On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8067-00.
Before Judges Skillman, Parrillo and Grall.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2004
In this medical malpractice wrongful death action, defendants, Stuart Kotler, M.D., and Raritan Radiologic Associates, P.A., appeal from entry of judgment, after a jury verdict in favor of plaintiff, Joseph Rodd, individually and as administrator ad prosequendum of the Estate of Maria Rodd, in the amount of $3,240,000, and from denial of their motion for a new trial. For the following reasons, we reverse and remand for a new trial.
The material facts in this matter are as follows. Decedent, Maria Rodd, had a history of severe diffuse bilateral fibrocystic disease, a condition which results in dense breast tissue that appears white in a mammogram, although it is not cancerous. She also underwent operations for cyst aspirations in both breasts, bilateral needle biopsies, and an incisional biopsy, which resulted in scarring. She began having mammography screenings to detect breast cancer early, beginning at some point in 1979 at the age of 30.
Mammography screenings are x-rays of the breast that are taken from two directions - the vertical cranial caudal direction and the horizontal medial lateral oblique direction - in order to detect cancer. To study a mammogram, a radiologist places it in a view box and analyzes it with his naked eye and a hand-held magnifying glass.
The density of the structures between the x-ray beam create an image on the film. Fatty tissue appears grayish black, and calcifications, which are non-cancerous deposits of the mineral calcium, and breast cancer appear white. Clusters of calcifications that are smaller than a millimeter are referred to as micro-calcifications and are indicators of possible malignancies. Radiologists consider both the vertical cranial caudal x-ray and the horizontal medial lateral oblique x-ray to determine whether micro-calcification clusters exist. Two views are necessary because while the view from one direction may indicate a cluster, when viewed from the other direction, the cluster may reveal itself to be calcifications existing on different levels that are not grouped together. The radiologist must examine the shape and edges of the calcifications; round or oval calcifications are generally benign, while clusters of calcifications with ill-defined margins and bizarre shapes may indicate cancer. Radiologists also compare the x-rays of each breast with the other, to determine whether the calcifications correspond with each other, or are significantly different. In order to assess whether changes have occurred in the breast tissue, radiologists compare available films from prior years with the film they are evaluating to see if there is a change in the area of density or increased calcifications.
A grouping of six or more abnormally shaped calcifications in a volume of one to two cubic centimeters is considered a cluster that raises suspicion of malignancy. However, a radiologist also considers whether the calcifications are "focal" or"diffused." Suspicion is raised if the calcification is focal rather than diffused. The calcifications are focal if they are seen"in only one relatively small part of the breast." On the other hand, diffused calcifications are considered a"general phenomenon" if they occur throughout a patient's breast, and they do not indicate malignancy. Ultimately, the radiologist looks to see if"one part of one of the two breasts... is obviously different from the remainder of that breast and the opposite breast."
Indisputably, decedent's mammograms were negative for cancer through 1995. Defendant Kotler (defendant), a radiologist with a sub-specialty in mammography, interpreted decedent's mammography films on August 11, 1997 and August 11, 1998, using a hand-held 2.5 power magnifying glass that magnified the image by four times, which was the recognized diagnostic tool at the time. Defendant reported that the calcifications appearing in the 1997 and 1998 x-rays were not indicative of cancer, and he recommended a one-year follow-up. Specifically, defendant found that the calcifications in decedent's 1997 mammogram films were fairly widely distributed throughout her breasts and that no one area of calcifications appeared more suspicious than another area within both her breasts. He found that there was not a solitary cluster of calcifications that stood out more strongly against the rest of the calcifications diffused through her breasts. No one part of one breast appeared obviously different from the remainder of that breast or the opposite breast. He also found that the calcifications in the 1997 films were generally unchanged from those in the 1996 films. The calcifications in decedent's 1998 mammogram films were also fairly widely distributed through both breasts, due to her diffuse bilateral fibrocystic disease, and they were unchanged since the 1997 mammogram.
Decedent discovered a lump in her breast in early 1999. She was diagnosed with infiltrative intraductal carcinoma by biopsy on January 9, 1999. She died on August 30, 2002, after unsuccessful treatment. This medical malpractice complaint was filed on September 14, 2000, and amended to include a count for wrongful death on November 12, 2002.
For use at trial, plaintiff digitally scanned select portions of the 1997 and 1998 mammograms into a computer to produce super-magnified images, which were then projected onto a six-foot by eight-foot screen for the jury to view. This demonstration was purportedly offered to aid the jury in explaining the nature of the appearance of a malignancy in a mammogram, but was used, in effect, to simulate for the jury what defendant actually saw when he viewed the films using the magnifying lens, namely, clustered micro-calcifications in decedent's left breast indicative of cancer. In fact, plaintiff's expert, Dr. Berg, testified that viewing the computerized images on the large screen from the perspective of the jury was similar to a radiologist viewing a mammogram film on a light box from close observation using a four-times magnifying glass. Nevertheless, these digitalized, computerized images were selectively composed by plaintiff's counsel and magnified by anywhere between thirty and 150 times the size of the x-rays. For example, one image of a 1996 x-ray was blown up so that a distance of 1.5 centimeters on the mammogram was represented on the screen to be fifteen to sixteen inches - a magnification of more than thirty times.
Defendant objected to the use of these super-magnified computer images. In the first place, defendant had not received notice in discovery and only first learned of their existence at a pre-trial conference, too late to adequately test the process by which the images were created. Further, the trial judge rejected defendant's requests that plaintiff's computer operator and all of the computer images created from the x-rays, even those rejected by plaintiff, be made available to the defense. In fact, only a log or printout of selected images were made available to defendant, and not until midway through the trial.
Most significantly, defendant objected because of the potential for distortion and confusion engendered by use of the super-magnified images. On this score, defendant's expert, Dr. Becker, testified that"[t]his is such an artificial situation," and that"[n]ever having viewed a mammogram at this degree of magnification, I'm having difficulty telling what's a calcification and what is breast tissue." Dr. Becker observed that, in presenting the images, plaintiff"subtracted the ruler so I can't say whether they're ...