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Smith v. Basch

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 24, 2008

JOANN SMITH, PLAINTIFF-APPELLANT,
v.
DAVID B. BASCH, M.D., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1385-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2007

Before Judges S.L. Reisner, Gilroy and Baxter.

In this medical malpractice case, plaintiff Joann Smith appeals from a March 31, 2006 trial court order dismissing her complaint based on a jury verdict of no cause and denying her motion for a new trial. In connection with her appeal, she contends that the trial judge erred in adjourning the trial to give defendant additional time to retain an expert witness, that the verdict was a miscarriage of justice, and that the trial judge erred in refusing to give a jury charge concerning defendant's failure to perform a diagnostic test, pursuant to Gardner v. Pawliw, 150 N.J. 359 (1997). Finding no merit in any of these contentions, we affirm.

I.

These are the most pertinent facts. On April 26, 2002, plaintiff filed a medical malpractice complaint against defendant David Basch in connection with spinal surgery that he performed on her. After several trial adjournments, the case was scheduled for trial in February 2005. On February 10, 2005, both counsel appeared before Judge Dumont to argue defense counsel's application for a further adjournment. The basis for the motion was the failure of plaintiff and her expert Dr. Cohen to provide defendant with medical records, and the refusal of the defense expert, Dr. Jacobs, to continue serving as defendant's expert after defendant agreed to serve as an expert against Dr. Jacobs in a different malpractice case. Defendant thus needed to obtain a new expert.

In a lengthy and cogent oral opinion placed on the record on February 10, 2005, Judge Dumont granted the adjournment request for several reasons. First, there were no trial judges available to handle the trial at that time and the matter would thus have to be adjourned for several weeks in any event. Second, due to the insolvency of defendant's malpractice carrier, it was anticipated that Judge Shuster would order a stay on all malpractice trials involving that carrier as of February 18, 2005. Third, while plaintiff was pressing the court to proceed with the trial, plaintiff still had not provided discovery that defendant needed. Judge Dumont also acknowledged the well-known "bad blood" between Drs. Cohen and Basch, which apparently led to Dr. Cohen's recalcitrance in producing records in this case. And, finally, as a matter of fundamental fairness, Judge Dumont recognized that defendant was faced with the unexpected loss of his expert and he could not present a defense without an expert witness.*fn1

The trial finally commenced on February 8, 2006, before Judge Langlois. The following testimony was presented at the trial.*fn2

In September 1998, plaintiff was injured in a car accident. Plaintiff obtained treatment from Dr. Buim, a chiropractor with whom she continued to consult until after the surgery performed by defendant. After about a year of chiropractic treatment, plaintiff's condition had not improved.

Plaintiff ultimately consulted with defendant around September 1999. They discussed her case, analyzed her injuries, the pain she was feeling, and the treatments she had undergone until then. Specifically, plaintiff informed defendant she had "knife-like pain" in her back. On cross examination, plaintiff explained that before

[e]very visit I went to [defendant] I was in a lot of pain. There was something that could be done. I was having therapy, medications, I'm not getting any better. Something needs to be done, I can't tolerate this pain.

On redirect, plaintiff testified that she was not aware of what that "something" was that she believed needed to be done. For example, she did not know whether it could be other injections or surgeries.

Under defendant's care, plaintiff first underwent physical therapy and water treatment. Defendant also administered two epidural injections. Defendant conceded that he never informed plaintiff that, although the first two epidural injections were not effective, there was a chance that a third one might be effective. When these preceding procedures failed to produce positive results, defendant informed plaintiff that fusion surgery*fn3 was necessary.

Plaintiff testified that defendant never discussed alternate surgeries. Plaintiff further testified that, had defendant offered them to her, she would have opted for the alternative treatments, such as injections or less intrusive surgery. On the other hand, defendant testified that the procedure he performed was the least invasive viable procedure to treat plaintiff's severe herniated disc at L5-S1. It was the "best way to fix this problem." For example, defendant ruled out simply removing the herniation and keeping the disc intact, and IDET, a new procedure that involved cauterizing the disc with a heated wire; neither of those procedures would have worked. Indeed, defendant opined that the only reasonable options were for plaintiff to live with her condition, or undergo the surgery he performed. On cross-examination, however, defendant conceded that he did not discuss numerous procedures with plaintiff, such as micro diskectomy or facet block injections. Defendant further conceded that he never advised plaintiff to get a second opinion because he was confident in his diagnosis.

Plaintiff also testified that defendant did not adequately inform her of the material risks and possible side effects of the operation he proposed to perform. For example, defendant told plaintiff that she would be out of work for only three to six months. Moreover, defendant assured her not to worry about the procedure because "he had done hundreds of these [surgeries]." Finally, defendant never told her that the surgery could exacerbate her injuries or make the pain worse. However, plaintiff did concede that defendant informed her that the surgery could yield little or no relief. Additionally, on cross-examination, plaintiff conceded that defendant discussed with her the risks and benefits of surgeries.

On April 28, 2000, the day of the surgery, plaintiff read and signed a consent form containing handwritten notes that set forth the inherent risks of the operation. For example, the risks involved included "[b]leeding, infection, swelling, stiffness, continued pain, numbness, nerve damage, failure of bone to heal, [and] possible need for further surgery." However, plaintiff testified that she had no recollection of whether the blanks were filled in when she signed the form, and that she had been on medications at the time. Moreover on redirect, plaintiff testified that she would have signed whatever the hospital had put in front of her that day. On the other hand, defendant testified that he explained the consent form to plaintiff on multiple occasions.

Following the surgery, plaintiff was released from the hospital after one night. Plaintiff was in "terrible" pain. On a scale of one to ten, plaintiff testified that her pain was a fifteen. She was basically in bed all the time. In addition to her back, her side, hip, and leg were also in pain. Indeed, plaintiff could not sneeze, bend over, or lift anything without severe pain in her back, and her foot was numb. Plaintiff could no longer stand in one position. She also had spasms in her foot that felt like "sharp knives." She was unable to play with her grandchildren because she was basically confined to a chair. Plaintiff was unable to return to work.

When plaintiff brought these complaints to defendant's attention, he told her that this was part of the healing process, and that it would take time to recuperate. In an attempt to alleviate her pain, defendant sent plaintiff for physical therapy. According to defendant, within the first six months after the surgery, plaintiff showed signs of improvement, and he ultimately removed her from pain medications. Indeed, a report was submitted into evidence, containing a statement from plaintiff indicating that she felt better and was making progress. When it became apparent after six months that plaintiff was no longer improving, defendant placed her on permanent disability. Plaintiff, on the other hand, insisted that she never had any improvement subsequent to defendant's surgery.

In early 2001, a little less than a year after the surgery, plaintiff underwent certain tests, including MRI's and a myelogram. After analyzing the results of these procedures, defendant concluded that the surgery was successful. "The fusion was solid. This bone had not moved an iota. It's solidly fused on top and bottom and it's solid fusion, no pseudoarthrosis."*fn4

The parties differed on whether defendant recommended additional surgery and whether plaintiff wanted it. Between February 2001 and August 2001, plaintiff continued to complain of severe back pain and nerve irritation in her legs. Nonetheless, defendant testified that he was reluctant to do more surgeries "because she didn't respond [well] to the first surgery." Defendant further testified that he informed plaintiff that a second surgery would not be beneficial. Defendant therefore recommended "continued conservative treatment," such as acupuncture or physical therapy. It was plaintiff, defendant testified, who desired to pursue further surgical treatment. Plaintiff, on the other hand, testified that defendant recommended a second surgery.

Sometime after September 2001, plaintiff phoned defendant's office. To her dismay, an employee informed her that defendant was no longer there, and that defendant's location was unknown. This left plaintiff deeply upset because she "really had a lot of faith in him." As a result, plaintiff was referred to Dr. Marc A. Cohen, one of the remaining physicians in that office.*fn5

Plaintiff told Dr. Cohen that she still had hip and leg pain. Dr. Cohen found that defendant's surgery was not successful and thus, plaintiff needed to have more surgery. Accordingly, plaintiff agreed to a second surgery, to be performed by Dr. Cohen. Dr. Cohen's surgery consisted of fusing the entire lower spine, at all three levels. After this surgery, plaintiff's condition improved over time; she was now able to function, although she still had pain.

On June 6, 2003, Dr. Cohen sent plaintiff to Dr. Kenneth Zahl, an expert in pain management. Plaintiff told Dr. Zahl that her knees, right foot, and big toe were "throbbing," she had severe back, leg, knee, and right hip pain, and her leg and toes occasionally went numb. Dr. Zahl placed plaintiff on pain medications, and administered a selective epidural injection.

Dr. Zahl saw plaintiff again on November 3, 2003. At this time, plaintiff continued to complain about numbness on her right side and severe pain on her left side. She was in constant discomfort. Thus, Dr. Zahl prescribed plaintiff a "chronic narcotic patch," which is a medication that is absorbed through the skin and gives a constant release of medication. This patch avoids the need to constantly take pills.

Dr. Zahl opined that, within a reasonable degree of medical probability, plaintiff's continuing medical problems were caused by the first surgery performed by defendant. He further opined that plaintiff's condition is permanent. On cross-examination, Dr. Zahl admitted that only Dr. Cohen performed a procedure known as a laminectomy, which entails cutting bones and muscles in a certain area of the back.

Dr. Sanford Davne, an orthopedic surgeon, also testified on behalf of plaintiff. The essence of Dr. Davne's testimony was that Dr. Basch misdiagnosed plaintiff as having "internal disc disruption" at L5-S1, when she did not in fact have that condition, and that therefore the fusion surgery which defendant performed in order to correct that condition was not necessary and actually made her condition worse. He testified that plaintiff had only "minor back injuries" that would eventually have responded to conservative treatment without surgery.

According to Dr. Davne, plaintiff had a combination of spinal problems, marked by degeneration of the facet joints*fn6 , as well as a bulging disc at L4-L5 and a herniated disc at L5-S1. He testified that fusing the disc at L5-S1 only served to transfer the stress of movement from the lowest portion of the back to the next level up, L4-L5, thus exacerbating plaintiff's problems at that level of her spine and encouraging herniation of the disc. He testified that defendant should have offered plaintiff more conservative treatment, such as facet joint injections, to treat the pain and to try to identify the exact facet joint that was causing her pain:

The most reasonable treatment was conservative for this complex group of problems. Anti-inflammatory medicines, facet joint injections, physical therapy, chiropractic care, and continued pain management. I know that she didn't respond to chiropractic care, and I understand that. But you just continue to treat the patient without surgery when you have this complex of problems. This is not a surgically correctable complex problem.

Dr. Davne opined that plaintiff's condition would have improved if these conservative treatments were administered over a long period of time, such as two or three years.

When asked what surgeries were reasonable if a doctor wished to treat the problem surgically, Dr. Davne reiterated that he did not believe surgery was a good idea. However, if one were going to do a surgical procedure, Dr. Davne concluded, "it would be directed at maybe that disc herniation . . . but generally we reserve that for patients who have overwhelming leg pain . . . but it's a simple [disc] procedure." Dr. Davne further concluded that fusion is not a normal treatment under these conditions.

Dr. Davne also testified that defendant did not perform the correct fusion surgery. Specifically, Dr. Davne criticized defendant for only operating on one level of facets.

[I]f you're going to operate on the problem, if you ultimately determine that you're going to operate on the facet arthropathy, you can't just operate on one level, you've got to operate on them all, because you don't know which one is really causing the problem.

Dr. Davne admitted, however, that the fact that the spine did not properly fuse was not defendant's fault. "[F]usions don't always work."

There's a reasonable incidence where fusions are biologic process, and it - - I don't mean to imply that the surgery was not properly performed because, in fact, technically, the surgery was properly performed. I'm just saying it shouldn't have been done. But once it was done, the fact that the fusion didn't occur is not Dr. Basch's fault.

Dr. Davne opined that the following conduct by defendant deviated from the standard of care. First, although defendant properly performed the fusion surgery, the surgery itself was unnecessary. Second, defendant performed the unnecessary surgery because he misinterpreted a discogram of plaintiff's spine. Finally, plaintiff should have been treated with continued conservative care "and it was inappropriate not to do that." The conservative care to which Dr. Davne referred would have included "facet joint blocks," "pain medication," and referring plaintiff "to a [pain] management specialist." When asked about failure to perform diagnostic tests, Dr. Davne opined that defendant should have performed another discogram,*fn7 and should have administered facet joint injections "to see if this would alleviate some of her pain."

Dr. Davne further opined that had defendant not performed the fusion surgery, Dr. Cohen's surgery to fuse the vertebrae at several more levels, would not have been necessary. Moreover, plaintiff's injuries resulting from defendant's surgery are permanent.

On cross-examination, Dr. Davne admitted that Dr. Cohen's diagnosis of plaintiff's condition was "lumbar internal disc disruption at L3-4 and L4-5." He also admitted that defendant ordered a series of diagnostic tests, including an MRI, an EMG and a discogram, before performing the surgery. He also agreed that Dr. Cohen's pre-operative diagnosis did not include facet arthropathy.

Dr. Davne conceded that the key to determining whether to operate on a patient's back is whether the pain is bearable. If it is, then surgery is not performed. In this case, plaintiff had knife-like pains that she rated as an eight and nine-and-a-half out of ten. Dr. Davne described this pain as "significant." Additionally, before the surgery, plaintiff's activities were greatly limited. For example, she could only sit for ten or fifteen minutes at a time and she then had to get up and walk. After about five minutes, walking became too painful and she needed to sit again. She also could only lift about half a gallon of milk.

On cross examination, Dr. Davne also agreed that approximately two weeks after her operation with defendant, plaintiff reported only headaches, and no other pain. Dr. Davne explained, however, that to properly determine whether a surgery was successful, more than two months are needed because at first, a patient is not very mobile and is generally on many pain medications. The results are usually analyzed six months to two years after the surgical procedure.

On redirect, Dr. Davne testified that plaintiff's condition dramatically worsened over the course of a year after defendant's surgery, but before Dr. Cohen's surgery. As such, Dr. Davne concluded that there was "no doubt" that defendant's surgery was not successful. Additionally, prior to defendant's surgery, a chiropractic report dated February 16, 2000, indicated that plaintiff very much wanted to avoid surgery.

Defendant testified on his own behalf, explaining in detail his course of treatment and how he was able to pinpoint the source of plaintiff's back pain through a combination of diagnostic tests. He explained how a discogram, which involves injecting dye into the nucleus of the discs, enabled him to diagnose plaintiff as having internal disc disruption, and how it enabled him to isolate the precise disc that was causing the pain. He testified that the surgery he performed was proper for this condition and was the least invasive surgery available that would effectively treat plaintiff's condition. He explained why non-surgical alternatives, such as additional epidural injections or injecting cortisone into the facet joints, would not have been effective. He also testified that he repeatedly advised plaintiff of the risks of the surgery.

Defendant's testimony was corroborated by testimony from Dr. Ralph E. Sweeney, an expert in orthopedic spine surgery. Dr. Sweeney reviewed all imaging studies that had been generated in plaintiff's case through 2001. He also reviewed the records of Dr. Basch, Dr. Cohen, and the hospital where plaintiff's surgical procedures were performed.

Dr. Sweeney was first asked to assume conditions identical to those existing two days before defendant's surgery (ie. plaintiff's complaints of pain and her inability to engage in activities), and then to opine whether defendant's recommendation to undergo the surgery in question conformed to the accepted standards of medical practice. Dr. Sweeney responded in the affirmative, concluding that plaintiff's only two viable options at the time were either to live with her injuries, or to have the fusion surgery administered by defendant.

Dr. Sweeney testified that plaintiff's problems could not have been alleviated merely by administering cortisone to her facet joints. He also contradicted Dr. Davne's testimony that instead of the fusion surgery, defendant simply should have removed the herniation and left the disc alone. According to Dr. Sweeney, doing that is the "quickest way to make somebody with an internal disc disruption worse."

[T]o take out just the disc herniation you're placing - - you're gambling big time that that's going to relieve the pain of an internal disc disruption. If she really has a disc disruption, which is what the diskogram shows, there's no way she would be better from that. It would be totally only a herniated disc.

Dr. Sweeney next addressed plaintiff's contention that defendant erred in failing to recommend a third epidural. "[I]f two epidurals don't work, why would you think a third epidural is going to work? I mean there is just no logic to that." Indeed, Dr. Sweeney testified that there is no scientific proof supporting the contention that three epidural injections should always be administered. Finally, after reviewing the results of the myelogram administered in 2001, Dr. Sweeney opined that defendant's surgery was successful. He rejected any claim that the imaging study demonstrated pseudoarthrosis or failure of the bone graft to fuse.

The jury returned the following verdict. First, defendant did not deviate from the standard of care in performing the procedure. Second, on the issue of informed consent, defendant failed to inform plaintiff of all material information. Nonetheless, the jury rendered a verdict for defendant because the jury concluded that a reasonable person would have undergone the treatment in question even if properly informed.

On March 31, 2006, plaintiff moved for a new trial, relying on her testimony that she would have opted for other alternative treatments if presented with them. She also relied on defendant's testimony that the surgery had a 10-15% chance of aggravating plaintiff's injuries, and that he never informed plaintiff of that risk, and testimony that once the fusion surgery was performed, the more conservative treatments could not be administered. Plaintiff contended that a reasonable person under the circumstances would have chosen a more conservative treatment. Defendant responded that plaintiff merely disagreed with the jury's conclusion. Furthermore, defendant concluded that the evidence, as the jury accepted it, led to only one conclusion: plaintiff had only two viable options - continue life with the disrupted disc, or have the surgery.

In an oral opinion placed on the record on March 31, 2006, Judge Langlois denied plaintiff's motion. Judge Langlois based her decision on the following. First, plaintiff had been undergoing treatment after her accident for years. Second, she was in severe pain and her activities were drastically limited. For example, she could not sit or lie down for extended periods of time. Third, defendant administered epidurals which did not work. Finally, plaintiff testified that she understood the risks of the surgery and that there could be little or no recovery. Accordingly, Judge Langlois concluded:

I think this jury could determine that as a reasonable person, even knowing that she might be worse or that there were other more conservative things that she should do before she goes to surgery, in view of her testimony in that case, I'm satisfied the jury had a basis to find that a reasonable person would have chosen the - - would have chosen the surgery. So I'll deny the motion for a new trial and I'll enter the order of judgment.

II.

On this appeal, plaintiff raises the following points for our consideration:

POINT I: THE COURT SHOULD NOT BE PERMITTED TO RULE ON ISSUES NOT BEFORE IT AND WITHOUT NOTICE TO BOTH PARTIES, MOREOVER THE COURT SPECIFICALLY ERRED BY MISAPPLICATION OF AN APPELLATE DIVISION CASE CITED AS AUTHORITY.

A. Moreover, Plaintiff Respectfully

Submits That The Appellate Division Case The Court Cited For Authority Militated In Favor Of A Ruling For Plaintiff, Not Defendant.

POINT II: THE COURT ERRED IN ITS APPLICATION AND INTERPRETATION OF THE RULES OF THE COURT, AS THE RULES, INCLUDING RULE 4:24-1(C), COMPEL THE CONCLUSION THAT DEFENDANT WAS OUT OF TIME TO ENGAGE IN DISCOVERY AND THUS THERE EXISTS NO BASIS FOR THE COURT TO RULE DEFENDANT IS "ENTITLED TO" AN EXPERT AT SUCH A CRITICALLY LATE DATE.

POINT III: PURSUANT TO R. 4:17-7, AS WELL AS CASE LAW, DEFENDANT IS OUT OF TIME TO AMEND ITS INTERROGATORIES TO INCLUDE ADDITIONAL DISCOVERY AND THUS THE TRIAL COURT ERRED IN NOT ONLY PERMITTING ONE EXPERT REPORT WELL AFTER THE CONCLUSION OF THE DISCOVERY PERIOD BUT A SECOND REPORT ALSO.

POINT IV: A NEW EXPERT REPORT AT THIS LATE DATE WAS HIGHLY PREJUDICIAL TO PLAINTIFF. POINT V: THE COURT ERRED IN PERMITTING DEFENDANT TO INAPPROPRIATELY USE THE MIX ISSUE AS AN OFFENSIVE WEAPON TO GAIN DISCOVERY ADVANTAGE.

POINT VI: AS THE JURY FOUND DEFENDANT DEVIATED FROM ACCEPTED STANDARDS OF CARE IN THE FAILURE TO PROVIDE PROPER INFORMATION ABOUT THE RISKS AND BENEFITS AND ALTERNATIVE TREATMENT OPTIONS, IT IS ABSOLUTELY INCONSISTENT, AGAINST THE WEIGHT OF THE EVIDENCE, AND A MISCARRIAGE OF JUSTICE FOR THE JURY TO HAVE CONCLUDED THAT A REASONABLE PERSON IN PLAINTIFF'S POSITION WOULD NOT HAVE OPTED FOR ALTERNATIVE TREATMENT OPTIONS AND THUS DEFENDANT SHOULD BE LIABLE FOR ALL INJURIES SUSTAINED BY PLAINTIFF AS A RESULT OF THE FUSION SURGERY AT ISSUE.

POINT VII: THE TRIAL COURT ERRED IN DENYING PLAINTIFF A JURY CHARGE PURSUANT TO GARDNER V. PAWLIW.

After reviewing the record, including the entire trial transcript, we conclude that all of these points are without merit and, except to the extent addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We find no abuse of discretion in Judge Dumont's decision to adjourn the trial and to extend defendant's time to serve an expert report. We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 396 (2005)(citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997)). Moreover, the Rules of Court are not to be applied mechanically, but are to be applied so as to produce a just result. See Bender v. Adelson, 187 N.J. 411, 427 (2006); Pondon v. Pondon, 374 N.J. Super. 1, 9-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); R. 1:1-2.

In this case, the trial had to be adjourned due to a lack of available judges. There was no prospect that the case could have been tried within the foreseeable future, due to an impending stay to be entered based on the financial status of defendant's malpractice insurer. Plaintiff and her expert had delayed in producing discovery, and hence, were in a poor position to object to defendant's request for more time to serve an expert report. And, finally, given the unusual circumstances under which the defense expert refused to continue in the case, we agree with Judge Dumont's conclusion that the interests of justice were served by permitting defendant additional time to retain an alternate expert and serve a report. We affirm Judge Dumont's determination for the reasons stated in his February 10, 2005 oral opinion.

We likewise find no merit in plaintiff's contention that the verdict was against the weight of the evidence or was otherwise a miscarriage of justice, and her related argument that Judge Langlois should have granted plaintiff's motion for a new trial.

Whether a new trial motion is granted or denied, our standard for review of the decision is the same:

The trial court's decision on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

[R. 2:10-1.]

In other words, "a jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Carrino v. Novotny, 78 N.J. 355, 360 (1979); see R. 4:49-1(a). In deciding that issue, we defer to the trial court with respect to "intangibles" not transmitted by the record (e.g., credibility determinations, demeanor, and "feel of the case") but otherwise make our own independent determination of whether a miscarriage of justice occurred. Id. at 360 n.2; Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Applying that standard, we find no miscarriage of justice here. The jury determined that defendant failed to provide plaintiff with all of the material information needed to make an informed decision, but that she would have gone ahead with the surgery even if she had been provided with that information. In light of plaintiff's trial testimony concerning the constant, severe and disabling pain she was suffering, despite chiropractic treatment, physical therapy and epidural injections, reasonable jurors could have concluded that plaintiff would have chosen the surgery recommended by Dr. Basch even if he had told her that there were other possible alternatives.

Finally, we address plaintiff's argument concerning the jury instructions. Plaintiff contended that administering facet joint injections was not only a means of treating plaintiff's back pain, but it was also a means of diagnosing the source of her pain. Based on that contention, plaintiff asked Judge Langlois to charge the jury concerning plaintiff's claim that defendant's failure to perform a necessary diagnostic test led to plaintiff's true spinal condition going undetected and that this failure increased the risk of harm from her spinal condition.

The requested charge was based on Gardner v. Pawliw, supra, in which the Court recognized the problem a plaintiff with a pre-existing medical condition faces in proving causation when a defendant doctor fails to perform diagnostic tests that could have helped diagnose or treat the pre-existing condition. A doctor's "failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed." Gardner, supra, 150 N.J. at 380. Thus, the Gardner Court established the following test to be applied under these circumstances.

When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, . . . the plaintiff [need not] demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. [Id. at 387 (emphasis added).]

Our review of the record indicates that Judge Langlois did in fact include language very similar to the Gardner charge in her jury instructions. However, more to the point, plaintiff's request for a Gardner charge was premised on her contention that defendant misdiagnosed her condition as internal disc disruption, instead of facet joint arthropathy, and therefore performed surgery that was unnecessary. The jury rejected that theory when it answered the first question, finding that the surgery was not "medically unindicated," that is, that the surgery was appropriate for plaintiff's medical condition. To reach this verdict the jury necessarily must have concluded that defendant properly diagnosed plaintiff's condition. Consequently, even if a Gardner charge was warranted and even if the charge given was inadequate under Gardner, it was harmless error.

Affirmed.


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