Opinion
DOCKET NO. A-1520-13T4
07-30-2015
V.S. and T.S., her husband, Plaintiffs-Appellants, v. ANTHONY QUARTELL, M.D., and SHYAM HATANGADI, M.D., Defendants-Respondents.
John B. Collins argued the cause for appellants (Bongiovanni, Collins & Warden, P.C., attorneys; Mr. Collins, on the brief). Jay Scott MacNeill argued the cause for respondent Anthony Quartell, M.D., (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Mr. MacNeill, of counsel; Thomas J. Pyle, Jr., on the brief). Rowena M. Duran argued the cause for respondent Shyam Hatangadi, M.D., (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Duran, of counsel and on the brief; Linda Fulop-Slaughter, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-575-08. John B. Collins argued the cause for appellants (Bongiovanni, Collins & Warden, P.C., attorneys; Mr. Collins, on the brief). Jay Scott MacNeill argued the cause for respondent Anthony Quartell, M.D., (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Mr. MacNeill, of counsel; Thomas J. Pyle, Jr., on the brief). Rowena M. Duran argued the cause for respondent Shyam Hatangadi, M.D., (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Duran, of counsel and on the brief; Linda Fulop-Slaughter, on the brief). PER CURIAM
Plaintiffs V.S. and T.S. appeal from a jury's verdict in favor of two surgeons. Defendant Anthony Quartell, M.D., performed rectocele repair surgery on V.S. Defendant Shyam Hatangadi, M.D., attended the surgery as a preceptor because of his experience with a mesh kit product that Dr. Quartell used to make the repair. During the surgery, plaintiff's rectum was accidentally perforated. Plaintiff developed peritonitis and hernias, and she required many further procedures over the next several years.
As we will further describe, a rectocele is a bulge in the vaginal wall.
Also as we will further discuss, a preceptor is a kind of high-level tutor in the performance of a medical procedure or treatment.
In this opinion, the designation plaintiff in the singular will mean V.S. Her husband, T.S., pursued a derivative per quod claim for the loss of V.S.'s services and consortium. But unlike the typical personal injury case, T.S.'s inclusion produced a significant evidentiary issue because the couple were getting divorced at the time of the trial, and so, the quality and past circumstances of their marriage were disputed issues.
An inflammation of the lining of the stomach, intestines, or other abdominal organs. Mayo Clinic Staff, Peritonitis, Mayo Clinic (Mar. 31, 2015), http://www. mayoclinic.org/diseases-conditions/peritonitis/basics/ definition/con-20032165.
Plaintiffs did not allege negligence in the performance of the rectocele repair surgery or any defect of the mesh product. Rather, they contended the surgery was not appropriate to address plaintiff's urinary symptoms and defendants should not have recommended or performed it.
At the conclusion of an eleven-day trial in which four medical liability experts, several other doctors, and the defendant-doctors gave conflicting testimony about the necessity or advisability of the surgery, and also about the role and duties of a preceptor, the jury found that plaintiffs failed to prove a deviation from the standard of care required of a surgeon. The jury also found that plaintiffs did not prove the surgery was performed without plaintiff's informed consent. The court entered a judgment of no-cause of action in favor of defendants.
Plaintiffs now appeal, contending that various trial errors unfairly prejudiced them or confused the jury and led to a miscarriage of justice. Having considered the record and the arguments on appeal, we affirm the judgment.
I.
As explained by the medical witnesses at the trial, a rectocele is "a bulging of the posterior vaginal wall, lower posterior vaginal wall above the anal sphincter leading upward into the body so there is a bulging of the rectum out into the vagina." The "number one cause" of a rectocele "is probably having had a baby through the vagina," and "it's rarely seen in anyone who hasn't had a vaginal delivery." Sometimes, a "congenital weakness in the vaginal walls" might contribute to the cause.
A rectocele is often asymptomatic, and the patient is not aware of its existence. When a rectocele is symptomatic, patients will typically complain of pelvic pressure or the feeling of a mass in the vagina. A rectocele may also interfere with sexual relations. Some doctors have noted constipation or other difficulty evacuating stool as a complaint associated with a rectocele.
Plaintiff first saw Dr. Quartell in 2005, when she was sixty-two years old. During her first marriage, she had given birth to three children by vaginal deliveries with no complications. She married her second husband, T.S., in 1985.
Plaintiff had a history of abdominal and urinary problems. During her first marriage, she had a partial hysterectomy because her "uterus had dropped." In the 1980s, she had bladder suspension surgery because she could not hold her urine. The 1980s surgery fixed that problem. However, for at least ten years before 2005, plaintiff had other urinary problems. She urinated frequently, had a reduced urinary stream, and felt a sensation of not fully emptying the bladder when urinating. She repeatedly made these complaints to Aaron Shinbein, M.D., her gynecologist. During two examinations, Dr. Shinbein noted a rectocele "the size of a grape," but he did not associate the rectocele with plaintiff's urinary problems. Plaintiff had no complaints of defecatory problems.
In 1998, plaintiff was examined by Yitzhak Berger, M.D., a urologist. Dr. Berger measured the amount of residual urine retained in plaintiff's bladder after urination to be forty-five cc's. He noted: "It is conceivable that her difficulties with urination might be due to the so-called 'overcorrection' following the bladder neck suspension [referring to the 1980s surgery]. However, her residual is not significant, and therefore there is no imminent indication to perform a urodynamic evaluation."
Plaintiff's urinary problems had intensified by 2005. She had an urge to urinate more frequently. She would need to get out of bed two or three times during the night, and during the day she felt the urge every half hour.
Before seeing Dr. Quartell, plaintiff had consulted another urologist, Eugene Stulberger, M.D. After an October 3, 2005 examination, Dr. Stulberger noted: "pelvic examination: when she strains a significant rectocele is seen. She has good support where her cystocele was repaired [referring to the 1980s surgery]. She had 220 cc's of residual urine. Testing will be started and Dr. Shinbein is her gynecologist. I called Dr. Quartell and he will see her for the rectocele." One of plaintiff's liability experts, Edward Stanford, M.D., a board certified obstetrician and gynecologist, conceded that a post-void urine residual of 220 cc's is "more than a physician wants to see in any patient."
At plaintiff's November 2005 appointment with Dr. Stulberger, a renal ultrasound was performed, and the doctor noted that plaintiff had "void[ed] and emptie[d] her bladder totally," but he also noted that "[s]he has a significant rectocele which needs to be corrected by Dr. [Quartell]."
Dr. Quartell had practiced at St. Barnabas Medical Center since the time of his residency in 1973. In 2005, he was the director of minimally invasive gynecology and had held several medical and administrative positions at St. Barnabas. He, too, was board certified in obstetrics and gynecology. Dr. Quartell testified that, when he examined plaintiff on October 14, 2005, she "had a grade 2 rectocele, which was very wide and came right to the opening of the vagina lying on her back without straining." He asked plaintiff about her urinary problems and about Dr. Stulberger's finding of a rectocele. He told her to finish the testing Dr. Stulberger wanted done "and if after all of that was done he still felt that the rectocele was causing the urinary symptoms that she was having that I would schedule the repair." Dr. Quartell testified further that rectoceles tend to get larger and more significant over time. A follow-up notation in Dr. Stulberger's records indicates he called Dr. Quartell's office and expressed his approval for "the rectocele repair as soon as [Dr. Quartell] chooses."
On January 27, 2006, plaintiff and her husband met with Dr. Quartell for a pre-surgery consultation. The rectocele repair surgery was performed on February 22, 2006.
A few days after the surgery, Ronald Chamberlain, M.D., the head of general surgery at St. Barnabas, was brought in to consult on plaintiff's case. He determined that plaintiff had a perforation from the rectum into the vagina and needed emergent surgery, which he performed on February 25, 2006. A colostomy bag was used to give the wound time to heal. During the surgery, Dr. Chamberlain removed the mesh product that Dr. Quartell had used for the rectocele repair because it could have been contaminated as a result of the perforation.
The perforation caused peritonitis and an abscess, which required another surgery on March 7, 2006, "a very, very minor procedure" according to Dr. Chamberlain. Plaintiff was in the hospital from February 22, the date of the original rectocele repair surgery, until March 16, 2006. She was then readmitted on June 20, 2006, to have the colostomy reversed.
Plaintiff was next admitted to the hospital from October 10 to 16, 2006, for an "incisional hernia with obstruction." The hernia was repaired with a piece of mesh, but she had swelling as a complication of the hernia repair. She was again admitted from October 17 to 19, 2006, for pain and an "inguinal hernia on the right side, as well as what's called a suprapubic hernia." She was admitted once again from October 28 to November 7, 2006, because of "wound cellulitis" (inflammation), which was treated with antibiotics. The cellulitis was "a consequence of the multiple procedures that she had, including the multiple operations through the same port."
A common type of hernia in which a loop of the intestine protrudes directly through a weak area of the abdominal wall in the groin region. Inguinal hernia, Random House Dictionary, Dictionary.com, http://dictionary.reference.com/browse/inguinal+hernia (last visited July 14, 2015).
Plaintiff was next admitted on June 5, 2007, with a principal diagnosis of "ventral hernia," and secondary diagnoses of "disorders of the bladder, inguinal hernia, asthma, backache, depression, pruritic disorder, and antibiotics causing adverse effects in therapeutic use." Plaintiff underwent surgery on the same day to treat her hernias. She was discharged the following day.
A bulging of the abdominal wall, often at the site of past surgical incisions where the tissue has become weak or thin. Lydia Krause, Ventral Hernia, Healthline (July 23, 2012), http://www.healthline.com/health/ventral-hernia#Overviewl.
"Pruritus, or itching, is an unpleasant feeling in the skin provoking an urge to scratch." James S. Taylor, Matthew J. Zirwas, & Apra Sood, Pruritus, Cleveland Clinic Center for Continuing Education (Aug. 2010), http://www.clevelandclinicmeded.com/medicalpubs/diseasemanagement/dermatology/pruritusitch/Default.htm.
On June 27, 2007, plaintiff needed treatment for "a massive seroma," which is "fluid that accumulates" in the space between the body's skin and fat layer and the muscle layer. At one point, 3.7 liters of fluid were drained with a "needle through the mid-portion of the wound." This draining was repeated on multiple occasions over four months.
Plaintiff was admitted to St. Barnabas again from October 18 to 20, 2007. The principal diagnosis this time was an "incisional hernia," and the secondary diagnoses were "long-term use of aspirin, asthma, unspecified anemia, scar or fibrosis of skin." Dr. Chamberlain repaired "a parastomal hernia, which was at the site of the prior colostomy site."
A parastomal hernia occurs where the contents of the abdomen protrude through a defect in the abdominal wall created during a colostomy. Robert R. Cima, Parastomal hernia, UpToDate (July 30, 2014), http://www.uptodate.com/contents/parastomal-hernia.
Plaintiff continued to have abnormal conditions, including a "large protrusion of her lower abdomen." She consulted doctors who were not affiliated with St. Barnabas. They performed surgery to remove some of the mesh Dr. Chamberlain had used to repair her hernias and to repair her abdominal wall. This surgery "worked very well," but plaintiff was back in the hospital on December 28, 2008, because of an intestinal obstruction caused by scar tissue. She developed "diffuse laxity" of her abdominal wall after the surgery for the intestinal obstruction. Plaintiff had yet another surgery in May 2009, specifically an abdominal wall reconstruction with another mesh product.
Plaintiff's expert, Charles Loguda, M.D., testified that all her surgeries were related to the complications that occurred following her initial rectocele repair surgery of February 2006. Dr. Stanford also testified that plaintiff's many subsequent surgeries were all "a result of the injury from the original surgery." He described plaintiff's later procedures as "a domino effect stemming from a procedure that wasn't indicated in the first place."
On the subject of the necessity or advisability of the 2006 rectocele repair surgery, the medical testimony at trial differed as to whether a rectocele could cause urinary complaints such as those reported by plaintiff. Dr. Stanford testified on behalf of plaintiff that complaints of frequent urination and incomplete bladder emptying could not be associated with a rectocele. He stated that plaintiff had been complaining of having to urinate frequently for years, long before she was diagnosed with a rectocele. Dr. Stanford was not aware of any medical literature that "relat[ed] stress incontinence and urge incontinence to a Grade 2 rectocele." In his opinion, no reasonable gynecologist presented with "this patient's urinary complaints" would "conclude that a posterior . . . rectocele repair was going to improve her urinary symptoms."
A second board certified gynecology expert presented by plaintiff, Michael S. Kreitzer, M.D., also testified that plaintiff's urinary complaints could not have been reasonably related to a grade 2 rectocele. Referring to plaintiff's bladder suspension surgery in the 1980s, Dr. Kreitzer testified that "from the standpoint of urinary incontinence . . . the bladder suspension was successful[,]" but it resulted in "an overactive bladder and the symptoms that she had of frequency and urgency."
On the other hand, defendants and their expert witnesses testified that in some circumstances, a rectocele could place pressure on the urethra or bladder and cause or contribute to urinary complaints such as those reported by plaintiff. Dr. Hatangadi testified that a rectocele could cause urge incontinence "[i]f the rectocele bulges and presses into the base of the bladder." He explained that when the bladder accumulates urine, "a small amount of urine enters the neck of the urethra," signaling the urge to urinate. He continued: "If the rectum presses on the base of the bladder, it stimulates this. So large rectoceles can cause urgency or the need to urinate." Dr. Hatangadi agreed with plaintiff's contention that "[i]n and of itself" the urge to urinate frequently cannot be an indication for rectocele surgery, but he added that the symptom could be an indication for surgery "[w]hen it is associated with intermittent incomplete emptying of the bladder."
Dr. Quartell stated he believed plaintiff's "rectocele was pressing on her urethra and on her bladder" and causing her urinary symptoms. He believed plaintiff's rectocele was "a large anatomical defect that needed to be corrected." Dr. Quartell testified:
In my opinion, if this was corrected it would help significantly the pressure on the urethra, having the urethra work by itself so that you didn't have to go all the time, and, also, the pressure on the bladder and the intermediate emptying and the possible dribbling, and the need to urinate every half hour . . . .
Defense expert Guillermo Davila, M.D., board certified in obstetrics and gynecology, testified that a rectocele "can present with difficulties in urination or urinary urgency from pressure on the bladder." He stated that diagrams showing the vagina to be like a tunnel are deceptive because the vagina is "a closed" rather than "an open structure." Accordingly, "anything that presses on the vagina is also going to be pressing on the front wall, which means it will be pressing on the urethra or the bladder."
Another defense expert, Mark Mokrzycki, M.D., board certified in general obstetrics, gynecology, and female pelvic medicine and reconstructive surgery, testified that an intermittent inability to void the bladder completely would likely be related to a rectocele if there was no dysfunction of the bladder itself. He considered complaints of urgency and frequent urination to be a "more complicated" question "because that can be the bladder itself spasming or it could be due to the rectocele." However, he thought it possible that a rectocele repair could have alleviated those symptoms as well.
Dr. Mokrzycki was not aware of any medical textbooks, journal articles, or other published materials that described urinary frequency and incomplete emptying of the bladder as symptoms of a rectocele or indications for performing rectocele repair surgery. He said, however, that he has "heard of it because I've talked to other colleagues about it and I've had patients with it." He testified that, in his experience, a rectocele repair corrects "problems with flow" and the sensation of incomplete bladder emptying "well over 80 percent" of the time, while the correction of frequent urination is "variable." Dr. Mokrzycki did not offer an opinion as to whether plaintiff's specific urinary complaints were caused by her rectocele, although he noted that her symptoms had increased in the year leading up to the rectocele surgery.
Plaintiff's experts, Drs. Stanford and Kreitzer, acknowledged the theoretical possibility that a patient could have a rectocele that caused urinary complaints, but Dr. Stanford said such a rectocele would have to be grade 3 or 4 and Dr. Kreitzer said it would have to be "huge" and that the patient "would have known about it for a while." Both opined that plaintiff's rectocele was too small and too asymptomatic to be linked to her urinary complaints. Dr. Kreitzer testified that in his forty years of experience, he had never seen a rectocele big enough to push up through the vagina and put pressure on the bladder.
According to testimony at the trial, a patient with a rectocele has three choices: (1) live with the symptoms, (2) use a pessary, a device similar to a diaphragm that is placed in the vaginal area, although the witnesses disputed the effectiveness of the device, or (3) have surgery to correct the anatomy. Traditional rectocele surgery involves pulling the muscles between the vagina and the rectum and suturing them.
Dr. Quartell testified that he had done traditional surgery to repair "[h]undreds and hundreds" of rectoceles. He considered the disadvantages of traditional rectocele repair surgery to be: (1) "it's hard to get those muscles across" from the buttocks to the area needed and sometimes the muscles tear, (2) "[p]ost-operatively these patients have a lot of pain and spasm," and (3) "it doesn't last as long and as well as we'd like it to" and has about a thirty percent failure rate over time. He testified that a recently developed alternative to traditional rectocele surgery was to use a "mesh kit" to strengthen the repair.
Several manufacturers produced mesh kits. One such product was the Gynecare Prolift that Dr. Quartell used in this case. He explained that "the idea was to open up the space as you would with a traditional repair, but instead of pulling muscles in and across you lay this piece of mesh in there" and anchor the mesh to create a wall. He testified that the potential risks and complications are the same for a traditional rectocele repair surgery and a mesh kit rectocele repair, except that the latter includes the body's possible rejection of the mesh.
In particular, possible rectal perforation is an acknowledged risk of rectocele surgery, even if the surgeon performs the procedure properly, and the risk is the same whether a mesh kit is used or not. Plaintiff's expert, Dr. Stanford, noted that plaintiff's damage to the rectum during the surgery could happen to "[e]ven the best of surgeons."
Before plaintiff's surgery, Dr. Quartell had never done a rectocele repair with a mesh kit of any kind. The Prolift mesh kit first became available for rectocele surgery in 2004 or 2005. Dr. Quartell learned about it through the manufacturer's representative. He liked the idea of using the new procedure because it "was a way to put something in that would create strength in an area that previously had no strength." Dr. Quartell hoped that patients would experience less postoperative pain because their muscles would be less disturbed, and the failure rate would decrease from the thirty percent rate of traditional rectocele repair surgery.
Before plaintiff's surgery, Dr. Quartell pursued training on the use of the Prolift mesh kit, including observing Dr. Hatangadi perform the procedure on several patients. Dr. Hatangadi was a surgeon at St. Peter's University Hospital, and he was board certified in obstetrics and gynecology. He began doing Prolift mesh kit procedures in early 2005.
St. Barnabas, like most hospitals, had a protocol for a surgeon to perform a new type of surgery or to use a medical device that the surgeon had not used before. Gregory Rokosz, D.O., J.D., the senior vice president for medical and academic affairs at St. Barnabas, testified that Dr. Quartell had privileges to perform traditional rectocele repair surgery for many years, but not to use the Prolift product. Because Dr. Quartell was interested in using Prolift, St. Barnabas required that he have a preceptor present during the surgery. Dr. Rokosz was involved in making a request to St. Peter's for a preceptor and in verifying Dr. Hatangadi's credentials. Before the time of plaintiff's surgery, Dr. Hatangadi had performed about forty or fifty posterior Prolift mesh procedures to repair a rectocele. Dr. Hatangadi was "a consultant with [Gynecare] on occasion" to demonstrate the use of the Prolift mesh kit. On his curriculum vitae, he identified himself as a "principal investigator for the Gynecare mesh system."
Dr. Hatangadi testified that, since the time of plaintiff's surgery, he had performed an additional 200 to 300 Prolift mesh procedures.
After Dr. Rokosz completed the requests and approvals, Dr. Hatangadi had "patient-specific temporary privileges" at St. Barnabas to serve as a preceptor for Dr. Quartell in the performance of plaintiff's February 2006 surgery. Although he had never before been a preceptor for a Prolift mesh procedure, Dr. Hatangadi had "precepted hundreds of times — residents, other attendings within [his] hospital." He testified that he "was familiar with how a person who is instructing an experienced physician behaves."
The scope and nature of a preceptor's duties were key disputes at the trial. The question was whether a preceptor is obligated by the applicable standard of care to inquire into and review a patient's complaints, assess independently whether the surgery is indicated, and refuse to proceed as preceptor for the surgery if he does not agree that the surgery is indicated.
Regarding what Dr. Hatangadi had done specifically as a preceptor for plaintiff's surgery, he testified that he arrived at St. Barnabas very shortly before the procedure and did not see plaintiff until she was anesthetized and in the operating room. He never spoke to either plaintiff or her husband. Dr. Quartell had told him that plaintiff had a rectocele that was causing her problems. He relied on Dr. Quartell's judgment as a board certified surgeon to determine whether the procedure was indicated. He testified: "I was there to help him with a procedure, not in the assessment and the planning of a treatment." He reviewed the medical information gathered about plaintiff and thought she was an appropriate patient for the Prolift mesh kit because she had a hysterectomy and a shortened vagina and "a traditional rectocele repair has a significant risk of narrowing her vagina and even shortening it further."
Dr. Stanford testified on behalf of plaintiffs that he has served as a preceptor for Prolift mesh and other procedures and that he was familiar with accepted standards of practice applicable to preceptors who are participating in such procedures. He considered the terms "proctor" and "preceptor" to be distinct. He understood that proctoring could be simply "watching the clock and sitting there . . . like a college professor at an exam." On the other hand, he viewed the role and duty of care owed by a preceptor to be much more involved in making medical decisions. He testified:
As a preceptor, I am taking on the role of an expert and a teacher.
And, so, to, to do this role correctly, I would need to know the details of the proposed surgery. . . .
[I]t would be anticipated that I would, I would have met the patient, that I would have reviewed the indications, and that I would have performed an exam confirming that
the patient met the criteria for doing the surgery.
Now, that may happen in a number of places. It could have happened prior to the surgery. It — in some cases it really could happen in the operating room. But in order for me to fulfill my duties as a preceptor, I should be familiar with the patient and make a decision as to whether we should proceed with this type of procedure, whether there should be some other consideration.
And then to offer training. Often training would occur beforehand, where we would discuss the indications and discuss how we might proceed in the surgery and, so, it's not uncommon for a preceptor to actually hold a little bit of a pre-operative summit and discuss what's going on.
In Dr. Stanford's opinion, Dr. Hatangadi
didn't fulfill the requirements of a preceptor, didn't take the time or effort to get to know the details of the case to understand the indications and then when the patient finally went to the operating room, should have and did not properly precept the case and make the appropriate judgments that were necessary as a preceptor.Dr. Stanford testified that if Dr. Hatangadi had satisfied his obligations as a preceptor, "the surgery would not have occurred" because "[t]here were no indications for a rectocele repair." On cross-examination, Dr. Stanford acknowledged that "the extent of the role of a preceptor" and "level of involvement they should or should not have" is a matter of debate within the urogynecological community. He also agreed there are "no national standards or published standards" on preceptors or the scope of their roles.
Dr. Kreitzer also opined that "Dr. Hatangadi did not function as a preceptor should function, and did not comply [with] what I consider to be or what most people consider to be the standard of care as a preceptor." He said that Dr. Hatangadi was required "[t]o know why the surgery was being done, and to make sure that it was done appropriately." He acknowledged that the meaning of the term preceptor could have different meanings in different circumstances, but he maintained that a preceptor's duties include "knowing why a procedure is done and whether it's the appropriate procedure to do." Dr. Kreitzer testified that if Dr. Quartell had advised Dr. Hatangadi that plaintiff "had a feeling of incomplete bladder emptying, nervous and frequent urinating, and an altered urinary stream," then accepted standards of medical practice would have required Dr. Hatangadi "[t]o tell Dr. Quartell that the surgery is not going to fix this problem, and I can't supervise you or act as your preceptor for the surgery."
Dr. Rokosz testified about what his hospital expected from preceptors. He stated that the concepts of "preceptoring" and "proctoring" are essentially interchangeable. He explained the reason for engaging the services of a preceptor: "[I]f you did not have a physician on your own medical staff who had experience with that product, we would have to bring in a physician without — outside our institution with expertise to do that" as a preceptor. He agreed that the relationship between a surgeon and a preceptor is analogous to the relationship between a resident and an attending physician, although not exactly the same. One difference is that the patient is the patient of the attending physician rather than the resident, but the patient is not the preceptor's patient.
Dr. Rokosz considered it a "reasonable expectation" that Dr. Hatangadi would be aware of the symptoms and indications for the surgery. He would expect the surgeon and the preceptor to discuss the case but would not expect the patient to be examined by the preceptor unless "there were questions or concerns or something came up that the two doctors together thought was necessary." It was his expectation that Dr. Hatangadi would ask Dr. Quartell the "necessary questions . . . to determine in his own mind that this surgery was indicated to address [the patient's] complaints." He added that "it would be reasonable for a preceptor to rely on what information was given by a very qualified surgeon."
In his testimony, Dr. Hatangadi distinguished the role of a preceptor for an experienced surgeon from that of an attending physician for a resident, noting that residents have to "work up the patient" and be familiar with their complaints, symptoms, and indication for surgery. He testified that when a physician is "fully capable" of coming to a diagnosis and "performing traditional rectocele repairs," then learning to use a Prolift mesh kit is "essentially the same surgery" with "some small variations. . . . So you want a preceptor to take you through how this procedure is done. You don't need a preceptor to tell you when a rectocele repair is required."
In his testimony, defense expert Dr. Mokrzycki also discussed the standard of care required of Dr. Hatangadi:
There's no one role [for a preceptor]. It really depends on a number of factors. The only clear cut distinction to me was, I made it very clear, I'm not there to do the surgery and I am not there to be the assistant. When it comes to preceptoring doctors, I'm there as a resource. I'm paid by the company to act as a resource to describe how a surgery should be done and, as a bonus, I thought it was my job and my responsibility to tell that doctor some of the things that I've learned by doing hundreds of these, you know, which way I position that would make it slightly easier for him or her to achieve the goal they're trying to do. So that's what I feel my focus was when I precepted another doctor when it comes to these teachings.
Dr. Mokrzycki testified that he was not aware of "any recognized public standard of care for the conduct of a preceptor." When he acted as a preceptor, he would generally discuss the patient's symptoms and why the surgeon was doing the procedure. He found no deviation from the standard of care in Dr. Hatangadi's performance in this case and said further he would have done the same as Dr. Hatangandi did in like circumstances.
Dr. Davila also testified for the defense that "there is no clear definition" for the role of a preceptor. He acknowledged that he did not know the specific credentialing criteria at St. Barnabas and that he had not personally served as a preceptor for the manufacturer of a medical device, but he helped develop the expectations for preceptors working for American Medical Systems, a competitor of Gynecare.
Dr. Davila testified that "[t]he responsibilities of the preceptor are to the surgeon, and to be available to the surgeon to answer any questions the surgeon has" and "to be able to either reassure the surgeon or give him advice on how to do a step or the procedure better." He said there is no doctor-patient relationship between the preceptor and the patient and Dr. Hatangadi did not have a duty to examine plaintiff or determine the indications for the surgery because he was not her treating doctor.
On the subject of plaintiff's informed consent for the 2006 surgery, Dr. Quartell and plaintiffs gave conflicting factual testimony. Plaintiffs testified that Dr. Quartell did not explain his findings to them after his October 2005 examination, and later did not provide adequate information about the risk of rectal perforation during the surgery.
Regarding the pre-operative consultation conducted on January 27, 2006, plaintiff testified that Dr. Quartell "described the surgery as a very simple, simple vaginal technique that he's done all the time — all the while he's been a urogynecologist." She testified he did not tell her he had never performed a procedure with a mesh kit. Had she known that fact, she would not have agreed to let him perform the surgery. Also, she had no idea that incisions for the surgery would be made in her buttocks, and she would not have agreed to the surgery if she had known it was not restricted to the vagina.
Plaintiff's husband testified that Dr. Quartell generally described the procedure and mentioned mesh but did not name the product. He testified that Dr. Quartell minimized the risks of the surgery and said "in all his years he has had no real complications from . . . this type of surgery."
Regarding Dr. Hatangadi's presence and role, plaintiff testified that Dr. Quartell asked her during the pre-operative consultation if she would consent to having students in the operating room because it was a teaching hospital, and she agreed. She denied giving permission for Dr. Hatangadi to participate as a preceptor. Plaintiff's husband agreed with that testimony.
Dr. Quartell's version of the meeting was very different. He explained that he scheduled all his pre-operative visits for forty-five minutes and "they usually take every bit of that" time. He said he told plaintiffs about the risks and complications attendant to the surgery, distinguishing between the two concepts:
I told them that complications are different from risks . . . . And the complications would be an inadvertent injury to the bowel or the bladder or the ureters, and the possible development if you have that injury of a fistula, meaning a leak of either urine or bowel contents coming out the vagina or out places that it shouldn't come like the skin, and if that happened there would be a need for further surgery.
He said he told plaintiffs that rectocele repair surgery succeeded about seventy percent of the time in correcting the rectocele. In plaintiff's case, he believed a corrected rectocele "would help significantly in fixing her urinary symptoms." He told plaintiff "she wouldn't have that pressure on her bladder and on her urethra, and I thought that that would significantly improve that sense of always having to urinate and not thinking you['re] empty even though when you go to the bathroom you don't have anything anymore." He added: "I told them I'm going to fix the . . . anatomical defect, and I believe that that should help you significantly, but no guarantee."
Dr. Quartell testified that he specifically recalled telling plaintiffs this was his first surgery using mesh to repair a rectocele. He also testified he told plaintiffs that, if he did the procedure using the Prolift mesh, he would "like to" have another surgeon from another hospital "come in and scrub with me and guide us through this operation." He did not name Dr. Hatangadi specifically at that point because he was not sure who the preceptor would be. Dr. Quartell testified that he remembered his conversation of January 27, 2006, with plaintiffs "because of what happened afterward."
On the day of the surgery, plaintiff signed consent forms for the rectocele surgery and for the presence of "Visitors & Observers Professional/Non-Professional Manufacturer Representatives." The latter consent form specifically named Dr. Hatangadi, although misspelling his name. Plaintiff does not dispute signing the consent forms, but she testified that Dr. Quartell was not present and she had already been given drugs when she signed them. Dr. Quartell contradicted that testimony and stated it was St. Barnabas's policy that "[t]he consent has to be fully filled out and it has to be signed in the presence of a witness before any medication is given to the patient, and before, of course, the patient goes into the operating room."
The jury voted seven to one that Dr. Quartell did not deviate from the applicable standard of care in recommending the surgery, and that plaintiff gave informed consent. Having reached those conclusions, the jury was not asked to provide a separate answer on deviation with respect to Dr. Hatangadi.
II.
A.
Plaintiffs contend the trial court erred in granting Dr. Hatangadi's in limine motion to bar use of certain deposition testimony he gave or similar questioning of him during the trial. In addition, the trial court ruled inadmissible the answers that were given by Dr. Stanford in a de bene esse deposition and otherwise barred testimony in the courtroom in reference to the excluded excerpt from Dr. Hatangadi's deposition.
A pretrial deposition, often of an expert witness, taken for use at the trial in lieu of live trial testimony before the jury. --------
At his deposition in August 2009, Dr. Hatangadi testified he would not have participated in plaintiff's surgery if he had known "that this patient's only complaint was incomplete emptying of her bladder." Both of plaintiffs' experts referenced this testimony and viewed it as virtually an admission by Dr. Hatangadi that he had committed malpractice in agreeing to participate in the surgery.
The trial court barred use of this deposition excerpt on the ground that it would have a tendency to confuse the jury rather than provide relevant evidence. The court stated that the deposition question from plaintiffs' counsel "just took one symptom out of — out of all the symptoms" that plaintiff had reported and asked Dr. Hatangadi as a hypothetical question to state his position on the advisability of the surgery based on only that one symptom. The court did not prohibit plaintiffs from exploring the bounds of Dr. Hatangadi's views as to the advisability of the surgery if the questions were "properly worded."
At the trial, plaintiffs' counsel did not attempt to pose a question to Dr. Hatangadi containing all of plaintiff's symptoms. He was permitted to ask whether Dr. Hatangadi had ever "perform[ed] a posterior repair of a rectocele in a patient whose only complaint is incomplete emptying of the bladder" and to refer to Dr. Hatangadi's deposition answer of "No." Counsel also read the following two questions and answers from Dr. Hatangadi's deposition transcript regarding incomplete emptying of the bladder:
Q: Is that an indication for this surgery?
A: Not usually.
Q: In fact, it never is, is it?
A: Not to my knowledge.
Shortly thereafter, the following exchange occurred in Dr. Hatangadi's deposition, which was not barred from presentation to the jury:
Q: Have you ever performed a Prolift mesh repair of a rectocele for a patient who is only complaining of the urge to frequently urinate?
A: No. I have not.
Q: That's not an indication for the surgery, is it?
A: It can be. In and of itself. If it's isolated, it cannot. When it is associated with intermittent incomplete emptying of the bladder, then it can be.
On further examination, defense counsel posed to Dr. Hatangadi the type of question that the judge's pretrial ruling had allowed:
Q. I want you to assume, Doctor, that Mrs. S[] had complaints of straining on urination, urge to go to the bathroom,
frequency of urination, which she was going several times a night and every half hour during the day. And that she was also having intermittent bladder — urine retention. That at one point Dr. [Stuhlberger] did a test — or an examination, he found she had 220 cc's of retained urine. And that another time, when he did a urodynamic testing a month later, she had no remainder. Based on that type of symptomology, Doctor, would you have proceeded with a Prolift rectocele repair of Mrs. S[]?
A. Yes.
Q. Why?
A. Because this constellation of symptoms, as I was explaining earlier, this constellation of symptoms can certainly be caused by a rectocele. When the rectocele presses up on the base of the bladder, as we discussed yesterday, it irritates the base of the bladder. And can cause urgency. Because the bladder thinks that — it can't figure out whether it's urine or whether it's external pressure.
Plaintiffs urge reversible error and a right to a new trial in the rulings of the trial court precluding their use of the Dr. Hatangadi deposition excerpt previously described and in reference to that excerpt by plaintiffs' liability experts.
Initially, we disagree with plaintiffs' argument on appeal that we must conduct de novo review of the trial court's rulings. The basis for barring a small portion of Dr. Hatangadi's deposition was that the question from plaintiffs' attorney was incomplete and would have a tendency to mislead the jury as to pertinent evidence in this case. That ruling was essentially an application of N.J.R.E. 403, which is subject on appeal to an abuse of discretion standard of review. See, e.g., Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
We find no abuse of discretion in the trial court's procedural rulings in entertaining the in limine motion. Specifically, we reject plaintiffs' contention that the motion should not have been considered because it was not timely made. Plaintiffs argue that Rule 4:25-7(b) required that the motion be made at least seven days before the initial trial date. However, the trial date was adjourned many times before the trial was conducted in September 2013. The court could reasonably relax the time requirement of the rule for a pretrial exchange by the parties. Furthermore, the rule does not mandate any particular sanction but leaves it to the discretion of the trial court to determine any appropriate remedy for non-compliance.
Also procedurally, Rule 4:14-9(f) requires objections to be made within forty-five days after completion of a deposition that will be used at the trial. But the trial court retains its discretionary authority in the application of that rule, too. We stated in Mellwig v. Kebalo, 264 N.J. Super. 168, 171 (App. Div.), certif. denied, 134 N.J. 478 (1993), that "[i]t is inappropriate to treat objections to de bene esse deposition testimony as concealed weapons to brandish at a future trial." However, when such objections are made, the trial court "is not limited to granting or denying the objection made at the deposition, but may fashion a fair remedy suggested by all of the circumstances, including the amount of time remaining before trial." Id. at 172.
Here, the trial court fashioned a remedy that was procedurally within the court's discretionary authority. It ruled that the disputed question and answer from Dr. Hatangadi's deposition were misleading and inadmissible, and that Dr. Stanford's assertion referencing that question and answer should be stricken from his de bene esse deposition. The court did not bar plaintiffs from exploring the scope of Dr. Hatangadi's opinions about the advisability of plaintiff's surgery through other questions at the trial.
Plaintiffs cite Lanzet v. Greenberg, 126 N.J. 168 (1991), and Rogotzki v. Schept, 91 N.J. Super. 135 (App. Div. 1966), in support of their contention that the substance of the excluded deposition question and answer was admissible evidence that should not have been stricken from the trial record. They argue that "any one of the complaints" plaintiff reported to Dr. Quartell provided an appropriate basis for questioning the necessity of the surgery.
We will put aside consideration of whether it would be appropriate for plaintiffs to elicit what is essentially expert opinion testimony from Dr. Hatangadi that his co-defendant, Dr. Quartell, was negligent in recommending the surgery. That was the clear implication of the disputed question and answer that the trial court suppressed. Even if plaintiffs could make such use of Dr. Hatangadi's deposition answer against Dr. Quartell, the trial court's ruling was not directed to substantive admissibility but to the likelihood that the question and answer would confuse the issues.
Moreover, the trial court did not rule that plaintiffs were precluded from questioning defendants about their views on the correctness of Dr. Quartell's diagnosis or the appropriateness of the surgery he recommended. The crux of the ruling was that plaintiffs were prohibited from posing a hypothetical question to Dr. Hatangadi if it misstated the circumstances upon which Dr. Quartell diagnosed plaintiff and recommended surgery. The essential facts of the case and the expert testimony offered by plaintiffs regarding those facts were not excluded by the court's ruling. We see no prejudicial error in the court's control of the specifics of the hypothetical question to match more precisely the underlying facts demonstrated by the evidence.
Contrary to plaintiffs' contention, the exclusion of Dr. Hatangadi's deposition answer did not significantly affect the opinions of plaintiffs' own experts that were presented to the jury. As demonstrated by our earlier recitation of the expert testimony at the trial, the opinions of Drs. Stanford and Kreitzer were fully expressed before the jury, only without reference to one answer in Dr. Hatangadi's deposition testimony. The absence of a purported "admission" by Dr. Hatangadi did not affect plaintiffs' ability to present their expert evidence.
In sum, plaintiffs are not entitled to a new trial on the ground that the trial court erred in its rulings with respect to Dr. Hatangadi's deposition.
B.
Plaintiffs contend the court erroneously permitted defense expert Dr. Mokrzycki to show the jury two photographs he had taken depicting a rectocele on a patient he had treated about ten years earlier. They argue that the photographs were not provided during discovery and were not relevant because they did not depict plaintiff's condition. They also argue that the probative value of the photographs, if any, was substantially outweighed by the risk of undue prejudice, confusion of issues, and misleading of the jury. See N.J.R.E. 403.
Dr. Mokrzycki had taken the photographs to use during his instruction of medical students and residents. He sought to use them at the trial of this case to "demonstrate more realistically how the organs appear" than a diagram does.
Demonstrative or illustrative evidence can "replicate[] the actual physical evidence, or demonstrate[] some matter material to the case, or illustrate[] certain aspects of an expert's opinion." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 165 (App. Div. 2004) (citations omitted). "It is in the nature of a visual aid — 'a model, diagram or chart used by a witness to illustrate his or her testimony and facilitate jury understanding.'" Ibid. (quoting Macaluso v. Pleskin, 329 N.J. Super. 346, 350 (App. Div.), certif. denied, 165 N.J. 138 (2000)).
Trial courts enjoy "wide latitude in admitting or rejecting such replicas, illustrations and demonstrations and in controlling the manner of presentation and whether or not particular items are merely exhibited in court or actually received in evidence." Ibid.; see also Biunno, Weissbard, & Zegas, Current N.J. Rules of Evidence, comment 1 to N.J.R.E. 611 (2015) (citing cases confirming the discretion of the trial court in allowing demonstrative or illustrative evidence "and in controlling the manner of presentation . . . .").
Here, the trial court permitted use of the photographs but also ruled that the defense could not contend before the jury that the photographs "demonstrate[] that a Grade 2 rectocele causes urinary problems." In his testimony, Dr. Mokrzycki used the photographs to assist him in explaining the nature of a rectocele, but he did not suggest they depicted plaintiff's rectocele. The court gave a limiting instruction to the jury on the proper use of the demonstrative photographs. The jury was not misled. There was no reversible error in the use of the two photographs as demonstrative evidence.
C.
Next, plaintiffs argue that the trial court should have excluded evidence regarding plaintiff's arrest in November 1999 that resulted from a complaint of domestic violence filed by her husband against her. They contend the details of the incident were not relevant to the issues in the malpractice case and prejudiced plaintiff in the eyes of the jury.
Plaintiffs, however, put the quality and circumstances of their marital relationship at issue by asserting the husband's loss of consortium and services of plaintiff. The jury heard that plaintiffs were in the process of getting a divorce at the time of the trial, but plaintiffs also testified, in effect, that the problems in their relationship did not begin until plaintiff's rectocele repair surgery and the resulting complications. Both plaintiffs testified they had a close relationship before 2006. They claimed plaintiff's post-surgical condition left her unable to engage in sexual relations. They separated in October 2011 because of their "inability . . . to communicate, to resolve issues, the loss of intimacy, and something [that] died between" them.
On cross-examination, defense counsel asked plaintiff if she remembered "an occurrence" in November 1999, six years before the rectocele repair surgery, "involving you and your husband and the . . . Police Department." Plaintiffs' counsel objected, stating that the police report should not be shown to the jury "because it's not admissible evidence." Counsel asked to be heard at sidebar. The sidebar conference, like many in this case, was not audibly recorded and so was not transcribed. We do not have a good record of the nature of plaintiffs' objection as expressed at sidebar and the specifics of the judge's rulings.
After the sidebar, plaintiff acknowledged before the jury that her husband filed a complaint for domestic violence against her in November 1999. Defense counsel summarized the husband's statements to the police that the couple "had been having problems throughout the course of their 15[-year] marriage, but they had been escalating lately" and that "she threw a pillow at him last night and said I wish there was something else I could hurt you with." In response, plaintiff testified she threw a pillow at her husband and that he called the police "on a dare" when they were having an argument but that the rest of "what he said [to the police] is not true." She said they "were going through a tough time" and she was "going through menopause," but she denied they were having trouble in their marriage in 1999.
In response to further cross-examination, plaintiff conceded that she refused to speak with the police when they returned to her house. She denied, however, making the angry, profanity-laced statement attributed to her in the police report. Plaintiff agreed that when the police came back to serve her with a temporary restraining order, she told them "I'm not going anywhere," and she was then arrested. She denied that "when they attempted to serve [her] with the order [she] jumped over the couch and tried to avoid them," and she said that the police made up those allegations contained in the police report.
In his testimony, plaintiff's husband said: "I think that this issue in 1999 was precipitated by some — some disagreements and frustrations and, in retrospect, it — it just got out of hand on both our parts." He said the couple had no thoughts of divorce at the time of the incident.
Although the trial court allowed this line of questioning, it excluded the police report from evidence as "too collateral and too prejudicial."
The issue of whether plaintiff's medical problems and surgeries negatively affected an otherwise stable and satisfying marital relationship was relevant to their claim for damages. The evidence that the husband filed a domestic violence complaint several years before the surgery, and his statements to the police regarding the history and nature of the marital relationship, were both relevant to his claim for damages.
Furthermore, some of the evidence regarding the 1999 domestic violence incident was admissible to impeach generally the credibility of both plaintiffs. N.J.R.E. 607 permits a party, "for the purpose of impairing or supporting the credibility of a witness," to "examine the witness and introduce extrinsic evidence relevant to the issue of credibility." The scope of cross-examination challenging the credibility of a witness "is a matter resting in the broad discretion of the trial court." State v. Martini, 131 N.J. 176, 255 (1993).
The admissibility of plaintiff's actions toward the police is less apparent on this record. The trial court should have more narrowly limited defendants' use of the domestic violence evidence. Nevertheless, although the evidence was sensitive and potentially prejudicial to plaintiffs' case, its inclusion in the overall presentation to the jury was not so unduly prejudicial that it was likely to have influenced the jury's verdict on the question of Dr. Quartell's alleged deviation from the applicable standard of care.
The trial lasted eleven days and focused upon detailed medical evidence and a full account of plaintiff's medical condition. While the prior conduct of plaintiff may have affected her credibility before the jury on her claims based on informed consent, which depended largely on plaintiffs' testimony, her 1999 conduct was not related to the doctors' performance and the standard of care the jury was asked to determine in deciding whether the doctors were negligent in proceeding with the surgery. We have no reason to suspect the jury could not make the distinction.
In addition, the jury had reasons besides the domestic violence incident to doubt plaintiff's version of her discussions with Dr. Quartell preceding the 2006 surgery. Plaintiff's recollection of events was vague, and some of her claims contradicted the medical records. As the trial judge commented in denying plaintiff's motion for a new trial, plaintiff "appeared to accuse Dr. Quartell, every doctor who saw her prior to surgery, every defense witness, the one doctor who did most of the surgical repairs, [and] her own husband . . . of dishonesty." Plaintiff's actions toward the police added only incrementally to this characterization of the plaintiff's frame of mind as heard by the jury.
Rule 2:10-2 provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." In State v. Bankston, 63 N.J. 263, 273 (1973), the Court stated the "test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict" and "led the jury to a result it otherwise might not have reached." The record does not lead us to conclude that the evidence of plaintiff's actions toward the police led the jury to a result it might otherwise not have reached.
Plaintiffs rely heavily on the holding of Green, supra, 160 N.J. at 483, where accusations of racial bias made against the plaintiff led the Court to order a new trial. Here, the domestic violence incident was substantively relevant, and the inclusion of some extraneous evidence about plaintiff's conduct toward the police did not rise to the same prejudicial level as evidence of racial bias in Green.
D.
Plaintiffs contend it was reversible error for the jury interrogatories on the verdict form to be structured so that the jury would only consider the questions related to Dr. Hatangadi's liability if it first found that Dr. Quartell deviated from the accepted standard of care and proximately caused plaintiff's injuries. The jury answered "no" on the first question, whether Dr. Quartell deviated from accepted standards of medical care in his treatment of plaintiff. As directed by the court, the jury did not answer the questions pertaining to Dr. Hatangadi because of that initial determination.
At the charge conference, the trial court agreed with defense counsel that plaintiffs' contentions and evidence logically required the jury to find Dr. Quartell deviated from the applicable standard of care in recommending the surgery in order to find that Dr. Hatangadi also deviated from the standard of care because he participated in the surgery. Since plaintiffs' claim was that the surgery should not have been performed rather than that it was performed negligently, and since Dr. Quartell was a fully-qualified surgeon who was responsible for examining plaintiff and recommending treatment, Dr. Hatangadi could not be found to have been negligent if Dr. Quartell was not.
We agree with the trial judge's reasoning in the factual circumstances of this case. There was no error in the structuring of the jury interrogatories or in the instructions given to the jury regarding how to proceed in answering them on the verdict form.
E.
Having considered plaintiffs' additional arguments that the court's jury charge on informed consent was erroneous and that the court improperly permitted defense expert Dr. Davila to testify about the standard of care applicable to a preceptor, we find insufficient merit in those arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We also find insufficient merit in plaintiffs' argument that the verdict was against the weight of the evidence to warrant further discussion in this opinion. See R. 2:11-3(e)(1)(B).
The advisability of the surgery was a hotly disputed issue that the jury decided in favor of defendants. In denying plaintiffs' motion for a new trial, the trial judge expressed a balanced view of the evidence and then summarized his ruling as follows:
I believe that the jury could have reasonably determined that both doctorsPlaintiffs had their day in court before a jury. They are not entitled to a new trial before a different jury.
deviated from accepted standards of care and that Dr. Quartell failed to obtain informed consent. On the other hand, both doctors were experienced, well-trained professionals. Both doctors, as well as their experts, testified in a very believable forthright manner. The explanations they put forth made sense given the circumstances of the case. There was at least a credible argument that the surgery could have helped cure Mrs. [S]'s symptoms. There was clear proof Mrs. [S] knew of the risks of the surgery and at least some proof she knew that the surgery might not cure her condition. The jury appeared to be quite intelligent, all three lawyers did a good job, and the jury verdict did not shock my conscience. Accordingly, I cannot grant Mr. and Mrs. [S]'s motion for a new trial.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION