On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9172-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Coburn.
In this medical malpractice case, plaintiff, Marie Patricia Baumann,*fn1 alleged that defendant, Dr. Robin Levat, deviated from the accepted standard of care in treating her on two specific occasions, October 1, 2003 and October 8, 2004, failing to diagnose plaintiff's breast cancer, from which she ultimately died. In separate interrogatories, the jury was asked to determine whether defendant deviated from the accepted standard of care in October 2003 and in October 2004. The jury found no deviation in October 2003, but it found a deviation in October 2004, which it found increased the risk of harm to plaintiff from her pre-existing condition. The jury also found that defendant failed to prove that plaintiff's death would have occurred even if the treatment in October 2004 was proper. The jury awarded damages of $106,000 for pain and suffering, $44,000 for lost wages, and $122,000 for loss of services and companionship.
Defendant moved for a judgment notwithstanding the verdict (JNOV). She argued that plaintiff's liability experts testified as to the applicable standard of care and her deviation from that standard with respect to the October 2003 treatment, but that plaintiff provided no expert opinion as to the standard of care and any deviation with respect to October 2004. The judge denied the motion, finding that the jury could have inferred a deviation in 2004 based on the evidence presented. The judge concluded that "[t]he entire presentation of plaintiff's experts was a unified theme that Dr. Levat's treatment in 2003 and 2004 was a deviation from the accepted standard of medical practice," and was, in effect, a "continuing deviation."
Defendant appeals from the denial of her JNOV motion. She argues that the judge erred because without expert opinion evidence of the applicable standard of care and of defendant's alleged deviation from it with respect to the October 2004 treatment, the jury's verdict cannot be sustained. We agree with defendant and reverse.
In early September 2003, plaintiff discovered during a self-examination what she perceived to be a lump in the outer section of her right breast. She made an appointment to see defendant, a specialist in obstetrics and gynecology (OB/GYN). On October 1, 2003, plaintiff presented to defendant as a new patient. Defendant recorded in her office notes that plaintiff's chief complaint was a "[l]ump on right breast times several months has gotten bigger."
After examining plaintiff, defendant noted "fibrocystic changes" in the area of concern. Defendant characterized the changes as superficial, stating that "no dominant mass [was] palpated." She diagramed the location of the "area of concern" in plaintiff's chart, highlighting the breast area between 6 and 9 o'clock, thus referencing the lower right quadrant of the breast.
Defendant prescribed a mammogram and ultrasound. The diagnosis code on the prescription form was for a "screening mammogram." The prescription form did not indicate the area of concern or even which breast was to be examined with particularized scrutiny. Plaintiff presented at New Century Imaging for these tests on October 8, 2003. The radiologist returned the results directly to defendant's office. Both reflected negative results. However, the mammogram report indicated that the upper right quadrant was examined with particularity. Defendant did not call the radiologist to rectify the inconsistency, either by confirming that the lower right quadrant was examined with particularity or ordering a repeat of the test for that purpose. She noted in plaintiff's record that the radiologist's findings were benign. Defendant advised plaintiff accordingly and told her to return in one year for a routine check-up.
Plaintiff returned to defendant on October 8, 2004. According to defendant's notes from that visit, plaintiff did not complain of a lump in her right breast. In later deposition testimony, plaintiff contended that she did report the presence of the lump at the October 2004 visit. In any event, defendant examined plaintiff and noted in plaintiff's chart the "area as above" with "increased density." Defendant later explained this comment in her testimony as meaning plaintiff presented with the same area of increased density, not that the density had changed from 2003 to 2004.
Following this examination, defendant prescribed another mammogram. This time, defendant did not order an ultrasound. As in October 2003, she also did not order a surgical consultation for a possible biopsy. Defendant later testified that she felt this was unnecessary because there had been no change in this area of increased density.
The mammogram was performed, and the radiologist reported to defendant that the results were negative. Defendant's office told plaintiff that "everything was okay, come back next year."
Plaintiff did not wait a year. About six months later, on April 6, 2005, she returned to defendant's office because of her continued concern about the lump in her breast, which she thought was getting larger. During this examination, defendant felt a mass in plaintiff's right breast. It was located in the same area where plaintiff had increased density noted in her right breast in October 2003 and October 2004. According to plaintiff's later testimony, defendant had stated that she felt the lump in October 2004, and that in the course of the April 2005 examination, defendant remarked that she thought the lump had gotten larger.
Defendant noted in plaintiff's chart the presence of a moderately firm, non-tender area. She prescribed a mammogram, an ultrasound of the lower right quadrant of plaintiff's right breast, and a consultation with a breast surgeon to determine whether a biopsy was indicated. Defendant diagramed the area of concern in the lower outer aspect of the right breast between 6 and 9 o'clock. This area was also noted on the prescription for the radiological studies. An April 25, 2005 biopsy of the lump in the lower outer quadrant of plaintiff's right breast revealed that she had invasive lobular carcinoma. The cancer was Stage IV. Plaintiff died from this cancer on August 25, 2008.
In support of her JNOV motion, defendant submitted to the trial court transcripts of the testimony of plaintiff's two liability experts, Dr. Richard Luciani, an OB/GYN expert, and Dr. Michael Drew, a general surgeon. In support of her appeal, defendant has submitted the same transcripts to us. She has not submitted transcripts of the remainder of the trial, which spanned thirteen days and included the testimony of six experts. Plaintiff argues that we should dismiss the appeal because defendant failed to provide transcripts of the "entire proceedings" as required by Rule 2:5-3(b). We reject this argument. The appeal is taken from denial of the JNOV motion, and defendant has submitted to us the same materials she submitted to the trial court in support of that motion. We are satisfied that we have been furnished with those parts of the record that "are essential to the proper consideration of the issues" involved in the appeal, which are limited to denial of the JNOV motion, as required by Rule 2:6-1(a)(1)(I).
In presenting his liability experts, plaintiff's counsel inquired of both of them only about the standard of care and deviations from that standard with reference to the October 2003 visit with defendant. Dr. Luciani opined that, in light of the circumstances presented in October 2003, defendant should have ordered a diagnostic mammogram, rather than a screening mammogram. With a diagnostic mammogram, the radiologist would test more thoroughly and scrutinize more carefully the area of concern reported by the referring physician. Dr. Luciani opined that defendant deviated from the standard of care by ordering only a screening mammogram. In addition, near the conclusion of his direct examination, plaintiff's counsel asked Dr. Luciani to reiterate his opinions. This was the colloquy:
Q: Do you have an opinion with regard to the acceptable standard of care, as it existed in October, on October 1, 2003, regarding diagnosis of a breast lump, where the physician, the clinician, cannot feel the lump, ...