ALEXANDRA GRANOVSKY VS. STEPHEN A. CHAGARES, M.D., Â(L-3717-10, MONMOUTH COUNTY AND STATEWIDE)
A-0090-15T2
| N.J. Super. Ct. App. Div. | Aug 15, 2017Background
- Plaintiff Alexandra Granovsky underwent a 2009 laparoscopic cholecystectomy by Dr. Stephen Chagares; Dr. Chagares inadvertently clipped and transected the common bile duct.
- Plaintiff was treated post-op by Dr. Manuel Rodriguez‑Davalos, who performed an open Roux‑en‑Y hepaticojejunostomy to repair the injury. Dr. Rodriguez‑Davalos was produced as a treating physician, not a retained liability expert.
- Pretrial Judge Quinn struck portions of Dr. Rodriguez‑Davalos’s de bene esse deposition that opined about standard of care, anatomy variation, and that such injuries “could happen to any surgeon.”
- At trial the court nevertheless permitted the defense to read similar, unredacted statements from a second deposition of Dr. Rodriguez‑Davalos; the court also admitted evidence and testimony about informed consent (risk of bile‑duct injury) despite no informed‑consent claim being pled.
- Plaintiff’s liability expert (Dr. Drew) testified defendant deviated from the standard of care (failed to obtain the critical view). Defense experts testified bile‑duct injury can be a recognized complication. The jury returned a verdict for defendant; plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a treating physician may testify about deviation from the standard of care | Stigliano prohibits treating physicians from offering liability opinions; Rodriguez‑Davalos’s comments on causation/standard of care were beyond diagnosis/treatment and improperly admitted | Defendant used the treating surgeon to show the injury is a known complication, not malpractice | Reversed: treating physician may testify about diagnosis/treatment cause, but not opine on another doctor’s deviation from standard of care; admission of those liability opinions was erroneous and not harmless |
| Whether court erred by allowing the defense to read unredacted, prejudicial deposition after a pretrial order struck similar statements | Re-admission violated prior order and allowed impermissible expert‑type testimony from a treating witness | Defense contended the testimony provided context for diagnosis and treatment and showed recognized risk | Reversed: reading the unredacted second deposition was error; those opinions were not within permissible scope of treating physician testimony |
| Admissibility of informed‑consent evidence where no informed‑consent claim was pled | Admission of consent forms and testimony about preoperative warnings was irrelevant and prejudicial; it risks juror confusion and suggestion that consent = waiver | Defendant argued consent evidence shows bile‑duct injury is a known risk and is relevant to show recognized complication | Reversed: evidence of informed consent is irrelevant to negligent‑treatment claim and unduly prejudicial; defendant may present risk evidence through defense experts without relying on consent forms or what was told to plaintiff |
| Limits on cross‑examination and expert opinions (learned treatises, bias/tort‑reform questions, net opinion) | Plaintiff argues restrictions impaired impeachment (learned treatise), limited inquiry into expert bias/political views, and that defense expert gave net opinion lacking factual support | Defense relied on trial court's discretion to control cross‑examination and argued experts’ testimony supported their opinions | Not decided on merits (some guidance): learned treatises may be used if relied upon; bias/tort‑reform views can be probative if tied to credibility; net‑opinion challenges preserved for retrial if timely moved |
Key Cases Cited
- Stigliano v. Connaught Labs., 140 N.J. 305 (1995) (treating physicians may testify about diagnosis/treatment and cause but not be used by others to render liability opinions beyond that scope)
- Delvecchio v. Twp. of Bridgewater, 224 N.J. 559 (2016) (recent Supreme Court guidance affirming Stigliano principles on treating‑physician testimony)
- Carchidi v. Iavicoli, 412 N.J. Super. 374 (App. Div. 2010) (treating physicians cannot be used to offer expert testimony on another physician's alleged malpractice)
- Jacober v. St. Peter's Med. Ctr., 128 N.J. 475 (1992) (experts may refer to learned treatises they relied on; N.J.R.E. 803(18))
- Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973) (preservation rule: issues not raised at trial generally are not reviewable on appeal)
- Townsend v. Pierre, 221 N.J. 36 (2015) (expert "net opinion" without factual basis in the record may be excluded)
- Velazquez v. Portadin, 163 N.J. 677 (2000) (definition of physician standard of care)
- Hayes v. Camel, 927 A.2d 880 (Conn. 2007) (distinguishing admissible expert testimony about risks from prejudicial informed‑consent evidence)
- Wright v. Kaye, 593 S.E.2d 307 (Va. 2004) (explaining that evidence of informed consent is irrelevant to negligent‑treatment claims and may confuse jurors)