A woman underwent a phlebectomy, an excision of a segment of a vein. Specifically, two doctors removed varicose veins from her legs through small puncture sites in her skin using surgical hooks. This procedure is also known as a microphlebectomy.
The woman went to an emergency room (ER) after the procedure and was diagnosed with multiple infected wounds. The woman was then seen by the doctors who performed the phlebectomy. One doctor observed several superficial wounds, which he documented in a note.
The woman sued the doctors for medical malpractice. The complaint alleged that the wounds would leave her with permanent scarring and discoloration of her legs. The Essex County Superior Court of New Jersey, Law Division, entered default judgment against one of the two doctors.
The remaining doctor in the case was a physician practicing family medicine. At a conference with the trial court, the doctor’s counsel took the position that the doctor was acting as a family medicine specialist when he operated on the woman’s leg. The trial court instructed the woman to obtain an affidavit of merit from a family medicine specialist to vouch for her allegations of medical malpractice. The woman complied with the trial court’s directive.
At his deposition, the defendant family medicine specialist testified regarding what medical specialty encompassed phlebectomies. The defendant family medicine specialist testified that: (1) vascular surgeons conduct phlebectomies; (2) he did not consider himself an expert in phlebectomies; and (3) if phlebectomies were performed by physicians other than vascular surgeons, the physicians would be expected to conform to the same generally accepted medical standards as vascular surgeons.
Based on the defendant family medicine specialist’s deposition testimony, the woman’s counsel retained a vascular surgeon as an expert witness to testify at trial about how the defendant deviated from the standard of care applicable to the performance of phlebectomies. The expert vascular surgeon’s reports concluded that the family medicine specialist grossly departed and deviated from the accepted standard of care one would expect from a physician treating a patient with superficial venous insufficiency, a condition in which the veins have problems sending blood from the legs back to the heart, of which varicose veins may be a symptom.
The defendant family medicine specialist filed a motion to bar the woman’s expert vascular surgeon from testifying regarding the standard of care. His motion relied upon the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act), N.J.S.A. 2A:53A-41(a), which states that, if the party against whom expert testimony is offered is a specialist and the care or treatment at issue involves that specialty, then the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty. In support of his motion, the family medicine specialist included an expert report from a family medicine specialist who opined that it was acceptable and within the standard of care for a family medicine physician to perform the microphlebectomy procedure.
The trial court ruled that the vascular surgeon whom the woman retained to opine on the standard of care for the surgery was ineligible under the Patients First Act to present expert testimony against the family medicine specialist at trial because the expert was not a family medicine specialist. The trial court excluded the expert and simultaneously granted the family medicine specialist summary judgment.
The Appellate Division of the Superior Court of New Jersey affirmed the trial court’s exclusion of the woman’s proposed expert, but vacated the trial court’s grant of summary judgment and remanded to afford the woman a reasonable opportunity to obtain an appropriate substitute trial expert specializing in family medicine. The court held that the trial court did not err in excluding the woman’s proposed expert; however, the court vacated the trial court’s grant of summary judgment because of the confusion caused by the family medicine specialist’s testimony that solely identified vascular surgeons as having the medical specialty to perform phlebectomies.
The trial court did not err in excluding the woman’s proposed expert. The court found there was a sufficient basis in the record to support the trial court’s determination that the Patients First Act required the woman to present expert testimony from a family medicine doctor. The specialties of vascular surgery and family medicine may overlap with regard to phlebectomies, but in such an instance of overlap, the plaintiff’s testifying expert must be of the same specialty as the defendant. Under subsection N.J.S.A. 2A:53A-41(a) of the Patient’s First Act the defendant physician’s performance of a phlebectomy, involved his claimed specialty in family medicine.
The court vacated summary judgment because of the confusion caused by the family medicine specialist’s testimony that solely identified vascular surgeons as having the medical specialty to perform phlebectomies. The court noted that the family medicine specialist’s deposition answers injected confusion in this case. The report of the woman’s expert vascular surgeon was obtained only about a month before the discovery period ended. Given the circumstances, the court found it was inequitable not to afford the woman an opportunity to obtain a substitute report from a family practice specialist, possibly the family practice specialist who provided the affidavit of merit, with an appropriate opportunity for the defense to obtain a responsive report. The court therefore vacated the trial court’s grant summary judgment and remanded the case.
The Appellate Division of the Superior Court of New Jersey affirmed the trial court’s exclusion of the woman’s proposed expert, but vacated the trial court’s grant of summary judgment and remanded to afford the woman a reasonable opportunity to obtain an appropriate substitute trial expert specializing in family medicine.
See: Afonso v. Bejjani, Advanced Minimally Invasive Surgery, LLC a/k/a Cedars Minimally Invasive Surgigal Suite, Ricci, and Atlantic Medicine & Wellness, LLC, 2016 WL 6994333 (N.J.Super.A.D., November 29, 2016) (not designated for publication).
See also Medical Law Perspectives September 2012 Report: Cosmetic Surgery Gone Wrong: High Hopes Meet Unexpected Results