On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6618-01.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and Yannotti.
Plaintiff Mohammad Khan filed a complaint against defendants Sunil Singh, M.D., Minimally Invasive Surgery Center, and Interventional Neurology, Headache and Pain Relief Center, seeking damages for personal injuries allegedly sustained as a result of certain medical treatment rendered by Dr. Singh.*fn1 The matter was tried to a jury, which returned a verdict of no cause for action. Plaintiff appeals from the judgment entered for defendants on August 21, 2006, and the order entered on September 20, 2006, which denied his motion for a new trial or judgment notwithstanding the verdict. For the reasons that follow, we affirm.
According to the evidence presented at trial, plaintiff first began to experience low back pain sometime between 1983 and 1985. From that time until approximately 1992, plaintiff was treated by various doctors for his back pain. In October 1999, plaintiff began to experience increased pain in his back and left leg. Plaintiff was referred to Dr. Joseph Zerbo, a board-certified orthopedic surgeon. Dr. Zerbo found that plaintiff had an "antalgic gait"*fn2 and had "mild discomfort" in his lower back. He additionally found that plaintiff had "an acute footdrop on the left."*fn3 Dr. Zerbo made the following diagnosis: "Acute lumbar radiculopathy, most likely secondary to an acute lumbar disc herniation."*fn4
At Dr. Zerbo's recommendation, an MRI was performed on plaintiff's lumbar spine. The report of the MRI stated that plaintiff had a left paracentral disc protrusion at the L4-L5 level of the spine, degenerative disc disease from L2 to S1, and an annular tear at L5-S1. Dr. Zerbo discussed the results of the MRI with plaintiff and his wife, noting the "significance of having acute disc herniation with significant muscle weakness and a near foot drop." Dr. Zerbo recommended open surgery to remove the herniated disc fragment.
Plaintiff sought a second opinion from Dr. Singh, who is board certified in internal medicine, neurology, and pain medicine. Dr. Singh examined plaintiff and found a mild weakness in the dorsiflexion of the left foot. Dr. Singh prescribed a course of treatment that included medication, physical therapy, traction, vibration, and epidural injections. After three injections, plaintiff reported significant relief from the pain but said that he was still experiencing numbness in his left leg.
Dr. Singh recommended that plaintiff undergo a selective endoscopic discectomy with thermal annuloplasty. Plaintiff agreed, and Dr. Singh performed the procedure on May 10, 2000. Dr. Singh began with a diagnostic lumbar discogram by inserting dye through a needle into the disc at the L4-L5 level of plaintiff's spine. According to Dr. Singh, the dye showed a tear in the annulus, or lining of the disc. He said that the dye spread but not outside of the epidural space. Dr. Singh concluded that the contents of the disc had not extruded outside of the disc.
Dr. Singh then inserted a radiofrequency needle into the disc. The needle is used to heat the contents of the disc, causing the disc material to shrink, thereby relieving pressure against the nerve root. Dr. Singh testified that plaintiff showed no signs of traumatic nerve injury after the procedure.
His discharge note states that plaintiff was ambulating and moving with a "steady gait."
Plaintiff testified that he was "knocked out" with anesthesia during the procedure and when he awoke, his left leg felt "extremely heavy." He said his "feet [did not] work." After two days, the pain kept increasing and became intolerable. Plaintiff returned to Dr. Singh's office on May 15, 2000. At that time, plaintiff could not push off with his foot. Plaintiff had to wear a brace to avoid tripping on his foot. On June 22, 2000, plaintiff saw a neurosurgeon and underwent a needle electromyography (EMG) to determine the cause of the foot drop. The EMG showed complete damage to the L5 nerve root.
At trial, plaintiff presented testimony from Dr. I. David Weisband, a board-certified orthopedic surgeon. Dr. Weisband testified that the radiofrequency procedure is contraindicated when disc material has extruded outside of the disc space. The doctor asserted that Dr. Singh's records indicated that he performed a discogram during the procedure and he observed an extruded fragment of the L4-L5 disc. According to Dr. Weisband, Dr. Singh should have stopped the procedure at that point because the extruded disc fragment could cause a burn injury to the nerve. Dr. Weisband noted that Dr. Gregory Bracchia, a spinal specialist, found that plaintiff's current symptomatology was consistent with a thermal injury to the L5 nerve root and radiculopathy. He agreed with Dr. Bracchia's view that plaintiff's nerve root had been "burnt and destroyed."
Dr. Weisband explained that the L5 nerve root is near the L4-L5 disc, which comes down to the calf and outer surface of the leg and foot. It works dorsi-flexion of the foot. That's . . . the importance of that. So that if you have an L5 nerve root intact you can bring your foot up. So when you're walking you'll strike your heel first and then go onto your toes to push off.
Without an L5 nerve root, which is the [nerve] at the dis[c] level that was operated on, you're going to have a floppy foot. You're not going to be able to bring the toes up and you're going to be tripping on your own foot.
Plaintiff also presented testimony from Dr. Kenneth Brait, a board-certified neurologist. The doctor stated that the radiofrequency procedure was contraindicated because plaintiff did not have a normal neurologlical exam. Dr. Brait said that the procedure also is contraindicated when an individual has a herniated disc with an extruded fragment. He said shrinking the material inside of the disc will not address the problem and the heat can travel to the herniated disc material and burn the nerve. Dr. Brait noted that plaintiff had a transient foot drop before the surgery but this condition had improved within a week. According to Dr. Brait, this indicated that at that time, plaintiff did not have a complete nerve injury.
Dr. Brait additionally stated that plaintiff's herniated disc could not have been the cause of his severe left L5 radiculopathy because the herniation was the same after the surgery as it was before. Dr. Brait noted that a comparison of the MRIs performed in October 1999 and in June 2000 indicated that the disc herniation was still present. Dr. Brait opined that plaintiff's condition was the result of a thermal injury to the nerve that occurred during the procedure.
Dr. Singh testified that his record erroneously indicated that he used a laser probe in the procedure. He said that he used a radiofrequency probe because the laser probe generates more heat and he believed a less aggressive approach was warranted in his treatment of plaintiff.
On cross examination, Dr. Singh agreed that the standard of care required that he avoid hitting the nerve root when performing the discectomy. He conceded that it would be malpractice if he hit the nerve root and damaged it during the procedure. Dr. Singh also agreed that it would be malpractice if he caused thermal damage to the nerve root while performing the procedure. However, Dr. Singh stated that he did not hit or burn plaintiff's nerve root during the procedure. Dr. Singh said the heat remained inside the disc. He added that plaintiff was lightly sedated, and "since [the] patient did not jump, no heat ever reached near the nerve."
Defendant's expert witness was Dr. Irving P. Ratner, a board-certified orthopedic surgeon. Dr. Ratner rejected the view that the radiofrequency procedure was contraindicated in this case. Dr. Ratner said that the medical literature indicates that the procedure should not be performed if there is a large or extruded herniated disc, not because it will cause harm to the patient, but rather because there is a lower rate of improvement in those circumstances.
Dr. Ratner said that Dr. Singh did not burn plaintiff's nerve root. He asserted that if that had occurred, plaintiff would have "jumped or jerked or moaned or screamed" because he was consciously sedated during the procedure. The doctor also stated that plaintiff would have experienced severe pain and immediately lost the use of his foot if his nerve root had been burned during the surgery.
Dr. Ratner added that there was no evidence that Dr. Singh had performed the procedure improperly. He said that everything in the operative report was "in keeping with the standard of care." He noted that Dr. Singh had erroneously indicated in his notes that he used a laser probe rather than a radiofrequency probe but he did not view this error as a deviation from accepted standards of medical practice. Dr. Ratner asserted that the selection of the radiofrequency probe was a reasonable decision in this matter.
Dr. Ratner opined that plaintiff had a "sick nerve root" before the procedure and the surgery itself, through no fault of Dr. Singh's, caused "chemical changes" and a "chemical irritation" to the nerve. He explained:
[Plaintiff] presented to Dr. Singh with a sick nerve root, [the] L5 nerve root. Why was it sick? Because he went to Dr. Zerbo and he had a foot drop. He had sensory deficit. He had radiating leg pain, and you don't get those findings -- even though they're transient maybe, you don't get them in a healthy nerve root. The nerve root which [plaintiff] brought to Dr. Singh was already partially damaged and probably the result of his long standing [disc] disease and maybe what happened to him in the short time before he started to treat with the Medical One people. And, it's known that whenever a surgeon or even an interventionalist irritates a nerve root by creating swelling or by manipulating it you have to realize that when I do a laminectomy and dis[c]ectomy I put a little hook on the nerve and I pull it over to get it out of the way so that . . . I can get in past it to get the [disc] out. And I have had patients wake up from the surgery with a foot drop. Fortunately all but one of them in my entire career got better by themselves over a couple of months.
But the idea is that blood in the area of the surgery, swelling, manipulation and et cetera can cause the chemical changes which in my opinion resulted in the furthering of [plaintiff's] problems and the foot drop that developed over a couple of days.
The idea is just like what Dr. Brait said. It's like a burn. It takes a few days to develop. The swelling, the chemical reaction has to become enough to cause the nerve to not function. And, in this case if you look at the EMG that was done after Dr. Singh's procedure, the [d]octor reported that the nerve was really badly damaged, but that doesn't mean that it was physically damaged. Nobody beat it with a hammer in my opinion. Nobody burned it or cooked it. It was a sick nerve that was further irritated and simply decided to shut down and it didn't work, and that's the science of how nerves get injured.
On cross examination, Dr. Ratner agreed that it would be a deviation from the standard of care if defendant performed the procedure in a manner that caused thermal damage to the nerve root. That was so because, if the procedure is done properly, the physician is "supposed to be inside the [disc]."
Dr. Ratner stated, however, that there was no indication that the probe was outside of plaintiff's disc during the procedure. He said that it would be a deviation from the standard of care for the disc material to become overheated to the point where it caused thermal injury. He explained that if thermal energy was applied "outside the parameters of the technique[,] it is possible to create enough heat in the wall of the [disc] to irritate or damage the nerve root[.]"
Plaintiff argues that the judge erred by refusing to charge the jury on res ipsa loquitur. We disagree.
"The doctrine of res ipsa loquitur permits an inference of defendant's negligence 'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of plaintiff's own voluntary act or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). "Whether an occurrence 'ordinarily bespeaks negligence' depends on the balance of probabilities being in favor of negligence." Id. at 526.
"[D]epending upon the probabilities," the doctrine can be applied in medical malpractice cases. Ibid. Accordingly, the res ipsa loquitur doctrine has been applied when, as a matter of common knowledge in the lay community, a particular accident would not have occurred "had the defendant adhered to the appropriate standard of his profession." Id. at 527. Expert testimony also may provide the necessary factual basis for application of the doctrine. The Buckelew Court explained:
Expert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the "common knowledge" of lay persons. . . .
[E]xpert testimony to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence may afford a sufficient basis for the application of the doctrine of res ipsa loquitur. [Id. at 527.]
However, the res ipsa loquitur doctrine will not be applied merely because an expert witness asserts that it is common knowledge in the medical community that the mishap would not have occurred unless the defendant ...