Khan v. Singh

• Citation: 975 A.2d 389,200 N.J. 82
• Decision Date: 09 July 2009
• Docket Number: A-73 September Term 2008
• Court: United States State Supreme Court (New Jersey)
• Parties: Mohammed KHAN and Tasmih Khan, his Wife, Plaintiffs-Appellants, v. Sunil K. SINGH, M.D.; Minimally Invasive Surgery Center; Interventional Neurology, Headache & Pain Relief Center, Defendants-Respondents, and Trimedyne, Inc., Defendant.

975 A.2d 389

200 N.J. 82

Mohammed KHAN and Tasmih Khan, his Wife, Plaintiffs-Appellants, v. Sunil K. SINGH, M.D.; Minimally Invasive Surgery Center; Interventional Neurology, Headache & Pain Relief Center, Defendants-Respondents, and Trimedyne, Inc., Defendant.

A-73 September Term 2008

Supreme Court of New Jersey.

Argued March 24, 2009.

Decided July 9, 2009.

Kenneth G. Andres, Jr., Haddonfield, argued the cause for appellants (Andres & Berger, attorneys; Mr. Andres and Tommie Ann Gibney, on the brief).

Thomas B. Reynolds, Absecon, argued the cause for respondents (Reynolds & Drake, attorneys; Mr. Reynolds, John J. Bannan, and Maria Saveria Bilotti, on the briefs).

Abbott S. Brown and William L. Gold, West Orange, submitted a brief on behalf of amicus curiae New Jersey Association for Justice (Bendit Weinstock, attorneys).

Justice HOENS delivered the opinion of the Court.

This matter, which is before the Court as of right based on the dissent filed in the Appellate Division, see N.J. Const. art. VI, ¶ 1(b); R. 2:2-1(a)(2), presents the Court with the opportunity to consider the contours of the doctrine of res ipsa loquitur. More specifically, it presents this Court with two questions about the appropriate application of that doctrine in the context of medical malpractice litigation.

First, we are called upon to define the qualifications needed for an expert to testify that it is common knowledge in the medical community that an occurrence does not ordinarily happen in the absence of negligence. Second, we are presented with the opportunity to consider the "conditional res ipsa loquitur" theory devised, and occasionally employed, by our Appellate Division.

In the final analysis, based on our response to the first question, the verdict in this matter cannot successfully be challenged, and we affirm it. Although we therefore leave for another day a determination of the second question, we nonetheless consider it briefly in order to express our concerns about its viability in the medical malpractice context.

I.

The facts that are relevant to the issues before the Court can be summarized briefly. Plaintiff Mohammed Khan began experiencing lower back pain as early as 1983 and was treated for that pain from its onset until 1992. After the pain increased, he consulted with Dr. Joseph Zerbo, a board-certified orthopedic surgeon, in October 1999. Dr. Zerbo examined plaintiff and described his condition as "mild discomfort in the lower back." Significant to the issues raised on appeal, Dr. Zerbo also noted that plaintiff was suffering from a condition he identified as "an acute footdrop on the left." He diagnosed plaintiff as suffering from "lumbar radiculopathy, most likely secondary to [a] ... disc herniation." An MRI performed at the time revealed a "disc protrusion at L4-L5," "degenerative disc disease," and an "annular tear." Dr. Zerbo recommended that plaintiff have surgery to remedy these conditions.

Because plaintiff wanted a second opinion before agreeing to have surgery, he consulted defendant Dr. Sunil Singh, who is board-certified in internal medicine, neurology, and pain medicine. Following his evaluation of plaintiff's history and condition, defendant suggested a different approach, consisting of medication, traction therapy, physical therapy, and epidural injections. When that conservative course of treatment did not provide plaintiff with complete relief, defendant recommended that plaintiff undergo a thermal energy discectomy. That procedure is designed to use heat energy to shrink a bulging herniated disc, with the goal of reducing the pressure exerted by the disc on the nerve root, thereby alleviating the pain.

Plaintiff agreed with this recommendation and defendant performed the procedure on May 10, 2000. According to defendant, he first inserted dye into the affected disc, a procedure called a discogram. The manner in which the dye spread demonstrated to defendant that there was a tear in the lining of the disc, but that there was no extruded disc fragment at the L4-L5 level.

Defendant then inserted a thin radiofrequency needle into the disc, to heat its contents so that it would contract and relieve the pressure on the nerve root. Defendant testified that he performed the procedure properly, and he specifically denied striking touching, or burning the nerve root with the radiofrequency probe. Defendant's discharge note reported that plaintiff experienced no immediate complications during or after the procedure and that he "was ambulating well," moving with a "steady gait," and suffered "no new motor deficits."

Plaintiff's recollection was different from the observations recorded in defendant's discharge note. He asserted that when he awoke from the procedure, he immediately experienced a foot drop, that his left leg felt "extremely heavy," and that he had difficulty walking because his "feet [did not] work." Plaintiff contended that he complained to members of defendant's staff, who attributed his complaints to the after effects of the anesthesia.

Plaintiff also testified that within a few days after the procedure his pain became increasingly worse, to the point of being "severe" and "intolerable." At that point, he told defendant that he was in extreme pain and that he could not move his foot. Defendant testified that it was on that date that he first noticed that plaintiff was exhibiting a foot drop.

A post-operative electromyography (EMG) revealed that plaintiff's L5 nerve root was completely destroyed. Thereafter, plaintiff commenced this action, alleging that defendant negligently performed the radiofrequency procedure and burned his L5 nerve root, causing his injuries.

Three experts testified at trial, two providing expert opinions on behalf of plaintiff and the third testifying for defendant. Their testimony presented the jury with different explanations about how plaintiff's injuries could have been caused.

Plaintiff's first expert, a board-certified orthopedic surgeon, was Dr. I. David Weisband. He testified that the radiofrequency procedure used by defendant was contraindicated because the discogram showed that there was an extruded fragment of the L4-L5 disc. He opined that in that circumstance, the radiofrequency procedure presents a risk of permanently burning the nerve root because it permits heat to travel outside the disc to the herniated disc material. In Dr. Weisband's view, therefore, defendant should not have performed the procedure at all and deviated from the standard of care by doing it. Dr. Weisband also opined that the L5 nerve root in fact was burned and consequently destroyed during the radiofrequency procedure, and that it was the cause of plaintiff's foot drop. Finally, although conceding that he had never performed nor been trained to perform the radiofrequency procedure itself, he asserted that the medical community generally recognizes that such an injury, that is, the burning of the nerve root, does not ordinarily occur in the absence of negligence. He commented that the "only way" one could burn the nerve root was through negligence.

Dr. Kenneth Brait, a board-certified neurologist, also testified on plaintiff's behalf. Like Dr. Weisband, Dr. Brait testified that the radiofrequency procedure was contraindicated for several reasons, including the presence of an extruded disc fragment. Like Dr. Weisband, he had not been trained on the procedure and had never performed it. He too, however, opined that defendant deviated from the applicable standard of care and injured plaintiff by burning the nerve root during the procedure. He based his opinion, in part, on the fact that the post-operative EMG demonstrated that plaintiff's nerve root was completely destroyed, a condition he attributed to negligence in performing the procedure. Dr. Brait also testified that the type of injury plaintiff suffered typically does not occur in the absence of negligence, commenting that, based on his review of the literature, if the procedure is properly performed, it does not cause the nerve to be heated. Although he conceded that the destruction of the nerve root ordinarily should result in an immediate foot drop, he suggested that it was possible that the effect was delayed because thermal injuries tend to worsen over time.

Defendant called Dr. Irving Ratner, a board-certified orthopedic surgeon, as his expert. Like the other experts, he had not been trained to perform the radiofrequency procedure; however, his testimony demonstrated that he was familiar with medical literature regarding the procedure that defendant utilized. Dr. Ratner testified that the radiofrequency procedure was not contraindicated. Although conceding that the medical literature advises against conducting the procedure when an extruded fragment is present, he explained that this is not because the procedure poses a risk of injury to the patient, but because "the rate of improvement is lower in that type of case." In Dr. Ratner's opinion, therefore, defendant's decision to perform the procedure was appropriate.

Moreover, Dr. Ratner testified that, in performing the procedure, defendant complied with the applicable standard of care. He opined that defendant did not burn the nerve root during the procedure, instead asserting that plaintiff had a pre-existing medical condition that worsened because of normal chemical changes in the body following the procedure. That is, Dr. Ratner contended that plaintiff had a "sick nerve root" that had previously caused him to suffer "sensory deficit" and "radiating leg pain" and had resulted in an episode of foot drop that Dr. Zerbo had observed. He explained that even if those effects were transient, they demonstrated that "[t]he nerve root [that plaintiff] brought to [defendant] was already partially damaged and probably the result of his long-standing disc disease." In Dr. Ratner's opinion, any surgery, manipulation, or invasive procedure in the area of...