On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-1205-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically February 1, 2008
Before Judges Lintner, Sabatino and Alvarez.
Plaintiff, Roberta Tepper, administrator ad prosequendum for the Estate of Lynda Tepper, appeals from a no cause for action judgment and an order denying her motion for a new trial following an adverse jury verdict in favor of defendant, Dr. Ricardo Urdinaran, in a medical malpractice case brought on behalf of her deceased sister Lynda.*fn1 Plaintiff asserts trial error. Defendant cross appeals, asserting that the trial judge erred in declaring him not available for trial. We reverse the judgment and remand for a new trial and dismiss defendant's cross-appeal as moot.
We recite the relevant facts established at trial. On November 4, 1999, thirty-eight-year-old Lynda Tepper was seen by Dr. Michael Dunn at Medical One with complaints of constipation and blood in her stool. Lynda had survived a brain aneurysm five years earlier that left her with some short-term memory problems. Dunn performed a hemocult test and confirmed that she did in fact have blood in her stool. Dunn then performed an anoscopy, a procedure to view inside the rectum, and determined that she did not have any internal hemorrhoids. Dunn noted in a report dated July 19, 2002, that he referred her to defendant, "a colo-rectal surgeon," for follow-up diagnosis and treatment of her rectal bleeding.*fn2
Lynda saw defendant on November 8, 1999. Based solely upon a visual external examination and a subsequent digital examination, defendant concluded that Lynda had minimally developed external hemorrhoids, as well as "large and minimally tender" internal hemorrhoids "with no evidence of recent thrombosis [or] ulceration." Notably, defendant did not perform an anoscopy or any other examination that would have permitted him to view inside her rectum. Additionally, defendant concluded that Lynda did not have any blood in her stool, although he did not perform a hemocult test. He diagnosed "rectal bleeding of undetermined etiology" and scheduled a flexible sigmoidoscopy and barium enema.
Defendant provided Lynda with written instructions on how to treat her hemorrhoids and instructed her to schedule a flexible sigmoidoscopy and barium enema. Lynda wrote on the instructions "F 7th" as a reminder of her appointment for the sigmoidoscopy. According to Lynda's mother, Sandra Readler, Lynda would jot things down to make up for her short-term memory problems. Although defendant wrote to Dunn on November 8, 1999, and advised that his impression was that Lynda had "a rectal bleeding of undetermined etiology," Lynda left defendant's office that day with the understanding that her bleeding was due to hemorrhoids. She told her mother and sister, Roberta, that her bleeding was due to her hemorrhoids.*fn3
On December 7, 1999, Lynda went to Shore Medical Hospital for her scheduled sigmoidoscopy. According to Lynda, she had prepared her colon as instructed for the test. However, after inserting the scope in Lynda's rectum, defendant encountered a blockage. Lynda claimed that defendant suddenly took off his gloves, threw them to the ground, angrily informed her that she had wasted his time by not preparing properly, and directed her to return another day. Her sister testified that Lynda told her that defendant stormed out of the room and left the tube inside her. Lynda did not go back to defendant because she felt humiliated by defendant's conduct.
Lynda went home very upset and told Roberta and Readler, what had happened. Unaware that there was any need to rush, Readler called Lynda's neurologist, Dr. Rodney Bell, and scheduled an appointment for Lynda. Bell then arranged for Lynda to see Dr. Franz Goldstein, who referred her to Dr. Anthony Infantolino at Thomas Jefferson University Hospital in Philadelphia for a colonoscopy. Infantolino performed the procedure on April 24, 2000. When asked on direct examination*fn4
why she waited six months to have a colonoscopy, Lynda testified that defendant told her that her bleeding was from her hemorrhoids and he did not indicate that there was any urgency, thus she treated herself with Preparation H.
Infantolino discovered a lesion obstructing Lynda's sigmoid colon, twenty to twenty-five centimeters from the anal verge. Notably, in his report, Infantolino stated that he was barely able to "pass through the lesion and pass the scope to the cecum" and that "[t]he prep on the proximal side of the lesion was poor."
The following day, Lynda underwent a left hemicolectomy. The surgeon, Dr. Robert Fry, determined that the cancerous tumor cells had perforated the wall of her colon. He removed the tumor, Lynda's left ovary and ureter, as well as twenty-two lymph nodes, eight of which proved to be cancerous. Lynda's cancer was ultimately categorized as a stage three, T4 cancer (the most advanced type of primary cancer). Notably, in his report, Fry commented that Lynda had been experiencing a dull pain in her left lower abdomen for approximately one month prior to her surgery.
Lynda subsequently underwent repeated rounds of chemotherapy and radiation, and she was pronounced cancer-free in November 2000. However, new malignancies subsequently developed in her liver, lungs, spine, collarbone, and eye. She passed away on August 23, 2002.
Dr. Richard Goldstein, a board certified general and colorectal surgeon, testified on behalf of plaintiff. Goldstein summarized what he believed to be defendant's failure to properly treat Lynda:
I have two major opinions concerning [defendant's] care. The first was that he failed to diagnose her cancer when he should have, and the second is that he conveyed to her . . . that she had hemorrhoids as a source of her bleeding when she could not possibly have had hemorrhoids and thereby took away any sense of urgency for her to seek follow up care regarding her bleeding.
Noting that it was not possible to make a diagnosis of internal non-thrombosed hemorrhoids simply through a digital exam, Goldstein explained how an anoscope worked and that it was used to look inside the rectum and diagnose internal hemorrhoids. He testified that it would be "impossible for [defendant] to make a diagnosis . . . of internal hemorrhoids based upon his finger or digital rectal examination."
Nonetheless, according to Goldstein, defendant communicated this ill-founded diagnosis to Lynda, provided her with documentation on how to treat her supposed hemorrhoids, and led her to understand that her bleeding was caused by hemorrhoids. In support of that opinion, Goldstein cited the written instructions defendant gave to Lynda for treating hemorrhoids. He also cited defendant's discovery deposition, reading the following question and defendant's answer to the jury:
Question: Why were her problems probably caused by hemorrhoids? Answer: Why? She had hemorrhoids large enough that could explain the rectal bleeding.
According to Goldstein, defendant also deviated from the accepted standard of care by not: (1) attempting to complete the sigmoidoscopy on December 7, 1999; (2) giving Lynda another enema; or (3) attempting to flush out or bypass the stool after inflating her colon. He stated that poor preparations for sigmoidoscopies occur on a daily basis. Goldstein believed that the photographs taken by defendant using the sigmoidoscope indicated that he could have bypassed the stool. He acknowledged that stopping and rescheduling a sigmoidoscopy is generally an option, but stated that it was not appropriate here since Lynda had already waited one month and had symptoms consistent with colon cancer. He noted that, at defendant's deposition, defendant admitted that he had not considered the possibility that a tumor had interfered with Lynda's preparation. Defendant also did not impress upon Lynda the importance of returning for another scope as soon as possible. In Goldstein's view, defendant's failure to re-prep Lynda and complete the sigmoidoscopy increased the risk posed by her cancer by allowing it time to progress to the point of perforation.
Summarizing his opinion at the conclusion of his direct testimony, Goldstein testified that defendant breached the standard of care in diagnosing Lynda with hemorrhoids, as well as by not bypassing stool when performing the sigmoidoscopy. He concluded that both deviations increased the risk and were substantial factors in "the harm and death" by allowing the cancer to perforate the colon.
Dr. Barry Singer, an oncologist, testified on behalf of plaintiff that, because Lynda's cancer was not diagnosed until April 2000, her chances of survival were decreased by fifty-five to sixty-five percent to between ten and twenty percent. He explained that the most critical factor in assessing her chances was the occurrence of the perforation in her colon, which allowed cancer cells to disperse into her body. Based upon Lynda's statement in April 2000 that she had been experiencing dull pain in the left lower abdomen for approximately one month, Singer concluded that the perforation developed at that time. He pointed out that, had the perforation developed months earlier, her symptoms would have been much more severe.*fn5
According to Singer, had Lynda been diagnosed four-and-one-half months earlier, her colon would not have perforated, her tumor would have been at most a T3 and much smaller, there would have been fewer than four lymph nodes involved, and her later metastases could have been prevented. He opined that Lynda would have had a seventy percent chance of a disease-free, five-year survival had she been diagnosed in December 1999 with no perforation and only one affected lymph node. He stated that, if two, three, or eight nodes had been affected at that time, her chance of survival would have decreased to sixty percent, fifty-five percent, and thirty-five percent, respectively. Singer asserted that, if all eight lymph nodes had been affected in December, Lynda would have had only a thirty to forty percent chance of survival.
Singer conceded that, oftentimes, a four-month delay in diagnosis does not make a difference when dealing with colon cancer. He acknowledged that Lynda's cancer was not more aggressive than the average colon cancer. He further admitted that if the perforation had occurred in December there would have been no difference in Lynda's outcome. Lastly, Singer conceded that colon perforations are not always immediately symptomatic.
Defendant did not appear at trial. However, Carolyn Rusek, the nurse who was present during the aborted sigmoidoscopy, testified for the defense. Rusek related that, in all the years that she has been involved in the endoscopy suite, she did not recall a doctor storming out of the room leaving the scope inside a patient. Although Rusek prepared a note following the appointment that stated that defendant discussed his recommendations and a follow-up plan with Lynda, she had no recollection of the specifics of the plan.
Dr. James Frost, a board certified general surgeon, testified on behalf of the defense that he understood that plaintiff's theory of the case was that defendant had deviated from the standard of care by incorrectly diagnosing internal hemorrhoids and by failing to proceed with the sigmoidoscopy on December 7, 1999. With respect to the former theory, Frost conceded that the best way to diagnose internal hemorrhoids is with an anoscope and that a definitive diagnosis cannot be made based upon a digital examination. However, a physician is entitled to make a presumptive digital diagnosis, as defendant did, with the intent of scoping the patient at a later date. Frost thus refused to fault defendant for failing to immediately proceed with an anoscopy, since defendant intended to follow-up with a sigmoidoscopy. Frost rejected the notion that defendant definitively told Lynda that her bleeding was due to internal hemorrhoids, noting that defendant expressly wrote to Dunn that her bleeding was of undetermined etiology. However, when confronted with defendant's deposition testimony that large hemorrhoids could explain rectal bleeding, Frost testified that defendant told Lynda that she had hemorrhoids but would not concede that he told her they were bleeding.
Frost also opined that defendant did not violate the standard of care by failing to re-prep Lynda and complete the sigmoidoscopy on December 7, 1999. Frost maintained that he has never known a gastroenterologist or surgeon to re-prep a patient for a sigmoidoscopy on the spot. He stated that the decision whether or not to proceed without a re-prep depends on the amount and type of stool encountered on insertion of the scope. He explained that thin amounts of stool can be flushed out, but where, as here, there was a solid stool obstruction, which likely could not be safely bypassed, the physician is not required to proceed. Frost also noted that, if there was stool in Lynda's lower colon, there was likely more stool above. In sum, Frost was of the opinion ...