April 16, 2008
JAMES MARZANO, PLAINTIFF-RESPONDENT,
KI HYUN HAN, M.D., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3385-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Defendant Dr. Ki Hyun Han appeals from a judgment entered after an August 25, 2006, jury finding of liability for medical negligence. The jury found that defendant had (1) deviated from the accepted standards of medical practice and (2) failed to obtain from plaintiff James Marzano the appropriate informed consent. As a result of defendant's acts and omissions, the jury found the risk of harm posed by plaintiff's pre-existing condition was increased. Thus, it awarded plaintiff damages in the amount of $1,800,000. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff was a musician who first visited Dr. Han for medical treatment in 1990, concerning problems with his right ear. After one follow-up visit in 1990, defendant did not treat plaintiff again until 1998. At that time, plaintiff continued to complain of pain in his ear and of hearing loss. The patient returned to defendant's office in July 2000. At that time, plaintiff's eardrum was severely retracted and red. Eventually, a discharge began to emanate from the ear. After a November 21, 2000 visit, defendant ordered a Computed Tomography (CT) Scan. That scan revealed a possible cholesteatoma, an ingrowth of skin near the eardrum. Despite the findings of the CT Scan, defendant did not recommend surgery.
Plaintiff returned to Dr. Han in 2002 with his ear still discharging fluids. When the patient saw Dr. Han in 2003, his ear was filled with debris and was covered in red granulated tissue. On March 13, 2003, Dr. Han ordered another CT Scan. For the first time, on March 18, 2003, defendant discussed with plaintiff a surgical option. Prior to surgery, the doctor discussed the complications related to a mastoid surgery, namely "[p]ossible injury to the facial tissue, possible injury to brain, recurrence of disease, hearing may have gotten worse, and dizziness." Plaintiff accepted the surgical option, and the procedure was performed on April 3, 2003. During the surgery, defendant found a cholesteatoma. Post surgery, plaintiff returned to the doctor with "slight weakness of his right face."
On April 20, 2004, plaintiff filed a complaint against defendant. In that complaint, plaintiff alleged that the delay in diagnosis resulted in almost complete deafness in his right ear, loss of balance, tinnitus and facial weakness. As a musician, he claimed these injuries were particularly debilitating. In his answer, defendant denied liability to plaintiff and maintained that at all times he acted reasonably and within the standard of care.
On November 23, 2005, the trial court entered a consent order extending discovery. Under that order, plaintiff's expert report was due on or before December 5, 2005 and defendant's expert report was due on or before January 20, 2006. The new discovery end date was February 28, 2006. According to a certification from counsel for defendant, plaintiff served his expert's report on November 7, 2005, and defendant served expert reports on February 27 and 28, 2006; however, defendant then moved to extend the time for discovery and plaintiff cross-moved to bar defendant's expert's reports. On March 17, 2006, the court granted plaintiff's cross-motion and barred the testimony of defendant's expert, Dr. James Cinberg, because the court found the report constituted a net opinion.
On March 29, 2006, defendant served an amended expert report, which plaintiff moved to bar due to late service. By order on May 1, 2006, the court barred the amended expert report proposed by defendant as out of time; that order also specifically provided that the expert, Dr. Cinberg, could not testify at the time of trial. A motion by defendant for reconsideration of this matter was likewise denied by the court on June 9, 2006.
The trial date had first been set for June 6, 2006, but the matter did not proceed to trial until August 21, 2006. On plaintiff's in limine motion, made in anticipation of defendant taking the stand, the court ruled that Dr. Han could not testify as to the applicable standard of care. After hearing all the proofs, the jury returned its verdict in favor of plaintiff, which the court memorialized by its final judgment on September 13, 2006. Defendant filed a motion for a new trial and stay of the judgment. On October 13, 2006, the trial court denied the motion for a new trial, but issued an order staying execution of the judgment pending the results of this appeal, which was filed on November 8, 2006.
On appeal, defendant asserts the following points for our consideration:
POINT I: THE TRIAL COURT IMPROPERLY PRECLUDED DEFENDANT FROM TESTIFYING ON HIS OWN BEHALF AS TO THE STANDARD OF CARE REQUIRING A NEW TRIAL.
POINT II: THE TRIAL COURT IMPROPERLY PRECLUDED DR. CINBERG'S TESTIMONY AT TRIAL, REQUIRING A NEW TRIAL ON ALL ISSUES.
POINT III: THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO HEAR TESTIMONY REGARDING PLAINTIFF'S INABILITY TO PLAY AND PERFORM MUSICAL INSTRUMENTS AND TO EARN A LIVING THEREFROM IN THE ABSENCE OF EXPERT TESTIMONY PROVIDING A FACTUAL BASIS FOR THAT DETERMINATION.
POINT IV: A NEW TRIAL ON ALL ISSUES IS WARRANTED.
Because those points do not address the jury's finding of lack of informed consent, plaintiff contended in his respondent's brief that defendant had entirely waived his right to appeal the jury verdict. To answer that contention, defendant asserted the following additional point in his reply brief:
POINT V: INFORMED CONSENT DOES NOT SERVE AS AN INDEPENDENT BASIS OF LIABILITY TO JUSTIFY THE JURY'S VERDICT.
Generally, where an issue is not briefed, it is deemed waived by the party. See Jefferson Loan Co., Inc. v Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008). This court is "not obliged to search for legal authority [to] support" a position not articulated by appellant. See Seacoast Builders Corp. v. Rutgers, the State Univ., 358 N.J. Super. 524, 554 (App. Div. 2003). However, even if an issue is not expressly mentioned in an appellant's point headings, we may still rule on an argument discussed within a brief. See Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div. 2002). Also, we may address an unbriefed issue if it will avoid an unjust result. See Otto v. Prudential Prop. and Cas. Ins. Co., 278 N.J. Super. 176, 181 (App. Div. 1994) (the court chose to rule on an issue not mentioned in appellate briefs where the issue was part of the record and plaintiff was due to receive an unfair windfall if the court considered the issue as waived), superceded by statute, N.J.S.A. 39:6A-4.3, as recognized in, David v. Gov't Employees Ins. Co., 360 N.J. Super. 127, 136 (App. Div. 2003).
This action was filed, citing separate concepts of liability of medical malpractice: deviation from a standard of care and lack of informed consent. The jury questionnaire, as agreed by counsel for both parties, asked the jury four questions. First, "[d]id the defendant, Dr. Han, deviate from accepted standards of medical practice?" Second, "[d]id Dr. Han fail to adequately advise Mr. Marzano of surgery as an option for the treatment of his cholesteatoma prior to March 2003." Third, the jurors were instructed if they answered either or both of the first two questions in the affirmative, they were to determine if "Dr. Han's deviation increase[d] the risk of harm posed by plaintiff's pre-existing condition." Finally, they were asked to assign damages related to each of four categories of harm. The court did not charge the jury to award damages differently if they found defendant guilty of deviation from the standard of care rather than failing to obtain informed consent.
The two bases of recovery are closely intertwined. See Matthies v. Mastromonaco, 160 N.J. 26, 40 (1999); Baird v. Am. Med. Optics, 155 N.J. 54, 70-71 (1998); see generally Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div 1999) (recognizing that deviation from the standard of care and failure to obtain informed consent are sub-groups to the broad claim of medical negligence.). Accordingly, we decline to declare that defendant is procedurally estopped from challenging the issue of informed consent because it was not separately set forth in its initial appellate brief. Defendant's alleged delay in diagnosing or treating the cholesteatoma would have necessarily affected the disclosure of information to plaintiff concerning available options and risks associated with the condition and the surgery. Had the doctor diagnosed plaintiff differently, the information imparted to plaintiff might have changed. In the interests of justice and because the informed consent issue was addressed generally in defendants' reply brief, we will deal with this appeal on the merits.
I. DEFENDANT TESTIFYING ON HIS OWN BEHALF
Defendant asserts that he is entitled to a new trial due to the court's decision to preclude him from offering opinion testimony on the applicable standard of care. He argues that a comment by the motion judge in a pre-trial ruling gave him a false expectation. In particular, at a June 9, 2006 hearing on defendant's motion for reconsideration of the ruling that barred Dr. Cinberg's expert report and future trial testimony, the judge, who was not the eventual trial judge, remarked you have your own expert who can testify.
You can have your expert sitting by your side and giving you ammunition to cross-examine the plaintiff's experts. This is not a case in which . . . I mean . . . I've seen malpractice cases tried without a defense expert, simply based upon the treating physician who can explain why he did what he did and why he did [sic] what he did was not malpractice. Or by virtue of cross-examination . . . of the plaintiff's expert.
We first note that "[n]othing . . . prevents a medical doctor from testifying as an expert in his own case." Carey v. Lovett, 132 N.J. 44, 64 (1993). Neither the rules of evidence, "nor case law prohibits a defendant from testifying as an expert on his own behalf if the defendant is otherwise qualified." Ibid. However, before a defendant can give expert testimony, the party must offer him as an expert, requiring, among other things, a copy of the report of an expert that states the person's opinion and the basis upon which that opinion was founded. R. 4:17-4(e).
Defense counsel took none of the essential procedural steps in order to designate defendant as an expert witness in his own behalf. On August 24, 2006, before Dr. Han was called to the stand to testify, plaintiff's counsel moved in limine to bar defendant's testimony entirely. During the colloquy that followed, defense counsel argued the doctor's testimony was relevant, but he stated it was not his intention to question the doctor as to the applicable standard of care. The court agreed that defendant doctor would be allowed to testify as a fact witness, but adding "the doctor certainly will not be able to testify and render any expert opinions, render any opinions about his performance of this procedure, his performance up to the procedure." This ruling is in accord with Mahoney v. Podolnic, 168 N.J. 202 (2001). In Mahoney, the Court upheld a similar ruling that a surgeon testifying as a fact witness would not be permitted to testify as to a deviation from an appropriate standard of care unless offered as an expert. Id. at 229.
As defendant's own counsel acknowledged to the trial judge "[t]here's no rule that requires that anyone have an expert in any case. None. I can go in and try a case without an expert. And  defendant has the opportunity to get up and sit on the stand and talk about . . . what he did, expert or not." Defendant had not been offered as an expert; he was not qualified as an expert; and therefore, he was not allowed to offer an opinion on whether he acted within the standard of care. As a fact witness, defendant did testify concerning his treatment of plaintiff. Defense counsel also had a full and unfettered opportunity to cross-examine plaintiff's expert. Under all circumstances, defendant did not detrimentally rely on the motion judge's comment. Indeed, defendant was allowed to try the case in the manner the court had anticipated at the June 9, 2006 hearing. We perceive no reversible error on this point.
II. THE PRECLUSION OF DR. CINBERG'S TESTIMONY AT TRIAL
Defendant next argues that the trial court improperly precluded Dr. Cinberg's testimony at trial. On March 17, 2006, Dr. Cinberg's proposed report was barred as a net opinion. We agree fully with that decision. The body of the first expert report consisted entirely of the following:
At your request, I have reviewed the following:
1. Records of Dr. Han, both office records and records of surgery at the Hospital Center at Orange for the plaintiff
2. Letters/notes from Jed Kwartler, MD
3. Reports of imaging studies of the temporal bone done 11/16/2001 and 03/13/2003 and MRI study of the brain and temporal bone done 04/15/2003
4. Hearing tests done: 08/24/90, 10/13/98, 12/05/00, 04/29/03, 11/05/03
5. Deposition of Dr. Han
6. Deposition of James Marzano
7. Plaintiff's answers to form A & A(1) interrogatories
8. Office note of Michael J. Solomon, M.D., PA
9. Office note of Joseph Ballaro, M.D., PA
10. Office notes from Consultants in Urology, PA to Dr. Joseph Ballaro
11. Letter and office record from Joel F. Lehrer, MD
Subsequent to my review of the above, my opinion is as follows. I do not believe there was a deviation from the standard of care by Dr. Han. I do not believe that the surgical treatment provided by Dr. Han deviated from the standard of care. I do not believe that the plaintiff incurred losses as regards the quality of his life and more specifically the losses of hearing, balance, and other symptoms, of which he has spoken in his deposition, as a result of Dr. Han's care, but rather whatever the degree of losses that he currently has are a result of the disease that he had had and the requirements and necessary deficits that accompany removal of such disease.
The opinion was little more than an assertion of his personal beliefs. In spite of the decision to bar the initial report, the court invited a further motion, indicating that defendant could submit a new report and submit an appropriate affidavit or certification "as to why [a better report] wasn't done earlier." The court explained that they could then deal with the issue in context.
On March 29, 2006, defendant submitted an amended expert report, but plaintiff moved again to bar it as a net opinion and as out of time. The amended report was quite similar to the first. It included an introductory paragraph explaining how this report was meant to "amplify [the] earlier analysis." It then listed the same documents that were relied upon in the first report, with the following amplification:
Subsequent to my review of the above and my awareness that I will not be provided any additional objective analysis of [plaintiff's] current status, my opinion is as follows. I do not believe there was deviation from the standard of care by Dr. Han. I do not believe that the surgical treatment provided by Dr. Han deviated from the standard of care. I do not believe that the plaintiff incurred losses as regards the quality of his life and more specifically the losses of hearing, balance, and other symptoms, of which he has spoken in his deposition, as a result of Dr. Han's care, but rather whatever the degree of losses that he currently has are a result of the disease that he had had and the requirements and necessary deficits that accompany removal of such disease. Also, Dr. Han was appropriately judicious in using his very seasoned judgment that what he saw in his office examination and the corollary CT investigation was best explained initially as a non-cholesteatomatous driven disease state.
I hold the above opinion for the following reasons. There were two most likely explanations for Mr. Marzano's presentation in 2001. The first explanation would be of a chronic otitis media/mastoiditis and the treatment for same would have been the treatment given at that time by Dr. Han. The second explanation would have been a middle ear cleft and epitympanum and aditus ad antrum cholesteatoma involving the ossicles. The treatment for that, in my personal experience, would have been precisely the surgical treatment that Mr. Marzano received subsequently from Dr. Han. The deficits that resulted from the surgery in 2003 are no different from the deficits that would have been present at the surgery be done [sic] in 2001. The explanation for my position is that if we accept the abnormalities of the 2001 imaging study as caused by cholesteatoma, then the minimally necessary surgical therapy was the same therapy that he received subsequently. [(the emphasized material appears verbatim in the original expert report).]
By order dated May 1, 2006, the court barred the amended expert report as out of time and further stated that Dr. Cinberg could not testify as an expert witness at the time of trial. A motion to reconsider that order was likewise denied by the court on June 9, 2006. Defendant asserts that these rulings by the trial court resulted in a miscarriage of justice. We disagree.
During the May 1, 2006 hearing, the trial court concluded that defendant had failed to come forth with a good explanation for the failure to have served a competent expert report in a timely manner. Plaintiff's attorney contended that defendant was required to establish extraordinary circumstances because the trial date had been set. The court noted, however, the supplemental report was submitted to plaintiff on March 27, whereas the trial notices, according to the judiciary computer system, were not generated and sent out until March 31. Ultimately, the court concluded that the defendant had failed to meet even the lower standard of "good cause" for a further extension of discovery. The court reasoned:
I'm satisfied under the circumstances that the discovery is long over. A trial date has been set. I'm not satisfied that just because the notice -- the trial notice went out on 3/31 and this -- and this report was served on -- was sent out -- and I don't know when it was actually received by -- by -- by [plaintiff's counsel]. It was -- it appears to be sent out on the 27th or the 28th of -- of March. The notice of the Court went out on 3/31 setting a trial date in June. I'm satisfied under the circumstances that -- that in order to allow this as a -- as an extension of discovery, which is -- which is implicit in -- perhaps in the -- in the opposition here.
And if I look at the factors involved in what -- what to do about exceptional circumstances -- and I rely upon the four factors of Vitti v. Brown (phonetic), 359 N.J. Super. 40, that's a Law Division 2003 case as approved by Rivers v. LSC Partnership (phonetic), 378 N.J. Super. 68 at Page 79, that's a 2005 Appellate Division case, there are four factors to consider why discovery has not been completed within the time and counsel's diligence in pursuing discovery during that time.
There is nothing -- there is nothing in Dr. Sinberg's [sic] 3/27/06 report that could not have been included in his -- in his 2/26/06 report. There is no basis, no reason for it, no explanation for it. And the fact that he thought there was going to be some other report doesn't justify it.
I'm satisfied that given this will be the only expert for the defendant, the additional discovery would be essential. But I'm also satisfied that the explanation for counsel's failure to -- to move along properly was simply not warranted and is --simply is not a really good explanation.
The -- the same -- if you look at the report, what's relied upon the same 11 items that are relied upon in the 2/26 report are the same that are relied upon in the 3/27 report. I realize there was some problem with the bottom of the page of some note in some office that very frankly was much to do about nothing, but I explained that that was the reason why I allowed the late report of 2/26 giving the defendant the benefit of the doubt under those circumstances in any event and given the fact that even though it was after the January 20th due date for the report under my discovery order it was before the 2/28 discovery end date.
Lastly, but not least, the other -- the fourth factor is the circumstances presented were clearly beyond the control of the attorney and litigant. Not so. And I also point out that -- that when the matter was heard back in March and back in -- in -- in -- when the motion was first heard nobody said anything about that Dr. Sinberg [sic] did not intend his report at all to be a report, only a tentative kind of informal statement. I don't know what it was if it wasn't a report. If that were the case then you might as well say there was never a report in February at all. And all we're talking about is a report in March two months late when the report was due on January 20th. [(emphasis added).]
The court filed its order the same day barring the amended expert report and barring Dr. Cinberg's testimony at trial.
We review a trial's court's disposition of discovery or calendar matters for any mistaken exercise of discretion. Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App. Div. 2007); Huszar v. Greate Bay Hotel & Casino, 375 N.J. Super. 463, 471-72 (App. Div.), certif. granted and remanded, 185 N.J. 290 (2005). We recognize that the decision to bar the report as untimely is a difficult one.
"[T]he absence of an arbitration or trial date at the time of the trial judge's ruling is of critical significance in a court's exercise of its discretion to extend discovery." Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). Here, the court operated under the impression that the trial date had not been set when the supplemental report was served. Nevertheless, the court declined to extend discovery further, noting the strictures of the rules frequently referred to as "Best Practices." "Best [P]ractices is the term used to describe the comprehensive rule changes, effective September 2000, designed to improve the efficiency and expedition of the civil litigation process and to restore state-wide uniformity in implementing and enforcing discovery and trial practices." Vargas v. Camilo, 354 N.J. Super. 422, 425 n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). "[A] major concern of the Best Practices rules was the establishment of credible trial dates by the avoidance of last-minute or 'eve of trial' adjournments by reason of incomplete discovery." Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003). This was precisely the concern expressed by the trial court.
The court analyzed the case under the four Vitti, supra, elements. 359 N.J. Super. at 51. The court could not justify a further extension of discovery proceedings almost a month after the discovery end date and a month preceding the trial date. The exclusion of the expert report was not dispositive of the claim as it was in Ponden, supra, 374 N.J. Super. at 11. The trial proceeded as scheduled, and defendant was given an opportunity to scrutinize the conclusions of plaintiff's expert on cross-examination.
Moreover, we find that the expert report, like its predecessor, was a net opinion.
Without an adequate factual basis, [an] expert's testimony fails as an impermissible "net opinion." Nesmith v. Walsh Trucking Co., 123 N.J. 547, 549, 589 A.2d 596 (1991). "The 'net opinion' rule appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); [Lanzet v. Greenberg, 126 N.J. 168, 186 (1991)]; Nesmith, supra, 123 N.J. at 549, 589 A.2d 596. The rule, moreover, often focuses "on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. An expert opinion "must be based 'primarily on facts, data or other expert opinion established at the trial.'" Id. at 525, 435 A.2d 1150 (quoting Evidence Rule 56(2), now embodied in N.J.R.E. 703). [Gardner v. Pawliw, 150 N.J. 359, 392 (1997) (Pollock, J., dissenting).]
When offering the testimony of a medical professional, it is exceedingly important that the "'medical-opinion testimony . . . be couched in terms of reasonable medical certainty or probability; opinions as to possibility are inadmissible.'" Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (1990) (quoting Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980)).
The amended report spoke of probabilities but did not offer a detailed factual basis for the probabilities. Dr. Cinberg noted that "[t]here were two most likely explanations for Mr. Marzano's presentation in 2001." He did not state that these were the only possibilities or that he was confident to a degree of medical certainty that his two proposed explanations were the only ones that applied to this case. Dr. Cinberg offered no analysis of plaintiff's symptoms and how a medical professional following the applicable standard of care would have interpreted those symptoms. Without this interplay between the facts suggested by plaintiff's condition and analysis steeped in medical knowledge, the opinion cannot pass muster. Therefore, it would have been appropriately precluded as a net opinion.
Keeping in mind the apparently harsh result, we note that defendant was given ample time to submit a valid expert report and was granted numerous extensions. As his own counsel admitted, it is not necessary for a medical malpractice defendant to present expert testimony. Therefore, we are satisfied there is no basis for us to disturb the trial court's exercise of discretion on this point.
III. TESTIMONY REGARDING EFFECT ON PLAINTIFF'S MUSICAL ABILITY
Finally, defendant claims that the trial court erred by allowing plaintiff to testify about the effect the ear injuries have had on his ability to play and to enjoy music. He asserts that such testimony should not have been given by a non-expert. We disagree.
Plaintiff made no claim of lost wages, and he did not seek compensation related to loss of livelihood due to his inability to pursue a musical career. Instead, the court properly instructed the jury that plaintiff was seeking damages "for pain, suffering, disability, impairment and the loss of enjoyment of life." Unquestionably, the loss of hearing can impact a musician's enjoyment of life. The jury could have plausibly considered this when deciding its damages award. Considering that fact, we are satisfied that plaintiff, as a lay person, could have properly testified regarding his hearing loss and its impact on his ability to play and to enjoy music. Such testimony was admissible and did not result in reversible error.
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