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Melvin Blum, Executor of the v. Debra R. Goldstein


August 16, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8378-07.

Per curiam.


Submitted September 28, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff - the estate of Claire Blum and her surviving husband - appeals from a no cause verdict on his medical negligence complaint. Defendant Debra Goldstein, M.D., perforated Claire Blum's colon while performing a colonoscopy on November 14, 2006. Blum died five months later from related complications at the age of eighty-five. Plaintiff does not allege Dr. Goldstein performed the colonoscopy in a negligent manner. He alleges she was negligent in deciding to perform the procedure at all. In support of his appeal, plaintiff argues the court erred in several evidentiary rulings, and in its jury instructions and jury interrogatories. We affirm.


Dr. Goldstein is a board certified physician in the fields of internal medicine and gastroenterology, and focused eighty percent of her practice on gastroenterology. She began treating Blum in 1993, first for gastrointestinal issues, but later as her general internist.

Dr. Goldstein stated that she generally did not perform a colonoscopy for only screening or surveillance purposes when an elderly patient had a life-expectancy of less than five years, because the risks would outweigh the benefits. Dr. Goldstein defined a "screening colonoscopy" as one performed on an average risk patient for pre-cancer of the colon; "surveillance colonoscopy" is performed on an above-average risk patient as follow-up to detect cancer, or as a follow up for a person who has had polyps, cancer, or colitis; and a "diagnostic colonoscopy" is performed to determine why a patient has pain or other symptoms or signs, including iron deficiency anemia.

Dr. Goldstein asserted Blum's colonoscopy was appropriate, despite her age, as both a diagnostic colonoscopy and a surveillance colonoscopy. First, she asserted Blum suffered from iron deficiency anemia, and the colonoscopy would enable her to diagnose whether the anemia was connected to other conditions, including cancer. In December 2005, while Blum was wintering in Florida, Dr. Goldstein reviewed Blum's lab results from a recent office visit. The physician wrote, "More anemic and iron deficient. Need to take iron daily and vit C, 25 mg. Will arrange colonoscopy on return from Florida." Dr. Goldstein also relied on subsequent lab results in 2006 to support her assertion that Blum continued to suffer from low iron. Second, Dr. Goldstein asserted she performed the colonoscopy for surveillance purposes, to follow-up on polyps she had previously observed during colonoscopies in 1997 and 2001.

The trial focused on these two justifications for Blum's procedure. Plaintiff, Melvin Blum, the decedent's husband, testified. Plaintiff also called Dr. Goldstein, Blum's two adult sons, and an expert, Dr. Michael Samach. The defense relied on Dr. Goldstein's testimony and that of an expert, Dr. Charles Goldberg.

Plaintiff disputed Dr. Goldstein's assertion that she performed the procedure to diagnose the source of Blum's IDA. Plaintiff disputed that Blum suffered from IDA. Plaintiff's expert analyzed Blum's medical records, including various blood test results, and opined that she did not suffer from IDA. Defendant's expert and Dr. Goldstein opined, based on their review of Blum's records, that Blum did.

Plaintiff also asserted that IDA was an after-the-fact justification for the procedure. He highlighted that numerous pre- and post-procedure records did not refer to IDA. He also argued that if Dr. Goldstein genuinely believed Blum suffered from IDA, she would not have waited many months to perform the procedure. Dr. Goldstein insisted that IDA was the primary reason she performed the procedure, and her expert found support for that assertion in selected medical records, and the course of Dr. Goldstein's treatment of Blum, including the doctor's instruction, recorded in Blum's chart, that she take iron supplements in advance of the colonoscopy.

Plaintiff also disputed that the procedure was justified as a surveillance colonoscopy. He asserted that Dr. Goldstein had not found any pre-cancerous polyps in the two previous colonoscopies to justify a third colonoscopy. He relied on pathology reports and plaintiff's expert's interpretation of them. Dr. Goldstein and her expert responded that the pathology reports were not definitive, and Dr. Goldstein was correct to rely on her observations of polyps.

Another significant area of factual dispute addressed Blum's overall health, and whether various aspects of her medical history increased the risk of perforation. Blum had numerous abdominal surgeries, resulting in adhesions or scar tissue in the abdominal area. She was taking a low dose of a steroid, Prednisone, for a mild form of myasthenia gravis. After suffering a pulmonary embolism that led to removal of part of her lung, she also was on a blood-thinner, Coumadin. She had diverticulosis and a history of bowel obstructions. Her colon was also considered tortuous and twisty. She had been very ill in 2004, suffering from multiple bouts of pneumonia.

Plaintiff introduced evidence to demonstrate that Blum's health was fragile. The defense introduced evidence that Blum was a vibrant, healthy eighty-five-year-old whose various conditions were well-managed. Plaintiff's expert opined that Blum's then-current status, and her history increased her risk. Dr. Goldstein and her expert, to the extent they conceded these factors increased risk, did not deem them so significant as to outweigh the benefits of the procedure, or render it negligent to perform it.

Plaintiff also elicited testimony on informed consent. The record includes an informed consent form that Blum signed the day of the procedure, which discloses that a potential complication of the procedure was a perforated colon. It also stated, "I have been made aware by the physician/practitioner of the benefits of the proposed procedure and of not undergoing the proposed procedure." Although Dr. Goldstein could not recall her specific discussion with Blum, she stated it was her routine to discuss the risk of perforation with patients. She admitted that she did not advise Blum that she faced exceptional or above-average risks, nor did she specifically advise Blum that she had the option to do nothing.

Both experts testified that a physician should inform a patient of the risks of perforation. However, when Dr. Samach was asked on direct examination what Dr. Goldstein should have informed Blum in obtaining her consent to the procedure, Dr. Samach responded that she should have told Blum she did not need a colonoscopy. On cross-examination, Dr. Samach was asked, "Would I be correct in saying that it's your testimony in this case that you had no problems or quarrels with respect to the informed consent issue, correct?" and he answered, "I saw no reason to have that, yeah." Dr. Goldberg declined to answer with a yes or no whether Dr. Goldstein should have told Blum, "you're at increased risk of perforation," although he conceded that she was at increased risk.

After a seven-day trial before Judge Alberto Rivas, the jury returned a 7-1 verdict for the defendant. The court denied a motion for a new trial or a judgment notwithstanding the verdict, and entered judgment of no cause of action on August 12, 2010. This appeal followed.

Plaintiff raises the following issues for our consideration:



A. Standard of Review.

B. Proximate Cause Was Not An Issue In


C. Jury Interrogatory Number One Was Confusing.


A. Elements Of Informed Consent.

B. Appellant Properly Asked Respondent's Expert Questions About Informed Consent.




A. Alteration of Records.

B. Administrative Codes.


A. General Acceptance, Reliability, and Net Opinion.

B. Trial Court Barred Literature But Not Opinion.


A. Respondent's Notes Prepared For Trial Testimony.

B. Time Spent Preparing.






We first address plaintiff's arguments regarding the court's evidentiary rulings, admitting Dr. Goldberg's opinion regarding the cancer-potential of certain polyps, barring questions about the time Dr. Goldstein spent preparing for trial, excluding from evidence Dr. Goldstein's personal trial notes, and, allegedly, precluding plaintiff from eliciting testimony about informed consent from Dr. Goldberg.

We review the trial court's evidentiary determinations for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383 (2010). "Considerable latitude is afforded a trial court in determining whether to admit evidence . . . ." State v. Feaster, 156 N.J. 1, 82 (1998). The trial court exercises discretion in determining "[t]he necessity for, or propriety of, the admission of expert testimony and the competence of such testimony[.]" State v. Zola, 112 N.J. 384, 414 (1988). Consequently, we will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted." Feaster, supra, 156 N.J. at 82 (citations omitted).


Plaintiff had moved in limine to bar Dr. Goldberg from testifying at trial, as he had at deposition, that a diminutive hyperplastic polyp in the right colon - that is, one smaller than .2 centimeters - had cancer potential, and could develop differently from a hyperplastic polyp found in the left colon. Plaintiff argued Dr. Goldberg was unable to produce any literature, particularly dated before Blum's procedure, or other support for his opinion.

The issue was significant because it pertained to the necessity of conducting a surveillance colonoscopy in 2006. Dr. Goldstein had retrieved tissue measuring .2 centimeters in 2001. A pathologist diagnosed it as having features of hyperplastic polyp. She agreed that hyperplastic polyps in the left colon are generally not pre-cancerous, and small hyperplastic polyps of less than half a centimeter wherever found are generally not pre-cancerous, and do not require follow-up, although she was aware of exceptions to that generalization. Dr. Samach testified that the material that Dr. Goldstein removed in 2001 had no cancer potential.

Judge Rivas declined plaintiff's request for a N.J.R.E. 104 hearing. He barred Dr. Goldberg from referring to post-2001 literature, but permitted him to opine about the cancer potential of a right-colon hyperplastic polyp, stating that plaintiff's objections went to weight, not admissibility. Judge Rivas recalled that there was already testimony that polyps in the right colon had the potential of becoming malignant. Dr. Goldberg subsequently testified, over renewed objection, that hyperplastic polyps on the right side have a different growth pattern and have a different malignant potential than hyperplastic polyps of the rectum or left colon.

We agree the record does not reflect that Dr. Goldberg's statement about the potential of diminutive right colon hyperplastic polyps was sufficiently reliable, based on its acceptance in the medical community, as established by prior judicial opinions or scientific literature. See Rubanick v. Witco Chem. Corp., 125 N.J. 421, 434-33 (1991); State v. Kelly, 97 N.J. 178, 210 (1984). See also Creanga v. Jardal, 185 N.J. 345, 360 (2005) ("An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence."). Nor does the record reflect that Dr. Goldberg's opinion was grounded in his personal experience as a treating gastroenterologist. Absent a N.J.R.E. 104 hearing, the record simply was not created.

However, we detect no harmful error, that is, error "clearly capable of producing an unjust result." R. 2:10-2.

Plaintiff's expert, Dr. Samach, agreed that large or multiple hyperplastic polyps in the right colon can be "thought to be different" from rectal hyperplastic polyps. While Dr. Samach's concession appeared to exclude the small polyp that Dr. Goldstein removed in 2001, Dr. Goldberg testified that given where and how the tissue was removed from Blum in 2001, it was possible that it was part of a much larger polyp. Thus, there was another basis, combining statements of both experts, for concluding the material removed in 2001 justified Dr. Goldstein's response.

Dr. Samach also conceded that Blum faced a risk of cancer. Although he asserted Blum's polyp was not pre-cancerous, and he minimized Blum's cancer risk, he nonetheless testified that she faced a one to two percent chance of cancer.

A. Mrs. Blum had had two previous colonoscopies that showed no evidence of cancer and no risk factors for cancer. The chances of her having cancer five years later is so small that it does not justify the excessive risk of this colonoscopy by any measure. It's an easy equation.

Q. And when you say possibility, what are you talking about in terms of possibility of cancer as of 2006 that she might have had.

A. It's hard to put a number on it, but very low; one percent, two percent, maybe less than that.

Dr. Samach went on to estimate the comparative risk of a perforation of the colon to be one in 1500 to 1700.


Plaintiff argues the trial court erred in refusing to admit into evidence several pages of hand-written notes Dr. Goldstein prepared to assist her in testifying, and in barring questioning about the time she spent preparing to testify. We disagree.

Some of the notes included tips about how to be an effective witness, such as reminders to "be polite," and to ask for permission to explain her answers. Most of the notes summarized aspects of Blum's medical history and Dr. Goldstein's analysis. They included a list of Blum's hemoglobin levels from September 1998 to November 2006, including a reference to a recommendation to stop screening after age seventy-five from a U.S. Preventative Services Task Force recommendation from 2008 - two years after the procedure; a summary of Blum's office visits; her various medical and gastrointestinal problems and procedures; her surgical history; her treatment after the 2006 colonoscopy (Dr. Goldstein continued to treat Blum for three months after the perforation); the four parameters supporting a finding of iron deficiency anemia; and a chart of Blum's measures of those four parameters on four dates between 2005 and November 2006.

Plaintiff's counsel cross-examined Dr. Goldstein about the notes, and was permitted to reference them in closing. But, the court excluded the documents themselves from evidence, based on N.J.R.E. 403. The court found, among other things, they were cumulative and would cause confusion.

We agree the notes were relevant, and admissible. However, given our deference to the trial court's evidentiary rulings, we find no abuse of discretion in the court's conclusion to exclude them pursuant to N.J.R.E. 403. The notes could be a source of confusion, as they included selective summaries of Blum's records, sentence fragments, arrows, asterisks, cross-outs, underlines, and brackets, which were subject to jury interpretation, speculation, and confusion. To the extent the notes restated data in Blum's medical chart, which was admitted into evidence, and her testimony, the court also did not abuse its discretion in concluding they were cumulative.

We also find no error in Judge Rivas's decision, after defense objection, to bar plaintiff's counsel from asking Dr. Goldstein, "How much time did you spend preparing for your testimony here in court?" and "Did you participate in any mock cross-examination before a trial?" Judge Rivas reasoned the questions suggested the witness did something improper in preparing for trial, and invoked his discretion to control cross-examination.

Whether a party has met with an attorney does not itself consist of an attorney-client communication, protected by the privilege, N.J.R.E. 504. See Daisey v. Keene Corp., 268 N.J. Super. 325, 334-35 (App. Div. 1993) ("[W]e see nothing improper in inquiring as to whether plaintiff met with his attorney prior to trial or during a break."). However, questions that probe the contents of such meetings, or suggest without basis that counsel "improperly coached" the witness, are improper. Ibid.

Inquiring as to the length of Dr. Goldstein's pre-trial preparation was an indirect way to suggest there was excessive coaching. Indeed, once it is suggested that a witness was improperly coached because of the apparently undue amount of preparation, the witness would face an unacceptable choice. He or she could disclose what was discussed to justify the time spent, and thereby waive the privilege. Or the witness could leave the implicit charge of coaching unrebutted.

We discern no error in the court's decision to shield the witness from that choice. Care must be exercised to assure a party does not suffer prejudice because she has availed herself of the assistance of counsel. See Gilmartin v. Weinreb, 324 N.J. Super. 367, 387 n.4 (App. Div. 1999) (stating it would be improper to elicit that medical malpractice plaintiff sought legal counsel within a few hours of husband's death). Our Court has recognized it is impermissible, in a criminal trial, to suggest that retention of counsel is inconsistent with a claim of innocence. See State v. Marshall, 123 N.J. 1, 121-24 (1991). Similarly, Judge Rivas appropriately exercised his discretion in barring questioning that would suggest consultation with an attorney is inconsistent with testifying honestly or candidly.


The record before us does not support plaintiff's argument that he preserved a claim regarding informed consent. Plaintiff pled informed consent in his complaint, alleging Dr. Goldstein breached her duty "to exercise reasonable care with respect to the advice . . . of the plaintiff . . . including the obligation to advise [Blum] . . . with accurate and proper medical information . . . ." Plaintiff also asked the court to deliver Model Jury Charge (Civil), "5.50C - Informed Consent (Competent Adult and No Emergency)" (2002) in his Pre-Trial Information Exchange. During trial, plaintiff also elicited testimony about the issue and introduced into evidence the informed consent form.

Also, we do not agree with defendant's argument, relying principally on Linquinto v. Siegel, 370 N.J. Super. 21 (App. Div. 2004), that an informed consent claim was precluded as a matter of law. See Newmark-Shortino v. Buna, ___ N.J. Super. ___ (App. Div. 2012) (slip op. at 28-29) (distinguishing Linquinto). Plaintiff's principal factual claim at trial was that the colonoscopy was not indicated under the circumstances and Dr. Goldstein was negligent in prescribing it. Nonetheless, he could have argued in the alternative that even if the jury found the procedure was indicated, Dr. Goldstein did not fulfill her obligation to adequately inform Blum of the attendant risks, and her option to forego the indicated procedure.

On the other hand, plaintiff did not register an objection when the trial judge stated that "[i]nformed consent is not an issue here." Nor did he object when the court apparently deleted the model charge on informed consent from a draft set of instructions he had provided to counsel for their review.*fn1

Conceivably, plaintiff's counsel made the tactical decision that posing the question of informed consent would undermine the strength of plaintiff's principal theory.

Plaintiff argues that the court, over plaintiff's counsel's objection, removed informed consent from the case during a side-bar in the midst of cross-examination of Dr. Goldberg, the defense expert. Therefore, he preserved the objection. However, defense counsel argues that plaintiff's counsel at side-bar conceded that informed consent was not an issue.

Unfortunately, the side-bar conference was not recorded or transcribed, no objection or order sustaining an objection is transcribed, nor did plaintiff comply with Rule 2:5-3(f) to secure a statement of the proceedings in lieu of transcript. The Rule imposes upon an appellant the obligation to serve on the respondent a statement of the proceedings if no transcript was made, and then file the appellant's statement and respondent's objections or amendments, with the trial court for its decision to settle the statement of the proceedings. See State v. Izaguire, 272 N.J. Super. 51, 56-57 (App. Div.) (referring to procedure to settle statement of proceedings), certif. denied, 137 N.J. 167 (1994).

Indeed, the same dispute was raised in plaintiff's motion for a new trial, and defendant's response. However, plaintiff has not provided us with the court's oral decision, to enable us to determine whether Judge Rivas addressed plaintiff's claim regarding what transpired during the unrecorded sidebar. We note that notwithstanding the sidebar conference, plaintiff's counsel proceeded to ask Dr. Goldberg additional questions regarding informed consent, including, "Dr. Goldstein should have told Claire Blum you're at increased risk of perforation, correct?"

In short, plaintiff did not object to the court's observation in the charge conference that informed consent was out of the case. The record does not support plaintiff's argument that the objection was preserved earlier in the trial. Therefore, we reject plaintiff's argument on appeal that a new trial is required to allow plaintiff to pursue his informed consent claim.


We turn next to plaintiff's argument the court erred in its jury instructions and interrogatory, regarding issues of proximate cause, alteration of records, and violation of administrative regulations regarding record keeping.

Our scope of review of the trial court's jury instructions is well-settled. The charge must correctly state the applicable law and instruct the jury how to apply the law to the facts. Finderne Mgmt. Co. v. Barrett, 402 N.J. Super. 546, 576 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009). "In construing a jury charge, a reviewing court must consider the charge as a whole to determine whether the charge was correct." Toto v. Sheriff's Officer Rolando Ensuar, 196 N.J. 134, 144 (2008). "A party is not entitled to have a jury charged in words of his own choosing. If the charge adequately covers the matter requested, there is no error." Mohr v. B.F. Goodrich Rubber Co., 147 N.J. Super. 279, 283 (App. Div.), certif. denied, 74 N.J. 281 (1977). On the other hand, failure to provide clear and correct jury charges may constitute plain error. Wade v. Kessler Inst., 172 N.J. 327, 341-42 (2002).


In the charge conference, plaintiff's counsel affirmatively approved the court's proposed summary of the case: "[P]laintiff, Melvin Blum contends that the defendant, Dr. Goldstein was negligent and that such negligence substantially contributed to the injury suffered by the decedent, Claire Blum. The defendant denies that she deviated from accepted standards of care for a gastroenterologist."

Nonetheless, counsel argued that proximate cause was not an issue, and objected to the court delivering the model charge on proximate cause. The defense urged the court to include the charge, which the court did. Judge Rivas concluded that although he would not highlight causation as a separate question, he deemed it an integral part of the charge. The court also included mention of proximate causation in the jury interrogatory pertaining to liability, which asked "Did Dr. Goldstein deviate from the accepted standard of care and proximately cause the injuries suffered by . . . .'" Plaintiff's counsel did not renew his objection to presenting the proximate cause issue to the jury.

We agree that proximate cause was uncontested. The defense did not dispute that the decision to perform the colonoscopy caused the perforation, which caused Blum's death. A court generally should omit instructions regarding issues not in dispute, to avoid confusing the jury. See Menza v. Diamond Jim's, Inc., 145 N.J. Super. 40, 45 (App. Div. 1976) ("where the facts adduced leave no doubt that if there was negligence there was also proximate cause, the jury should be instructed only as to the issue of negligence"). On the other hand, failing to charge proximate cause when it is required, or charging proximate cause when it is not, mandates reversal only if the charge "significantly impeded an intelligent resolution of the dispute by the jury." Capaldo v. Reimer, 77 N.J. Super. 215, 221 (App. Div. 1962), rev'd on other grounds, 40 N.J. 269 (1963).

Similarly, a jury interrogatory is not grounds for reversal unless it was "misleading, confusing or ambiguous." Ponzo v. Pelle, 166 N.J. 481, 490 (2001) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997)). The interrogatory must also be evaluated in light of the jury charge as a whole. Id. at 491.

In this case, evidence was overwhelming and undisputed that the perforation resulted from the colonoscopy, and Blum's demise resulted from the perforation. We therefore discern no basis in the record to conclude that the proximate cause instruction, or its inclusion in the liability interrogatory led to jury confusion, or "significantly impeded" its decision. Likewise, we find no basis for concluding that the jury was confused by the interrogatory.


We are also unpersuaded by plaintiff's argument that the court erred in declining to deliver a jury instruction on alteration of records. See Model Jury Charge (Civil), "5.50H -Alteration of Medical Records" (2012).

Dr. Goldstein did not dictate an "Operative Report" until August 22, 2007, nine months after the operation. In response to plaintiff's counsel's records request, hospital staff contacted her to request the report. In her August 22 report, Dr. Goldstein stated as her pre-operative diagnosis that Blum had "iron deficiency anemia and previous history of colonic polyps." In what amounted to an addendum dictated on August 30, 2007, Dr. Goldstein stated, "She has also had intermittent episodes of partial bowel obstruction." The operative report clearly reflected the dates on which it was created.

By contrast, Dr. Goldstein did not mention IDA or bowel obstructions in the "History and Physical Examination/Admitting Note," which she wrote within hours of the procedure. Dr. Goldstein appeared to characterize the procedure as a surveillance colonoscopy. She did not mention IDA and stated, "She last had a colonoscopy 5 years ago and she was found to have dense diverticulosis of the sigmoid colon and a colonic polyp for which she was having colonoscopy follow-up." The informed consent form that Blum signed the day of the colonoscopy also did not mention IDA, but described Blum's condition as "H/O Polyps" - meaning history of polyps.

Plaintiff highlighted the differences between the November 2006 and August 2007 documents, in an effort to undermine Dr. Goldstein's claim that she performed the colonoscopy primarily to diagnose the source of Blum's IDA. Nonetheless, we agree with the trial court that the Alteration of the Medical Records charge was inappropriate. Simply put, Dr. Goldstein did not change, correct or alter the records prepared in November 2006, when the colonoscopy was performed. She created an additional document. The charge itself contrasts records altered with the intent to deceive or mislead, and corrections or changes that are clearly identified and dated as such. In this case, the August 2007 documents were clearly labeled and dated.

Nor do we believe the judge abused his discretion in refusing to instruct the jury that Dr. Goldstein violated administrative regulations by failing to dictate her operative report within twenty-four hours.*fn2 Dr. Goldstein admitted she should have prepared her operative reports promptly, and the hospital required her to do so. Her expert opined that she was remiss in failing to do so. However, she testified she was unaware regulations required timely reports. Plaintiff argued the instruction was relevant to Dr. Goldstein's credibility, specifically, that of the statements in those operative reports. Given our standard of review, we discern no error in the court's rejection of the proposed charge. A party is restricted from challenging a witness's credibility by use of evidence of specific acts of misconduct, in this case, an alleged regulatory violation. N.J.R.E. 608(a).

Plaintiff's remaining arguments on appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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