On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0132-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Plaintiff Dawn Mohrle appeals from a jury's defense verdict. Plaintiff's action filed against defendants Steve Ho Suk Kim, M.D., and his employer, the University of Medicine and Dentistry of New Jersey (UMDNJ), was for alleged medical negligence arising after Dr. Kim performed a breast biopsy on plaintiff. Plaintiff asserted Dr. Kim excised too much breast tissue and improperly closed the incision, resulting in scarring and deformation of her breast. On appeal, plaintiff argues the trial court erred in allowing the defense to use a medical text in the cross-examination of her expert on the proper method of closing a deep breast incision and in denying her motion for a new trial. We affirm.
On February 25, 2005, Dr. Kim performed an excisional left breast biopsy to ascertain the nature of microcalcifications, possibly indicative of breast cancer. In an excisional biopsy, the surgeon makes an incision in the skin and removes all or part of the abnormal breast tissue for examination under a microscope. Dr. Kim extracted roughly forty-eight cubic centimeters of breast tissue, which he confirmed was benign. Plaintiff alleged an "excessive amount of breast tissue was excised [during the procedure,] and the incision was closed improperly leaving plaintiff with a severe cosmetic deformity of her breast."
A four-day jury trial began on March 25, 2008. Plaintiff's breast surgeon expert, David Befeler, M.D., testified that Dr. Kim deviated from accepted medical standards and practices, as he needed to excise only eight cubic centimeters of breast tissue for the biopsy, and he failed to suture the deep breast tissue when he closed the incision.
During cross-examination, Dr. Befeler stated it would be inappropriate for a doctor, performing an incisional breast biopsy, to suture only the epidermis and subcutaneous tissue layers. He opined it was necessary to also suture the deep skin layers because "the underneath breast tissue [gets] fastened to the pectoralis," which is the chest muscle. Dr. Befeler stated that in forty years of performing breast surgery, he had "never studied or seen in a textbook or learned" that it would be appropriate not to suture the deep tissue layers when closing a breast incision following a biopsy. Cross-examination continued on that issue as follows:
Q: All right. Now, are you familiar with a textbook that your attorney just happened to have on the table this morning and I looked at, Diseases of the Breast, Second Edition, by Jay Harris, Mark Litman, Monica Morrow, and Ken Osmond ?
A: I have no idea what's in it?
Q: You don't? You've never heard of this?...
A: I've heard of it, but I'm not familiar with it.
Q: And how have you heard of it?
A: Because I'm familiar with it ...