Opinion
DOCKET NO. A-4671-10T4
05-02-2012
WILLIAM KRAMER and KATHLEEN KRAMER, his wife, Plaintiffs-Appellants, v. ROBERT WHITE, M.D., Defendant-Respondent, and OVERLOOK HOSPITAL, Defendant.
Marc E. Lesser argued the cause for appellant (Kronisch & Lesser, P.C., attorneys; Mr. Lesser, on the brief). Gary L. Riveles argued the cause for respondent (Dughi & Hewit, attorneys; Michael J. Keating, of counsel; Mr. Riveles, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Simonelli.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1410-08.
Marc E. Lesser argued the cause for appellant (Kronisch & Lesser, P.C., attorneys; Mr. Lesser, on the brief).
Gary L. Riveles argued the cause for respondent (Dughi & Hewit, attorneys; Michael J. Keating, of counsel; Mr. Riveles, on the brief).
In this medical malpractice matter, plaintiff William Kramer appeals from the April 6, 2011 final judgment dismissing the complaint with prejudice following a jury verdict of no cause of action, and from the April 29, 2011 order, which denied his motion for a new trial. We affirm.
Plaintiff's wife, Kathleen Kramer, who had filed a per quod claim, also appeals.
On December 22, 1985, plaintiff was admitted to the hospital for pain in the left flank area, suggestive of a kidney stone. He came under the care of defendant Robert White, M.D., a urologist/urologic surgeon. An intravenous pyelogram revealed a partially obstructing six- to seven-millimeter stone in the left proximal ureter close to the left kidney. Defendant treated plaintiff conservatively to see if the stone would pass without surgical intervention.
According to defendant, a subsequent x-ray and cystoscopy with contrast, both taken on December 26, 1985, revealed that the stone had not changed and remained in the ureter, indicating that it would not pass spontaneously. Because this raised a risk of hydronephrosis, or kidney damage, plaintiff required surgery to remove the stone. Defendant placed a splint in the catheter to prevent the stone from moving, and prepared plaintiff for a nephrolithotomy, which is the surgical removal of the stone.
Upon beginning the surgery, defendant discovered that the stone had moved upward. He then made an opening in the renal pelvis and inserted a nephroscope to find the stone. He took another x-ray, which revealed that the stone had moved into the upper calyx. Under x-ray control, he passed a needle through the upper pole of the left kidney and down to the calyx where he located the stone. Once the needle was in place and the stone was located, he placed umbilical tape around the needle and applied a rubber-shod pedicle clamp to control bleeding and prevent damage to the pedicle. He then made an approximately three-inch incision in the upper pole of the kidney, moved the needle down to the calyx to the stone, and then removed the stone with stone forceps. The calyx and kidney were then sutured. The entire procedure took approximately five minutes, and defendant encountered no technical difficulties or complications out of the ordinary.
Because defendant knew exactly where the stone was located and exactly what approach to take, he found it was unnecessary to place the kidney in an ice slush before commencing the surgery or use methylene blue dye during the procedure, and he did not consider using Mannitol. He explained that the kidney would only be open momentarily, and placing it in an ice slush would have unnecessarily prolonged the surgery.
According to defendant, Mannitol is a fluid used to stem blood depletion, particularly in an operation where there is blood loss.
There is no dispute that plaintiff did well following the surgery, and received no further treatment from defendant after January 24, 1986. However, approximately twenty-one years after the surgery, in May 2006, an ultrasound revealed that plaintiff's left kidney had atrophied and was non-functioning.
Plaintiff filed a complaint against defendant for medical negligence. Plaintiff's urologic surgery expert, Bruce Garber, M.D., testified at trial that defendant deviated from the accepted standard of care because he used an outdated surgical procedure to remove the kidney stone. Dr. Garber opined that defendant should have used the techniques described in the "Boyce Chapter" of the medical textbook, Glenn's Urologic Surgery, third edition (1983), such as (1) using methylene blue dye before making an incision into the kidney to "arterially map out" the kidney and determine where the incision should be so as to minimize damage to the blood supply to the kidney and to the kidney itself; (2) clamping all of the arteries that were mapped out, (3) administering Mannitol and placing the kidney in an ice slush in order to preserve it; and (4) not clamping the pedicle.
Dr. Garber concluded that defendant's failure to follow the techniques in the Boyce Chapter caused plaintiff's kidney to atrophy. However, he conceded that a recognized complication, such as kidney atrophy, is an untoward event that can occur in a small percentage of cases even with the appropriate and indicated surgical procedures. He also conceded that vascular compromise is a risk to any kidney surgery, and no matter what kind of kidney surgery is performed, "there is some level of risk of vascular compromise to the kidney . . . that can occur at the best of surgical hands, with the best and most appropriate of surgical techniques."
Defendant's urology and kidney surgery expert, David Saypol, M.D., testified at trial that the Boyce Chapter was not the standard of care for the performance of a nephrolithotomy in 1985, and any testimony to the contrary was "a ridiculous opinion." Dr. Saypol refuted every one of Dr. Garber's reasons for finding a deviation from the accepted standard of care, and noted that he never used the Boyce Chapter techniques in performing a nephrolithotomy. He explained that the Boyce Chapter techniques did not apply to this case because defendant had only performed a partial kidney bisection, not a bivalving, and the Boyce Chapter technique was only used for a total kidney bisection needed to remove a staghorn calculus that is approximately one hundred times larger than plaintiff's kidney stone. He also explained why methylene blue dye, an ice slush, and Mannitol were unnecessary techniques for plaintiff's surgery, and that there are multiple surgical techniques that can be used depending on the particular case.
Dr. Saypol concluded that defendant adhered to the applicable standard of urologic care at the time of the surgery, used the acceptable surgical techniques, and properly performed the surgery. He also concluded that although the surgery may have caused plaintiff's kidney atrophy, this was a recognized complication, and other co-morbid medical conditions could have caused it.
Following the jury's verdict of no cause of action, the trial judge entered judgment dismissing the case with prejudice. Plaintiff filed a motion for a new trial, arguing that the verdict was against the weight of the evidence. The judge found that "[t]he fact that the plaintiff's expert claims that the technique should not have been used, is a question of fact for the jury and goes to the credibility of the various experts[,]" "plaintiff's expert certainly had many aspersions cast upon his credibility by defense counsel and on voir dire and cross- examination," and the jury had weighed the evidence and "decided the defense expert was more credible than . . . plaintiff's expert." The judge denied the motion, holding that the evidence supported both the jury's assessment of the experts' credibility and the verdict. This appeal followed.
On appeal, plaintiff again argues that the verdict was against the weight of the evidence. We disagree.
We decline to address plaintiff's argument raised for the first time on appeal that Dr. Saypol's opinion was a net opinion. See New York SMSA, L.P. v. Bd. of Adj. of Twp. of Weehawken, 370 N.J. Super. 319, 341 (App. Div. 2004). We note that plaintiff's counsel did not question Dr. Saypol on voir dire, and did not object to his expert testimony.
--------
"[A] trial judge shall grant a new trial if, 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Little v. Kia Motors Am., Inc., _ N.J. Super. _ (App. Div. 2012) (slip op. at 14) (quoting R. 4:49-1). "A jury verdict should be set aside 'only in cases of clear injustice.'" Ibid. (quoting Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006)).
Applying this standard, we conclude that the judge properly denied plaintiff's motion for a new trial. The record amply supports the jury's credibility determinations and its conclusion that defendant did not deviate from the applicable standard of care in treating plaintiff.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION