March 8, 2012
DOROTHY RUSSELL, PLAINTIFF-APPELLANT,
YVETTE BRIDGES, M.D., DEFENDANT, AND THAD DENEHY, M.D., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0165-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 23, 2011 -
Before Judges Fuentes, Ashrafi and Newman.
In this medical malpractice case, plaintiff Dorothy Russell appeals from a pretrial order barring her proposed expert from testifying and opining on the question of whether defendant, Dr. Thad Denehy, deviated from the relevant standard of care. This decision was dispositive because, as a result, the court granted defendant's motion for summary judgment and dismissed plaintiff's case.
After reviewing the record developed before the trial court and being mindful of prevailing legal standards, we affirm.
In December 2005, plaintiff visited her gynecologist Dr. Yvette Bridges*fn1 complaining of vaginal bleeding and fearing she may have cervical cancer. At that time, plaintiff was sixty-eight years old and obese. Dr. Bridges referred her to Dr. Denehy, a physician board certified in obstetrics and gynecology and in gynecologic oncology, a subspecialty recognized by the American Board of Medical Specialties. Dr. Denehy recommended plaintiff undergo an abdominal hysterectomy and a para-aortic lymph node dissection.
On January 23, 2006, Dr. Bridges performed a total abdominal hysterectomy and removed plaintiff's fallopian tubes. On that same day, Dr. Denehy performed a para-aortic lymph node dissection. After surgery, plaintiff was diagnosed with a right uteral obstruction. Plaintiff alleges that Dr. Denehy cut her ureter (a tube that connects the kidney to the bladder) while performing the dissection and failed to repair it.
On the question of liability, plaintiff submitted a report authored by Dr. Victor Borden, a physician board certified in obstetrics and gynecology. It is not contested that Dr. Borden is not certified in the subspecialty of gynecologic oncology, and does not practice in this specialized field.
As to clinical experience, Dr. Borden testified at his deposition that he had performed a pelvic and para-aortic dissection "years ago." He has not performed this procedure in the past twenty years because "it's no longer the standard of care in metropolitan areas such as New Jersey, where you have available gynecologic oncologists, for the generalists to do that, because of the infrequency with which the generalist would do it." Dr. Borden indicated that he would not do a pelvic and para-aortic lymph node dissection, even if there was no available gynecologic oncologist. In such a case, he would refer the patient to a general surgeon. In fact, Dr. Borden's only recent experience in this subspecialty has been serving "as an assistant" during a pelvic and para-aortic lymph dissection.
With respect to the injury to plaintiff's ureter, Dr. Borden opined that "the same standard of care [applies] for a generalist [as for a gynecologic oncologist] . . . to look at the area where the ureter's running in the area in which you perform surgery[.]" Because the entire length of the ureter is not usually visualized during surgery, Dr. Borden indicated that the "standard of care requires  the surgeon to visualize the ureter in the areas that he's operating." In his report, Dr. Borden wrote that "[i]njuries to the lower urinary tract, bladder and ureter, occur approximately in 1% of major gynecological operations." He also stated, however, that the kind of injury to the ureter sustained by plaintiff "is not in itself an indication of surgical error or negligence on the part of the operator."
According to Dr. Borden, "[i]t was mandatory that Dr. Denehy visualize the entire course of the right ureter during his dissection and assure, prior to his departure from the operating room, that both ureters were intact and unobstructed." Dr. Borden thus opined that "[t]he failure of Dr. Denehy to do so was a deviation from the standards of care." In his deposition, Dr. Borden clarified that it was Dr. Denehy's "failure to recognize [the] damage" to plaintiff's ureter that constituted a deviation.
At his deposition, Dr. Denehy testified that plaintiff's obesity made visualization of the ureter extremely difficult.
After completing the surgery, he "traced the ureter, what [he could] see, but again she is very heavy, there is a lot of fat back there, there is maybe some little bit of blood going on there. It is very difficult to visualize every single anatomic course of the ureter at that point." Dr. Denehy noted that "you can barely see down this hole, if there is a bleeder there [he is] not going to open it up again and rip through a major blood vessel and bleed from that." Although Dr. Denehy acknowledged that there are ways to determine if there is any damage or injury to the ureter before he finished the surgery (visualizing the field and the ureter, a cystoscopy, or passing stints) in this case, there was "no indication" of any damage or injury to the ureter.
Against this backdrop, Dr. Denehy moved to bar Dr. Borden from opining as to the standard of care applicable to gynecologic oncologist performing a para-aortic lymph node dissection. At oral argument on the motion, plaintiff's counsel argued that the responsibility to check for injury to the ureter was applicable to any gynecological procedure. Thus, Dr. Borden was qualified to opine on this area of the practice of gynecology. The court rejected plaintiff's argument, finding that Dr. Borden was not qualified to offer expert testimony as to standard of care applicable to a gynecologic oncologist, a recognized subspecialty of gynecology.
The New Jersey Medical Care Access and Responsibility and Patients First Act (the Act), N.J.S.A. 2A:53A-37 to -42, was enacted in 2004 and governs medical malpractice actions arising after July 7, 2004. L. 2004, c. 17, § 33. It codified, among other things, "the qualifications which must be possessed by an individual who is proffered to give expert testimony in a medical malpractice action or to execute an affidavit of merit . . . ." N.J. State Bar Ass'n v. State, 387 N.J. Super. 24, 39 (App. Div.) (upholding the validity of N.J.S.A. 2A:53A-41), certif. denied, 188 N.J. 491 (2006).
N.J.S.A. 2A:53A-41 provides, in relevant part, that:
In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit . . . on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom . . . the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom . . . the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(c) both. [N.J.S.A. 2A:53A-41 (emphasis added).]
As more succinctly stated in New Jersey State Bar Ass'n, supra, [i]f the party against whom . . . the proposed expert is testifying is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and if the care or treatment at issue in the action involves that specialty or subspecialty, then the proposed expert must have specialized at the time of the occurrence in that same specialty or subspecialty. Further, if the party against whom . . . the proposed expert is testifying is board certified and the care or treatment at issue involves that board specialty or subspecialty, the proposed expert witness must either be credentialed by a hospital to handle the treatment or procedure in question or be board certified in the same specialty and during the year immediately prior to the occurrence in question, have devoted a majority of his or her professional time to either active clinical practice in that area or teaching in that area in an accredited medical school.
[387 N.J. Super. at 39 (citation omitted).]
The Act allows for waiver of these requirements in certain circumstances. See N.J.S.A. 2A:53A-41(c). Such waiver can only be granted if the party seeking waiver files a motion and demonstrates the inability to locate an expert of the same specialty or subspecialty. Ibid. Plaintiff did not seek such a waiver here.
In Buck v. Henry, 207 N.J. 377 (2011), the Court reviewed the requirements of N.J.S.A. 2A:53A-41 in the context of compliance with the affidavit of merit component. Thus, although not directly related to the issue we confront here, the basic principle that drove the Court's analysis in Buck animates our analysis here: "'[T]he challenging expert' who executes an affidavit of merit in a medical malpractice case, generally, should 'be equivalently-qualified to the defendant' physician." Id. at 389 (quoting Ryan v. Renny, 203 N.J. 37, 52 (2010)).
Here the trial court correctly determined that Dr. Borden did not meet the qualifications under the Act to offer an opinion on the work performed by Dr. Denehy. As Dr. Borden candidly admitted, the standard of care in this State requires a gynecologist to refer a patient needing a para-aortic dissection to a gynecologic oncologist, a recognized subspecialty of gynecology. As a "generalist," without both the required board certification or clinical experience, Dr. Borden is not competent to review and opine on a procedure performed by Dr. Denehy under extremely difficult surgical conditions.