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Presson v. Minoff


June 6, 2007


On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2429-03.

Per curiam.


Argued April 24, 2007

Before Judges Skillman, Holston, Jr. and Grall.

This is a medical malpractice case. Plaintiff, Kathy Presson, appeals the Law Division's February 9, 2006 order for judgment, entered after a jury verdict of no cause for action in favor of defendants, Michael Minoff, M.D., and Derek Chapman, M.D., dismissing plaintiff's complaint against the defendants with prejudice.*fn1 Plaintiff also appeals the Law Division's April 12, 2006 order denying her motion for a new trial. The order memorialized Judge Hogan's written opinion of the same date. We affirm substantially for the reasons articulated by Judge Hogan in his comprehensive written opinion of April 12, 2006.

Plaintiff alleged that Dr. Minoff deviated from accepted standards of gynecological care by failing on June 19, 2001 to properly suture close a layer under the skin known as the fascia, when the right lower abdominal port in plaintiff's right lower abdomen was removed, at the conclusion of his performance of a laparoscopic-assisted vaginal hysterectomy (LAVH) on plaintiff. The closure of fascia occurs when a laparoscopic port used to pass instruments into the abdomen is removed at the conclusion of the operation. As a result of this deviation, plaintiff claimed that she suffered a small bowel obstruction and incisional hernia, which required surgical repair. Plaintiff alleged she suffered permanent injuries and emotional distress as a result of Dr. Minoff's negligence.

Plaintiff further contended that Dr. Minoff and his partner, Dr. Chapman, were negligent in the postoperative care provided to plaintiff. Plaintiff has not set forth in her notice of appeal any express contention as to how either doctor's postoperative care deviated from accepted standards of medical care. Plaintiff argues, however, that defendants' actions following her operation are so intertwined with whether Dr. Minoff closed the fascia that if this court decides to remand this case for a new trial, a new trial would have to include all issues, including allegations concerning defendants' negligence in their postoperative care.*fn2

After plaintiff's operation, she awoke with generalized pain in her abdomen, which later became localized to the right side. According to her medical records, on June 20, 2001, one day following the operation, her right lower quadrant was "tender to palpation," but the doctor doubted that it was a hematoma. Plaintiff's pain continued. The record notation of June 21, 2001 indicates that plaintiff experienced pain in the right abdomen which was secondary to a hematoma that appeared as a bruise in the location of the right port. It was described as "large" and "above [the] incision." On June 22, 2001, plaintiff had an x-ray of her abdomen. She was found to have "a partial distal small bowel obstruction," and it was recommended that "appropriate further and follow up evaluation should be obtained." Dr. Minoff's notes from the same day indicate that what was initially thought to be a hematoma was actually an "[i]ncarcerated hernia in right lower quadrant port site with opening in small bowel."

On June 24, 2001, plaintiff awoke with severe abdominal pain. Plaintiff was further evaluated. She had a computed tomography (CT) scan of her abdomen and pelvis. The CT scan showed "multiple loops of dilated small bowel," which appeared to be associated with "a hernia in the lower right abdominal wall containing a dilated loop of bowel, partially filled with fluid, also containing air." The CT report concluded that there was "an obstructed loop of bowel relating to a lower right abdominal hernia."

Plaintiff was rushed to the operating room on the same day. She underwent an exploratory laparotomy, small bowel resection, closure of enterotomy, and repair of the ventral hernia. According to the operative report, "[t]he right lower quadrant incision was explored and extended. There were enteric contents draining from the wound. The wound was then exposed. An area of perforated small bowel was identified herniating through a ventral hernia." Plaintiff's postoperative diagnoses were a ventral hernia and two small bowel perforations. Dr. Minoff's postoperative note dated July 2, 2001 stated that the enlarged right lower quadrant mass "[i]nitially thought to be an abdominal wall hematoma but an emergency [CT] scan [done on June 24, 2001] showed it to be a hernia."

Prior to trial, the parties exchanged discovery and took depositions. Pertinent to this appeal is the following portion of Dr. Minoff's deposition, which was taken on January 13, 2004:

Q: . . . Did you try to close the fascia in this case?

A: Yes.

Q: And was that your routine?

A: Yes.

Q: And one of the . . . reasons for closing the fascia is to try to prevent a hernia from occurring; is that correct?

A: Specifically that. . . . .

Q: . . . Is it your opinion that you did not successfully close the fascia on the site of the right port?

[A:] I would say that either we did not successfully close it or that the suture came apart somehow or there was enough of an opening in the closure because it was done with interrupted suture that the bowel was able to get through whatever opening was present.

After acknowledging that plaintiff's hernia could have been caused by his failure to successfully close the fascia, the sutures coming apart, or a gap in the sutures that permitted the bowel to penetrate, Dr. Minoff was asked, which of those three possibilities as to how this hernia occurred he thought caused plaintiff's hernia in this case:

Q: Of the possibilities that you gave me as to how this hernia occurred, do you lean more toward one than the other for any specific reason?

[A:] . . . Yes, I would likely say we probably were less successful in closing the fascia rather than a suture opening up.

Q: Okay. And why is that?

A: Just seems more likely to me, knowing surgery and operating.

Q: Okay. And what would have . . . caused you to have been unsuccessful in closing the fascia?

A: It's not easy always to identify the fascia. You're looking at a very small incision. We're talking about two inches and, you know, you're reaching into a somewhat deep hole based on somebody's abdominal girth. So you're trying to identify the fascia, put a suture on both sides and close it but sometimes it's not certain what layer you're closing.

A: That can occur.

Q: When you . . . performed the surgery, if you recall, did you . . . think that you had identified the fascia correctly?

A: Yes, I did.

Q: Okay. I take it at the time on June 19th of 2001, you had no reason to believe that this complication of incarcerated hernia was going to occur; is that correct?

A: None. No reason at all.

At trial a major issue to be resolved by the jury on the jury verdict sheet was whether Dr. Minoff failed to close the fascia at the right lower port incision. Both parties presented general surgery and obstetrics and gynecology experts to address this issue. All of the experts agreed that the failure to close the fascia would constitute medical negligence.

Also pertinent to this appeal is Dr. Minoff's trial testimony, in which he clearly asserted that he did close plaintiff's fascia. Believing that this trial testimony differed from Dr. Minoff's deposition testimony, plaintiff's counsel attacked Dr. Minoff's credibility on cross-examination by use of his contrary deposition testimony. Dr. Minoff maintained that when he was testifying at his deposition concerning the difficulty in locating the fascia, he was speaking in terms of generalities.

Dr. Minoff also testified at trial that plaintiff had a hematoma as well as an unrelated hernia, which was not discovered until June 24, 2001. On cross-examination, he acknowledged that his progress notes suggested that plaintiff only suffered a hernia and not a hematoma, but he disagreed with that assessment. He maintained that his progress notes were misinterpreted.

At the conclusion of trial, the jury returned a verdict in favor of Dr. Minoff and Dr. Chapman. Plaintiff subsequently filed a motion for a new trial. The issue raised by plaintiff in support of her new trial motion was that "[w]ithout advising plaintiff's counsel prior to trial, Dr. Minoff changed his testimony at trial from his deposition testimony when he testified that he closed the fascia at the right port site." Plaintiff contended that allowing defendant to change his testimony without giving proper notice to plaintiff resulted in a defense verdict and clearly and convincingly constituted a miscarriage of justice under the law, entitling plaintiff, pursuant to Rule 4:49-1, to a new trial.

By written decision dated April 12, 2006, the court found that there were "insufficient facts to support a finding that Dr. Minoff changed his testimony from what he stated at his deposition." After examining Dr. Minoff's deposition and then trial testimony, the court reasoned that there was no change in testimony since Dr. Minoff never claimed that he did not close the fascia at his deposition, but rather admitted that the most likely possibility that resulted in the hernia, among several other possibilities, was that he was unsuccessful in closing the fascia. The court also rejected plaintiff's argument that Dr. Minoff failed to disclose before trial that he now believed plaintiff suffered from both a hematoma and a hernia. The court noted that "there was significant argument and questioning about Dr. Minoff's deposition and he was thoroughly examined at trial [and] Dr. Minoff's examination gave the jury ample opportunity to weigh the credibility of Dr. Minoff." The court concluded, therefore, that there was no miscarriage of justice to warrant a new trial.

Plaintiff presents the following arguments for our consideration:





The basic premise of plaintiff's new trial motion is that she was surprised by a change in testimony by Dr. Minoff. However, neither during Dr. Minoff's direct testimony nor cross-examination nor at the conclusion of defendant's case, did plaintiff's counsel pose an objection to Dr. Minoff's testimony, or to the testimony of Dr. Jordan or Dr. Harvey-O'Keefe, the defendant's medical experts. Plaintiff's counsel never applied to the court for permission to reopen the plaintiff's case in order to recall plaintiff's liability experts, Dr. Befeler and/or Dr. Buchbinder, to address plaintiff's perceived change in Dr. Minoff's testimony. See Magich v. John Hancock Mut. Ins. Co., 32 N.J. Super. 33, 39 (App. Div. 1954). Nor did plaintiff's counsel recall plaintiff's medical experts for the purpose of giving rebuttal testimony. See Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 497 (2000). Further, plaintiff never made a motion either after Dr. Minoff's testimony or at the end of defendant's case for a mistrial, as a result of being confronted with Dr. Minoff's purported change in testimony. See Wright v. Bernstein, 23 N.J. 284, 296 (1957).

Defendants, therefore, assert that plaintiff failed to preserve her right to seek a new trial. Rule 1:7-2 instructs that to preserve a question for review "relating to rulings or orders of the court . . ., a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor."

Plaintiff admits that she failed to timely object during trial, but maintains that Dr. Minoff's alleged change of testimony does not relate to "rulings or orders of the court," which Rule 1:7-2 concerns. Plaintiff cites to McKenney v. Jersey City Medical Center, 167 N.J. 359, 372 (2001) in support of her contention. However, in McKenney, the Supreme Court relied upon the fact that plaintiffs' attorney advised the trial court that the defendant's trial testimony contradicted defendant's deposition testimony and moved for a mistrial at the end of defendant's testimony on direct examination, in finding that plaintiffs' right to seek a new trial was preserved. The reason for the necessity of making an objection in order to reserve the issue for review is, as we stated in Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996), "[t]he absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely manner."

Assuming, without deciding, that Rule 1:7-2 does not preclude our consideration of plaintiff's new trial contention on its merits, we must then decide whether the judge properly denied plaintiff's motion for a new trial. Plaintiff argues that she is entitled to a new trial because Dr. Minoff's trial testimony was contrary to his deposition testimony and medical records. Plaintiff maintains that during his deposition, Dr. Minoff claimed that his failure to close the fascia at the right port site most likely caused plaintiff's hernia. At trial, however, plaintiff contends that Dr. Minoff changed his testimony to state that he did close the fascia on the right port site. Secondly, plaintiff asserts that Dr. Minoff's medical records indicate that prior to trial he thought plaintiff's mass was a hernia and not a hematoma as he originally suspected, but at trial he stated that plaintiff had a hematoma and an unrelated hernia.

Rule 4:49-1, entitled "Motion for New Trial," provides in pertinent part:

a) Grounds of Motion

A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. . . . The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.

In Dolson v. Anastasia, 55 N.J. 2, 6 (1969), the Supreme Court instructed that a trial judge's obligation on a motion for a new trial is to correct clear error or mistake by a jury. The judge must canvass the records to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict. "'The question is whether the result strikes the judicial mind as a miscarriage of justice.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459 (1962) (Weintraub, C.J., dissenting)).

Pursuant to Rule 4:49-1, Judge Hogan found that "there was no miscarriage of justice to warrant a new trial." The court distinguished this case from McKenney, supra, 167 N.J. 359, which was a wrongful birth medical malpractice case, where the defendant sonogram technician and one of the defendant doctors materially changed their trial testimony from their deposition testimony. Id. at 366-67. The Supreme Court remanded the matter for a new trial because defendants' counsel was notified of the change of testimony before trial and plaintiffs' counsel was not provided with notice of the change in testimony until after the plaintiffs rested their case. Id. at 369. Additionally, defense counsel was aware that the testimony would materially and significantly differ from both witnesses' deposition testimony prior to the commencement of the trial. Ibid.

In McKenney, the plaintiffs' counsel moved for a mistrial based on the inconsistencies between the technician's and doctor's testimony at deposition and their trial testimony. Moreover, McKenney involved a disclosure at trial of a new fact. That fact was that the defendant doctor had not read a sonogram of the fetus plaintiff was carrying, which indicated that the infant plaintiff had spina bifida, until more than a week after the sonogram was taken. Id. at 366. This newly disclosed fact was crucial to plaintiffs' case because the changed date on which defendant doctor claimed at trial that he read the sonogram would have been beyond the period when plaintiff could have chosen to have an abortion. Id. at 373. The Court concluded that the jury's finding of negligence but no proximate cause reflected a jury determination that the defendant doctor failed to detect spina bifida in the sonograms taken on August 13 or August 16 but he did not review the sonogram until the end of August. Id. at 375. That surprise testimony had the clear capacity to influence the jury's verdict on proximate cause. Id. at 375. Thus, the disclosure of the new information as to when the doctor read the sonogram undoubtedly would have led the plaintiff to present her case differently. Id. at 375-76.

We are satisfied there was no similar disclosure of new information at trial in this case. Dr. Minoff described for the jury how he closed the port sites on the right and left sides of the plaintiff's abdomen. Dr. Minoff also described interrupted sutures as the technique he utilized to close the fascia as noted in the operative report. Dr. Minoff also told the jury he used his finger to push down on the fascia closure and run his finger across the closure in order to ensure that the fascia was closed.

At trial, unlike in his deposition, Dr. Minoff was specifically asked if he closed the fascia in this surgery. Dr. Minoff testified that he did close the fascia. Dr. Minoff further testified that he did not know how the incisional hernia occurred. He additionally stated that he was speaking generally and not about plaintiff in particular when he was discussing how the incisional hernia could have occurred in his deposition.

When Dr. Minoff saw plaintiff on the morning of June 21, 2001, the presence of a hematoma had been seen for the first time the prior evening by a nurse and a resident physician. Dr. Minoff stated he reached his own diagnosis on June 21 that the patient had a hematoma in the right lower quadrant of the abdomen, which he described as a collection of blood in an area.

On June 22, 2001, Dr. Minoff recorded a note in his office records pertaining to the plaintiff and her condition, which was separate and apart from his progress notes in the hospital record for that same day. Dr. Minoff contended that a portion of the handwritten note that indicates "was a hernia (incarcerated)" was not written in the office record by him until June 25, 2001. Dr. Minoff was not questioned about this office note during his discovery deposition. Dr. Minoff explained at trial that a hematoma and an incisional hernia can co-exist and that the hematoma was present June 22. Dr. Minoff claimed at trial that the hernia did not appear until June 24.

Judge Hogan in his written opinion concluded that there were "insufficient facts to support a finding that Dr. Minoff changed his testimony from what he stated at his deposition." After examining Dr. Minoff's deposition and his trial testimony, Judge Hogan reasoned that there was no change in testimony, since Dr. Minoff never claimed that he did not close the fascia at his deposition, but rather admitted that the most likely scenario, which resulted in the hernia, among several possible scenarios given, was that he was unsuccessful in closing the fascia. The judge also noted that plaintiff's counsel thoroughly cross-examined Dr. Minoff at trial about his alleged change of testimony, giving the jury ample opportunity to weigh Dr. Minoff's credibility.

"The standard governing an appellate court's review of a trial court's ruling on a new trial motion is essentially the same as that controlling the trial judge." Dolson, supra, 55 N.J. at 7. However, where credibility, "demeanor," "feel of the case," or "other criteria" are important, the appellate court must give deference to the views of the trial court thereon. Ibid. Thus, the reviewing court must determine whether in its view there was clearly a manifest denial or miscarriage of justice. Ibid.

Our review of the record satisfies us that Dr. Minoff was thoroughly cross-examined on both issues raised by plaintiff in this appeal and that the jury had ample opportunity to weigh Dr. Minoff's credibility. Counsel never requested an opportunity to recall plaintiff's medical experts to meet Dr. Minoff's trial contentions and never sought a mistrial as a result of the testimony. We are convinced it is highly unlikely that Dr. Minoff's trial testimony was prejudicial to plaintiff. We note that at oral argument, plaintiff's attorney stated that had defendants' attorney provided notice to him of a change in testimony, he merely would have "requested an opportunity to depose Dr. Minoff under oath to find out why he's making that change."

Additionally, unlike in McKenney, we find no evidence in the record to suggest that defendants' attorney knew or should have known that Dr. Minoff's trial testimony would differ significantly from his deposition testimony. See McKenney, supra, 167 N.J. at 369. Thus, to the extent Dr. Minoff's trial testimony differed from his prior deposition testimony, we discern no duty on the part of defendants' attorney to have provided notice to plaintiff's counsel.

Our review of the record convinces us that plaintiff provided insufficient evidence to demonstrate a miscarriage of justice. R. 2:10-2; Dolson, supra, 55 N.J. at 7. Accordingly, the Law Division's order denying plaintiff's motion for a new trial is affirmed.

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