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Birmingham v. Marcus

October 24, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. BER-L-10079-02.

Per curiam.


Argued September 19, 2007

Before Judges Wefing, Parker and Lyons.

Plaintiffs sued defendant John W. Marcus, M.D., alleging negligence in the manner in which he operated upon plaintiff Marie Birmingham.*fn1 The jury's verdict was that defendant had not deviated from the standard of care, and a judgment of no cause for action was entered. Plaintiffs have appealed from that judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant is an obstetrician/gynecologist who had treated plaintiff for several years prior to the incidents giving rise to this suit. In December 2000, plaintiff, who had earlier gone through menopause, consulted with defendant with complaints of vaginal bleeding. Defendant scheduled a sonogram, the results of which indicated that plaintiff's left ovary was significantly larger than would be expected in a woman of plaintiff's age. Defendant informed plaintiff of this finding and recommended exploratory surgery to determine the cause of this abnormality. Plaintiff agreed and the surgery was performed on December 30, 2000. During the course of the surgery, defendant observed that plaintiff had extensive intestinal adhesions which surrounded and obscured plaintiff's left ovary. Using surgical scissors, defendant released the adhesions. When he was able to visualize the ovary, he determined that plaintiff had a cyst, rather than a suspicious mass. Plaintiff drained the cyst and, in accordance with his earlier discussions with plaintiff, removed her right ovary because her medical history indicated she was at a heightened risk for developing cancer. After several days recuperating in the hospital, plaintiff was discharged.

Following her discharge on January 2, 2001, plaintiff experienced increasing discomfort and abdominal pain. She consulted with defendant by telephone, and he recommended she try an enema and milk of magnesia. She elected to try the milk of magnesia, but it produced no relief. Her pain worsened, and she returned to the emergency room on January 4 and was readmitted to the hospital. On January 7, a second surgery was performed, this time by Joseph J. Licata, M.D., who found peritonitis and inflammation of plaintiff's colon. Dr. Licata removed the inflamed portion of the colon and made a colostomy. After several months, when Dr. Licata was confident no infection remained, he performed a second surgery to reconnect the segments of plaintiff's colon. This surgery was successful, and plaintiff's colon resumed its normal functions.

Plaintiff alleged in this litigation that Dr. Marcus was negligent in his initial surgery; specifically, she contended that her bowel was damaged during that surgery and that defendant failed to discover that fact and repair the damage.

That unrepaired damage, plaintiff alleged, resulted in a rupture of her colon, necessitating the additional surgeries. Plaintiff presented two expert witnesses to support her allegations--Joel A. Roth, M.D., an anatomic pathologist, and David Befeler, M.D., a surgeon. Her general physician, Dr. Shahamat, also testified on her behalf.

Defendant denied any negligence in the surgery. He attributed plaintiff's peritonitis to a rupture caused by diverticulitis, which, in turn, developed from plaintiff's pre-existing diverticulosis. Defendant testified as to the manner in which he performed the surgery upon plaintiff, contending it was impossible for him to have injured plaintiff's colon. Defendant's expert witness was Anthony C. Quartell, M.D., an obstetrician/gynecologist, who testified that defendant's conduct of the operation complied with the appropriate standard of medical care.

Plaintiff contends on appeal that the cross-examination conducted by defendant's attorney, and remarks he made in summation, deprived her of a fair trial. She also argues that the verdict was against the weight of the evidence and that she should receive a new trial.

Analysis of plaintiff's first argument requires that we set forth certain additional background facts as well as a portion of the challenged exchanges. Dr. Licata, as part of the surgery of January 7, 2001, sent the portion of plaintiff's colon that he had removed to the hospital pathology lab for analysis. The pathologist who examined the slides made no mention in his report of a perforation.

By the time the matter came on for trial, that pathologist had died and was thus not available. Plaintiff's liability expert, Dr. Befeler, requested that Dr. Roth examine the slides to determine if they showed a perforation of the colon and what caused the perforation. Dr. Roth, after examining the slides, reached the conclusion that there was a perforation of plaintiff's colon that was caused by an injury, and not her pre-existing diverticulosis. Dr. Roth stated:

Well, my opinion in this case is that it's more than a--a reasonable medical certainty that Mrs. Birmingham's perforation was caused by an injury rather than by a pre-existing medical condition such as diverticula disease. So, it's more than just 51 percent.

Neither plaintiff's counsel nor defense counsel questioned Dr. Roth further about his use of the phrase "more than just 51 percent." Dr. Roth also testified that based upon the physical characteristics of the tissue, it was his opinion that the perforation had occurred less than seven days prior to Dr. Licata's surgery.

When Dr. Befeler, plaintiff's liability expert, testified, he told the jury that it would not be negligence to cause some injury to a patient's colon in a surgery such as Dr. Marcus had performed, but that it would be negligence not to recognize and repair the injury. ...

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