The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1642-15T2
THE ESTATE OF ANNA MARIE
CYCKOWSKI BY ITS EXECUTOR
STEVEN CYCKOWSKI,
Plaintiff-Respondent/
Cross-Appellant,
v.
JAY STYLMAN, M.D.,
Defendant-Appellant/
Cross-Respondent,
and
SANIEA F. MAJID, M.D., JOSEPH
FELDMAN, D.P.M., and ST. MICHAELS
MEDICAL CENTER,
Defendants.
________________________________
Argued May 9, 2017 - Decided June 23, 2017
Before Judges Reisner, Rothstadt and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-7062-13.
David Parker Weeks argued the cause for
appellant/cross-respondent (Ruprecht Hart
Weeks & Ricciardulli, attorneys; Mr. Weeks,
of counsel and on the brief; Andrea G. Miller-
Jones, on the brief).
James Lynch argued the cause for
respondent/cross-appellant (Lynch, Lynch,
Held & Rosenberg, attorneys; Mr. Lynch, on the
brief).
PER CURIAM
Anna Marie Cyckowski (Ms. Cyckowski or the patient), a
seventy-four year old woman, experienced complications after her
esophagus was punctured during surgery to repair a hiatal hernia.
She died a few weeks later. Plaintiff, her estate, claimed that
the operating surgeon, defendant Dr. Jay Stylman, did not render
proper medical treatment after the surgery. Plaintiff also claimed
lack of informed consent. The jury returned a no-cause verdict
on the informed consent claim. However, the jury found that
defendant deviated from accepted medical standards in treating Ms.
Cyckowski. The jury also found that the deviation was a
substantial factor in causing her injuries, and defendant did not
prove that some portion of her injuries would have occurred even
if he had not deviated.
Defendant appeals from the resulting December 7, 2015
judgment, consisting of $200,000 in pain and suffering damages,
plus about $240,000 in medical expenses. Plaintiff filed a
protective cross-appeal, asserting that if we reverse the
2 A-1642-15T2
malpractice judgment and remand the case for a re-trial, we should
also order a re-trial of the informed consent claim.
In challenging the verdict, defendant presents the following
points of argument:
I. DEFENDANT'S MOTION FOR A DIRECTED VERDICT
THAT DEFENDANT HAD PROVEN SOME PORTION
OF PLAINTIFF'S INJURIES WOULD HAVE
OCCURRED EVEN IF DEFENDANT HAD NOT BEEN
NEGLIGENT SHOULD HAVE BEEN GRANTED
II. THE JURY'S FINDING THAT NO PORTION OF
PLAINTIFF'S INJURIES WAS DUE TO THE PRE-
EXISTING CONDITION WAS AGAINST THE WEIGHT
OF THE EVIDENCE
III. THE TESTIMONY OF GASTROENTEROLOGIST DR.
ELFANT SHOULD HAVE BEEN LIMITED, NOT
BARRED IN ITS ENTIRETY
IV. THE FACT THAT DR. STYLMAN HAD NOT
PREVIOUSLY PERFORMED THIS SPECIFIC
PROCEDURE LAPAROSCOPICALLY AS PRIMARY
SURGEON SHOULD NOT HAVE BEEN PRESENTED
TO THE JURY
V. DR. BELSLEY'S PERSONAL INFORMED CONSENT
PRACTICES SHOULD NOT HAVE BEEN ALLOWED
TO BE ELICITED BY PLAINTIFF'S COUNSEL
VI. THE WHOLLY INADEQUATE RECORD PROVIDED BY
THE COURT PREJUDICED DR. STYLMAN'S
ABILITY TO CONTEST ALL APPEALABLE ISSUES
RAISED AT TRIAL DUE TO A COMPLETE LACK
OF RECORDING OF KEY SIDE-BAR DISCUSSIONS
Defendant did not perfect the appeal as to his point VI, by
filing a motion to reconstruct the trial record. See R. 2:5-5(a).
Nor has he articulated which of the un-recorded sidebar rulings
3 A-1642-15T2
allegedly constituted, or might have constituted, prejudicial
error. Consequently, we decline to further address this point.
After reviewing the record including the trial transcripts, we
find no merit in any of defendant's remaining appellate arguments,
and we affirm on the appeal. We therefore need not address the
cross-appeal.
I
To put the legal issues in context, we set forth the most
pertinent trial evidence. In brief summary, plaintiff did not
contend that defendant was negligent in puncturing the patient's
esophagus, which was a known but uncommon risk of the surgery.
Rather, plaintiff contended that when the patient showed signs of
complications after the surgery, defendant did not promptly take
steps to rule out the possibility that she had a punctured
esophagus and treat the condition if it existed. According to
plaintiff's evidence, the appropriate steps would have included
performing follow-up surgery within a day or two to locate a
possible puncture, and promptly bringing in a gastroenterologist
to further examine the patient after the second surgery did not
reveal the location of the hole. Plaintiff asserted that, because
the punctured esophagus was not timely discovered and properly
treated, the patient developed a horrendous infection, and other
4 A-1642-15T2
painful and debilitating symptoms which eventually led to her
death.
Dr. Angelo Scotti, plaintiff's expert in internal medicine
and infectious diseases, described the patient's condition and the
development of the infection. Dr. Scotti explained that Ms.
Cyckowski had a hiatus hernia, which he described as "an opening
where the esophagus goes and some of the intestinal contents can
get up into the chest wall." During the surgery to repair this
problem, she suffered a perforation of her esophagus. The
perforation allowed bacteria to enter the mediastinum, which
eventually developed into a mediastinal infection.
Dr. Scotti testified that the infection eventually entered
her blood stream, which caused her to go into septic shock, i.e.,
"her blood pressure dropped and her entire body was responding to
this infection." According to Dr. Scotti, Ms. Cyckowski continued
to get sicker and eventually died from complications of the
surgery.
Dr. Scotti explained that an esophageal perforation is a
medical emergency, because "you have acid from the stomach that
goes through the hole and starts destroying tissues because acid
is for digesting things. And then the bacteria there get in there
and set up infection and that's what happened here." He provided
the following analogy for an esophageal perforation:
5 A-1642-15T2
If you're in a boat and you have a hole in
your boat and you really want to stay afloat
and you keep bailing, bailing, bailing, well,
if you have an esophageal perforation, you
aren't plugging the hole. So that water keeps
coming in, you bail it out, it keeps coming
in. So if you plug the hole in the boat, then
the water stops and you can bail it out and
you'll have a floating boat.
So, again, when you have a perforation
of the esophagus and that infection is being
set up and you have a collection of infection,
like, abscess, if you close the perforation,
then between the antibiotics and your immune
system you have a good chance of healing that.
But if [it] keeps open, you still have
bacteria and acid coming into the area, so
you're fighting a losing battle. You're
[basically] bailing a boat that still has a
hole in it.
Dr. Scotti further testified that bacteria continues to enter
through the perforation even if the "patient has antibiotics, a
feeding tube, and drains" and the infection cannot be eradicated.
He then detailed Ms. Cyckowski's decline starting on April 10
through her release from the hospital at the end of May. During
that testimony, he detailed how the lack of appropriate treatment
allowed the patient to develop septic shock:
Q: She had now gone from the 10th to the
27th with continued contamination from
this open perforation. Is that fair to
say?
A: Of her esophagus into her mediastinum,
yes.
6 A-1642-15T2
Q: Do you have an opinion as to the affect
this had on the patient?
A: Well, it drastically decreases her
prognosis. In other words, she's at more
risk of dying. Just to start back when
she had septic shock on 4/16, April 16th,
when you have septic shock, if you don't
get treatment for septic shock, you --
you start dying. Septic shock is 100
percent fatal if it's not treated. And
the mortality increases by 7 percent for
each hour of treatment that's missed. So
if it's delayed an hour you increase your
[mortality] to 7 percent, by two hours
it's 14 percent.
Now, she didn't die at that point because
they were at least partially treating
her. They were giving antibiotics and
they were giving fluids. So they were
partially keeping up with this
contamination, but not enough to cure her
because of the perforation.
He opined that, throughout this time period, the infection
was getting worse, Ms. Cyckowski was getting sicker and her
prognosis was worsening. Dr. Scotti concluded that had the
perforation been blocked "within three or four, five days of
surgery," Ms. Cyckowski probably would have healed completely.
Dr. Scotti explained that, had the perforation been diagnosed and
treated earlier:
[S]he would have avoided the -- all the other
procedures. She would have avoided having --
she would have avoided dying for one thing.
But she would have avoided the various
procedures that were done. The plural
infusion, they had to put a chest tube and
7 A-1642-15T2
take her infusion. She probably would have
avoided intubation, so she wouldn't have had
the tube in and would not have gotten
pneumonia. She would have avoided the shock,
so she wouldn't have had a central venous
line. Basically, all of the procedures that
she had to keep her alive would have been
avoided. She would avoided being transferred
to another hospital because she most likely
would have recovered and left the hospital
after her surgery.
Dr. Scotti testified that, on May 22, Ms. Cyckowski was
transferred to the Kendrick subacute rehabilitation center, where
she was "pretty much bedridden." While at this facility, "she
developed decubitus ulcers . . . [that] are the pressure sores you
get when you're laying on bony prominences for a period of time."
Finally, Dr. Scotti explained the association between her
death and the esophageal perforation:
I mean, when she went into the hospital she
was cleared medically and reasonably so. In
other words, she was judged a reasonable
medical risk. She had, you know, none of
these. She had a history of asthma and she
had no serious heart disease. And then she
goes on to die a cardiovascular death, you
know, weeks -- months after her surgery. But
she never gets better.
So the surgery, the perforation sets up
a crescendo. The mediastinal infection,
systemic infection, shock, respiratory
failure, urinary tract infection, decubitus
ulcers, all of those things result in really
taxing your body and put you on an
inflammatory response -- that's inflammatory
response we talked about. That inflammatory
response makes your heart work harder, it
8 A-1642-15T2
makes you more likely to clot. So some
combination of those things caused her to die.
There was no autopsy, so I can't pinpoint of
what all the things I mentioned which one of
those or which combination caused her to die.
Dr. Robert Aldoroty, a board certified general surgeon,
testified about defendant's deviation from accepted medical
standards in treating the patient after the surgery. Dr. Aldoroty
testified that esophageal perforation is a known risk to Ms.
Cyckowski's operation. It is important to be aware of the
potential of an esophageal perforation, because of "the potential
enormity of the complications" of a perforation.
Dr. Aldoroty detailed the events starting with Ms.
Cyckowski's surgery. He opined that defendant was not necessarily
negligent in the surgery, because "[perforation] can happen under
the best of circumstances." However, Dr. Aldoroty explained that
defendant deviated from the standard of care with respect to his
post-operative treatment:
So the issue really, the first issue is the
delay in getting Ms. Cyckowski to the remedial
surgery. Okay? It's four or five days delay.
It's entirely unacceptable. We spoke about
this, but any surgeon who operates on the
esophagus is doing paraesophageal hernias.
When a patient isn't doing well, an esophagus
perforation is in the short list. And it's
in the short list because delays in diagnosis
and treatment of an esophageal perforation
have significant health consequences for the
patient.
9 A-1642-15T2
. . . I'm not upset with the
postoperative day one unless an esophageal
perforation wasn't in Dr. Stylman's mind, and
I don't know what was in Dr. Stylman's mind.
But what’s in the chart is reasonable.
But postoperative day two, where she goes
into florid respiratory distress and needs to
be intubated and sent to an ICU, there is a
short list of postoperative complications that
can do that: pulmonary embolus, esophageal
perforation, cardiac event, myocardial
infarction, a heart attack, pneumothorax. And
that’s the short list. . . .
My problem at that point is that she's
sitting in an ICU and no one is ordering any
tests to find anything out. And Dr. Stylman
should have that short list and should be
clunking through it very expeditiously in the
first few hours.
. . . .
So I think in my opinion any reasonable
doctor or surgeon would have gotten a CT of
the chest, abdomen and pelvis
. . . .
And would have gotten a CT that was
appropriate, appropriately done to look for
pulmonary embolus. The ICU would have taken
care of the EKG, the proponent ruling out the
cardiac event.
Dr. Aldoroty concluded that the surgeon should notify the
members of the ICU of the potential surgical complications and to
recommend the appropriate testing. In order to rule out an
esophageal perforation, Dr. Aldoroty said that defendant should
have ordered a CT scan. Dr. Aldoroty opined that defendant
10 A-1642-15T2
deviated from the standard of care by not ordering a CT scan on
post-operative days two and three. Then when he ordered a scan,
and realized Ms. Cyckowski had an esophageal perforation, it was
a deviation not to perform the surgery immediately.
Further, Dr. Aldoroty testified that defendant deviated from
the standard of care by failing to call a gastroenterologist from
April 15 through April 24. He testified that had the perforation
been diagnosed earlier, on April 12 or 13, "the more likely it is
that the patient will recover quicker . . . and will be less likely
to succumb from the perforation." He concluded that Ms.
Cyckowski's death was ultimately due to the delay in diagnosing
the esophageal perforation.
Plaintiff also presented Dr. Peter Salvo, who gave detailed
testimony concerning the pain and suffering Ms. Cyckowski
experienced and the timing of her suffering. Dr. Salvo first
described the pain that Ms. Cyckowski suffered starting a few days
after the surgery. He testified that later, during her hospital
stay, Ms. Cyckowski developed decubitus ulcers, which cause
significant pain. Dr. Salvo provided the following opinion
regarding her pain while she was at Kindred:
I think there are two things you need to know.
I think that no pain medicine is 100 percent
effective. You would like to take down the
pain as much as you can. But those of us who
deal in pain every day realize that pain is
11 A-1642-15T2
one of the most fundamental deep-seeded
neurologic reflexes we have. . . .
So we try to get at the pain as best we
can. Narcotics work. They make your life
better, truly they do. But they don't make
it 100 percent better.
And she was described as feeling short
of breath. That's -- that's not pain, that's
distress. She said on the 10th of June "I
can't breathe." She was anxious. She
complained of pain in her sacral area where
that decubitus was on May 6th. On May 27th
she had lower extremity pain. On the 31st of
May she complained of buttock pain. She had
facial grimacing on the 24th of June.
I think it's fair to say that not every
note at Kindred says that she was in terrible
pain and that's probably true. Pain comes and
goes. But her baseline, her general life was
painful. And sometimes it was worse,
sometimes it was better, sometimes the meds
worked better, sometimes they didn't. This
is biology, it's not physics. The best you
can do is often, unfortunately, good enough,
that's it.
Defendant's case was directed at establishing that he did not
deviate from the standard of care. In his testimony, defendant
detailed the procedure he performed on Ms. Cyckowski and concluded,
"it went very well." The first day after the surgery, defendant
believed Ms. Cyckowski was doing well. The second day after
surgery, April 12, defendant noted in his chart: "[p]atient
sedated, relatively stable, on vent support. Increased fluid --
increased fluids rather. Abdomen soft, non-tender. Continue CRR
12 A-1642-15T2
management." Defendant explained that something happened that
affected "her ability to breathe properly where the carbon dioxide
was building up in her lungs. And that's an emergency that
requires a ventilator to support her, which they did in the ICU."
At this point, defendant did not believe Ms. Cyckowski had
an infection, because she did not show any signs of one. On April
14, defendant testified that a culture came back positive for
bacteria in Ms. Cyckowski's lungs, and he ordered a CT scan.
Defendant was notified early in the morning on April 15 that Ms.
Cyckowski had a leak in her esophagus in the surgical area. But
defendant did not report to the hospital to perform surgery
immediately, for two reasons. First, he wanted to review the
films with a radiologist, and second, performing surgery in the
middle of the night does not generally lead to the best results
for the patient.
Defendant testified that the second procedure, on April 15,
was "a much more serious, dangerous, complicated procedure
. . . ." During the procedure, defendant placed multiple drains
in Ms. Cyckowski to remove any fluid build-up in her abdomen, but
he did not locate the perforation in the esophagus. At this time,
defendant believed that the hole would heal since he inserted the
drains.
13 A-1642-15T2
After the procedure on April 15, defendant did not immediately
attempt to put a stent in because he thought it was too risky
given Ms. Cyckowski's condition. Defendant explained his thought
process each day from April 16 through April 25, telling the jury
why he though his actions were reasonable based on the
circumstances. He explained that he did not call the
gastroenterologist until April 25, because "the signs were
pointing to the fact that it seemed like the drainage was
decreasing. . . . And it seemed like everything was going along
in the right direction as far as the . . . leak was going while
there were many other problems that were happening at the same
time."
Next, defendant called his only expert, Dr. Scott Belsley, a
board certified general surgeon. Dr. Belsley testified that the
surgery was "straightforward" and initially everything was fine
after the surgery. He testified that it was appropriate to obtain
a CT scan on April 14 and it was important that defendant inserted
drains, "because the vast majority of all these perforations heal
by just letting the body do its own thing."
Dr. Belsley testified that defendant performed the initial
operation on April 10 in accordance with the standard of care.
Further, he testified that the first sign of an infection was from
14 A-1642-15T2
the "positive respiratory culture" on April 14. He went on to
explain:
Even having said that then we can argue okay,
is that normal bacteria, is that abnormal
bacteria? So, when you're trying to decide
what's happening while it's happening, in
these situations you put the patient on
antibiotics, you get some x-rays, you run some
cultures and you're trying to figure out while
it's happening, and it's not -- during the
whole process. But I would say on the 14th,
that's when we would have a -- a really
positive indication that there was an
infection.
He opined that defendant did not deviate from the standard
of care by not diagnosing the infection and perforation before
April 15. He also opined that Ms. Cyckowski suffered a delayed
perforation, because if the perforation had occurred during
surgery, she would have had an elevated heart rate and a fever
sooner.
Regarding the second operation on April 15, Dr. Belsley
explained that defendant was not negligent in waiting until the
morning instead of performing the operation in the middle of the
night. He also testified that defendant was not negligent in
refraining from calling in a gastroenterologist prior to April 27.
Dr. Belsley primarily based that opinion on his view that the
typical treatment provided by gastroenterologists - the placement
of stents to block the puncture - was ineffective. He admitted,
15 A-1642-15T2
however, that his was a minority view in the medical profession.
In Dr. Belsley's experience, esophageal perforations will heal
"greater than 90 percent of the time with drainage alone . . . ."
Dr. Belsley summarized his opinion regarding defendant's
overall treatment of Ms. Cyckowski:
There was absolute no deviation in any
aspect in this case.
. . . .
I mean the basis of -- is a very serious
medical problem, surgical problem, which is
likely going to kill a sick patient within two
years, it's a very risky operation. This is
a known complication of the operation, this
is accepted. This is what every surgeon will
say yes, of course it can happen. It's not
common, but yes, this is a possibility. And
when they did notice this, when they have
absolute evidence with the CAT scan, they got
all the right people involved, they did got
rushing in in [sic] the middle of the night,
he performed a very smart, very technically
correct operation to deal with the problem.
[He] had specialists that were taking care of
her throughout the hospitalization, but
unfortunately she succumbed. She was a very
sick lady.
Dr. Belsley testified that Ms. Cyckowski's death "was related
to her preexisting conditions." Further he explained that "you
can't basically reduce it to one event, and discount all of the
preexisting things." He was not asked to quantify or apportion
which of the patient's injuries were attributable to her pre-
existing conditions and which were attributable to any deviations,
16 A-1642-15T2
assuming, hypothetically, that defendant had deviated from
accepted medical standards.
II
Defendant's first two points concern his right to
apportionment of damages under Scafidi v. Seiler, 119 N.J. 93, 108
(1990), which applies when a defendant's malpractice aggravates
or increases the risk posed by a patient's pre-existing medical
condition. Initially, defendant contends he was entitled to a
directed verdict on apportionment. See R. 4:40-1. We review the
issue de novo, and find no error in the trial court's decision.
See Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016).
In the trial court, plaintiff agreed that this was a case to
which Scafidi applied, because there was no dispute that Ms.
Cyckowski had one or more pre-existing conditions, which plaintiff
contended were aggravated by defendant's malpractice. However,
as set forth in Scafidi, defendant had the burden of proof on the
apportionment issue:
[W]here the malpractice or other tortious act
aggravates a preexisting disease or condition,
the innocent plaintiff should not be required
to establish what expenses, pain, suffering,
disability or impairment are attributable
solely to the malpractice or tortious act, but
that the burden of proof should be shifted to
the culpable defendant who should be held
responsible for all damages unless he can
demonstrate that the damages for which he is
17 A-1642-15T2
responsible are capable of some reasonable
apportionment and what those damages are.
[Scafidi, supra, 119 N.J. at 110 (quoting
Fosgate v. Corona, 66 N.J. 268, 272-73
(1974)).]
At the close of the evidence, defense counsel moved for a
directed verdict on jury question #8, which asked whether defendant
had proven that some portion of the patient's injuries would have
occurred, even if defendant had not deviated from the standard of
care. Defense counsel argued that plaintiff's expert, Dr.
Aldoroty, had testified that even if defendant had realized earlier
that more surgery was needed and had performed the surgery on
April 12 instead of April 15, "the attendant recovery from that
surgery would [still] have taken place." The judge reserved
decision on the motion, and denied it immediately after the jury
returned its verdict.1 See R. 4:40-2(a) (the trial court may
reserve decision on a motion for a directed verdict and decide it
within ten days after the jury returns its verdict).
We find no error in the result. On a motion for judgment
under Rule 4:40-1, "[t]he court must accept as true all evidence
supporting the position of the non-moving party, according that
1
The judge indicated that she would provide reasons for her
decision, as is required, but would do so at a later time. See
Atlas v. Silvan, 128 N.J. Super. 247, 250 (App. Div. 1974). From
the record provided to us, it is not clear whether the judge did
so.
18 A-1642-15T2
party the benefit of all legitimate inferences that can be deduced
from such evidence. If reasonable minds could differ, the court
must deny the motion." Rena, Inc. v. Brien, 310 N.J. Super. 304,
311 (App. Div. 1998); see Dolson v. Anastasia, 55 N.J. 2, 5-6
(1969). Viewing the evidence in the light most favorable to
plaintiff, the jury did not necessarily need to find that the
three-day delay from April 12 to April 15 constituted the deviation
that caused the patient's injuries. Plaintiff also presented
evidence that defendant negligently delayed for ten days after the
surgery before calling in a gastroenterologist on April 25.
Defendant's Rule 4:40-1 motion did not even address that deviation
or the resulting injuries and suffering caused by that delay.
Moreover, defendant's case, as presented through his
witnesses, was that there was no deviation. He did not present
testimony that, even if there had been a deviation, a certain
percentage of the patient's injury was attributable to the pre-
existing condition. Neither defendant nor Dr. Belsley provided
any testimony that would have enabled the jury to make the
percentage apportionment Scafidi requires.
It was defendant's burden to present that evidence. "If a
defendant seeks to reduce his liability by asserting that part of
the harm is not attributable to his tortious conduct, the burden
of proving both that the plaintiff's injury is capable of
19 A-1642-15T2
apportionment and what the apportionment should be should rest on
the defendant." Anderson v. Picciotti, 144 N.J. 195, 211 (1996)
(citation omitted); see also Holdsworth v. Galler, 345 N.J. Super.
294, 305-06 (App. Div. 2001). In addition, even if defendant had
presented testimony on apportionment, it would have been the jury's
province to decide if the testimony was credible. As a result,
we conclude that defendant was not entitled to a directed verdict
on question #8.
Defendant's second argument - that the jury's verdict as to
question #8 was against the weight of the evidence - was waived
for purposes of appeal when he failed to file a motion for a new
trial on that ground. R. 2:10-1; Gebroe-Hammer Assocs. v. Sebbag,
385 N.J. Super 291, 295 (App. Div.), certif. denied, 188 N.J. 219
(2006). Moreover, even if we consider the issue, the verdict was
not a miscarriage of justice. R. 2:10-1.
III
Next, defendant argues that the trial judge should not have
barred the testimony of Dr. Elfant, a board certified
gastroenterologist. We review a trial judge's decision to admit
or exclude expert testimony for abuse of discretion. See Townsend
v. Pierre, 221 N.J. 36, 52-53 (2015). We find none here, and we
affirm substantially for the reasons stated by the trial judge in
20 A-1642-15T2
ruling on plaintiff's in limine motion on October 28, 2015. We
add these comments.
Defendant was a board certified general surgeon. He concedes
that under the New Jersey Medical Care Access and Responsibility
and Patients First Act (PFA), N.J.S.A. 2A:53A-41, he could not
present the testimony of a gastroenterologist to opine as to the
standard of care or as to whether defendant's conduct met that
standard. See Nicholas v. Mynster, 213 N.J. 463, 468 (2013).
Defendant argues that Dr. Elfant was not going to testify about
the standard of care, but rather was going to testify about
proximate cause and damages. However, having read Dr. Elfant's
expert report, we conclude that it was clearly aimed at
establishing the standard of post-operative care for a patient who
has undergone hiatal hernia surgery and establishing that
defendant did not deviate from that standard. In fact, the report
began by stating: "Plaintiff's expert alleges a number of
deviations in the care of Mrs. Cyckowski which I would like to
address[.]"
Moreover, in arguing the in limine motion, defense counsel
did not make a proffer that Dr. Elfant would testify about
proximate cause and damages. He stated:
The only thing I intend to elicit from Elfant
is that he is a gastroenterologist[,] is
familiar with and often will treat
21 A-1642-15T2
perforations conservatively before stenting.
And that's after the 15th of April 2012. And
it's not saying anything about standard of
care. It's just saying this is a recognized
treatment.
The judge rejected that argument, noting that "since that
care was not performed by a gastroenterologist, a general surgeon
should address that issue on behalf of the defense." We agree.
On the record presented to the trial judge at the time she decided
the in limine motion, it was clear that the defense proposed to
use Dr. Elfant's testimony as a back-door means of providing
standard-of-care testimony prohibited by the PFA. It was not an
abuse of discretion to grant plaintiff's pre-trial motion to bar
the expert.2
IV
Defendant's remaining two arguments relate to evidence of his
lack of prior experience with the type of surgery he performed on
Ms. Cyckowski, and to a testifying expert's practice with respect
to obtaining informed consent from patients. We conclude that the
2
Defendant's appellate arguments, concerning possible additional
issues about which Dr. Elfant might have testified without
violating the PFA, should have been presented to the trial court
at the appropriate time - during the argument of the in limine
motion. We will not consider those arguments on appeal, because
they were not presented to the trial court. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973).
22 A-1642-15T2
arguments are without sufficient merit to warrant discussion
beyond these brief comments. R. 2:11-3(e)(1)(E).
The evidence was primarily presented to support the informed
consent claim. Plaintiff asserted that defendant misrepresented
to the patient that he had prior experience in performing the
surgery when, according to plaintiff, he had no such experience.
See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537,
555-57 (2002). Because the jury returned a no-cause verdict on
the informed consent claim, any errors in admitting evidence on
that issue would have been harmless. R. 2:10-2.
Evidence that defendant had never performed this surgery
before was also relevant to whether he might, for that reason,
have been unfamiliar with the proper way to deal with an esophageal
puncture, which was a known but uncommon risk of the surgery.
Thus, it was pertinent to the malpractice claim. It was up to the
jury to decide what weight, if any, to give that evidence.
Affirmed.
23 A-1642-15T2