T.L. v. Goldberg
| Decision Date | 10 June 2019 |
| Docket Number | 081135,A-11 September Term 2018 |
| Citation | 208 A.3d 876,238 N.J. 218 |
| Parties | T.L. and M.L., Plaintiffs-Respondents, v. Jack GOLDBERG, M.D., and Penn Medicine Cherry Hill, Defendants-Appellants. |
| Court | New Jersey Supreme Court |
Walter F. Kawalec, III, argued the cause for appellants (Marshall Dennehey Warner Coleman & Goggin, attorneys; Walter F. Kawalec, III, on the briefs).
Michael B. Zerres argued the cause for respondents (Blume Forte Fried Zerres & Molinari, attorneys; Michael B. Zerres, of counsel, and Robin A. Donato, on the brief).
William L. Gold argued the cause for amicus curiae New Jersey Association for Justice (Bendit Weinstock, attorneys; William L. Gold, of counsel and on the brief, and Kay A. Gonzalez, on the brief).
In this case, we must determine whether plaintiff T.L. is entitled to a new trial because -- without objection from T.L. -- defendant Jack Goldberg, M.D., gave trial testimony inconsistent with his discovery responses.
In this medical malpractice action, T.L. claims Dr. Goldberg committed malpractice by prescribing a medication that she asserts should not be prescribed to individuals, who, like her, have a history of depression. During discovery, Dr. Goldberg claimed that he did not recall relying upon any medical publications when prescribing the medication to T.L. and, more specifically, was "not aware of any studies in the Journal of Clinical Oncology" relating to the medication. The trial court thus granted T.L.'s motion to bar the doctor from referring to medical literature at trial.
Dr. Goldberg's testimony at trial, however, was inconsistent with his discovery responses. Dr. Goldberg claimed he relied upon a 2009 publication from the Journal of Clinical Oncology indicating that individuals with a history of depression could be prescribed the medication. T.L.'s counsel did not object to Dr. Goldberg's change in testimony.
After a jury found that Dr. Goldberg did not deviate from the standard of care and commit malpractice, T.L. filed a motion for a new trial. She argued that allowing Dr. Goldberg's change in testimony constituted reversible error. The trial court denied T.L.'s motion -- finding that T.L. was given a fair opportunity to present her case and raise any inconsistencies with Dr. Goldberg's testimony.
On appeal, an Appellate Division panel split over whether Dr. Goldberg's change in testimony warranted a new trial. The majority held that T.L. was entitled to a new trial, citing McKenney v. Jersey City Medical Center, 167 N.J. 359, 771 A.2d 1153 (2001), because defense counsel failed to alert T.L. to Dr. Goldberg's change in testimony. The dissenting judge, however, determined that T.L.'s counsel did not object to Dr. Goldberg's testimony for strategic reasons because counsel viewed Dr. Goldberg's testimony as helpful to T.L.'s case. Accordingly, the dissent concluded Dr. Goldberg's change in testimony did not violate McKenney or require a new trial.
The panel's opinions present the following questions: whether T.L. is entitled to a new trial pursuant to McKenney and whether the admission of Dr. Goldberg's testimony pertaining to the publication, notwithstanding the motion to bar, satisfies the plain error standard -- that is, whether the testimony was "clearly capable of producing an unjust result." R. 2:10-2.
For the reasons set forth below, we agree with the dissent. The circumstances at issue in McKenney, which heavily depended on the prejudice caused to the party disadvantaged by the surprise change in trial testimony, are distinguishable from the change in testimony here. Here there was no demonstration that the changed testimony caused prejudice to T.L. For similar reasons, we do not perceive that the plain error standard compels reversal, especially because counsel's failure to object was likely strategic. In sum, because neither McKenney nor plain error review compels the conclusion that the result below was unjust, we reverse the Appellate Division's judgment.
T.L. consulted Dr. Goldberg to receive treatment for essential thrombocythemia, also referred to as "ET", a blood condition that causes the body to overproduce platelets. If left untreated, essential thrombocythemia can cause blood clots and prove fatal. Before she consulted Dr. Goldberg, T.L. had received treatment for essential thrombocythemia and was prescribed, among other things, interferon and Hydrea. T.L. suffered side effects, including nausea, abdominal bloating, and hair loss from Hydrea.
T.L. saw Dr. Goldberg approximately twenty-five times between January 2005 and October 2010. In October 2010, Dr. Goldberg told T.L. about a new medication, Pegasys. A benefit of Pegasys is that a patient can stop taking it after only forty-eight weeks. T.L. was instructed to take Pegasys on a weekly basis, and Dr. Goldberg prescribed a lower than normal dosage.
After taking Pegasys, T.L. experienced flu-like symptoms, dizziness, numbness and tingling on the right side of her body, and difficulty walking. T.L.'s husband informed Dr. Goldberg that T.L. was experiencing those symptoms, but Dr. Goldberg advised that T.L. should continue taking Pegasys.
On December 26, 2010, T.L. began experiencing severe pain in her neck and both arms. The next day, T.L. felt paralyzed and was transported to the hospital, where she remained for one week.
Upon her release from the hospital, T.L. was transferred to a rehabilitation center where she stayed for approximately three weeks. T.L. was diagnosed with acute transverse myelitis, an inflammation of the spinal cord at a specific level of the vertebrae. T.L. also experienced partial paralysis on her right side.
In October 2011, T.L. brought suit against Dr. Goldberg and his employer, Penn Medicine Cherry Hill. T.L. claimed that Dr. Goldberg deviated from accepted standards of care and thus committed malpractice. During discovery, Dr. Goldberg provided certified answers to interrogatories. One interrogatory inquired whether Dr. Goldberg "rel[ied] upon any medical texts or publications in connection with the diagnosis or treatment of [T.L.]" – and Dr. Goldberg answered, "Not to my recollection."
During his deposition, Dr. Goldberg indicated that he was aware of an international study comparing one medication to pegylated interferon, the generic name for Pegasys. When asked whether he was aware of any other clinical trials "involving the use of pegylated interferon to treat patients with essential thrombocythemia," Dr. Goldberg answered "no." And when asked whether he was "aware of any studies in the Journal of Clinical Oncology pertaining to the use of pegylated interferon to treat patients with [essential thrombocythemia ]," Dr. Goldberg answered "no."
Before trial, T.L. moved to bar Dr. Goldberg from utilizing medical literature at the time of trial. Dr. Goldberg agreed that he would not use any literature other than the literature relied upon by T.L., so the trial court barred Dr. Goldberg "from using any additional medical literature that was not produced during the course of discovery."
At trial, T.L.'s theory of malpractice was that Dr. Goldberg should not have prescribed Pegasys to her because she was diagnosed with, and took medication for, chronic depression. T.L. argued to the jury in her opening statement that the clinical trials for Pegasys excluded individuals with a history of depression.
T.L.'s hematology expert, Dr. Louis Aledort, testified that "depression alone is a reason not to put somebody on Pegasys." Dr. Aledort further testified that the prescribing information stated that Pegasys "should be used with caution in a patient with a history of depression ... [a]nd that the patient should be monitored to see if the depression gets worse." However, on cross-examination, Dr. Aledort conceded that the prescribing information available in 2010 did not bar a physician from prescribing Pegasys to a patient with a history of depression. Dr. Aledort also conceded that a study's exclusion criteria, such as a history of depression, do not necessarily indicate that the medication is unsafe for individuals who suffer from the exclusion criteria.
Dr. Goldberg's hematology expert, Dr. Azra Raza, testified that Dr. Goldberg did not breach the standard of care by prescribing Pegasys for T.L. According to Dr. Raza, T.L.'s history of depression was not a reason to preclude T.L. from taking Pegasys. In addition, Dr. Raza testified that because T.L. was experiencing side effects from her use of Hydrea, it was reasonable for Dr. Goldberg to try an alternative treatment. Both experts, as well as the parties' neurological experts, provided conflicting testimony as to whether Pegasys caused T.L.'s injury.
Dr. Goldberg testified in his defense. He claimed that he prescribed Pegasys to T.L. because he relied upon a clinical trial, published in the Journal of Clinical Oncology in 2009, that included patients with a history of depression:
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