Lanzet v. Greenberg

POLLOCK, J.,

dissenting.

The majority opinion is a result in search of a rationale. In a system designed to provide litigants with one opportunity to prove their case, the majority provides plaintiff with a second chance. This, despite her failure at trial to prove a prima facie case against any of the defendants and despite “the scattershot approach that plaintiff took to assessing liability against the defendant physicians,” ante at 175, 594 A.2d at 1313, and the absence of what the majority has constructed as “the correct theory of liability,” ante at 188, 594 A.2d at 1320. The general rule in medical malpractice cases has long been that a plaintiff must establish through expert testimony the relevant standard of care, the doctor’s breach of that standard, and a causal connection between the breach and the plaintiff’s injuries. Furthermore, the testimony could not be a bare conclusion or “net *194opinion” unsupported by facts or reasons. As I read the majority opinion, it ignores those requirements and distorts the facts to circumvent the judgment of the Appellate Division. Consequently, I dissent.

I

This case comes to us, in relevant part, on appeal from a denial of a motion for a judgment notwithstanding the verdict. Judgment notwithstanding the verdict under Rule 4:40-2, like involuntary dismissal under Rule 4:37 — 2(b), must be denied “if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiffs favor.” R. 4:37-2(b); see Pressler, Current N.J. Court Rules, Comment R. 4:40-2 (1991). It is to be granted only if, under the applicable legal principles, reasonable minds could not differ. Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). A case should go to the jury, and a jury verdict should stand, unless the law clearly requires otherwise. We agree with the majority, ante at 181, 594 A.2d at 1316, that a jury is better situated than are we to assess the credibility of witnesses. The majority’s point, however, begs the question, which is whether the evidence justified submission of the case to the jury. In brief, the question is whether plaintiff proved a prima facie case.

I therefore turn to the question of the requisite expert testimony for establishing a prima facie case of medical malpractice. Lay testimony generally does not suffice in medical malpractice actions. As we explained in Schueler v. Strelinger, 43 N.J. 330, 345, 204 A.2d 577 (1964),

[w]ith rare exceptions (and this case is not one of them), evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians. Ordinarily a jury of laymen cannot be allowed to speculate as to whether the procedure followed by a treating physician conformed to the required professional standards. Since there was no competent proof in this instance [that there was such a deviation], application of the above principles called for withholding the question from jury consideration.

The rationale is that jurors lack the technical training and experience needed to evaluate physicians’ professional conduct. *195Sanzari v. Rosenfeld, 34 N.J. 128, 134-35, 167 A.2d 625 (1961). To establish a prima facie case of negligence in a medical malpractice action, a plaintiff must present expert testimony to establish (1) the applicable standard of care, Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, 325, 492 A.2d 371 (1985); Sanzari, supra, 34 N.J. at 134-35, 167 A.2d 625; Hearon v. Burdette Tomlin Memorial Hosp., 213 N.J.Super. 98, 101-02, 516 A.2d 628 (App.Div.1986); Parker v. Goldstein, 78 N.J.Super. 472, 479-80, 189 A.2d 441 (App.Div.), certif. denied, 40 N.J. 225, 191 A.2d 63 (1963); (2) a deviation from that standard, Clark v. Wichman, 72 N.J.Super. 486, 496, 179 A.2d 38 (App.Div.1962); and (3) that the deviation proximately caused injury, Germann v. Matriss, 55 N.J. 193, 205, 208, 260 A.2d 825 (1970); Clark, supra, 72 N.J.Super. at 498, 179 A.2d 38. Absent competent expert proof of these three elements, the ease is not sufficient for determination by the jury. Sanzari, supra, 34 N.J. at 135, 167 A.2d 625; Parker, supra, 78 N.J.Super. at 484, 189 A.2d 441; Clark, supra, 72 N.J.Super. at 497, 179 A.2d 38.

Perhaps the majority opinion is best understood as an emotional response to a tragic event. When a medical procedure produces a bad result, a reviewing court may be tempted to close its eyes to legal requirements and sustain a judgment for money damages. When so tempted, however, a court must remind itself that defendants, as well as plaintiffs, are entitled to a fair hearing and that plaintiffs must satisfy evidentiary requirements to justify submission of their case to the jury.

The requirement for expert testimony in medical malpractice cases ensures that jurors will reach a reasoned judgment, not one resulting from mere sympathy. A bare conclusion unsupported by an adequate explanation, commonly called a “net opinion," does not suffice. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); Parker, supra, 78 N.J.Super. at 483-84, 189 A.2d 441. In fact, an expert’s bare conclusions, unsupported by factual evidence, are inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984); Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. The expert must offer a *196concrete factual explanation to support a finding that physicians have deviated from accepted medical standards, and that the deviation proximately caused the plaintiffs injury. Parker, supra, 78 N.J.Super. at 483-84, 189 A.2d 441. Expert opinion in a medical malpractice case is not an empty liturgy, but a means of supplying a jury with the information to decide the case. “The sole justification and purpose of expert testimony is to assist the trier of fact to find a solid path through an unfamiliar and esoteric field.” Thompson by Thompson v. Merrell Dow Pharmaceuticals, 229 N.J.Super. 230, 241, 551 A.2d 177 (App.Div.1988) (quoting Tabatchnik v. G.D. Searle & Co., 67 F.R.D. 49, 55 (D.N.J.1975)).

Regarding the applicable standard of care, “[a] physician must be allowed a wide range in the reasonable exercise of judgment.” Schueler, supra, 43 N.J. at 345, 204 A.2d 577.

The law recognizes that medicine is not an exact science. Consequently it does not make the physician a guarantor of the cure of his patient. When he takes a case it imposes upon him the duty to exercise in the treatment of his patient the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his field, [Id. at 344, 204 A.2d 577.]

Moreover, a deviation from that standard may not be assumed from a tragic result.

The fact that a good result may occur with poor treatment, and that good treatment will not necessarily prevent a poor result must be recognized. So, if the doctor has brought the requisite degree of care and skill to his patient, he is not liable simply because of failure to cure or for bad results that may follow. [Ibid. ]

In addition to establishing the relevant standard of care and a defendant’s breach of that standard, the plaintiff must also establish causation. Germann, supra, 55 N.J. at 208, 260 A.2d 825. Without such proof, the plaintiff has not proved a prima facie case. Id. at 205, 260 A.2d 825.

In rare cases, a plaintiff may prove malpractice without expert testimony. Under the “common knowledge” exception, expert testimony is not required when the standard of care, deviation, and causal link may be readily understood in light of the common knowledge and experience of laypersons. E.g., *197Klimko v. Rose, 84 N.J. 496, 503-05, 422 A.2d 418 (1980) (chiropractor continued neck adjustments after patient became dizzy, sweaty, and gray); Calabrese v. Trenton State College, 82 N.J. 321, 324, 413 A.2d 315 (1980) (physicians gave no warning of rabies vaccine’s possible adverse effects); Jenoff v. Gleason, 215 N.J.Super. 349, 357-59, 521 A.2d 1323 (App.Div.1987) (radiologist failed immediately to advise treating physician of possible lung tumor detected on x-ray); Tramutola v. Bortone, 118 N.J.Super. 503, 512-13, 288 A.2d 863 (App.Div.1972) (physician failed to inform patient of needle left in her chest during surgery), modified on other grounds, 63 N.J. 9, 304 A.2d 197 (1973); Jones v. Stess, 111 N.J.Super. 283, 287-90, 268 A.2d 292 (App.Div.1970) (chiropodist accidentally cut diabetic’s toe); Steinke v. Bell, 32 N.J.Super. 67, 70, 107 A.2d 825 (App.Div.1954) (dentist extracted wrong tooth). The common knowledge doctrine, however, applies only in extraordinary cases, and has no application here. See Rosenberg by Rosenberg, supra, 99 N.J. at 325-27, 492 A.2d 371. Generally, a prima facie case of medical malpractice requires adequate particularized expert testimony.

II

Given these legal principles, the question becomes whether, as to each defendant, plaintiff proved (1) a standard of care, (2) a deviation from that standard, and (3) a causal link between that deviation and the injury. Examining the testimony of plaintiff’s sole expert witness, Dr. David Stark, an anesthesiologist, and all the other evidence presented, I conclude, as did the Appellate Division, that plaintiff’s evidence was deficient as to each of the defendants. I cannot improve on Judge Antell’s perceptive analysis of those deficiencies:

DR. OEN

Dr. Oen’s negligence, according to Dr. Stark, lay in her failure to make a bedside reassessment of the patient after she learned of the patient’s elevated blood pressure before clearing her for surgery. When asked if he had an *198opinion whether or not Dr. Oen "deviated from medically acceptable standards in not reassessing Anna Lanzet for surgery on the morning of October 29, 1983,” he answered:
Yes, that is my opinion. I think that if — as I said before, having with regard to the fact that on the morning of the surgery it is necessary to have additional medical consultation and to prescribe important diuretics over the telephone, I think it is a basis on which bedside assessment and reassessment would very well have resulted in a happier outcome.
The answer given is simply a “net opinion” or a statement of the doctor’s own personal opinion as to what good medical practice dictated under the circumstances without any attempt to demonstrate how the lack of a bedside reassessment was a factor causative to the patient’s injury and death. The statement that a reassessment would have produced a “happier outcome” does not satisfy the need for an explanation in concrete terms of what a bedside reassessment would have accomplished or what findings would reasonably have been made that could be related to what later happened on the operating table. Indeed, we come back to Dr. Stark’s testimony that what befell Mrs. Lanzet was probably caused by a cerebral-vascular accident, something which was neither shown to be foreseeable nor related in any way to the surgical procedure in progress. Absent from the record is any statement of the physiological mechanics which intervened between Dr. Oen’s telephoned prescription for Lasix on the morning of the surgery and the disastrous events on the operating table.
In Parker v. Goldstein, 78 N.J.Super. 472 [189 A.2d 441] (App.Div.), certif. den. 40 N.J. 225 [191 A.2d 63] (1963), an obstetrician was held answerable by a jury for the death of a patient which was caused by a pulmonary embolism during childbirth. The theory of recovery was that the doctor’s delay in performing a Caesarean section bore a causal relationship to the embolism. The Appellate Division reversed because proof of causal relationship was absent. The court there stated:
There was no word of testimony from the [expert] witness to explain the physiological reactions of the decedent to the alleged delay, or of the anatomical effect of the delay on the pulmonary structure of decedent. The opinion, thus, was what is commonly described as a “net opinion.” [Id. 78 N.J.Super. at 483, 189 A.2d 441],

It therefore concluded that the

“complete absence of explanation ... of how, and in what manner, the supposed delay caused or contributed to the pulmonary embolism left an irreparable void in plaintiff’s proof. Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff’s case. [Id. at 484, 189 A.2d 441],
The fault attributed to Dr. Oen by Dr. Stark was that she cleared the decedent for surgery. As we have noted, the surgery was not responsible for the cerebral-vascular accident which later occurred. Therefore, the only effect of cancelling the surgery would have been that Mrs. Lanzet would have suffered the accident at a place other than in the operating room. Her pulse was dropping rapidly, she was showing cyanosis, her brain had become globally *199hypoxic and without the resuscitative efforts which were made at 11:40 a.m., she would probably have been denied the 13 months of vegetative existence following the operation.
********
We conclude that the finding of professional negligence on the part of Dr. Oen which was causally related to the decedent’s injury is not supported by the evidence. [243 N.J.Super. at 225-27, 579 A.2d 309.]

In sum, plaintiff alleges that the internist, Dr. Oen, committed malpractice by clearing Mrs. Lanzet for surgery on the morning of the operation without conducting a bedside reassessment. Dr. Stark testified that in his opinion, Dr. Oen “deviated from medically acceptable standards” by failing to make such a reassessment after learning of the patient’s elevated blood pressure. He further testified that, in his opinion, “bedside assessment and reassessment would very well have resulted in a happier outcome.” However, Dr. Stark gave no factual explanation to guide a jury in finding a causal link between deviation and injury. “Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff’s case.” Parker, supra, 78 N.J.Super. at 484, 189 A.2d 441. In the absence of proof of causation, plaintiff did not establish a prima facie case against Dr. Oen.

Plaintiff also argues that Dr. Oen should have consulted with the radiologist regarding the x-ray prior to clearing the patient for surgery. However, Dr. Stark’s vague statement that “I think it’s — it’s sound to consult if you feel there’s a disagreement” establishes neither a deviation from accepted medical standards nor a causal link between the failure to consult and the injurious outcome. Because plaintiff failed to present sufficient expert testimony to make out a prima facie case, I agree with the Appellate Division that Dr. Oen was entitled to a judgment notwithstanding the verdict.

The majority’s argument for reinstating the verdict against Dr. Oen is incomprehensible. The majority states that “plaintiff need not establish that any of the doctors caused the *200‘cerebral-vascular accident.’ They may be held liable for decreasing her chances to survive such an incident without devastating brain damage.” Ante at 185, 594 A.2d at 1318. Unexplained by the majority, and I believe unexplainable, is how Dr. Oen’s conduct decreased Anna’s chances to survive the accident without brain damage. I cannot make any sense of the majority's declaration that

the proofs allowed the jury to infer that Dr. Oen’s failure to consult with the radiologist and to realize that “this is not a normal conducting system of the heart” was in reasonable probability a factor that further contributed to the patient’s inability to withstand the heart episode when it occurred on the operating table. [Id. at 185, 594 A.2d at 1318.]

If the majority’s theory is that Dr. Oen’s conduct was not causally related to the cerebral-vascular accident, but only to the patient’s inability to undergo surgery, then the majority must think something shows a causal link between the doctor’s conduct and that inability. Any such evidence, however, is missing from the record. Nothing suggests that Dr. Oen’s conduct “contribut[ed] to plaintiff’s inability to withstand the heart episode when it occurred on the operating table.”

Concerning the anesthesiologist, Dr. Bekhit, plaintiff’s case is also deficient. Judge Antell analyzed the relevant facts:

DR. BEKHIT

Dr. Stark testified that Dr. Bekhit’s treatment of the bradycardia was “appropriate” until after the second administration of Atropine at 11:36 a.m. At that point, he says, Dr. Bekhit should have investigated the cause of the bradycardia, made a “more active assessment” of the plaintiff’s condition and considered using another medication to stimulate the heart.
The function of Atropine is to block the vagus nerve. When stimulated, the vagus nerve, which lies directly behind the eye, will have the effect of slowing the heartbeat. And Dr. Stark said, Atropine is a commonly used drug that increases the pulse rate in most cases. Apparently, the Atropine had its desired effect with the first administration at 11:20 a.m. However, after the administration at 11:36 a.m. failed to achieve a response Dr. Stark says Dr. Bekhit should have considered that there was "... something adrift further down in the pumping mechanism.” The “treatments of choice” open to Dr. Bekhit were either to continue with the Atropine or switch to another drug, such as Ephedrine or Isuprel, which directly stimulate the heart muscle. If the drug *201had been changed, according to Dr. Stark, the cardiac arrest would have been brought under control and the global hypoxia averted.
Dr. Stark said that Dr. Bekhit should have recognized as a warning sign the fact that the first Atropine administration at 11:20 a.m. elicited only a “modest” response by bringing the pulse up to just below 60. He stated that in most cases the pulse rate after such a dose would have increased to 80 or 90. Thus, he stated, the third dose, which was administered between 11:36 and 11:37 a.m., was not “appropriate.”
Dr. Stark did not testify that recognized medical standards controlled the decision to continue the administration of Atropine or change to Isuprel or Ephedrine. Although he said that a more “active assessment” should have been made, he did not specify what form this should have taken, what course of action would have resulted from it, and, most important, when in the sequence of events recognized medical standards required the change to Isuprel or Ephedrine. In fact, he acknowledged on cross-examination that there was “no obligatory standard that compelled the use of something besides Atropine,” and actually said no more than that the use of another drug was “one of the options.” He also acknowledged the possibility that in such situations catastrophe can be caused “unnecessarily by over-intervening too soon.” Writing on this subject in his own book on anesthesia, he wrote: “It may be wise merely to watch the situation here carefully. It is all too easy to over treat in these circumstances.”
We observe that even on cross-examination Dr. Stark carefully avoided ratifying the phrase “standard of practice” when used by counsel to determine whether or not Dr. Bekhit’s course of treatment was negligent. He chose instead to characterize the treatment in terms of whether it was or was not “appropriate.”
[Mjuch more than the personal opinion of a medical witness is necessary to establish a standard of acceptable medical practice. The expert testimony must relate to generally accepted medical standards, not merely to standards personal to the witness. See Carbone v. Warburton, 11 N.J. 418, 425 [94 A.2d 680] (1953). See also, Schueler v. Strelinger, 43 N.J. 330, 346 [204 A.2d 577] (1964). [Fernandez v. Baruch, 52 N.J. 127, 131, 244 A.2d 109 (1968)].
We conclude that Dr. Stark’s testimony falls significantly short of establishing the required standard of medical practice to determine whether Dr. Bekhit exercised due care. Under the circumstances the doctor’s choice of treatment involved the exercise of medical judgment only. In Dr. Stark’s opinion, the “inappropriate” treatment occurred between 11:36 a.m., when the third administration of Atropine was given, and 11:40 a.m., when resuscitation began. In Dr. Bekhit’s judgment the proper treatment of choice was a third administration of Atropine which was given between 11:36 and 11:37 a.m., although when the resuscitative effort began he was preparing to administer Isuprel. Taking into account that a minute or two was required for the Atropine to take effect, to say in retrospect that a different drug, or earlier resuscitative efforts, would have saved the patient does not equate with an expert opinion that Dr. Bekhit’s failure to resort to those measures before 11:40 a.m. constituted a deviation from medical standards. We can only interpret Dr. Stark’s testimony to mean *202that the choice of medication, and the decision when to change from one to another, must be left to the trained judgment of the anesthesiologist responsible for the patient’s care and whose allotted time for decision must be measured in fractions of a minute. Although Dr. Stark might have earlier utilized a different treatment, this does not serve as a standard by which to measure Dr. Bekhit’s performance and conclude that his judgment was not responsibly exercised. “A physician must be allowed a wide range in the reasonable exercise of judgment.” Schueler v. Strelinger, 43 N.J. at 345 [204 A.2d 577]. The fact that the patient was not saved does not evidence negligence. Id. at 344 [204 A.2d 577], [243 N.J.Super. at 228-30, 579 A.2d 309.]

Plaintiff thus alleges that when Atropine failed to increase the patient’s pulse rate, Dr. Bekhit should have switched to another treatment. Dr. Stark testified that another drug might have prevented the global hypoxia by raising the pulse rate, and that Dr. Bekhit’s third administration of Atropine was inappropriate. Missing from Dr. Stark’s testimony, however, is any concrete statement of recognized medical standards. He offered no generally accepted standard for determining when an anesthesiologist should switch from Atropine to Ephedrine or Isuprel. An expert’s personal opinion does not prove a standard of accepted medical practice. Fernandez v. Baruch, 52 N.J. 127, 131, 244 A.2d 109 (1968). As the Appellate Division concluded, plaintiff’s failure to establish a standard of care through expert medical testimony means that plaintiff failed to prove a prima facie case against Dr. Bekhit. 243 N.J.Super. at 229-30, 579 A.2d 309.

The majority acknowledges that plaintiff failed to establish any negligence in Dr. Bekhit’s continued administration of Atropine rather than Isuprel or Ephedrine. Ante at 175-76, 594 A.2d at 594. Concerning Dr. Bekhit’s other conduct, the majority is unable to identify any breach of a generally accepted standard of care. That inability is understandable: Plaintiffs expert, Dr. Stark, not only failed to identify any such breach, but any standard that Dr. Bekhit might have breached. Like the majority, I accept that surgeons may rely on anesthesiologists to monitor the plaintiff’s condition. The mere fact that something goes wrong, however, does not mean that the anesthesiologist was derelict. Plaintiff still must prove that the *203anesthesiologist, through an act of commission or omission, did something wrong. This record sorely lacks any evidence of a generally accepted standard of care that Dr. Bekhit might have breached. I am unwilling to reject the requirement for such proof simply to hold Dr. Bekhit liable.

Finally, plaintiff failed to prove a prima facie case against the two ophthalmologists, Drs. Greenberg and Scannapiego. Again I turn to Judge Antell’s analysis:

DR. GREENBERG and DR. SCANNAPIEGO

Dr. Stark testified that Drs. Greenberg and Scannapiego “failed to pay sufficient attention to Anna Lanzet’s well-being on the argument that they were concentrating on the surgery.” Thus, he claimed, they failed to “respond to the audible and tactile stimuli in the operating room which signaled the decline of the patient’s vital signs,” that “neither appreciated the seriousness of the patient’s condition ... and neither requested that the operation be aborted, prior to its conclusion.” Also, “they failed to communicate with or respond to operating room personnel concerning the patient’s condition and continued according to their surgical plan to conclude three cataract surgeries that morning as scheduled.” In combination, Dr. Stark said, “[t]hese actions were mimical to the patient and contributed to the delay of early resuseitative efforts. Each constituted a deviation from medically acceptable standards of operating room surgeons.”
Nothing in the evidence supports Dr. Stark’s frequently expressed belief in the surgeons’ adamant determination to complete three cataract surgeries that morning regardless of the consequences.
Nor do we find anything in the evidence to support Dr. Stark’s other conclusions. All that we can discern is that the surgeons were proceeding with their work while Dr. Bekhit was administering to the patient’s declining vital signs. Although Dr. Stark says they deviated from acceptable medical standards, he does not say what the standards are and does not explain at what point in the sequence of events they require these defendants to abandon the operation and apply themselves to resuscitating the patient. All we can discern is that after the patient failed to respond to the third dose of Atropine and after her cyanotic condition was noted immediate resuseitative efforts were begun. It is not enough to look back and say, in judging these physicians, that if resuseitative efforts had been earlier made the patient would have survived.
According to Dr. Stark, Dr. Bekhit’s “responsibilities lie in maintaining the vital functions of the patient at as near normal as possible.” We are not told of any operating room protocol whereby the surgeons may displace the anesthesiologist and determine the requirements of the patient which come under the latter’s responsibilities. Nor can we determine from the testimony in what respect Drs. Greenberg and Scannapiego failed to “communicate” with the *204other operating room personnel and the proximate consequences of such failure to communicate. Since Dr. Bekhit was responsible to monitor the patient’s vital signs, Dr. Stark’s opinion that the surgeons must answer for the failure to resuscitate sooner draws upon the “captain of the ship” doctrine, which has been expressly rejected in the State of New Jersey. Sesselman v. Muhlenberg Hospital, 124 N.J.Super. 285 [306 A.2d 474] (App.Div.1973). [243 N.J.Super. at 230-32, 579 A.2d 309.]

In sum, plaintiff alleges that the surgeons should have been more aware of the patient’s overall needs, and that they should have initiated resuscitative efforts earlier. As with the defendant internist and anesthesiologist, plaintiff relied on Dr. Stark in her case against the ophthalmologists. Dr. Stark opined that they “deviat[ed] from medically acceptable standards of operating room surgeons,” and that their actions “were inimical to the patient.” Again, Dr. Stark’s testimony fell short, in that it does not explain the standards in concrete terms. Plaintiff failed to establish by expert testimony accepted medical standards relating to the conduct of Drs. Greenberg and Scannapiego, and thus failed to make out a prima facie case against them. They, like the other two defendant physicians, were entitled to a favorable judgment notwithstanding the verdict.

The majority urges that “there was some failure to ‘communicate’ ” in the operating room. Ante at 187, 594 A.2d at 1319. It does not, because on this record it cannot, state who had a duty to communicate what to whom. Again, the majority breezes past the requirement tliat plaintiff prove a standard of care and a breach of that standard.

In reaching its conclusion that plaintiff proved a prima facie case against Drs. Greenberg and Scannapiego, the majority relies on a snippet from Dr. Bekhit’s testimony that “I did suggest stopping the operation.” Ante at 178, 594 A.2d at 1314. By taking this statement out of context, the majority attempts to convey that Dr. Bekhit decided to stop the operation and that he so informed the surgeons. The doctor’s full answer, however, reads: “I did suggest stopping the operation. Then, they see at which stage and whether it is safe for them to stop the operation and start resuscitation if needed or not. *205Why do you stop an operation? To do something, right?” A fair reading of the entire testimony is that Dr. Bekhit believed that the surgeons were better situated to determine when the operation should stop. The majority’s reading, that Dr. Bekhit told the surgeons to stop the operation, cannot withstand scrutiny. Any doubt is resolved by Dr. Bekhit’s testimony on cross-examination that he believed there was no cause for alarm and that the patient was “manageable” throughout the operation, “up to almost 11:40,” when the doctors called the code.

The majority asserts variously that Dr. Stark’s testimony sufficed to establish liability and that other evidence also sufficed for that purpose. Nothing in the majority’s opinion, however, refutes the Appellate Division’s painstaking determination that the expert testimony, as to each of the defendants, either failed to establish a standard of care or failed to establish causation.

Concerning the evidence other than Dr. Stark’s testimony, the majority points to a defense expert’s affirmative response to the following question on cross-examination: “It would be good, sound operating procedure for everyone in there, including the surgeons and the anesthesiologist, to be aware of the patient’s needs. Isn’t that fair to say?” Id. at 178, 594 A.2d at 1314. The majority infers from this that “there is simply no doubt in this case that there was evidence of a standard of care required of all attending physicians in the operating room.” Ibid. The inference is unjustified. A procedure may be both “good” and “sound” without setting a generally accepted standard of medical care. The deficiency in plaintiff’s case was not that plaintiff failed to present testimony that defendants might have behaved differently, but that she failed to prove that their behavior breached generally accepted medical standards. Moreover, “to be aware of the patient’s needs” amounts to no more than an unhelpful bromide. The majority’s standard, that doctors should be aware of their patients’ needs, is no more helpful than one asserting that surgeons should make incisions in the right place or that physicians should prescribe the correct *206medication. The standard is not adequate to determine whether a doctor has committed malpractice.

I reach that conclusion without, as the majority fears, weighing the reliability and credibility of expert opinion testimony. Moreover, my reading of the record persuades me that this is not a case of mere oversight on the part of plaintiff’s counsel or expert. Despite the best efforts of able trial counsel, aided by the testimony of an experienced expert witness, plaintiff was unable to prove that defendants deviated from generally accepted medical standards in any way causally connected to the tragic outcome. The picture that emerges is one of physicians trying hard in a tight situation. Even plaintiff’s expert recognized that the critical period was confined to the five minutes between 11:35 and 11:40. At 11:35, Anna’s heartbeat dropped below 40 and Dr. Bekhit administered the second dose of Atropine. At 11:40, the doctors called “the Code” and administered cardiopulmonary resuscitation. Dr. Stark acknowledged that the administration of Atropine at 11:35 was acceptable. Making an allowance of fifteen to thirty seconds for that dose to take effect, the critical period narrows further. During that period, it was Dr. Bekhit’s medical judgment that the patient’s condition was manageable. Plaintiff’s expert never testified otherwise. In the few moments allotted to them, the doctors were reacting to an emergency. Perhaps a different course of conduct might have led to a happier outcome. An unsuccessful outcome, however, does not bespeak malpractice. As Dr. Stark acknowledged on cross-examination, “[pjeople have been known to die when they have been rendered standard medical treatment.” When operating, a doctor’s legal obligation is to conform to acceptable standards of medical care. Plaintiff has not proved a breach of those standards.

As a basis for a new trial, the majority embraces the “increased risk” theory of Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), and Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411 (1990). These cases, however, hold unmistakably that application of the increased risk theory to damages is to be prospective *207only. As we said in Scafidi, supra, 119 N.J. at 114, 574 A.2d 398, “[i]n view of the significant change in the law represented by our holding concerning the measure of damages, the effect and application of that holding, except with respect to this case and [Olah ], also decided today, shall be prospective only.” Whatever else that statement might mean, it surely means at least that the increased risk damage analysis does not apply to cases in which both the events and the trial occurred several years before the Scafidi and Olah decisions.

The majority acknowledges that those decisions require a prospective-only application of the increased risk damage analysis. Ante at 188-189, 594 A.2d at 1320. Without offering any reason for ignoring that requirement, it casually asserts that an increased risk charge would have assisted the jury, and that the absence of such a charge constitutes reversible error. This, despite plaintiffs failure to request the charge or to object to the charge as given. I submit that the failure to give an increased risk charge is precisely what the Court anticipated in making the increased risk rule prospective. The majority’s only explanation for ignoring that requirement is “[tjhis case illustrates the complexities of presenting medical causation issues to a jury when there is a preexisting condition.” Id. at 188, 594 A.2d at 1320. The majority does not suggest, however, that medical causation issues are any more difficult this year than last year. Just as it ignores the net opinion rule, the majority ignores the prospectivity requirement of Scafidi. The simple explanation for both oversights is that the majority cannot sustain its holding if it recognizes either requirement.

To conclude, plaintiff presented considerable evidence about the operation, but she did not prove a prima facie case against any of the defendants. Her expert’s conclusory opinion, unsupported by any factual explanation, cannot support the verdict. Accordingly, I would affirm the judgment of the Appellate Division.

*208For affirmance — Justices CLIFFORD, POLLOCK and GARIBALDI — 3.

For reversal and remandment — Chief Justice WILENTZ, and Justices HANDLER, O’HERN and STEIN — 4.