The Superior Court of New Jersey, Appellate Division, recently confirmed that medical malpractice defendants cannot use plaintiffs’ treating physicians to provide expert testimony regarding the standard of care. In Granovsky v. Chagares, Dr. Chagares performed a laparoscopic cholecystectomy, which required the clipping and cutting of the cystic duct, to remove plaintiff’s gallbladder. See A-0090-15T2, 2017 WL 3480771, at *1 (N.J. Super. Ct. App. Div. Aug. 15, 2017). During the procedure, Dr. Chagares inadvertently cut plaintiff’s common bile duct, which necessitated a subsequent surgery by Dr. Manuel Rodriguez-Davalos. The sole issue at trial was whether cutting the common bile duct was a recognized complication of a laparoscopic cholecystectomy or a deviation from the standard of care.

The defense introduced testimony from Dr. Rodriguez-Davalos’s de bene esse deposition, claiming that a bile duct injury, while serious, is a complication “that can happen to any surgeon[,] [e]ven surgeons with very high expertise.” Id. at *5. The appellate court, in conformance with Stigliano v. Connaught Labs., Inc., 140 N .J 305 (1995), held that the defense improperly introduced testimony on the standard of care from a treating physician. While Dr. Rodriguez-Davalos could have testified regarding his diagnosis and treatment of plaintiff’s transected common bile duct, “[h]ow it happened and why it happened, or that it could have happened to the best of surgeons… [were] beyond the scope of what the fact witness could offer the jury and should not have been permitted.” See Granovsky, 2017 WL 3480771, at *6. The appellate court reversed the jury’s no cause verdict and remanded the case due to this evidentiary error, serving as an important reminder to all medical malpractice defendants that the scope of a treating physician’s testimony is not unlimited.