Plaintiff, Rita B. Rosenberg, the executrix and administratrix ad prosequendum of the estate of her deceased husband, David L. Rosenberg, appeals from the grant of an involuntary dismissal of the complaint at the close of plaintiff's case. The judge ruled that plaintiff's expert failed to delineate a standard of care or a departure from any standard, or that any alleged deviation of care was a proximate cause of decedent's death.
Decedent, a former smoker, suffered from laryngeal cancer, specifically stage III squamous cell carcinoma, which is treatable. In November 1997, he was referred to Dr. Elliot Strong, a cancer surgeon specializing in head and neck surgery, at Memorial Sloan-Kettering Cancer Center ("MSKCC") in New York City. Dr. Strong recommended treating the disease with two to three cycles of chemotherapy, a few weeks apart, and then determining what the results were in terms of shrinking the cancer which could then be radiated, as an alternative to surgery, in order to preserve the patient's larynx and ability to speak. In the event the prescribed course of treatment was not effective, Mr. Rosenberg would have the option of undergoing surgery for the removal of his larynx and the placement of a prosthetic voice box.
As Dr. Strong did not have anything to do with determining which chemotherapy drugs were used or the dosage, and he did not manage patients on chemotherapy, he referred Mr. Rosenberg to Dr. Karen Schupak, a radiation therapist who practiced at MSKCC's "satellite facility" at Northwest Covenant Medical Center ("Northwest") in Denville, New Jersey, which was closer to decedent's home. Dr.
In accordance with MSKCC's larynx preservation protocol ("LP protocol"), which sets forth the dosages and schedules for administering the chemotherapy, Dr. Tavorath's plan of treatment involved administering two cycles of chemotherapy, containing a combination of cisplatin and fluorouracil, over a three-to-four-week schedule. Every record of treatment by Dr. Tavorath was sent to both Drs. Strong and Schupak. Mr. Rosenberg was administered out-patient chemotherapy treatment over a five-day period beginning on December 17. Thereafter, he experienced complications including nausea, high fever, severe diarrhea, low blood count, and dehydration requiring his hospitalization from December 28 through January 2, 1998. During this hospitalization, he was treated by Dr. Ephraim S. Casper, Dr. Tavorath's supervisor and the Chief of MSKCC's site at Northwest.
On January 6, 1998, Dr. Tavorath evaluated Mr. Rosenberg for his second cycle of chemotherapy. She determined he was substantially recovered from the prior toxicities and administered an identical second round of chemotherapy beginning the next day through January 11, 1998.
On January 17, 1998, due to a 104° fever, Mr. Rosenberg was treated in the emergency room and placed on a respirator, before being admitted to the intensive care unit for management of what appeared to be a sepsis syndrome. He was diagnosed as suffering from "chemotherapy-induced neutropenic fever ... complicated by dehydration" and septic shock. Despite treatment, his condition worsened. On January 19, 1998, decedent died as a result of septic shock, induced by chemotherapy neutropenia and toxicity, which caused multiple organ failure.
Plaintiff brought the instant medical malpractice action against Dr. Tavorath, MSKCC
Plaintiff's theory at trial, as presented by her expert, Luis Villa, M.D., was that Tavorath's negligence in failing to modify the second course of chemotherapy caused decedent's death. Plaintiff also asserted that Dr. Tavorath violated MSKCC's LP treatment protocol which required a "team approach" by Drs. Strong, Schupak and Tavorath in evaluating her husband's condition after each cycle of chemotherapy, and that such violation was evidence of negligence.
A jury trial was conducted before the Law Division on several dates between June 5 and June 11, 2001. Plaintiff and her adult son Stuart testified, along with Dr. Villa and an economist, Dr. Marcus.
Following the close of plaintiff's evidence on liability,
Following oral argument, the trial court granted defendants' motion. A judgment dismissing the complaint was entered in accordance with the court's decision on June 25, 2001.
On appeal, plaintiff alleges that the court erred in dismissing the complaint because: (1) the testimony of her expert was sufficient to make out a prima facie case of medical malpractice for submission to the jury; and (2) the court failed to rule on plaintiff's "preserved claim" that Tavorath's violation of MSKCC's treatment protocol constituted negligence.
As to the first issue on appeal, plaintiff argues that the court erred in finding that Dr. Villa: (1) failed to establish a standard of care because he did not specify the basis of his opinion that dose modification was required and, by implication, that he offered only a "net opinion;" (2) failed to establish proximate cause because he did
The trial court accepted Dr. Villa as a qualified expert in oncology. Dr. Villa opined that, based upon his review of decedent's hospital records, Dr. Tavorath deviated from the accepted standards of oncology in treating decedent by failing to reduce the dosage of the second round of chemotherapy. Plaintiff's expert maintained that decedent's death from the complications of chemotherapy was entirely avoidable had the second cycle been modified. According to Dr. Villa, the deviation occurred when Dr. Tavorath failed to recognize that the significant toxicity suffered by decedent following the first cycle of chemotherapy warranted a dose modification for the second cycle. Dr. Villa opined that a dose modification of about 10% to 25% would have avoided or lessened the severity of some of the complications decedent experienced after his first cycle; however, without having examined decedent, he could not say what the precise dose modification should have been.
Dr. Villa further testified that the initial dose of any chemotherapeutic drug is determined by reference to protocols which take into account a patient's height, weight, and body area, but that any subsequent dosage must be determined based upon the individual patient's response and the doctor's experience, taken together with the protocols. Where a patient has a response that is "far too toxic," an adjustment must be made where there are unacceptable or life-threatening side-effects.
Dr. Villa testified as to several toxic reactions and complications suffered by decedent following the first cycle, including neutropenia, which was confirmed by the drop in his white blood cell count from normal levels to very low levels, and left the patient with no protection against bacterial infection; reduction in appetite and significant weight loss; severe diarrhea; mucositis, which causes sores to develop in the protective mucus linings of the nose, mouth, and anus, thereby allowing bacteria to enter the body; and bowel "ileus," a chemotherapy-induced injury to the electrical mechanism of the bowel interfering with bowel movements. According to Dr. Villa, based upon the totality of all these toxicities, Dr. Tavorath should have realized that administration of a second identical course of chemotherapy was likely to cause a greater toxicity resulting in more serious complications or even death, and then used her judgment as an oncologist to modify the dose appropriately. Dr. Villa concluded, within a reasonable degree of
When pressed by defense counsel on cross-examination to quantify the appropriate dose reduction in decedent's case, Dr. Villa stated that the purpose of his testimony was not to establish the exact dosage or to prove that Tavorath was not well-qualified, but simply to demonstrate that "a change should have been made ... and if ... Tavorath had made a five percent change," Dr. Villa would not have testified on plaintiff's behalf even if decedent had died.
Dr. Villa testified regarding his familiarity with the chemotherapy drugs administered to decedent. However, he admitted that he was not familiar with the details of MSKCC's protocol regarding "the measurements that are used to make certain clinical decisions." Dr. Villa, however, maintained that given the "significant toxicity" suffered by decedent as a result of the first cycle of chemotherapy, the "majority of clinical oncologists" would have modified the second dose based upon decedent's clinical presentation evincing a "severe toxicity" after the first course of chemotherapy.
In granting defendants' motion, the trial court stated in pertinent part:
He said further that the modification needed to be based on an assessment of
And ... the science was insufficient.
Pursuant to Rule 4:37-2(b), "[a]fter having completed the presentation of the evidence on all matters other than the matter of damages ... the defendant ... may move for a dismissal of the action ... on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." "[S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.
In determining a motion for an involuntary dismissal, the trial court must accept as true all the evidence which supports the plaintiff's position and must accord that party the benefit of all legitimate inferences which can be deduced therefrom; if reasonable minds could differ the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). The court is not concerned with the "worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence...." Ibid.
To establish a prima facie case of negligence in a medical malpractice action, a plaintiff usually must present expert testimony to establish the relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries. Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469, 734 A.2d 778 (1999). Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury. Sanzari v. Rosenfeld, 34 N.J. 128, 134-35, 167 A.2d 625 (1961); Parker v. Goldstein, 78 N.J.Super. 472, 484, 189 A.2d 441 (App.Div.) certif. denied, 40 N.J. 225, 191 A.2d 63 (1963).
The court qualified Dr. Villa as an expert in oncology following an extensive voir dire. However, in granting defendants' motion for an involuntary dismissal after Dr. Villa testified, the court determined that Dr. Villa's opinion was suspect because he acknowledged, among other items, that "he had seen relatively few patients who had laryngeal cancer and had been treated with larynx sparing chemotherapy and radiation." In reaching this conclusion, the trial judge intruded on the function of the jury to determine the credibility and probative value of the expert's testimony.
A physician has a duty to exercise in the treatment of his or her patient the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his or her field. Schueler v. Strelinger, 43 N.J. 330, 344, 204 A.2d 577 (1964). In Sanzari, supra, 34 N.J. at 136, 167 A.2d 625, the Supreme Court stated that "the license to practice imports the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion." While it is true that "mere possession of a license to practice medicine does not without more conclusively establish the physician's competency to testify in a malpractice case ... [h]is license to practice at least imports some general competency to testify on all medical subjects." Carbone v. Warburton, 11 N.J. 418, 424-25, 94 A.2d 680 (1953). Having graduated from Harvard Medical School in 1970, and having obtained board certifications in six subspecialties, including oncology, Dr. Villa clearly possessed the minimum training and knowledge essential to the expression of an opinion on the subject of the professional standards applicable to chemotherapy treatment sufficient to withstand a motion for involuntary dismissal.
In addition to determining whether a witness is qualified to testify as an expert, the trial court must also decide the closely related issue as to whether the expert's opinion is based on facts and data. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 702 (2002). As construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); Nguyen v. Tama, 298 N.J.Super. 41, 48-49, 688 A.2d 1103 (App.Div.1997). Under the "net opinion" rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984); Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. The rule requires an expert "to give the why and wherefore" of his or her opinion, rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540, 670 A.2d 24 (App.Div.), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996).
In this regard, the trial court found:
Thus, the court concluded that "the standard that was utilized was not demonstrated to be one that was accepted within the medical community," the implication being that Dr. Villa offered a net opinion, or an opinion that was personal to him.
We disagree. Dr. Villa was competent to testify and offer an opinion regarding treatment of laryngeal cancer with chemotherapy. Accepting as true all of the evidence and legitimate inferences drawn therefrom, Dr. Villa offered adequate, particularized testimony sufficient to establish a standard of care, a deviation from that standard, and a causal link between that deviation and the injury. He had personally administered the chemotherapy drugs in question numerous times over a twenty-year
Throughout the trial, and on appeal, defendants repeatedly pointed to Dr. Villa's failure to cite and apply the National Cancer Institute's ("NCI") CTC grading system. The failure of an expert to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion. State v. Freeman, 223 N.J.Super. 92, 115-16, 538 A.2d 371 (App.Div.1988), certif. denied, 114 N.J. 525, 555 A.2d 637 (1989). Rather, such an omission merely becomes a proper "subject of exploration and cross-examination at a trial." Rubanick, supra, 242 N.J.Super. at 55, 576 A.2d 4. Given the level of Dr. Villa's competency, the trial court attributed undue significance to the physician's acknowledgment that his oncology group had not adopted a numerical grading system for rating chemotherapy toxicities.
Moreover, Dr. Villa's acknowledgment that the numerical grading system was not employed by his group was an insufficient basis, on an involuntary dismissal motion, for the trial court to conclude that "there was no standard among doctors that he practiced with." Dr. Villa provided a plausible explanation, which a jury could weigh and determine whether to accept or disregard. Dr. Villa explained that his group did not employ the CTC ratings because they were primarily used by teaching institutions, such as MSKCC, for purposes of uniform reporting of data to the NCI. He also testified at great length to the fact that standards of care in oncology do not vary from community to community, and that his oncology group adhered to the same standards of care as did the majority of oncologists throughout the nation. Rather than adopting a "number system" for grading toxicity criteria, Dr. Villa's group relied upon their "experience and knowledge" in assessing toxicities and making appropriate dose modifications.
Nor does the fact that Dr. Villa failed to cite any treatises, articles, protocols or the like in support of his opinion render it a net opinion as claimed by defendants. Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience. Bellardini, supra, 222 N.J.Super. at 463, 537 A.2d 700. "The requirements for expert qualifications are in the disjunctive. The requisite knowledge can be based on either knowledge, training or experience." Ibid. Of course, "`the weight to which an expert opinion is entitled can rise no higher than the facts upon which the opinion is predicated.'" Ibid. (quoting Johnson, supra, 97 N.J. at 91, 477 A.2d 1246) (other citations omitted).
Among the acts and omissions of Dr. Tavorath which Dr. Villa characterized as falling below accepted standards of care, were her failure to (1) recognize the totality of the "very significant" toxicities resulting from the first cycle; (2) recognize that decedent's fever was attributable to his "severe" level of neutropenia; (3) recognize that decedent's severe mucositis left him vulnerable to bacteria; (4) appreciate the significance of decedent's weight loss, his severely depleted protein levels, and the prolonged period of dehydration and diarrhea; (5) consider the totality of the
With respect to causation, Dr. Villa testified that an appropriate dose modification would have resulted in less toxicity, the complications would not have been to the same extent, the level of toxicity would not have been lethal, and decedent would not have died from the complications of chemotherapy. It was Dr. Villa's opinion, within a reasonable degree of medical probability, that the administration of the second cycle of chemotherapy at the identical dosage as the first cycle caused decedent's death. Further, it is undisputed that decedent in fact died from chemotherapy toxicity.
The trial court incorrectly found that Dr. Villa's testimony was insufficient to establish the standard of care, a deviation, or causation, to allow plaintiff's case to be presented to a jury, because the expert failed to correlate specific levels of toxicities with quantified dose modifications. "An expert's opinion need not be predicated on medical certainty." Greene v. Memorial Hosp. of Burlington, 304 N.J.Super. 416, 420, 701 A.2d 437 (App. Div.1997). This is particularly important in a case such as the present one where Dr. Tavorath did not reduce the dosage level at all. Even though Dr. Villa's testimony may be "fairly susceptible of divergent inferences," the court may not substitute its own judgment for that of the jury by making findings of fact based only on plaintiff's proofs, and then dismissing on the basis of adverse findings. Lanzet v. Greenberg, 126 N.J. 168, 193, 197, 594 A.2d 1309 (1991).
As to the second issue, plaintiff maintains that the trial court committed reversible error in dismissing the complaint without first ruling on plaintiff's "preserved claim" that Dr. Tavorath's violation of MSKCC's protocol requiring a "team approach" constituted negligence. We agree.
Prior to plaintiff offering the deposition testimony of the physicians to the jury, defense counsel moved to dismiss the claim regarding violation of the "team approach" protocol, arguing that there was no expert testimony to support plaintiff's theory that the standard of care required Drs. Strong and Schupak to have input or that any failure to follow a "team approach" had any bearing on the issue of negligence. Plaintiff's counsel argued that under Tobia v. Cooper Hospital University Medical Center, 136 N.J. 335, 643 A.2d 1 (1994), Dr. Tavorath's violation of the hospital rule in "prevent[ing] the other two members of her team from knowledge from having the opportunity to see Mr. Rosenberg," constituted negligence. The trial court dismissed plaintiff's protocol claim "as they relate to the other doctors" because there was no evidence "to suggest that they violated any duty that they had to this particular patient." However, the court stated that it would
Plaintiff also requests that we assume original jurisdiction under Rule 2:10-5, and determine that violation of the protocol established negligence. While plaintiff concedes that her expert did not offer any testimony regarding this protocol, she maintains that expert testimony was not required because such protocol constitutes standards of care as a matter of law. We decline to rule on this issue, due to the sparsity of the record before us. We leave to plaintiff's counsel the trial strategy in presenting this claim in the context of the new trial, with the following brief comments.
The language of protocol 5.141 that "[r]esponse to chemotherapy will be determined by agreement of all three physicians involved" suggests an intent on the part of MSKCC that there be an exchange of information and facilitation of communication between specialists in a multi-disciplinary team approach in managing a cancer patient's care. Since it appears from the trial testimony, however, that protocols may be subject to divergent inferences, expert testimony may be necessary to explicate the protocols' terms and in order to understand their significance in the context of this case. See, e.g., Morlino v. Medical Ctr. of Ocean Cty., 152 N.J. 563, 578-81, 706 A.2d 721 (1998) (holding that Physicians' Desk Reference recommendations are not conclusive evidence of the standard of care or accepted practice, and are admissible on the issue of the standard of care only when they are supported by expert testimony).
For example, throughout the voir dire and cross-examination of Dr. Villa, defense counsel repeatedly suggested that the LP treatment protocol, which employs the NCI "gradings of toxicities," constituted the accepted standard of care among oncologists regarding dosages. Dr. Villa took the position that this protocol was "not written in steel" but, rather, was a guideline subject to modification by a physician depending on the patient's condition and responses. Without explanation, plaintiff appears to take an opposite position with regard to protocol 5.141. Plaintiff asserts that Dr. Tavorath's failure to consult with Drs. Strong and Schupak after each cycle of chemotherapy is a violation of the "team approach" protocol and is evidence of negligence.
Thus, in the retrial, plaintiff may need to present factual testimony from the scrivener or a promulgator of the protocols or MSKCC's administrators as to their intent in adopting the protocols, how they are monitored internally, and their interpretation of whether they constitute a mandate or a guideline may be necessary. Even were protocol 5.141 determined to reflect a standard of care, plaintiff will still have to demonstrate a causal connection between Dr. Tavorath's failure to affirmatively consult with Drs. Strong and Schupak between the first and second cycles of chemotherapy regarding Mr. Rosenberg's physical condition and his health.
Reversed and remanded for a new trial on all issues.