On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-282-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiffs Gail H. Cheety and her husband, Albert Cheety, appeal from a judgment of no cause for action in a medical malpractice matter. The jury determined by a vote of 6-1 that defendant Nadine Pappas, M.D. deviated from the applicable standard of care, but it further determined that the deviation did not increase the risk of harm to the patient plaintiff, Gail H. Cheety. Thus, the jury awarded no damages. The judgment of no cause for action was entered and filed by the trial court on January 31, 2007, and this appeal ensued. We affirm.
In early 2002, Mrs. Cheety became concerned with changes to the skin on her right breast. On February 21, 2002, she saw her gynecologist, Dr. Azin Khanmohamadi, to address her concerns. Dr. Khanmohamadi confirmed that Mrs. Cheety's breast did indeed exhibit skin changes. According to the patient, these skin changes had originated in December 2001, and they became more pronounced when she was menstruating. Dr. Khanmohamdi diagrammed the changes and described the skin's appearance as having "peau d'orange." Dr. Khanmohamadi also referred Mrs. Cheety to defendant, Dr. Nadine Pappas, a breast care specialist.
Dr. Pappas examined Mrs. Cheety on March 5, 2002. On that same date, Dr. Pappas sent a letter to Dr. Khanmohamadi. The letter indicated that the right breast flushing was not problematic and that Mrs. Cheety required no additional follow-up examination, unless some other condition developed. Dr. Pappas included a copy of a diagram she drew of Mrs. Cheety's right breast, which looked quite similar to Dr. Khanmohamdi's original diagram.
In November 2002, Mrs. Cheety went for her annual mammogram. Upon review of the mammogram, the radiologist's office contacted Dr. Khanmohamadi to report suspicious findings. Later in November 2002, Dr. Khanmohamadi diagnosed Mrs. Cheety with inflammatory breast cancer.
On January 12, 2004, Mrs. Cheety and her husband filed a medical malpractice complaint against Dr. Pappas and Dr. Pappas' employer, Summit Breast Care, LLC. The complaint alleged that defendants failed to render care with the skill ordinarily used by medical doctors and that defendants "deviated from accepted standards of medical care in not properly following up in treatment of plaintiff's complaints involving her right breast, thereby delaying a diagnosis." The complaint further alleged that "[t]his delay in diagnosis had significant impact upon the treatment, prognosis, and well-being of GAIL H. CHEETY." The second count of the complaint asserted on behalf of plaintiff Albert Cheety a claim for loss of consortium and services. The matter went to trial on January 10 and on January 17, 2007, the jury returned its verdict.
At trial, the parties presented testimony from several medical witnesses. A summary of the testimony of those witnesses is provided below.
Defendant, Dr. Pappas, the treating physician, was called as a witness by plaintiffs. She testified that she began practicing medicine in 1994. At the time of Mrs. Cheety's visit on March 5, 2002, Dr. Pappas was in private practice, specializing in diseases of the breast. After reviewing Mrs. Cheety's chart and prior to the first examination, Dr. Pappas narrowed the likely problem to three possibilities: (1) inflammatory breast cancer, (2) infection, or (3) a dermatological change.
On the date of Mrs. Cheety's visit, Dr. Pappas ruled out inflammatory breast cancer and infection. She drew a diagram of Mrs. Cheety's breast, indicating "blanching around the right nipple." Dr. Pappas denied seeing any peau d'orange, which she testified occurs when "the lymphatics become so blocked, . . . there's something in those lymph channels that's blocking the fluid so they become so engorged that it actually ripples up and it looks like the skin of an orange." Dr. Pappas noted that Mrs. Cheety's breasts appeared asymmetrical, with the right breast appearing fuller than the left. She found no evidence of breast cancer.
Describing the impressions of the March 5, 2002 examination more fully, Dr. Pappas testified:
I actually have a fairly good recollection of that visit. Most because of, you know, my impression going into the room and then what I actually found was quite a relief for me. So I do recall that I told her that I didn't think that this pinkish discoloration or pigment change on the lower part of her breast was anything to be concerned about. It didn't really look like a rash, I didn't think she needed a skin biopsy or anything from a dermatologic point of view. That the symptoms of the tenderness and the changes with her period were hormonally related. And I didn't see anything that was a problem and to, you know, be reassured and to let me know if anything changed, and that we were here for her.
On November 22, 2002, the date of Mrs. Cheety's follow-up visit to Dr. Pappas, "the situation was dramatically different." The doctor noticed "that the area of erythema ha[d] worsened." Dr. Pappas was of the opinion, however, that the worsened area was wholly independent of the area examined on the March 5, 2002 visit. Although Dr. Pappas testified she was absolutely comfortable that there was no diagnosable breast cancer as of March 5, 2002, she acknowledged that there was probably an underlying cancer developing. She elaborated as follows:
Okay, in regards to inflammatory breast cancer, we talk about that it has only about a three month window where it goes from nothing to full blown.
Now, from point zero to where you see nothing you know that there has to be cancer cells transforming in the breast. It doesn't -- all of a sudden you don't erupt with five million breast cancer cells. There are a cell or two cells that begin the transformation process. And that occurs months to years before actually you would see a breast cancer.
Now, inflammatory breast cancer is extremely aggressive, so to say that inflammatory breast cancer is present ten years before it's seen, there's nothing, no literature to substantiate that. But for your typical average breast cancer that presents as a lump, yes, we know that can take six, even ten years before you can feel that lump.
So six to ten years prior to that lump there were breast cancer cells there. So yes, I would say that there were cancer cells present in that breast in March, but they were beginning to transform, and that it was not in any way diagnosable or detectable.
In November 2002, Dr. Pappas recommended an open surgical biopsy on the right breast in order to analyze not only the skin but also the tissue underneath. The results of that biopsy confirmed inflammatory breast cancer for which Dr. Pappas recommended a course of aggressive chemotherapy first, then possible surgery.
At trial the doctor explained that inflammatory breast cancer is a very rare and very unique form of breast cancer. It does not normally present as a lump or a mass. "It presents with a swollen red, very red, very edematous or what we call thickened breast where the skin can even look ripply." Comparing inflammatory breast cancer to typical breast cancer, Dr. Pappas stated:
Your normal or typical breast cancer that you would read about basically presents as either a mass which a physician or the woman herself can feel, or a finding on the mammogram where you can see either a distortion of the tissue, a cluster of calcium deposits that appear abnormal, or something in that nature where it seems to be confined to one area.
Dr. Pappas gave her reasons for not conducting further tests prior to November 2002. She did not perform a biopsy because "[t]here was no focus or abnormality so you would most likely just get back normal breast tissue." Also she explained, "If you do random biopsies, . . . you're just going in there and sticking away or cutting . . . and taking out pieces of tissue, you have no knowledge whether you're in the right place or not. So then you're subjecting that person to an invasive procedure without being sure that your information is going to ever be usable." She did not conduct a magnetic resonance imaging (MRI) of the breast because it was a "very limited technology". The doctor indicated she would have performed a mammography, ultrasound and probably a biopsy before she would have ordered an MRI. Dr. Pappas further explained that she did not request a repeat mammogram in March 2002 because Mrs. Cheety had just received one about four months earlier.
At the conclusion of Dr. Pappas' testimony, one of the jurors asked "if cancer was present in March '02, would anything have been indicated in a blood test?" The doctor answered, "No. There is no blood test currently available to detect cancer in its very early stages." Another juror wanted to know whether Dr. Pappas ever had other patients with inflammatory breast cancer and, if so, at what stage it was diagnosed. Dr. Pappas indicated she had several patients with inflammatory breast cancer. She testified that "by definition when you have inflammatory breast cancer it is considered a stage three. And the staging is determined because of the skin involvement of the tumor, and because there's usually many lymph nodes involved. So it's automatically, if you have inflammatory cancer, it's automatically stage three."
The testimony of Dr. Singer, plaintiffs' oncology expert, was presented via recorded videotape. Dr. Singer has been in private practice since 1973. He is currently on staff at the Norristown Regional Cancer Center where about seventy percent of his practice is devoted to medical oncology. He was called to the stand to testify regarding Mrs. Cheety's condition, not to opine whether Dr. Pappas deviated from accepted medical standards. In preparation for his testimony, Dr. Singer reviewed Mrs. Cheety's treatment records, depositions and expert reports. At the time treatment began for Mrs. Cheety, the doctors believed there to be total nodal involvement. She had stage three B inflammatory breast cancer with a ninety to ninety-five percent probability of recurrence even with aggressive treatment.
Dr. Singer testified that "the discomfort and fullness she felt in the breast and the changes in the skin were a sign of the underlying breast cancer, but not an inflammatory breast cancer." The original skin changes of which she complained to Dr. Khanmohamadi could have been related to an underlying breast cancer, not necessarily one of the inflammatory nature. According to Dr. Singer, any type of cancer can cause the change of the skin referenced as peau d'orange "the thought is the growth of the cancer inside the breast pulls the skin in and causes changes on the surface of the skin." Although Dr. Singer agreed that inflammatory cancer arises suddenly and usually takes only a few months -- even two or three weeks -- to develop, he believed that Mrs. Cheety's prognosis would have differed had her cancer been diagnosed in March 2002. In his opinion Mrs. Cheety had breast cancer in March 2002 but not "what we would call inflammatory breast cancer."
Dr. Singer expressed the opinion that if Mrs. Cheety had been biopsied in March 2002, they would have found stage two B cancer and she would have had about a seventy percent probability of cure. He testified:
I believe at that time they would have biopsied the breast; they would have found stage 2b breast cancer. What I mean by 2b is that she would have had a tumor somewhere between two and five [centimeters] in size with or without a limited number of lymph nodes, less than four, and that would put her at a stage 2b. And, generally, with aggressive chemotherapy -- she would have been treated with surgery first, which is the normal route, and then chemotherapy -- I believe her prognosis would have been very good, around 70 percent probability of cure, with surgery, adjuvant chemotherapy, and radiation therapy, whatever treatment was necessary at the time.
Dr. Singer agreed that if Mrs. Cheety had had a diagnosable cancer in March 2002, she still would have had a mastectomy, chemotherapy, radiation and essentially the same course of treatment she underwent following her diagnosis in November 2002.
Plaintiffs called Dr. Peterson as a witness as well. He was recruited by Beth Israel Medical Center in New York City to develop a breast cancer program. He spent ten years at that hospital, and his practice was ninety-eight percent breast cancer related. When he left in 2004, he became Chief of Breast Surgery and Co-director of Breast Cancer Services at Hackensack University Medical Center in New Jersey. He left that post in 2006 to develop a comprehensive cancer center in the Virgin Islands.
Dr. Peterson thoroughly reviewed Mrs. Cheety's medical history. He indicated that "specifically when someone uses the term peau d'orange the thing that usually comes up for you as a cancer specialist or breast cancer specialist would be whether or not the patient has inflammatory breast cancer." The combined symptoms of an enlarged breast and the skin color change signified the "possibility that there ...