On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4036-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Gilroy and Simonelli.
In this medical malpractice action, plaintiffs Deborah Northup and Clifford Northup, her husband, appeal from the September 17, 2008 order that dismissed their complaint based on a jury verdict of no cause of action. They also appeal from the order of October 24, 2008 denying their motion for a new trial. We affirm.*fn1
On December 21, 2004, plaintiff filed a complaint against defendant Gregory Braccia, M.D., a board-certified pain management specialist, alleging that defendant had deviated from the required standard of care by recommending and performing a discogram to determine the source of plaintiff's pain.*fn2
Plaintiff contended that defendant's negligence damaged her spinal nerves, causing Reflex Sympathetic Dystrophy (RSD), a chronic pain syndrome. However, plaintiff did not claim negligence in the manner defendant performed the discogram.
The parties tried the matter to a jury on diverse dates between September 8, 2008, and September 17, 2008. On the last day of trial, the jury found defendant not negligent, that is, defendant had not deviated from the standard of care required of pain management specialists in recommending and performing the discogram. On September 17, 2008, the trial court entered a confirming order dismissing plaintiff's complaint. On October 7, 2008, plaintiff filed a motion for a new trial. The court entered an order supported by an oral decision denying the motion on October 24, 2008.
Approximately twenty-five years prior to August 2002, plaintiff had undergone a fusion to repair a herniated disk at the L4-L5 or L5-S1 level. Plaintiff returned to the workforce as a waitress approximately one year later. On August 31, 2002, plaintiff, then a fifty-two-year old nurse's aide, injured her back while lifting a patient at a nursing home facility. Immediately following the incident, plaintiff received emergency room treatment at a nearby hospital. On September 4, 2002, the employer's workers' compensation carrier referred plaintiff to a physician for an examination. The carrier's physician recommended that plaintiff be examined by an orthopedic physician and undergo a Magnetic Resonance Imaging (MRI) study of her lower back. Plaintiff underwent the MRI on September 12, 2002. The MRI disclosed a "focal disk herniation at the L5-S1 level centrally and to the right."
On October 9, 2002, plaintiff next saw Dr. George Glenn, Jr., an orthopedic surgeon. Dr. Glenn provided plaintiff with two prescriptions, one for physical therapy and one to obtain a "lumbar epidural steroid injection" to calm down the inflammation at the L5-S1 disk level.
Defendant first saw plaintiff on November 1, 2002. Following his examination, defendant noted in his records that he was planning to perform the epidural injection, but that if the epidural injection was unsuccessful, he would give consideration to performing a provocative discogram. Defendant administered the epidural injection on November 11, 2002. The procedure exacerbated plaintiff's pain, causing her to stay in bed for the next five days.
On December 3, 2002, Dr. Glenn reported to plaintiff's workers' compensation insurance provider that he had "failed to notice any improvement in spite of any form of treatment" and plaintiff was "not in any way a candidate for surgery." Dr. Glenn also explained to plaintiff that she was "not a candidate for any type of invasive procedures," that she had "reached her maximum medical improvement." The doctor's final diagnosis was "[p]robable disk herniation at L5-S1 level with residual radiculopathy, sensory only."
On December 6, 2002, plaintiff returned to Dr. Glenn's office where she was examined by Dr. Glenn's associate, Dr. Robert Taffet. Plaintiff complained to Dr. Taffet that she had attempted to return to work that day, but was unable to do so because the "pain in her back and pain radiating down the right leg was too severe." Dr. Taffet advised plaintiff that she should try a second epidural injection, and "to try to stay away from surgical intervention and try to stick with conservative management for [the problem]."
On December 19, 2002, defendant again saw plaintiff. Defendant recommended to plaintiff that he perform a discogram "to gather more information." According to defendant, immediately following his examinations of plaintiff on November 1, and December 19, 2002, he telefaxed copies of his examination notes to Dr. Glenn, including his statements that a discogram may be required.
Defendant testified that although the MRI had indicated an abnormality at the L5-S1 level, he did not believe the MRI was conclusive because a "disk can be abnormal appearing on [an] MRI and not hurt [and] ...