Opinion
DOCKET NO. A-5194-13T3
01-12-2016
ROBBIN V. DUBER, individually and as Executrix of the Estate of Gregory Michael Duber, Sr., deceased, Plaintiff-Appellant/Cross-Respondent, v. CENTER FOR ADVANCED UROLOGY, and STUART M. DIAMOND, M.D., Defendants-Respondents/Cross-Appellants, and MITCHELL BOBER, D.O., KAREN LUKE MCGHEE, D.O., and SALEM MEDICAL GROUP, Defendants.
Theresa L. Giannone argued the cause for appellant/cross-respondent (Villari, Brandes & Giannone, P.C., attorneys; Ms. Giannone, on the brief). Thomas B. Reynolds argued the cause for respondents/cross-appellants (Reynolds & Horn, P.C., attorneys; John J. Bannan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John, and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-214-11. Theresa L. Giannone argued the cause for appellant/cross-respondent (Villari, Brandes & Giannone, P.C., attorneys; Ms. Giannone, on the brief). Thomas B. Reynolds argued the cause for respondents/cross-appellants (Reynolds & Horn, P.C., attorneys; John J. Bannan, on the brief). PER CURIAM
After Gregory M. Duber, Sr. died from renal cancer, his wife, plaintiff Robbin V. Duber filed a medical malpractice and wrongful death complaint against defendants, Dr. Stuart M. Diamond, and his medical practice, Center for Advanced Urology. After trial, a jury determined that Dr. Diamond deviated from accepted standards of medical practice in his treatment of Mr. Duber, and that the deviation increased the risk of harm posed by Mr. Duber's pre-existing condition, but the increased risk was not a substantial factor in causing Mr. Duber's death.
Following the verdict, plaintiff moved for a partial new trial on causation and damages, arguing that the trial judge improperly admitted evidence regarding the alleged negligence of a non-party radiologist; anecdotal testimony from defendants' urology expert regarding renal cancer survival rates; and testimony from defendants' oncology expert regarding renal cancer growth rates. The court denied the motion under Rule 4:49-1, finding that the jury verdict did not represent a "miscarriage of justice."
Plaintiff appeals and maintains that the trial judge erred in allowing evidence and instructing the jury it could consider the alleged negligence of the reading radiologist for the 2008 non-contrast computerized tomography (CT) scan in determining substantial factor; in allowing Dr. David Saypol's opinions regarding Mr. Duber's prognosis and chances of survival; and in allowing evidence regarding the alleged growth rate of tumors and metastases. Finding no error in any of these rulings, we affirm.
I.
On November 28, 2007, Mr. Duber was admitted to Memorial Hospital of Salem County, complaining of flank pain, urinary urgency, and gross hematuria (blood in the urine). Dr. Wamiq Sultan, a nephrologist, was Mr. Duber's attending physician and Dr. Diamond was called in to consult. Dr. Diamond first examined Mr. Duber on the date of his admission and prescribed medication to address the bleeding. Dr. Sultan ordered radiology tests, including a renal-bladder ultrasound and a CT scan.
The ultrasound showed that Mr. Duber's kidney lining was swollen or distended. The CT scan revealed a swollen ureter and dilated kidney. Further tests showed "neutrophils, bacteria and red blood cells" in Mr. Duber's urine. Dr. Diamond concluded that Mr. Duber had passed a kidney stone. Dr. Diamond saw Mr. Duber again the following day, noted there was no blood in his urine, and entered a progress report indicating that Mr. Duber was "doing well" and could be discharged to outpatient care.
Mr. Duber saw his primary care physician, Dr. Karen McGhee, on March 20, 2008, complaining of hematuria. Dr. McGhee ordered a non-contrast CT scan to rule out an obstructing kidney stone and referred Mr. Duber to Dr. Diamond to address the possibilities of renal or bladder carcinoma.
Radiologist Dr. David Udis read the CT scan and reported that it showed no kidney stones or masses. Mr. Duber saw Dr. Diamond the following day, March 21, 2008, and advised him of the returned hematuria and side pain. Dr. Diamond reviewed a copy of Dr. Udis' report but did not view the CT scan images. Dr. Diamond stated that Mr. Duber reported no pain on March 21, and a urine screen came back "crystal clear." Because Mr. Duber's symptoms had cleared up after one day on antibiotics, Dr. Diamond's clinical impression was that he had either passed a stone or had a urinary tract infection (UTI). Dr. Diamond performed a second urine cytology screen, took blood for a prostate cancer test, and scheduled a cystoscopic exam.
The urine cytology screen showed abnormalities consistent with diabetes and hypertension, Mr. Duber's pre-existing medical conditions, as well as white blood cells and calcium deposits, which are consistent with UTI and kidney stones. The cystoscopic exam showed only an enlarged prostate.
Based on the two CT scans, an ultrasound, a cystoscopic exam, and two urine screens, all of which came back normal, and because Mr. Duber was asymptomatic after one day on antibiotics, Dr. Diamond concluded that he had passed another kidney stone as he had done in November 2007. Mr. Duber saw Dr. Diamond in April 2008, but did not complain of any kidney problems.
One year later, Mr. Duber went to Dr. Diamond again for gross hematuria. Dr. Diamond ordered a urine screen, a CT urogram with contrast, and another cystoscopy. The urogram showed a 2.5 centimeter mass in the right kidney.
On May 8, 2009, Dr. Diamond recommended a ureteroscopy to biopsy the mass and place a prophylactic stent in Mr. Duber's ureter. Dr. Diamond explained that there are two kinds of kidney cancer: cancer of the kidney "meat" or parenchyma, and cancer of the "transitional cells," or urothelium, which include the kidney lining, renal pelvis, ureters, and part of the bladder. The biopsy was necessary to determine which type of cancer Mr. Duber had, if any, which in turn would determine the scope of the tumor removal operation. Only the kidney is removed in the former case, while the kidney, ureters, and part of the bladder are removed in the latter.
Dr. Diamond performed the ureteroscopy on May 18, 2009. On May 21, 2009, the results came back showing malignant cells consistent with transitional-cell or urothelial carcinoma. Given Mr. Duber's weight of 329 pounds, Dr. Diamond recommended a laparoscopic removal surgery instead of the usual large abdominal incision.
After discussing risks and alternatives with both Mr. Duber and plaintiff, Dr. Diamond performed a nephroureterectomy (removal of kidney and transitional cells) on June 29, 2009. The surgical pathology report came back two weeks later on July 13, 2009, and showed that the tumor was high-grade urothelial carcinoma with sarcomatoid differentiation, and that one of Mr. Duber's lymph nodes was positioned for metastatic malignancy. The tumor was 8.5 centimeters upon removal.
After explaining the pathology report, Dr. Diamond told Mr. Duber that the tumor was very aggressive and he would require chemotherapy. Dr. Diamond referred Mr. Duber to an oncologist for further care and treatment, and saw him on only a few occasions after that.
Plaintiff and Mr. Duber met with oncologist Dr. Michael Guarino in late July 2009. Dr. Guarino advised the Dubers that urothelial cancer with sarcomatoid differentiation is very rare, that Mr. Duber's cancer was Stage IV, and that it was not curable. Plaintiff testified that this news "changed" Mr. Duber, who became very withdrawn. Dr. Guarino immediately put Mr. Duber on a six-week course of chemotherapy to improve the quality of his remaining life.
Mr. Duber was sick from, and in substantial pain throughout, the chemotherapy treatment. At his follow-up with Dr. Guarino, the Dubers learned that the chemotherapy had not helped and that the cancer had spread to Mr. Duber's lungs and liver. Mr. Duber began a second course of chemotherapy, but discontinued it after he could no longer walk or move on his own due to the pain. Mr. Duber received hospice care at home until his death on December 25, 2009.
On June 24, 2011, plaintiff filed her complaint for medical malpractice and wrongful death against Dr. Diamond and his practice, Center for Advanced Urology; Mr. Duber's primary care provider, Salem Medical Group, and two of its employees, Drs. Mitchell Bober and Karen McGhee; and unidentified individual and corporate healthcare providers.
The claims against all defendants other than Dr. Diamond and Center for Advanced Urology were dismissed.
Following discovery, plaintiff made numerous motions in limine. Relevant here are plaintiff's motions to preclude defendants' radiology expert, Dr. Adam Hecht, from testifying that radiologist Dr. Udis was negligent in reading the March 2008 scan; preclude or limit defendants' urology expert, Dr. Saypol, from giving anecdotal opinions on renal cancer survival rates; and preclude or hold a Frye hearing regarding the opinion of defendants' oncology expert, Dr. David Harris, on renal cancer growth rates. Plaintiff objected to Dr. Harris's linear rather than exponential method of calculating a tumor growth rate, arguing it was not a generally accepted standard.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (outlining expert testimony, authoritative literature, and judicial recognition as the methods of determining general acceptability of scientific methods). --------
The trial court ultimately permitted Dr. Hecht to testify to Dr. Udis' alleged negligence after plaintiff's counsel suggested Dr. Udis was not negligent during his opening statement. The jury was instructed to consider the evidence for determining proximate causation, but not for determining deviation from the standard of care.
The court denied the motion to preclude or limit Dr. Saypol's anecdotal opinions on renal cancer survival rates, relying on the express language in N.J.R.E. 702 permitting expert opinions based on "experience." Although the court initially opined that a Frye or Rule 104 hearing might be needed on the motion to preclude Dr. Harris's opinions on renal cancer growth rates, the motion was denied after defendants submitted articles on the general acceptance of Dr. Harris's opinion.
Trial was held between March 31 and April 9, 2014. Plaintiff's urology expert, Dr. Simon Chung, testified that Mr. Duber's tumor was, at worst, Stage III in 2008 and his survival rate would have been 30% if the tumor was high-grade and had sarcomatoid differentiation at that time. Dr. Chung noted that survival rates worsen if the cancer is in the transitional cells, has metastasized in the lymph nodes, and has sarcomatoid differentiation. He stated that a urologist is permitted under the professional standard of care to rely on the findings of a radiology report.
Plaintiff's oncology expert, Dr. Michael Hurwitz, testified that Dr. Diamond's failure to remove the tumor in 2008 significantly increased the risk of harm to Mr. Duber, as there was a chance of a cure before his cancer diagnosis. Dr. Hurwitz opined that the tumor was Stage II in March 2008, and that Mr. Duber had a 90% chance of survival if the tumor was not yet in the kidney parenchyma, 50-70% if in the parenchyma, and 25-40% if there was sarcomatoid differentiation at that time. Dr. Hurwitz stated that there was a more than 50% chance that Mr. Duber's cancer was in the parenchyma by March 2008, but it was unlikely to have metastasized because tumors usually grow exponentially and not linearly.
Both Drs. Chung and Hurwitz spoke to the rarity and poor prognosis of Mr. Duber's type of cancer, noting that sarcomatoid differentiation appears in only .1 to .3% of urothelial tumors. Drs. Chung and Hurwitz also noted that their survival percentages related to complete cure, but earlier treatment would have increased the length of time Mr. Duber had to live, even with cancer.
Plaintiff's radiology expert, Dr. Daryl Fanney, testified that he could see a "subtle" tumor in the March 2008 non-contrast scan which had not yet entered the parenchyma. Dr. Fanney opined that Dr. Udis did not deviate from the standard of care in failing to identify the tumor in the non-contrast scan in 2008, but that a scan with contrast would have clearly shown the tumor.
Defendants' oncology expert, Dr. Harris, opined that Mr. Duber's tumor was Stage IV and had sarcomatoid differentiation and metastasis in March 2008, giving him a less than 10% chance of survival. Dr. Harris testified that even if Mr. Duber had been diagnosed in 2008, the cancer was already incurable and the outcome would have been the same. As such, Dr. Harris opined that Dr. Diamond did not deviate from the standard of care in failing to order a contrast CT scan in 2008, particularly when the 2008 scan showed the tumor.
Defendants' radiology expert, Dr. Hecht, testified that Dr. Udis deviated from the standard of care by failing to identify the tumor and failing to report visible kidney asymmetry, which is itself indicative of a tumor, in the March 2008 non-contrast scan. He stated that Dr. Udis should have seen the tumor in particular because the scan did not show the perinephric stranding associated with a passed kidney stone. Dr. Hecht opined that the tumor could have extended into the parenchyma in 2008, but that was not visible in the 2008 CT scan.
Defendants' urology expert, Dr. Saypol, testified that sarcomatoid differential urothelial cancer is very rare, and that he had treated four or five patients in the last five to ten years for same. He stated that such cancer is among the most lethal, and that Mr. Duber's cancer was Stage IV and had metastasized by March 2008. Dr. Saypol testified that, based on his thirty-one years of clinical experience, his review of the literature, and attendance at professional conferences, no patient with high-grade sarcomatoid tumors of the renal pelvis survives. He stated that there is no effective treatment for such tumors, and that Mr. Duber therefore had a 0% chance of survival in 2008.
The jury returned a verdict finding that Dr. Diamond deviated from the standard of care, that his deviation increased the risk of harm posed by Mr. Duber's pre-existing renal cancer, but that the increased risk was not a substantial factor in causing his death.
As stated previously, plaintiff filed a motion for a new trial on the issues of causation and damages under Rule 4:49-1 which was denied.
II.
Plaintiff first argues that the trial court erred in allowing evidence of the alleged negligence of Dr. Udis, the radiologist who read the March 2008 non-contrast CT scan, to be considered in determining proximate causation. At trial, plaintiff argued that evidence of Dr. Udis' negligence was wholly irrelevant to whether Dr. Diamond proximately caused Mr. Duber's damages. The trial judge disagreed, finding that the jury is allowed to consider "all of the circumstances in a given case that bear on the relationship of a doctor's actions to the ultimate harm[.]" We agree.
An evidential error constitutes reversible error only if it is clearly capable of producing an unjust result. R. 2:10-2. Likewise, such an error merits a new trial only if it constitutes a clear miscarriage of justice. R. 4:49-1. Otherwise, appellate review of a trial court's evidentiary decisions is governed by an abuse of discretion standard. State v. Nantambu, 221 N.J. 390, 402 (2015).
Generally, a medical malpractice plaintiff must prove the applicable standard of care, the defendant's deviation from that standard, and that the deviation proximately caused the injury. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). In cases where a defendant's negligence combines with a patient's pre-existing condition to cause harm, a modified three-prong test applies in which the plaintiff must show the applicable standard of care, that a deviation from that standard increased the risk of harm from the pre-existing condition, and that the increased risk was a substantial factor in producing the ultimate result. Scafidi v. Seiler, 119 N.J. 93, 104 (1990). Once a plaintiff makes such a showing, the defendant is held liable for all harm unless he can show both the divisibility of the harm and the proportion for which he is responsible. Id. at 110.
A "substantial factor" need not be the sole or primary factor. Verdicchio, supra, 179 N.J. at 25. In Velazquez v. Jiminez, we held that a defendant's mere 3% liability for a patient's injury was sufficient for substantial factor causation. 336 N.J. Super. 10, 31-32 (App. Div. 2000), aff'd, 172 N.J. 240 (2002). Velazquez clarified that the substantial factor analysis is not dependent on the apportionment of fault, explaining that if ten cars in an accident are each 10% responsible, that slight apportionment does not preclude each car from representing a "substantial" causal factor. Id. at 31.
However, a factor is not substantial if there is one or several contributing factors which have such a "predominant effect" in bringing about the harm that the defendant's negligence is "insignificant." Verdicchio, supra, 179 N.J. at 25. Ultimately, it is the province of the jury to determine whether an increased risk of harm from negligence is a substantial factor. Id. at 26.
At trial, plaintiff moved to bar testimony of Dr. Udis' negligence, arguing that it was irrelevant to any issue. Following oral argument, the court permitted the testimony for determining proximate causation, but not for determining deviation from the standard of care.
Plaintiff's experts, Drs. Chung and Hurwitz, opined that if Mr. Duber's cancer had been detected in March 2008, his survival rate would be between 30 and 90% depending on the presence of sarcomatoid differentiation, metastasis, the grade of tumor, and the rarity of the cancer. In their opinions, Mr. Duber's survival rate in 2008 was likely between 30 and 50% percent, with a five-year survival prognosis, given the presence of some of these factors. Defendants' oncology expert, Dr. Harris, relied on the same factors, but suggested that all factors were present by 2008, giving Mr. Duber a 10% survival rate. Defendants' urology expert, Dr. Saypol, testified that Mr. Duber's specific type of tumor is 100% lethal in all cases, giving him a 0% chance at survival in 2008.
Defendants' radiology expert, Dr. Hecht, testified that Dr. Udis deviated from the professional standard of care by failing to identify the tumor in the March 2008 non-contrast scan. Plaintiff's radiology expert, Dr. Fanney, disagreed and testified that Dr. Udis did not deviate from the standard of care because the tumor was so subtle and the scan was ordered to detect kidney stones, not cancer.
Given these conflicting causal accounts, it was the province of the jury to determine whether Dr. Diamond's negligence was a substantial factor in causing Mr. Duber harm. Verdicchio, supra, 179 N.J. at 26. The jury was not only permitted, but required to consider potential concurrent causes of that harm in applying the substantial factor test, including the lethality of his cancer and treatment by other physicians. Id. at 27 ("[W]e use the 'substantial factor' test of causation because of the inapplicability of 'but for' causation to cases where the harm is produced by concurrent causes.") (quoting Scafidi, supra, 119 N.J. at 109).
The jury determined that Dr. Diamond's negligence was insignificant to Mr. Duber's injuries. We are satisfied that the jury verdict is amply supported by record evidence, specifically the expert testimony describing Mr. Duber's condition as incurable as of 2008, and giving him a 0% to 10% survival rate. The jury verdict is not a miscarriage of justice and plaintiff is not entitled to a new trial on this ground.
Plaintiff next argues that the anecdotal opinions of defendants' urology expert, Dr. Saypol, were erroneously admitted. Specifically, plaintiff challenges Dr. Saypol's testimony that in his clinical experience, no patient survives Mr. Duber's type of cancer. We disagree.
The express language of N.J.R.E. 702 permits testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education . . . ." By its plain terms, the rule allows expert testimony based exclusively on experience. See also State v. Smith, 21 N.J. 326, 334 (1956) ("[A]n expert may be qualified by study without practice or by practice without study[.]"). In addition to noting that the rules of evidence permitted Dr. Saypol's testimony, the trial court also noted that plaintiff's own experts testified to their anecdotal statistics.
The trial court committed no error, let alone reversible error, by admitting Dr. Saypol's anecdotal opinion that no patient survives high-grade sarcomatoid urothelial cancer. The jury was entitled to weigh this opinion against the conflicting opinions of plaintiff's experts.
Finally, plaintiff argues that the trial court erroneously permitted defendants' oncology expert, Dr. Harris, to testify to tumor growth rates using the principle of linear growth, or "doubling time" metastasis (the time it takes for a tumor to double in size), because that analysis is not generally accepted in the scientific community as required under N.J.R.E. 702.
Specifically, plaintiff challenges Dr. Harris' statement that the same metastasis was present in 2008 as in 2009, just smaller in size, based on the linear growth or "doubling time" theory. Plaintiff's argument is barred by the invited error doctrine, and lacks merit.
The invited error doctrine bars litigants from taking a position on appeal contrary to their position at trial. N.J. Div. of Youth & Family Servs v. M.C., III, 201 N.J. 328, 340 (2010); State v. Pontery, 19 N.J. 457, 471 (1955). "Elementary justice in reviewing the action of a trial court requires that that court should not be reversed for an error committed at the instance of a party alleging it." Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996) (quoting Bahrey v. Poniatishin, 95 N.J.L. 128, 133 (1920)).
Here, plaintiff's counsel stated that he would not object to admitting Dr. Harris' opinion "if Dr. Harris has but one article that would — I don't care where it's from. That would suggest that tumors that have sarcomatoid differentiation grow linearly . . . . " The court concluded that such an article would "solve the problem immediately" under the Frye standard. In response, defendants submitted two articles discussing linear growth in cancerous tumors, which the court accepted in lieu of a Frye hearing. Having urged this precise course of action, plaintiff is barred from now asserting that defendants' articles are insufficient to show general acceptance. Brett, supra, 144 N.J. at 503.
Moreover, the articles were sufficient on the merits to show general acceptance under the Rules of Evidence. General acceptance of scientific evidence may be shown by expert testimony as to the general acceptance of the premises on which the proffered expert witness based his or her analysis; by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Kelly, 97 N.J. 178, 210 (1984). Defendants' submissions fall into the second category.
During cross-examination, plaintiff questioned Dr. Harris extensively as to his methodology and confronted him with prior statements from other cases in which he testified and criticized the same methodology.
We are satisfied that the court did not err by allowing Dr. Harris to testify that, based on a theory of linear growth, Mr. Duber's tumor had metastasized by March 2008. The jury was entitled to weigh Dr. Harris' testimony against plaintiff's experts in determining causation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION