On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5912-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Skillman.
In this action, plaintiff Galina Grinbaum (Grinbaum) alleged that defendant Dr. Steven G. Robbins (Robbins) deviated from accepted standards of orthopedic care by performing an unnecessary surgical procedure on her right knee. Grinbaum's husband, Zinovy Grinbaum, asserted a per quod claim for loss of services, society and consortium.*fn1 The matter was tried before a jury, which returned a verdict for Robbins and defendant Center for Orthopedics, P.A., the entity under which he practices. Plaintiffs appeal from the final judgment entered on May 20, 2010. We affirm.
Grinbaum is a registered nurse. In May 1998, while working at a hospital, Grinbaum slipped on a wet floor and fell face down. She lost consciousness and injured her right knee.
Grinbaum was admitted to the hospital as a patient. On May 19, 1998, Dr. William Crutchlow (Crutchlow) performed surgery to repair Grinbaum's kneecap.
On October 2, 1998, Crutchlow performed arthroscopic exploratory surgery on Grinbaum's knee. In his operative report, Crutchlow noted that he had observed a defect known as a "chondral lesion," which measured eight millimeters by eight millimeters "to bone" as well as certain "degenerative changes" that appeared to be "nontraumatic."
Thereafter, Grinbaum continued to experience pain in her kneecap. In October or November 1998, she consulted with Robbins about treatment options. According to Grinbaum, Robbins mentioned four options, including total knee replacement and a patellectomy or removal of the kneecap, both of which would result in weakness and impaired motion. Robbins also mentioned autologus chondrocyte procedure, in which cells from the knee are extracted and used to grow new cartilage which is implanted into the knee.
On December 17, 1998, Robbins performed arthroscopic surgery on Grinbaum's knee and concluded that she was a candidate for the autologus chondrocyte procedure. On December 31, 1998, Robbins performed that procedure. In his operative report, Robbins wrote that Grinbaum's "entire medial femoral condyle had very thin flaky cartilage over it" and he "excised in an elliptical manner the thick, abnormal cartilage." Robbins measured the defect, or chondral lesion, to be one and a half centimeters in width by two centimeters in length.
Robbins testified that the growth in the lesion to about double its size was not unexpected because "once you start a cascade of events . . . it just gets worse, it can't get better [because] cartilage can't heal." Robbins' expert, Dr. Wendell
R. Scott (Scott), a board-certified orthopedic surgeon, testified that, at this point, there was a "more extensive change in" Grinbaum's "medial compartment," and that by December 1998, Grinbaum was suffering from "two compartment disease."
Robbins continued to treat Grinbaum after the December 1998 procedure. Grinbaum testified that, after the surgery, her knee felt better but in the spring of 2001, her pain levels returned, although she was able to walk and did not have any limitations upon her ability to extend or flex the knee. During the two years after the autologus chondrocyte procedure, Robbins took multiple x-rays of Grinbaum's knee and also saw her several times for follow up visits.
On October 2, 2001, Robbins performed another arthoscopic surgery on Grinbaum's knee. In his operative notes, Robbins wrote that there "was some scarring" but that "[t]he rest of the knee was unremarkable." Robbins wrote in his patient notes that he had "stabilized" Grinbaum's chondral defect. However, in his May 28, 2002, patient notes, Robbins wrote that Grinbaum was "[p]lagued with chronic knee pain."
On June 21, 2002, a CAT scan was performed on Grinbaum's knee. The scan revealed "cystic spaces in the right tibia" which may have been "due to mild degenerative changes" as well as "two sclerotic densities in the right tibia possibly bone islands." Robbins testified that the cysts were evidence of degenerative disease of the cartilage. In his patient notes, Robbins stated that he had recommended a knee replacement.
On November 11, 2002, Robbins performed a total knee replacement. Robbins testified that, at the time he performed this procedure, Grinbaum's condition had developed into tricompartmental knee disease, meaning that the three main joints of the knee (the patella femoral, femoral ...