permanent injury and deformity... [and] endure great pain and suffering." On August 24, 2000, plaintiff again consulted with Dr. Gregori, complaining of"burning after urination," but offered no other complaints.
Then, on May 15, 2001, plaintiff saw Peter Boorjian, M.D., complaining of pain and burning in her left lower abdomen. Dr. Boorjian scheduled a cystoscopy and urodynamic study. Cystocopy"involves placing [a] scope into the urethra in order to visualize the bladder.... Urodynamics is the general term for the study of the storage and voiding function/dysfunction of the lower urinary tract." On June 6, 2001, Dr. Boorjian attempted to perform these studies on plaintiff in his office, but failed when"[p]assing the catheter an obstruction was met" and"[p]atient became diaphoretic*fn3 and anxious." In his"Pre-op History & Physical" report, Dr. Boorjian stated that plaintiff"has a significant component of anxiety associated with her experience at the time of th[e] cesarean section and this in fact may be contributing to the symptoms [of frequency and urgency incontinence] she expresses."
On July 13, 2001, plaintiff was admitted to Mountainside Hospital to complete the examination. The urodynamic study utilized gas, as the hospital was equipped with gas equipment only. Passing the catheter this time required"just a little local anesthetic." While Dr. Boorjian noted plaintiff's discomfort at the insertion,"it was accomplished and it was done twice; first to measure how much urine she had left inside her bladder after she had recently voided... and then to pass a special type of catheter through which cystometric studies are done." Plaintiff was then placed under general anesthesia and a cystourethroscopy conducted. This study revealed"significant distortion of the usual bladder anatomy" and scarring on"the posterior wall of the bladder where the presumed suture line from prior laceration took place," but no"scarring or obstructive phenomena" of the urethra.
In his deposition, Dr. Boorjian opined that his inability to perform the studies initially was"because of a level of anxiety and fear that created so much spasm in [plaintiff's] musculature that to go and force it would have hurt her." He offered no other medical basis for the failed first attempt. When asked whether he formed"any conclusions at any point in time when [he was] treating [plaintiff] as to what the cause of [her] pain was," Dr. Boorjian replied"the possibility of scar tissue that develops pain fibers, A; B, psychogenic pain; C, malingering." Dr. Boorjian also agreed that"whatever opinions that [he has] in this case with respect to what could possibly be causing the pain [he was] able to form after [he] performed the cystoscopy and urodynamic study."
After reviewing the depositions of plaintiff and defendant and various medical records, plaintiff's urological expert Sol M. Usher, M.D. opined that the"large bladder injury [that] occurred at the time of [plaintiff's] surgery... has resulted in her having a major bladder dysfunction for the rest of her life." Dr. Usher concluded, based on his document review, that plaintiff's condition,
which she did not have prior to the cesarean section, is related to the intraoperative trauma that she had to her bladder, which resulted in subsequent decreased bladder capacity, scar tissue, distortion of her bladder as visualized at the time of cystoscopy by the urologist [Dr. Boorjian], pain, spasm, discomfort, all the things that she's complaining of.
Defendant consulted with urologist David Saypol, M.D., who advised that an independent medical examination (IME) was necessary"to determine the nature and extent of her actual damage due to the subjective nature of plaintiff's complaints." Accordingly, defendant requested plaintiff to make an appointment with Dr. Saypol for an independent cystoscopy and videotape urodynamic study. Dr. Saypol stated that"to determine if [a deformity of the bladder as described in Dr. Boorjian's report] persists, and if her voiding dysfunction is presently causally related to her surgery, I would need to perform a cystoscopic examination in the office using local lidocaine jelly anesthesia." Dr. Saypol also asserted that"a video urodynamic study with water manometrics is mandatory," as the study done by Dr. Boorjian"was a non-video study using CO2 as opposed to water," which Dr. Saypol found to"represent a less than adequate evaluation to determine causation." Dr. Saypol expressed his belief that he could perform the studies"with minimal discomfort to the patient," as Dr. Boorjian had indicated"no urethral abnormality" when he performed the prior cystoscopy. In response, plaintiff filed a Notice of Motion for Protective Order to deny defendant's request.
During the hearing on the motion, the judge considered:
[W]hat do I do to be ultimately fair that preserves -- protects the client more than preserves the plaintiff from any invasive, you know, harm or discomfort, etc. And at the same time, give the defendant the benefit of being able to counter the allegations of an injury. And it's all well and good for -- and I forget which one of the experts submitted the document on behalf of the plaintiff, saying that it's a clear-cut thing. Well, how nice for him to say that. But, I mean, we all know that somebody on the other side, I mean, intellectually, the person defending it and the doctor who's being sued, he's responsible for whatever he did, no more no less. And shouldn't he be able to dispute that or, at least, see if there is a dispute.
The judge also posited a jury's adverse reaction to plaintiff if the protective order were granted and the jury told of plaintiff's refusal to submit to an IME to explain why"the defendant isn't putting any issue on." Plaintiff's counsel responded:"Well, I think that that is a risk that the plaintiff would take, and we have discussed this with the plaintiff, who's adamant that the last procedure was so painful."
The judge then ordered the parties to submit additional medical information regarding the relative accuracies of using CO2 and water in a urodynamic study. The judge also requested that Dr. Saypol"in detail, indicate what it is about the distinction between the way he wants to perform the test, as opposed to the way Dr. [Boorjian] did it... [and] whether or not ...