TRENTON, N.J. (Legal Newsline) – A medical malpractice case involving a botched gallbladder surgery may be headed to the New Jersey Supreme Court after an appellate court ruled for the plaintiff.
The main issue is whether the surgeon who corrected the problem should be allowed to testify as to the standard of care as an expert witness. On Aug. 15, the Superior Court Appellate Division prevented a surgeon who repaired the damage from testifying to the standard of care and decided evidentiary errors had deprived the plaintiff of a fair trial.
Hugh Turk is the attorney who represents plaintiff Alexandra Granovsky and is with the firm of Sullivan Papain Block McGrath & Cannavo.
“My client is happy that the jury verdict was reversed because we thought that it was based on evidence that should not have been heard at the trial level," he told Legal Newsline. "The appellate court agreed with that and has now sent it back to be tried without that information coming out.”
Granovsky filed suit against Stephen A. Chagares, M.D. and Louis Mazzella, M.D. and Monmouth Medical Center. The 34-year-old pharmacist underwent gallbladder removal (laparoscopic cholecystectomy) in 2009, and during the procedure, Chagares cut the wrong duct.
As the appellate division's decision notes, Chagares “conceded at trial that he inadvertently clipped and cut plaintiff's common bile duct causing her injury.”
The question to be decided by the court was whether the cutting of the wrong duct was a normal complication or if it deviated from the standard of care.
A few days after the surgery, Granovsky was transferred to the emergency room at Westchester Medical Center with nausea, vomiting and jaundice, and the problem was repaired, with the surgeon performing a Roux-en-Y hepaticojejunostomy. The surgeon was Dr. Manuel Rodriguez-Davalos.
When Rodriguez-Davalos was deposed, he testified that Chagares made a common mistake any surgeon could have made, as the hepatic duct and common bile duct look similar.
Plaintiff moved to have the deposition testimony struck, arguing a treating doctor cannot testify as to liability.
The trial court allowed the testimony of Rodriguez-Davalos and returned a verdict in favor of the defense, a "no cause" verdict, but the appellate court found that was in error and sent the case back for a new trial.
Defense attorney Richard Amdur of Eatontown's Amdur, Maggs & Shor told the New Jersey Law Journal he will appeal that ruling to the next level, which is the state Supreme Court.
The defendants are not happy about the appellate court’s decision to exclude the testimony of Rodriguez-Davalos.
“My adversary is going to petition the Supreme Court for review, but I anticipate the case will end up going back to the trial court for a new trial,” Turk said. “They don’t take very many cases, so I anticipate that the Supreme Court will not hear it.”
Another issue was informed consent. Turk brought a motion in limine to exclude all evidence about informed consent from the trial.
As the appellate court’s opinion states, “Defendant countered that showing the jury that he informed plaintiff before the surgery that injury to the common bile duct can occur, constituted proof that such an injury was a known risk and its occurrence was not a deviation from the standard of care.”
“There were two prongs on the appellate decision," Turk noted. "They reversed on two points. One is that the defendants cannot use a treating doctor as a liability expert. When no claim is made for a lack of informed consent, the consent form the patient signed is irrelevant. Those are the two strongest points, I thought, in the appeal. The court agreed with them.”