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T.L. v. Goldberg

Superior Court of New Jersey, Appellate Division

March 8, 2018

T.L. and M.L., Plaintiffs-Appellants,

          Argued January 18, 2018

         On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7154-11.

          Michael B. Zerres argued the cause for appellants (Blume, Forte, Fried, Zerres & Molinari, PC, attorneys; Michael B. Zerres, of counsel and on the briefs).

          Peter J. Lynch argued the cause for respondents (Christie & Young, PC, attorneys; Peter J. Lynch, Christina G. Tershakovec, and Michael A. Cavaliere, on the brief).

          Before Judges Nugent, Currier and Geiger.


          NUGENT, J.S.C.

         In this medical malpractice action, plaintiffs appeal from an order that denied their motion for a new trial.[1] The jury rejected plaintiffs' claim that defendant Dr. Jack Goldberg's management of plaintiff T.L.'s blood disorder fell below medical standards of care when he prescribed a drug that should not have been prescribed for a patient with her medical history.[2] We conclude defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing that defendant's trial testimony would differ materially from defendant's certified interrogatory answers and sworn deposition testimony resulted in plain error that deprived plaintiffs of a fair trial. We thus reverse and remand for a new trial.



         This action's procedural history began in 2011 when plaintiffs filed a complaint against defendant and others. Plaintiffs alleged defendant was liable for his medical negligence in prescribing a new drug, Pegasys, to manage plaintiff's blood disorder. Plaintiff's ingestion of the drug allegedly caused her to develop a severe neurological condition, which resulted in partial paralysis of her right side. Defendants answered and denied deviating from any standard of care. They also denied that plaintiff's use of Pegasys caused the neurological condition she developed.

         During discovery, defendant certified in an interrogatory answer that he did not recall relying upon any medical text or publication in connection with his diagnosis or treatment of plaintiff. When deposed, defendant denied being aware of any studies in the Journal of Clinical Oncology pertaining to the use of Pegasys to treat patients with the blood disorder that afflicted plaintiff.

         Plaintiff presented a list of motions in limine when trial began. Among such motions, plaintiff moved "[t]o bar defendants from utilizing medical literature at the time of trial, " because defendant had provided none in response to discovery requests. Based on defense counsel's representation that he intended to use only the medical literature "referred to and relied upon by plaintiff's witnesses, " the court granted the motion.

         The trial began on March 30, 2015. On April 24, 2015, by agreement of six jurors with a seventh disagreeing, the jury returned a verdict for defendant. In response to the first question on the verdict sheet, the jury found defendant had not deviated from the relevant standard of care. Plaintiffs filed a motion for a new trial, which the trial court denied. This appeal followed.


         The parties developed the following proofs at trial. In 2003, doctors diagnosed plaintiff with a blood disorder, essential thrombocythemia (ET).[3] According to the medical witnesses, ET occurs when stem cells in the bone marrow, which divide and "give birth to" red blood cells, white blood cells, and platelets, overproduce platelets. Platelets aid blood clotting. In a person with ET, the platelets rapidly proliferate. If left unmanaged, ET can significantly increase the risk of life-threatening clotting and bleeding. A normal platelet count is no more than 300, 000. An abnormal platelet count in a person with ET averages around one to two million.

         Plaintiff's pre-ET medical history included a 1996 work-related accident in which she sustained a crush injury to her left shoulder, after which she developed a condition known as sympathetic reflex dystrophy. In 1997, she underwent surgery involving her cervical and lumbar spine following an automobile accident. Relevant to the issue of whether defendant should have prescribed Pegasys for plaintiff, plaintiff also had a history of depression.

         Following her diagnosis of ET in 2003, plaintiff came under the care of a hematologist, Dr. George Karp. In January 2 005, after conferring with two other specialists, plaintiff came under defendant's care. Defendant managed plaintiff's ET exclusively from her first visit in January 2 005 until he prescribed Pegasys on October 21, 2010, her last office visit with him.

         When doctors first diagnosed plaintiff with ET, the condition was generally managed with aspirin and one of three medications: anagrelide, interferon, or hydroxyurea, [4] all of which produced side effects. Dr. Karp started plaintiff on anagrelide. Plaintiff developed serious reactions to anagrelide, and the doctor discontinued its use.

         Dr. Karp next prescribed interferon. Plaintiff experienced severe side effects, including flu-like symptoms, nausea, and dizziness. She became so fatigued she was nearly bedridden. Dr. Karp discontinued interferon after a trial period of a few months.

         After discontinuing interferon, Dr. Karp prescribed hydroxyurea. Although plaintiff experienced side effects from this drug, she tolerated it better than she had tolerated the anagrelide and interferon. Plaintiff took hydroxyurea for nearly six years, from late 2004 until October 2010, when defendant prescribed Pegasys.

         According to one medical expert, Pegasys is a slow-release type of interferon. The expert explained that when plaintiff was given interferon originally, it had to be given often, because it does not stay in one's body very long. Pegasys implicates a term called pegylated, "which is a molecule that's added and it gives a slow absorption." The expert added, Pegasys is "like taking a slow release tablet of any medication."

         Although plaintiff's husband insisted she should not take Pegasys due to the devastating side effects she had experienced on interferon, defendant urged plaintiff to try Pegasys. He did not believe her previous intolerance of interferon was disqualifying. Plaintiff testified she weighed her concerns about the risk of leukemia from hydroxyurea and the potential for resolving her ET symptoms with Pegasys, as explained by defendant. She ultimately decided to try the drug.

         Although defendant initially prescribed four 180 microgram dosages, he had plaintiff start a trial period by injecting only 80 micrograms each week. She administered three doses of Pegasys. According to plaintiff, after she administered the first dose she began to experience flu-like symptoms, as well as dizziness and numbness and tingling on the right side of her body. Her husband reported the reaction to defendant, but he said they needed to give her body time to adjust, so she administered two more doses. Plaintiff testified that after each dose she experienced the same side effects. Each time that happened, her husband phoned and informed defendant of her reaction. A subsequent blood test revealed plaintiff's platelet levels had fallen, but her white blood cell count had fallen as well.

         Concerned about the white blood cell count, plaintiff discontinued Pegasys after the third dose. Plaintiff had taken the three doses during the first three weeks of November 2010. She and her family were scheduled to start a vacation in Jamaica on November 27. The day they arrived, plaintiff received word her father had died. She and her family returned home the next day.

         Following her father's funeral, plaintiff sought treatment from two psychologists. Neither recommended medication for her depression, and she took none.

         In December, plaintiff began to experience intense migraine headaches. The headaches were accompanied by an "aura" which caused plaintiff to lose partial vision in her left eye and experience numbness in the left side of her tongue, face, and left hand. She went to the emergency room on December 13, 2010. The emergency room doctors had her undergo a CT scan and afterward told her she had a severe migraine and should see a neurologist. Plaintiff saw a neurologist who prescribed Medrol. The Medrol relieved the headaches.

         On December 26, 2010, plaintiff began to experience severe neck pain, which radiated down both arms. She applied heating pads to her arms and went to bed. The next day, after resting on the couch, she could not get up. She thought she was paralyzed. Her husband called an ambulance, which transported her to JFK Medical Center.

         Plaintiff remained at the medical center for a week and then transferred to a rehabilitation center where she remained for approximately three more weeks. Doctors eventually diagnosed her with transverse myelitis.[5]

         Plaintiff testified she began to regain some movement on her right side after steroids administered to her "started to work." While at the rehab center, she also took part in daily occupational and physical therapy. During therapy, she suffered a partial dislocation of her right shoulder. Upon discharge, her movement remained limited. Plaintiff testified she required a wheelchair or walker in order to get around. While plaintiff regained some movement in her right side, she continued to experience weakness in her right arm and right leg.

         The parties presented experts with differing opinions as to whether defendant deviated from the applicable standard of care. Plaintiff's expert, Dr. Louis Aledort, a specialist in hematology, testified defendant deviated from the relevant standard of care by prescribing Pegasys for plaintiff. Dr. Aledort explained plaintiff's intolerance to interferon had been well noted, so much so she had sought a second opinion concerning her intolerance. In addition, Dr. Aledort noted that a history of depression alone is a reason not to start somebody on Pegasys, because one can become profoundly depressed from the drug even with no previous history of depression. Plaintiff had a history of depression, a fact of which defendant was aware. More importantly, there was no medical reason to start plaintiff on Pegasys because she was being well maintained on hydroxyurea at the time. According to Dr. Aledort, the appropriate therapy for her ET would have been to continue her on hydroxyurea.

         Defendant's expert, Dr. Azra Raza, a hematologist and oncologist, testified defendant did not deviate from a medical standard by recommending and prescribing a trial of Pegasys. Dr. Raza explained doctors treating ET always face the quandary of whether a patient's symptoms are due to the disease or the drugs. In such situations, doctors must balance and decide what is worse: the disease or symptoms from the drugs used to control the disease. The ultimate goal is to strike a balance and provide a patient with the best quality of life possible under the circumstances.

         Dr. Raza testified that in October 2010, plaintiff's platelet count had exceeded one million, which was dangerously high. Plaintiff was not tolerating the hydroxyurea well during this time and she was using it intermittently. Given these circumstances, it was appropriate to try something else, and Pegasys was available. Dr. Raza opined defendant appropriately started plaintiff's Pegasys trial with low doses to monitor the side effects.

         Dr. Raza did not agree plaintiff's ET was controlled by hydroxyurea over the years. Plaintiff's platelet count was up and down for two reasons: her intolerance to hydroxyurea, and her refusal at times to take it due to the symptoms she ascribed to the drug. The doctor did not believe plaintiff's psychological history was a contraindication to prescribing Pegasys. She explained that it was certainly necessary for both defendant and plaintiff to be aware of the "black box" warnings on the drug. According to the doctor, however, defendant and plaintiff had extensive discussions about such warnings. Dr. Raza also opined plaintiff had been less tolerant of hydroxyurea than the interferon that she had taken after her blood disorder was first diagnosed. Dr. Raza did not believe the Pegasys caused plaintiff's transverse myelitis.

         The parties also presented experts with opinions about causation. Plaintiff's expert neurologist, Dr. Martin Gizzi, opined plaintiff's right-sided weakness or paralysis was caused by the transverse myelitis, which in turn was caused by Pegasys. Dr. Gizzi further opined the conditions caused by plaintiff's transverse myelitis were permanent.

         Defendant's expert neurologist, Dr. Terry Heiman-Patterson, disagreed with Dr. Gizzi. Dr. Heiman-Paterson acknowledged plaintiff had suffered an injury to her spinal cord but opined Pegasys did not cause the injury.

         Dr. Barbara Ziv, a psychiatrist, testified for the defense. Dr. Ziv testified that many of plaintiff's symptoms were inconsistent with a physiological cause and were likely a result of a combination of somatization disorder and conversion disorder.

         Dr. Ziv diagnosed plaintiff with somatization disorder and conversion disorder based on multiple factors, including an examination, a review of plaintiff's medical and personal history, and a Minnesota Multiphasic Personality Inventory (MMPI)[6]. Dr. Ziv explained that somatization disorder is essentially the physiological manifestation of psychological and emotional stresses. She explained that conversion disorder is a condition characterized by the development of signs and symptoms of neurological problems such as paralysis, weakness, or numbness as a result of a psychological issue. Dr. Ziv opined plaintiff's conversion disorder caused her paralysis. The doctor acknowledged plaintiff had lesions on her spinal cord, but testified the lesions did not fully account for plaintiff's symptoms.

         During her testimony, Dr. Ziv recounted numerous details regarding plaintiff's relationships with her parents, siblings, and son. She explained these facts were relevant to her diagnosis:

[I]n order to find out who somebody is from a psychiatric or psychological point of view, you need to start at the beginning, you need to understand where they came from, what forces shaped them as an individual.
And you . . . can't just have somebody come into your office and say ["]here are my complaints["] without understanding the context in which those complaints present.
. . . .
So, I asked [plaintiff] about her childhood and the forces ...

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