On appeal from the Superior Court, Appellate Division, whose opinion is reported at 397 N.J. Super. 184 (App. Div. 2007).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue is whether the trial court properly declined to provide a res ipsa loquitur charge to the jury.
Plaintiff Mohammed experienced lower back pain for many years. In 1999, he consulted with Dr. Joseph Zerbo, an orthopedic surgeon, who diagnosed as suffering from an acute foot drop and lumbar radiculopathy secondary to a disc herniation. An MRI revealed a disc protrusion at L4-L5, degenerative disc disease, and an annular tear. Dr. Zerbo recommended surgery. Seeking a second opinion, consulted defendant Dr. Sunil Singh, who is board-certified in internal medicine, neurology, and pain medicine. He suggested conservative treatment, including medication and therapy. When that did not provide relief, Dr. Singh recommended a thermal energy discectomy, which uses heat to shrink a bulging herniated disc, with the goal of reducing pressure on the nerve root and alleviating pain.
Dr. Singh performed the thermal energy discectomy in May 2000. According to Dr. Singh, he inserted dye into the affected disc, a procedure called a discogram, which showed a tear in the disc lining but no extruded disc fragment. He then inserted a radiofrequency needle into the disc to heat its contents so it would contract. Dr. Singh testified that he performed the procedure properly and did not touch or burn the nerve root. His discharge note reported that Khan experienced no immediate complications and moved with a steady gait. Khan, however, asserted that when he awoke from the procedure, he immediately experienced a foot drop and had trouble walking because his "feet did not work." He contended that he complained to Dr. Singh's staff, but they attributed his complaints to the aftereffects of anesthesia. Khan testified that within a few days after the procedure, his pain became intolerable and he told Dr. Singh that he could not move his foot. Dr. Singh testified that it was on that date that he first noticed Khan was exhibiting a foot drop.
A post-operative test revealed that the L5 nerve root was completely destroyed. Khan sued, alleging that Dr. Singh negligently performed the radiofrequency procedure and burned his nerve root. Khan's experts, Dr. Weisband and Dr. Brait, testified that the procedure was contraindicated because the discogram showed an extruded disc fragment, which creates a risk of permanently burning the nerve root. They testified that although they had not performed or been trained on the radiofrequency procedure, the medical community and literature recognize that the burning of a nerve root does not ordinarily occur in the absence of negligence. In Dr. Weisband's view, Dr. Singh deviated from the standard of care by performing the procedure, and that during the procedure, the nerve root was burned and destroyed, causing the foot drop. Dr. Brait also attributed the nerve root destruction to negligence in performing the procedure. Conceding that nerve root destruction ordinarily causes an immediate foot drop, Dr. Brait suggested that a delayed effect is possible.
Dr. Singh's expert, Dr. Ratner, had not been trained to perform radiofrequency, but his testimony demonstrated he was familiar with the medical literature. He testified that the reason the procedure is not advised when an extruded fragment is present is not because of risk to the patient, but because "the rate of improvement is lower." Dr. Ratner opined that the decision to perform the procedure was appropriate and Dr. Singh complied with the applicable standard of care. Dr. Ratner contended that Khan had a pre-existing "sick nerve root," which caused the foot drop that Dr. Zerbo had observed, and that the condition worsened because of normal chemical changes in the body. In Dr. Ratner's opinion, any invasive procedure in that nerve area could have caused irritation, resulting in a chemical reaction that could cause the nerve to shut down. He also testified that if Dr. Singh had burned the nerve root, Khan, who was not under general anesthesia, would have immediately experienced severe pain and loss of function. Dr. Ratner concluded that because Khan did not experience any such immediate effect, Dr. Singh could not have burned the nerve root. He agreed that burning the nerve root during the procedure would represent a deviation from the standard of care.
Although Khan's experts testified that the injury would not have occurred absent negligence, the trial court denied Khan's request to include a res ipsa loquitur charge in the jury instructions because Dr. Singh's expert explained that the same injury could have occurred in the absence of negligence. The jury returned a verdict in favor of Dr. Singh.
The Appellate Division affirmed in a split decision. Khan v. Singh, 397 N.J. Super. 184 (App. Div. 2007). The majority found that Khan's experts lacked the qualifications necessary to demonstrate that there was general agreement in the medical community that the injury would not have occurred in the absence of negligence. The majority also noted that the different theories about how the injury had occurred, only one of which would have been the result of negligence, made the res ipsa charge inappropriate. The dissenting judge contended that because all the experts agreed that burning the nerve root during the procedure would have been a deviation from the standard of care, the trial court should have given a conditional res ipsa charge, instructing the jury to first decide whether Dr. Singh had burned the nerve root and then, if it found that he did, instructing that the res ipsa doctrine permits an inference of negligence.
The Court denied Khan's petition for certification. 197 N.J. 15 (2009). This matter is before the Court based on the dissent. The only issue is whether the trial court properly declined to provide a res ipsa charge to the jury.
HELD: There was no foundational proof for the plaintiff's experts' testimony that it is common knowledge in the medical community that the injury ordinarily occurs only because of negligence. Although lack of experience alone does not necessarily preclude an expert from offering such an opinion, the experts did not point to any training, education, or medical literature as an alternate source of support for their common knowledge testimony. Even if the Court were to embrace the "conditional res ipsa" theory, application of that charge is not supported by this factual record.
1. The res ipsa loquitur doctrine, translated as "the thing speaks for itself," permits a jury to infer negligence in certain circumstances. In early cases permitting an inference of negligence by a medical professional, the asserted negligent act was a matter of common knowledge that an ordinary juror, without additional testimony, can recognize as an event that does not usually happen except through negligence. In Buckelew v. Grossbard, 87 N.J. 512 (1981), the Court expanded the potential for use of a res ipsa charge in medial malpractice cases where an expert testifies that the medical community recognizes that the injury does not ordinarily occur without negligence. The Court cautioned that the expert must provide evidential support for such testimony. The expert must be qualified to provide the opinion that the relevant medical community agrees that the injury ordinarily does not occur absent negligence. (pp. 12-17)
2. After Buckelew, the Appellate Division created a "conditional res ipsa" theory, which was first applied in an ordinary negligence case. Under that theory, if there is a factual issue as to how an accident occurred, and the res ipsa doctrine would apply under one version of the accident, the court gives a "conditional" instruction. The jury is directed first to decide how the accident happened and to consider res ipsa only if it finds the accident occurred in a manner that fits the doctrine. In 1998, the Appellate Division extended "conditional res ipsa" to a medical malpractice case. In Roper v. Blumenfeld, a dentist extracted a tooth, was unable to remove the embedded root, and referred the patient to an oral surgeon, who performed the procedure the next day. The panel found that the trial court erred by failing to provide a "conditional res ipsa" charge, concluding that if the jury accepted plaintiff's evidence that the numbness in her face began after the extraction but before the surgery, it could infer that the dentist was negligent. Other references to the "conditional res ipsa" theory have been rare. (pp. 17-25)
3. There is no doubt that Khan's experts were qualified to opine that the injury was caused by a burn during the procedure and that Dr. Singh was negligent in performing it. The question is whether, in light of Buckelew, the experts were qualified to testify that it is common knowledge in the medical profession that the injury ordinarily occurs only because of negligence. Although lack of experience alone would not necessarily preclude a common knowledge opinion, these experts pointed to no training, education, or literature as an alternate source of the support required for a res ipsa charge. Although Dr. Singh and his expert agreed that burning a nerve root would be negligent, they also provided a non-negligent explanation for the injury, amply demonstrating that it does not "ordinarily bespeak negligence." (pp. 25-29)
4. Even if the Court were to embrace the "conditional res ipsa" theory, a matter that the Court need not address in light of the failure of the foundational proofs required by Buckelew, it would not apply in this case. (pp. 30-33)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOENS' opinion.
The opinion of the court was delivered by: Justice Hoens
This matter, which is before the Court as of right based on the dissent filed in the Appellate Division, see N.J. Const. art. VI, ¶ 1(b); R. 2:2-1(a)(2), presents the Court with the opportunity to consider the contours of the doctrine of res ipsa loquitur. More specifically, it presents this Court with two questions about the appropriate application of that doctrine in the context of medical malpractice litigation.
First, we are called upon to define the qualifications needed for an expert to testify that it is common knowledge in the medical community that an occurrence does not ordinarily happen in the absence of negligence. Second, we are presented with the opportunity to consider the "conditional res ipsa loquitur" theory devised, and occasionally employed, by our Appellate Division.
In the final analysis, based on our response to the first question, the verdict in this matter cannot successfully be challenged, and we affirm it. Although we therefore leave for another day a determination of the second question, we nonetheless consider it briefly in order to express our concerns about its viability in the medical malpractice context.
The facts that are relevant to the issues before the Court can be summarized briefly. Plaintiff Mohammed Khan began experiencing lower back pain as early as 1983 and was treated for that pain from its onset until 1992. After the pain increased, he consulted with Dr. Joseph Zerbo, a board-certified orthopedic surgeon, in October 1999. Dr. Zerbo examined plaintiff and described his condition as "mild discomfort in the lower back." Significant to the issues raised on appeal, Dr. Zerbo also noted that plaintiff was suffering from a condition he identified as "an acute footdrop on the left." He diagnosed plaintiff as suffering from "lumbar radiculopathy, most likely secondary to [a]... disc herniation." An MRI performed at the time revealed a "disc protrusion at L4-L5," "degenerative disc disease," and an "annular tear." Dr. Zerbo recommended that plaintiff have surgery to remedy these conditions.
Because plaintiff wanted a second opinion before agreeing to have surgery, he consulted defendant Dr. Sunil Singh, who is board-certified in internal medicine, neurology, and pain medicine. Following his evaluation of plaintiff's history and condition, defendant suggested a different approach, consisting of medication, traction therapy, physical therapy, and epidural injections. When that conservative course of treatment did not provide plaintiff with complete relief, defendant recommended that plaintiff undergo a thermal energy discectomy. That procedure is designed to use heat energy to shrink a bulging herniated disc, with the goal of reducing the pressure exerted by the disc on the nerve root, thereby alleviating the pain.
Plaintiff agreed with this recommendation and defendant performed the procedure on May 10, 2000. According to defendant, he first inserted dye into the affected disc, a procedure called a discogram. The manner in which the dye spread demonstrated to defendant that there was a tear in the lining of the disc, but that there was no extruded disc fragment at the L4-L5 level.
Defendant then inserted a thin radiofrequency needle into the disc, to heat its contents so that it would contract and relieve the pressure on the nerve root. Defendant testified that he performed the procedure properly, and he specifically denied striking, touching, or burning the nerve root with the radiofrequency probe. Defendant's discharge note reported that plaintiff experienced no immediate complications during or after the procedure and that he "was ambulating well," moving with a "steady gait," and suffered "no new motor deficits."
Plaintiff's recollection was different from the observations recorded in defendant's discharge note. He asserted that when he awoke from the procedure, he immediately experienced a foot drop, that his left leg felt "extremely heavy," and that he had difficulty walking because his "feet [did not] work." Plaintiff contended that he complained to members of defendant's staff, who attributed his complaints to the aftereffects of the anesthesia.
Plaintiff also testified that within a few days after the procedure his pain became increasingly worse, to the point of being "severe" and "intolerable." At that point, he told defendant that he was in extreme pain and that he could not move his foot. Defendant testified that it was on ...