March 31, 2008
BONNIE L. MERGENTHALER, PLAINTIFF-APPELLANT,
AMIR GANCHI, M.D., DEFENDANT-RESPONDENT, AND ST. JOSEPH'S WAYNE HOSPITAL, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1505-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2008
Before Judges Cuff, Lisa and Lihotz.
Plaintiff, Bonnie L. Mergenthaler, appeals from a no-cause verdict following trial on her medical negligence claims against defendant Amir Ganchi, M.D.*fn1 Plaintiff asserts the jury verdict is against the weight of the evidence and the trial court erred in denying her motion for a new trial. We affirm.
Plaintiff testified she believed she was having cosmetic surgery to remove a cluster of spider veins. On June 14, 2002, defendant performed a stripping ligation to treat the varicose veins on plaintiff's right leg appearing along the course of the greater saphenous vein, which is a superficial vein that runs from the dorsum of the foot up the medial part of the leg, all the way up to the thigh where it joins the deep femoral vein. During surgery, defendant made an incision below the groin and located the greater saphenous vein and disconnected the saphenous vein from the femoral vein. Defendant then made a small incision in the ankle area and passed a stripper device all the way up the faulty saphenous vein. Thereafter, defendant made several small incisions in the calf area, clipped and removed the varicose veins that were connected to the faulty saphenous vein, and then removed the entire saphenous vein from plaintiff's leg using the stripper device.
During the vein stripping, defendant encountered bleeding in the groin area; he discovered two open and bleeding vessels.
Defendant controlled the bleeding by using clips. When defendant began closing the incisions, he again noticed bleeding in the groin area. He made another incision, dissected down, and determined the bleeding emanated from behind the femoral artery. Defendant stated he repaired the bleeding with clips and 2.0 sutures without causing damage to the femoral vein.
Following surgery, plaintiff was in pain. Linda Petsch, plaintiff's sister, described plaintiff's right leg as "triple its size and grayish in color." Plaintiff was re-hospitalized on June 30, 2002, after being diagnosed with a deep vein thrombosis of the common femoral, superficial femoral, and popiteal veins. In October 2002, Herbert Dardick, M.D., chief of surgery and vascular surgery at Englewood Hospital, performed a bypass graft procedure on plaintiff's right leg. Dardick testified that the bypass helped relieve the pressure in plaintiff's leg, however its long-term effectiveness was uncertain.
At trial, plaintiff argued that defendant failed to properly address the bleeding that occurred during the varicose vein surgery and thus, deviated from accepted standards of medical care. Plaintiff maintained that when defendant attempted to stop the bleeding, he occluded the femoral vein, which caused the deep vein thrombosis in her lower right leg.
Also, plaintiff's expert suggested defendant should have requested a vascular surgeon to assist when he encountered the bleeding in the course of the varicose vein surgery. Defendant responded that he did not damage the femoral vein and his expert witnesses opined that plaintiff's deep vein thrombosis was more likely a spontaneous post-operative complication or the result of plaintiff's pre-existing hypercoagulable condition.
The bulk of the trial testimony was presented by the parties' respective experts. We provide that portion of the experts' opinions discussing whether defendant deviated from accepted standards of medical care when he addressed the bleeding that was encountered during plaintiff's surgery.
Plaintiff presented the videotaped de bene esse deposition of her expert, Richard Steven Nitzberg, M.D., a general and vascular surgeon who reviewed photographs of plaintiff, and plaintiff's medical records, which included films, reports and defendant's post-operation reports. Nitzberg commented:
Well, what struck me about [defendant's operative report] was that when you do this procedure, you really don't see the femoral artery. Now, you may feel it to help you guide yourself to where you're going to start to look for the saphenous vein, but you really should not see or be anywhere near the femoral artery. That's really the wrong place to be. That's much deeper than you need to be and risks injury to the femoral artery and the femoral vein which is very close to the femoral artery.
[T]he saphenous vein is a so-called superficial vein. The other vessels, the deeper veins and the arteries are deeper vessels. So you really should not be in the deeper layers when you're doing this procedure. You should be in the superficial layers. So that implied to me that there was some injury to a venous structure in a deeper [plane] tha[n] one is accustomed to seeing at this -- in this operation.
Also, Nitzberg rejected defendant's theory that the deep vein thrombosis resulted from plaintiff's hypercoagulability, and he criticized the techniques defendant employed to repair the bleeding, including defendant's use of 2.0 thread. Nitzberg opined that defendant tied off the femoral vein "[s]omewhere around the common femoral and slash superficial vein level," causing plaintiff's deep vein thrombosis and the defendant should have sought assistance from a vascular surgeon to make the repair.
Suggesting "a picture is worth a thousand words," Nitzberg referenced an October 2002 venogram,*fn2 which he believed clearly showed the obstruction starting "at the site of the surgical clips which had been placed at the time of the venous surgery by [defendant]." Nitzberg testified:
Now, if you go down here a little bit lower and focus on this area here, what you'll see is right here is where the right common femoral vein should start right -- if this were a continuation, if you do that continuation, you see -- you start to run into these little black structures here, gray structures here. Those are the clips you saw on the [ordinary x-ray which did not show the veins]. . . . And if . . . I were to draw the vein, it would go right over those clips. So those clips are essentially placed right where the obstruction occurred and that's how I essentially based my opinion from initially the report and then subsequently from this I think very telling venogram.
Defendant's expert, Robert Shack, M.D., also a general and vascular surgeon, reviewed the medical records, films, reports, and conducted a physical examination of plaintiff. Explaining that deep vein thrombosis is a well-recognized complication of surgery, he concluded that defendant did not deviate from accepted standards of medical care when he repaired the bleeding. Referencing the same October 2002 venogram, Shack refuted the position taken by Nitzberg. He concluded that, despite the presence of a nearby clip, plaintiff's femoral vein remained intact, undamaged by defendant's surgical techniques. Shack testified:
[R]ight here is the clip that was referred to by Dr. Nitzberg as being the offensive clip; the idea being that the remaining vein is down here, this clip occluded it . . . or damaged it, compromised it, . . . so as to have precipitated the clot going down her leg . . . .
If you look carefully here, and particularly in this projection, the column of dye obscures the clip because it goes further distal to the clip; that is down towards the foot. If the clip is the offending item, the column of dye should be up here, proximal to it.
[Y]ou don't have to be a doctor to see that the . . . clip is obscured . . . by the dye. If the clip were offensive, the dye column would be here, and you want to see the clip simple -- simply floating in space because it would -- there would be no contrast around it, or certainly half. It would have to stop here if it were occluding.
The other thing about the clip, if you notice the clip is placed in the direct line of the vein. If the clip were placed like this, it might be more of a question . . . . In order to be able to clip the vein and compromise it, if it's, say overlying it like this, you would literally have to pull the vein like this, tent it up and -- clip it. That's very difficult to do in the deep femoral vein in that location without significant mobilization.
Moreover, Shack opined that based on the patient's history of hypercoagulability, there was a greater tendency for her to develop a clot.
The jury returned a verdict of no cause for action, voting seven to one that defendant had not deviated from accepted standards of medical practice. Plaintiff's motion for a new trial was denied by the trial judge, without oral argument.
A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977) and a jury's evaluation of the disputed factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).
A trial court's obligation on a motion for a new trial requires weighing the evidence, "tak[ing] into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible 'feel of the case' which it has gained by presiding over the trial." Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). A jury verdict will not be set aside "'unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses,'" it clearly appears that there was a miscarriage of justice under the law. Dolson, supra, 55 N.J. at 6-7 (quoting Rule 4:49-1(a)).
In this matter, the jury was presented with not only the testimony of plaintiff and defendant, but also the divergent positions offered by plaintiff's and defendant's expert witnesses. Each expert spoke at length after review of similar evidence and each offered his opinion on the cause of plaintiff's deep vein thrombosis. As noted by the trial judge in denying plaintiff's request for a new trial:
The plaintiff presented credible expert testimony . . . indicating to the jury that the defendant doctor had clearly deviated from accepted standards of medical practice and gave reasons why he thought that that had happened. Defense produced an expert on the same question, with a contrary indication.
Through the efforts of plaintiff's counsel and defense counsel, all of the relevant facts were presented clearly to the jury. Each expert presented a credible version of what he felt was the standard of care appropriate in such cases, and explained why he thought that the doctor had or had not deviated from that standard.
Neither expert's statement of the standard of care nor their expression of an opinion concerning the failure to adhere to that standard or the adherence to the standard, in and of itself, is incredible, unworthy of belief. Quite the contrary in each case. The jury was presented with two sides of the same picture and it was for them to determine which expert to accept and which to reject.
I cannot say as a matter of law that a reasonable fact finder could not have adopted the findings or the suggestions of the defense expert, rather than the plaintiff's expert. This was clearly a question or a case, rather, where competent expert opinion was presented by both sides, in a comprehensible manner, and that the jury made a decision on that question.
Based on our review of the record and the applicable law, we are convinced, as was the trial court, that the jury verdict was grounded in the evidence and did not constitute a miscarriage of justice. The jury reasonably could have found defendant's testimony that he did not clip the femoral vein, and Shack's opinion that defendant did not deviate from accepted standards of medical care were credible. Plaintiff's additional contentions to the contrary are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(B),(E).