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Falcon v. Rice

October 1, 2007


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-3629-03.

Per curiam.


Argued: September 10, 2007

Before Judges Lisa, Lihotz and Simonelli.

Plaintiff, Doris Falcon, brought this medical malpractice action against defendant, Dr. Daniel Rice, claiming that he deviated from the accepted standard of medical care in connection with an operative procedure to remove an obstruction in her ureteropelvic junction. During the procedure, defendant severed plaintiff's right renal artery, which led to the loss of her right kidney.

The jury returned a verdict of no cause for action. However, finding that the verdict was against the weight of the evidence, Judge Graziano granted plaintiff's motion for a new trial, and we denied leave to appeal. Defendant moved for Judge Graziano to recuse himself from presiding over the retrial. The motion was denied, and we again denied leave to appeal.

At the retrial, plaintiff prevailed. The jury awarded her $1,200,000, and awarded her husband $25,000 on his per quod claim. Defendant's post-trial motions for judgment notwithstanding the verdict, a new trial, or remittitur were denied. On May 9, 2006, judgment was entered against defendant in accordance with the verdict, including prejudgment interest, in the amount of $1,255,627.03 in favor of plaintiff and $26,107.60 in favor of her husband.

Defendant appeals from four orders: (1) the December 23, 2005 order granting a new trial; (2) the February 17, 2006 order denying defendant's recusal motion; (3) the May 12, 2006 order denying defendant's motions for judgment notwithstanding the verdict, a new trial or remittitur; and (4) the May 9, 2006 order entering judgment in favor of plaintiff and her husband based upon the jury verdict in the second trial.

Defendant argues that the judge erred in granting a new trial because, viewing the evidence at the first trial in the light most favorable to defendant, the no cause verdict was supported by the evidence and did not result in a manifest miscarriage of justice. Accordingly, defendant argues that the no cause for action verdict should be reinstated. Defendant further argues that the judge should have recused himself from presiding over the retrial because comments he made in support of his decision granting plaintiff a new trial created at least the appearance of bias, prejudice or partiality in favor of plaintiff. Finally, defendant argues that the judge mistakenly exercised his discretion in denying defendant's post-trial motions following the second trial. He contends he was entitled to a judgment notwithstanding the verdict or a new trial because of various erroneous evidentiary rulings and because plaintiff failed to meet her burden of proof that defendant deviated from the accepted standard of medical care. Alternatively, he argues that the verdict was excessive and against the weight of evidence and the trial judge erred in denying his motion for remittitur. We reject these arguments and affirm.

The surgical procedure that is the subject of this litigation took place on June 3, 2002. At that time, plaintiff was forty-one years old. Analysis of the medical issues in this case requires consideration of plaintiff's pertinent medical history and a prior operative procedure she underwent in 1995.

Plaintiff had a congenital abnormality consisting of a narrowing in her right ureter, the muscular tube that carries urine from the right kidney to the bladder. The renal pelvis is a portion of the kidney where urine collects before it is pushed down the ureter. The location where the kidney meets the ureter is called the ureteropelvic junction (UPJ). The obstruction in that portion of the ureter is known as a ureteropelvic junction obstruction (UPJO). The obstruction consists of scar tissue, results in a tightening of the ureter, and does not allow urine to pass normally.

As a result of this condition, plaintiff underwent an open surgical procedure in 1995, which was performed by Dr. Steven Alexander. In that procedure, known as a dismembered pyeloplasty, cross cuts are made above and below the narrowing, completely severing the ureter. The narrowed area causing the obstruction is removed, and the two ends are sutured back together. This procedure results in some distortion of the normal anatomy. Sometimes the surgeon will transpose blood vessels from one side of the ureter to the other when reattaching the ureter. And, postoperatively, the formation of new scar tissue around the surgical site is expected, and that scar tissue can further cause dislocation of blood vessels from their normal locations.

Some time after the 1995 procedure, Dr. Alexander retired and turned over his files to defendant. In 1997, as a result of recurring discomfort in the area of her right kidney, plaintiff came under defendant's care. Her symptoms continued to worsen, and by 2002 defendant concluded that the obstruction recurred, which is apparently not uncommon. Defendant recommended surgery to remove the obstruction.

The 1995 operation was a "primary" UPJO removal procedure, meaning it was the initial such procedure. The surgery to be performed in 2002 would be a "secondary" UPJO removal procedure, meaning a procedure performed at the same site as an earlier such procedure. The difference is medically significant. Because of the distortion of the normal anatomy caused by the primary UPJO removal procedure and by the subsequent formation of new scar tissue, the surgeon performing a secondary UPJO removal procedure must ascertain the location of major blood vessels in the surgical field, which may not be in their normal location. This is necessary to avoid severing a major blood vessel during the secondary UPJO removal procedure.

Defendant chose to perform a closed procedure, known as an endopyelotomy. By this technique, the surgeon uses an instrument to enter the urethra, which is further inserted through the bladder and the ureter to the point of the obstruction. A cut is then made with the instrument. A stent is then temporarily placed at that location with a string attached. About two to three weeks later, after healing, the stent is removed in the doctor's office by pulling the string.

More particularly, defendant chose to perform a cutting current endopyelotomy, which utilizes an electric current being passed through a wire, which serves as the cutting device, making a sharp incision through the layers of the ureter. Fluoroscopic guidance, a form of real-time x-ray technology, is used during the procedure. This allows the surgeon to visualize the location of the cutting wire as it is placed in position to make the cut. However, blood vessels cannot be seen with the fluoroscopic guidance. Thus, the cut is made "blind," because it is without visualization of blood vessels.

An alternate closed procedure was available, by which a laser device, rather than an electric wire cutting device, is used to make the cut. With that procedure, a miniature camera is inserted along with the laser, and the surgeon can visualize on a monitor the presence and location of blood vessels in the area. Thus, using that technique, the cut is not blind.

Defendant chose to use an Acucise device. Defendant had never previously used an Acucise device in performing a secondary UPJO removal procedure. The Acucise device consists of a catheter that is placed up through the urethra, then across the bladder and into the ureter. At the end of the catheter, there is a balloon with an electric wire running lengthwise on one side of it. When the balloon and cutting wire are positioned inside the area of the ureter containing the obstruction, electric current is applied and the wire cuts the ureter lengthwise at that location.

Because the surgeon cuts blindly using this device, the manufacturer provides a product insert with instructions for use, which advises the performance of certain imaging studies to locate blood vessels prior to performing a secondary UPJO removal procedure. In particular, the insert states:

FOR SECONDARY UPJO, it is recommended that a spiral CT or endoluminal ultrasound be conducted in order to determine the appropriate positioning of the cutting wire. If this is not possible, the cutting wire should be positioned in a straight posterior position provided the original operative note was reviewed and does not describe a dismembered pyeloplasty with posterior transposition of anterior crossing vessels.

Defendant performed the surgery on June 3, 2002. He did not obtain a spiral CT scan or endoluminal ultrasound preoperatively. In making the blind cut, defendant inadvertently cut plaintiff's renal artery, a major artery that branches out of the aorta into the upper pole of the kidney. Profuse hemorrhaging occurred. Plaintiff was moved to a standard operating room for an emergency laparotomy, by which she was opened up to permit visualization of her internal anatomy. Defendant was assisted in this procedure by a cardiac surgeon. They observed the severed renal artery and were unable to sew it back together. As a result, as a lifesaving measure, the doctors removed plaintiff's right kidney and stopped the bleeding. In addition to the loss of the kidney, plaintiff was left with substantial residual surgical scars.

At the first trial, plaintiff presented Dr. Eric Kreutzer, an expert in urology. Dr. Kreutzer was experienced in using the Acucise device and had used it prior to June 3, 2002. Dr. Kreutzer was licensed to practice medicine in New York, and he maintained a urological practice in New York City. He was not licensed in New Jersey.

Dr. Kreutzer opined that when an Acucise-type procedure or cutting current endopyelotomy was performed in 2002, if it was a secondary UPJO removal procedure, the standard of care required a preoperative imaging study "in order to be sure about where the blood vessels would be prior to initiating the procedure." He said this could be accomplished by use of a spiral CT scan, an endoluminal ultrasound, or with MRI imaging.

When asked whether this was a New York standard, where he practiced, or a nationwide standard of care, Dr. Kreutzer responded, "I assume it's a nationwide standard of care." Plaintiff's counsel then admonished Dr. Kreutzer that he should not assume, and proceeded to ask further questions on the subject. In response, Dr. Kreutzer explained the basis for his opinion that this was a nationally accepted standard of care. He attended and lectured at national conventions, the Acucise device is manufactured and sold across the United States, and formal training for the device was available, which he had attended. He expressed the view that the manufacturer's insert recommending the preoperative imaging studies was consistent with the applicable standard of care. He did not contend that the manufacturer's insert was the basis for the standard of care. Further, he commented that the Food and Drug Administration (FDA) must approve instructions contained in such inserts when a new product is authorized for general medical use. However, he did not contend that the FDA established the standard of care. He adhered to the position that the standard of care is established by doctors, stating that "in general if you want to find out what the standard of care is, then you talk to the people who are writing about it or researching it or working directly with the manufacturers who produce the equipment." He then identified the California physician who was directly responsible for developing the device and described the existence of papers that were published when the device first became available for general medical use. He also based his opinion that this was a national standard on his discussions with urologists from around the country, with whom he had discussed the matter at national conventions.

Dr. Kreutzer further opined that defendant deviated from the standard of care when he performed the procedure on plaintiff without first obtaining the imaging studies, and that the deviation caused plaintiff's injury. He explained that "if the study had been done, it's essentially 100 percent specific as to where blood vessels are. So if the information had been used then the vessel would not have been cut." Dr. Kreutzer did not dispute that the Acucise device could have been safely used in performing this procedure. By use of the preoperative imaging studies, the surgeon would have known of the existence and precise location of any blood vessels immediately adjacent to the UPJO. Then, if there was a vessel on top, you would cut on the bottom, and vice versa. Defendant's operative report does ...

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