On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4991-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and Ashrafi.
Plaintiffs appeal from a June 15, 2011 order of the Law Division dismissing with prejudice their medical malpractice complaint against Dr. Ferhana Khan, who is a pediatrician. They contend that the trial judge erred in ruling that a published article supporting their liability expert's testimony would not be admissible at the trial and, subsequently, in ruling that plaintiffs lacked the requisite expert evidence needed to proceed to trial. We affirm in part and reverse and remand in part.
Plaintiffs Jessica Pagan and her mother, Eneida Cruz, filed their malpractice complaint in 2007, shortly before Pagan's twentieth birthday. They alleged that Dr. Khan and the other defendants were negligent when Pagan was born by breech delivery in 1987 because they failed to diagnose her congenitally dislocated left hip. Pagan's condition, also called developmental dysplasia of the hip, was diagnosed in January 1989 when she was thirteen months old. She was then hospitalized for several weeks, and the treatment included surgery followed by a foot-to-waist cast. The surgery left a scar in the area of Pagan's hip. Plaintiffs allege that the late-diagnosis caused permanent impairment and disability into the time of Pagan's adulthood, specifically, an abnormal hip joint, low back pain, a limp in her gait, risk for developing arthritis in the affected hip, and the likelihood that she will require one or more hip replacements in her lifetime.
In the course of pretrial proceedings, the trial court dismissed plaintiffs' claims against all defendants except Dr. Khan. With leave of the court, Dr. Khan filed a counterclaim alleging that plaintiff Cruz was negligent in failing to bring her infant child to doctors for follow-up care. The counterclaim stated that Dr. Khan had seen the infant in the hospital each day from the date of her birth in 1987 until mother and child were discharged three days later. She further alleged that Cruz was instructed to bring the child back for an appointment with a named doctor within one week and also to follow up for post-natal care at St. Joseph's Pediatric Clinic within two weeks. Cruz never took the infant for a follow-up examination with any doctor until the infant's first inoculation was belatedly given eleven months after her birth. At that time, a limp was noticed, which subsequently resulted in the diagnosis of the hip condition. Dr. Khan sought contribution from Cruz for her negligence in the event that plaintiffs prevailed on their malpractice claim.
In discovery, plaintiffs provided the reports of two expert witnesses. Arnold B. Wilson, M.D., an orthopedic surgeon, had reviewed Pagan's medical records and conducted physical examinations of her in 2007 and 2009, when she was nineteen and twenty-one years old. He issued a report after each examination in which he described her hip condition, its present symptoms, a prognosis of future impairment, and the treatment likely to be required in the years ahead. Reporting on the history provided by Pagan and her current complaints, Dr. Wilson's 2007 report stated:
During her childhood years, [Pagan] had relatively normal development, and was able to ambulate with no significant limp. Over the last few years, the patient has developed intermittent pain in her left hip and has noted a persistent click. This causes her marked disability and restricts her activities. She has great difficulty in participating in sports, running after her children, and is unable to dance. In addition, it has affected her ability to find gainful employment.
Doctor Wilson's physical examination in 2007 revealed "a well-healed surgical scar" in the groin area, "fairly normal range of motion in the left hip," and "only mild pain on range of motion." In 2009, the doctor made similar findings but added that "[p]atient walks with a mildly antalgic gait and favors her right side." X-rays showed "a normally developed right hip . . . [but] markedly dysplastic [left] hip." X-rays of the spine were normal. Pagan's prognosis was "very guarded" for improvement of the left hip. Dr. Wilson stated she was "at risk for the development of posttraumatic arthritis of the left hip . . . at a young age," and that she is likely to require further surgery and "eventually require a left total hip replacement." Dr. Wilson did not express an opinion in either of his 2007 and 2009 reports about the alleged negligence of the medical defendants.
During the week preceding the scheduled trial date, May 23, 2011, the attorneys conducted a de bene esse deposition of Dr. Wilson for use in lieu of his live testimony at the trial. See R. 4:14-9. In the videotaped deposition, Dr. Wilson testified consistently with his written reports. He stated that Pagan's physical condition was the result of congenital hip dislocation, that the condition and its impairment of her activities were permanent, and that her prognosis "is severely guarded." Dr. Wilson was not asked and did not express an opinion as to the alleged negligence of Dr. Khan or any other medical providers. Significant for purposes of this appeal, he was not asked and did not testify about whether the hip condition could have been diagnosed closer to the time of birth and whether earlier treatment would have made a difference in Pagan's current condition or prognosis.
Alvin Jaffee, M.D., a pediatrician, was plaintiffs' second expert witness. He issued a report dated July 8, 2010. He concluded that treatment of the hip dislocation should have started promptly after birth. He stated that Dr. Khan was negligent in failing to diagnose Pagan's dislocated hip at the time of birth and thus in failing to follow up on the care and treatment of the newborn infant. According to Dr. Jaffee, Dr. Khan should have instructed the mother about the need for follow-up examination of the infant within two to four weeks, and the follow-up should have included diagnostic imaging such as an ultrasound. Dr. Jaffee did not state what the treatment would have been if the hip condition had been more promptly diagnosed. He said he was a pediatrician and did not personally treat the condition but would have referred the infant to a pediatric orthopedist for treatment. He also did not provide an opinion about the anticipated prognosis for Pagan's hip had treatment begun immediately after birth.
Upon receiving Dr. Jaffee's report, Dr. Khan's defense counsel served a notice to produce documents on plaintiffs pursuant to Rule 4:18-1. Among other documents, counsel requested: "1. Copies of all medical literature Alvin Jaffee, M.D. intends to rely upon in giving his opinions[,]" and "5. . . . any other materials Dr. Jaffee relied upon in forming his opinions . . . ." Plaintiffs' attorney responded: "1. To be supplied by August 30, 2010[,]" and "5. None." Plaintiffs did not provide any documents by August 30, 2010, or at any time before defense counsel took Dr. Jaffee's discovery deposition on January 13, 2011.
At the deposition, defense counsel asked Dr. Jaffee: "Do you intend to rely on any articles at the time of trial in this matter?" Dr. Jaffee answered: "No, I do not." After the deposition was completed, however, but on the same day, plaintiffs' attorney wrote to defense counsel to report that "Dr. Jaffee has referred me to an article published by the American Academy of Pediatrics entitled Clinical Practice Guidelines: Early Detection of Developmental Dysplasia of the Hip, Pediatrics Volume 104, Number 4, April 2000, pages 896-905. Please advise if you would like a hard copy of this document." Defense counsel obtained a copy of the article.
The reports of Dr. Khan's two expert witnesses, James E. Hyman, M.D., and Charles A. Scott, M.D., were mostly consistent with plaintiffs' expert reports on the subject of Pagan's current condition, but they disputed Dr. Jaffee's allegations that Dr. Khan was negligent because she did not diagnose the hip dislocation. They emphasized the failure of Cruz to follow up with any medical appointments for the infant until eleven months after the birth, and they asserted the condition of the hip ...