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Jens Muenken, As Executor of v. Dr. Kenneth Toner

July 13, 2011


On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-591-06.

Per curiam.


Argued March 15, 2011

Before Judges Carchman, Messano and Waugh.

Nancy Teitelbaum Muenken,*fn1 who suffered from a blood disorder known as polycythemia vera, was diagnosed with gallstones and referred to defendant Kenneth Toner, M.D., for treatment. Dr. Toner performed surgery on Nancy to remove her gallbladder and discharged her later that day. In the early morning hours of the following day, Nancy was readmitted to the emergency room, where she was pronounced dead on arrival.

Plaintiff, Jens, Nancy's widower, filed a negligence action against defendant alleging that defendant's professional negligence proximately caused Nancy's death. Following a jury trial, the jury rendered a verdict in favor of defendant. Plaintiff's subsequent motion for a new trial was denied.

Plaintiff appeals and asserts that the trial judge abused his discretion in ruling on evidentiary and discovery issues. We affirm.

These are the relevant facts adduced at trial. Nancy was diagnosed with polycythemia vera in 2001. Polycythemia vera is a disease wherein the bone marrow produces too many red blood cells or there is an overproduction of white blood cells and platelets. She was subsequently diagnosed with gallstones and a hernia and was referred to defendant for a treatment evaluation in July 2005. Defendant determined that surgery would be appropriate for Nancy, and because he was not familiar with Nancy's underlying blood disorder, defendant requested a hematological consult with Dr. Charles Farber, M.D., her hematologist. Dr. Farber had treated her previously for the underlying condition. Dr. Farber's consultation recommended that the patient be administered Lovenox, a blood thinner, following the surgery. According to Dr. Farber's notes:

For perioperative management I am recommending that the patient have aggressive antiembolic treatment. This should include either Venodyne boots or antiemblic stockings. I believe prophylactic Lovenox is quite reasonable.

The patient can have a dose immediately after surgery if this is the custom for the routine surgical management of patients at risk of thromboembolic events. I have advised the patient not to take aspirin or aspirin-like products for one week prior to the procedure. There is no specific need for FFP infusion or platelet transfusion. Patients such as this are at increased risk for both bleeding as well as thrombotic event. Thus I believe she can be managed in a conventional fashion with all reasonable antiembolic measures. It is not necessary for the patient to receive any blood products prophylactically.

On September 7, 2005, Nancy underwent a laparoscopic cholecystectomy at Newton Memorial. Present at the surgery along with defendant was Elizabeth Falco, a registered nurse, and Dr. Villafania, an anesthesiologist. After the surgery, Nancy was transferred to a recovery area known as the Post Anesthesia Care Unit, where she was monitored. She was then transferred to the same day surgical area and was discharged from the hospital that day.

In the early morning hours of September 8, 2005, Nancy was admitted to emergency department at Newton Memorial Hospital, where she was pronounced dead on arrival. According to an autopsy performed by Dr. Tarik Kumral, M.D., a pathologist, the cause of death was internal hemorrhaging at the site of the laparoscopy incision.

Jens filed an action on behalf of Nancy's estate. During discovery, plaintiff filed a motion to enforce litigant's rights pursuant to Rule 1:9-1, seeking to obtain discovery of information discussed at a meeting of the Mortality and Morbidity Committee (the Committee) at Newton Memorial, which addressed Nancy's treatment. Both defendant and Newton Memorial Hospital, which was not a party to the action, opposed the motion. The motion judge determined that factual information from the Committee's review should be provided to plaintiff, but ordered the redaction of "evaluative and deliberative materials."

Plaintiff produced Dr. Kumral to testify as to the autopsy he performed and the cause of Nancy's death. During Dr. Kumral's testimony, plaintiff sought to secure an opinion from the doctor as to clotting and the effect of the Lovenox administered to Nancy on clotting time. The trial judge barred the testimony, concluding that Dr. Kumral was not a treating physician.

Dr. Richard Nitzberg, M.D., defendant's expert in general and vascular surgery, noted the applicable standard of care in a clinical scenario similar to Nancy's post-surgery condition, and opined that "most surgeons who did that procedure . . . would have sent her home" as opposed to keeping her in the hospital. He concluded that defendant's treatment of Nancy, and his decision to discharge her on the same day as the surgery, was consistent with accepted standards of general surgical practice.

Dr. William Diehl, M.D., another expert in general surgery, opined "that Dr. Toner complied with accepted standards of medical care" in his treatment of Nancy. He observed that as to polycythemia vera and its risks, the patients with the disorder have a lower life expectancy than those without the disorder.

Dr. Diehl stated "the median life expectancy of these patients is somewhere between . . . ten to twelve years" from the time of diagnosis. Plaintiff was, thereafter, barred from utilizing learned treatises to impeach the witness.

Defendant testified at trial. He stated that he had operated on two patients diagnosed with polycythemia vera prior to treating Nancy. Nothing "untoward" took place during the operation, and that Nancy's condition immediately after the surgery was "excellent." According to defendant, Nancy was given discharge instructions, and he did not admit her for an overnight hospital stay because "there was no real reason to do [so]."

After the jury rendered a verdict in favor of defendant on September 18, 2009, plaintiff filed a motion for a new trial, which was denied. This appeal followed.

On appeal, Jens asserts that the trial court made significant errors as to pretrial and trial rulings. The first focuses on defendant's testimony that he possessed limited knowledge as to polycythemia vera at the time of the surgery, and in retrospect, probably would have kept Nancy in the hospital overnight. In addition, Jens claims that the judge erred in permitting defendant's expert to testify as to his involvement as a member of the Committee, and erred in barring Dr. Kumral from opining as to the effect of Lovenox. Finally, he claims the trial court erred in barring him from utilizing learned treatises to impeach Dr. Diehl, ...

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