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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...