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Alves v. Rosenberg

June 13, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0705-04.

The opinion of the court was delivered by: Parrillo, J.A.D.



Telephonically Argued May 13, 2008

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

In this medical malpractice action, plaintiff Kenia Alves appeals from a final judgment entered on a jury's no cause verdict in favor of defendant Paul H. Rosenberg, M.D. Because we find the trial court erred in allowing defense counsel to read extensive portions of the non-testifying defendant's deposition testimony into the record, we reverse.

By way of background, on December 3, 2001, plaintiff, a twenty-seven-year-old Brazilian citizen, consulted with defendant, a board-certified plastic surgeon, about laser hair removal in her pubic and lower abdominal areas. According to plaintiff, she informed defendant of her low tolerance for pain and of her keloid scar, after which defendant documented plaintiff's skin sensitivity in his records. After being assured that a topical gel would relieve any associated pain, plaintiff scheduled the procedure for the following day. She was given a cream to be applied prior to the procedure to numb the area that would be treated.

The next day, plaintiff signed a consent form indicating that she had "been informed that scarring, blistering, purpura, hypopigmentation or hyperpigmentation are possible risks and complications." During the ensuing procedure, plaintiff complained of pain several times and in response to her complaints, defendant blew cold air through a tube and lowered the laser's frequency.

Immediately after the procedure, plaintiff was still in pain and noticed "bubbles" on her skin. Defendant escorted her back to the procedure room where he administered additional "forced air cooling," and applied ice and aloe vera gel to the affected area. Plaintiff, however, continued to experience severe pain, so defendant administered a shot. Thereafter, she slept for about three hours at the office. When she awoke, defendant gave plaintiff a two-day supply of Toradol, a pain and anti-inflammatory medication, as well as aloe vera gel for the burns.

The pain persisted upon her return home. On a follow-up visit to defendant's office on December 6, defendant noted first-degree burns and dark circles. On a subsequent visit one week later, defendant noted plaintiff was "doing well. No more pain in bikini area. Spotty areas of hyper[-] and hypopigmentation, especially at periphery."

Plaintiff complained of pain for about two weeks after the procedure. During that time, she was unable to wear underwear or walk without discomfort. She consulted a dermatologist, Dr. Ira Guterman, who noted "scattered superficial crusting with pigmented" and "superficial laser burns." Guterman diagnosed plaintiff with first degree burns and prescribed Bactroban antibiotic ointment. At a follow-up visit on December 21, 2001, Guterman noted loss of pigmentation, but "no crusting" and that the "laser burns [are] much improved."

About two months after the procedure, plaintiff returned to work as a "go-go dancer." Although she was able to wear both one- and two-piece bikinis while dancing, she had modified her style of dress in other ways to hide her scars. For instance, she no longer wears bikinis "from Brazil" or low-cut jeans or blouses and wears make-up to cover-up the marks.

Plaintiff sued defendant in medical malpractice for injuries received during the hair removal procedure. She later sought a stay of the proceedings because of visa complications that delayed her return from Brazil. The denial of this motion resulted in the grant of defendant's motion for summary judgment based on plaintiff's failure to file an expert report within the discovery period. We reversed both orders and remanded the matter with instructions to conduct a case management conference and issue a case management order with a discovery end date. Alves v. Rosenberg, No. A-5574-02T5 (App. Div. April 19, 2006) (slip op. at 7-8).

Due largely to plaintiff's unavailability and defendant's background*fn1 , the trial proceeded without live witnesses. All testimony was presented via either videotape or the reading of depositions. Thus, in addition to plaintiff's own de bene esse videotaped testimony, plaintiff also offered the videotaped deposition testimony of her expert, Dr. Richard Marfuggi, a board-certified plastic surgeon. Marfuggi opined that defendant deviated from the standard of care in his treatment of plaintiff in several ways, by failing to: (1) take into account her previous history of poor scarring from other injuries; (2) conduct a "spot test"; (3) "stop and/or alter the settings of the laser in light of the patient's expression of experiencing severe pain during the procedure"; and (4) properly evaluate the burns suffered by plaintiff inasmuch ...

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