Opinion
DOCKET NO. A-2995-13T1
03-24-2015
JULIA MONTALVO, as General Administratrix and Administratrix Ad Prosequendum of the ESTATE OF EDWIN MONTALVO TORO, deceased, and JULIA MONTALVO, MAGGIE MONTALVO and MADELINE MONTALVO, individually, Plaintiffs-Appellants, v. STANLEY R. DOBRINSKI, KEENAN R. CHOY, ROCHELLE PARK POLICE DEPARTMENT and KENNETH STAPLETON, Defendants, and GAMAL HANNA, ERLINDA BERNARDO and BERGEN REGIONAL MEDICAL CENTER, Defendants-Respondents.
DiLorenzo & Rush, attorneys for appellants (Chris M. DiLorenzo, of counsel and on the brief). Braff, Harris & Sukoneck, attorneys for respondent Gamal Hanna (Kenneth Zaremba, on the brief). Schwab & Millman, attorneys for respondents Erlinda Bernardo and Bergen Regional Medical Center (Robert V. Haines, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7828-12. DiLorenzo & Rush, attorneys for appellants (Chris M. DiLorenzo, of counsel and on the brief). Braff, Harris & Sukoneck, attorneys for respondent Gamal Hanna (Kenneth Zaremba, on the brief). Schwab & Millman, attorneys for respondents Erlinda Bernardo and Bergen Regional Medical Center (Robert V. Haines, of counsel and on the brief). PER CURIAM
Plaintiffs, the estate administrator and family of the late Edwin Montalvo Toro (Mr. Toro or decedent), appeal from two January 31, 2014 orders granting summary judgment in favor of defendants Dr. Gamal Hanna and Bergen Regional Medical Center (hospital). We affirm.
Plaintiffs appealed from the order granting summary judgment to the hospital and a nurse, Erlinda Bernardo. In their brief, they waived their appeal as to Ms. Bernardo.
I
Our review of a summary judgment motion is de novo, using the same legal standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we determine whether there are material facts in dispute and, if not, whether the undisputed facts, viewed most favorably to the non-moving party, nonetheless entitle the moving party to judgment as a matter of law. Id. at 405-06.
Based on our review of the summary judgment record, these are the undisputed facts. Responding to a report of a suspicious person, the Rochelle Park police found Mr. Toro, who appeared "intoxicated, lost, and did not know how to get home." After the police could not locate a relative willing to come pick up Mr. Toro, they brought him to the Bergen Regional Medical Center emergency room (ER).
At the ER, Mr. Toro was given a series of tests, including a blood test for drugs and alcohol. According to the hospital records, although his breath smelled of alcohol, the blood test revealed that he was not intoxicated and had no illegal drugs in his system. Mr. Toro's medical history, which he provided to the ER staff, included diabetes, hypertension, and a history of alcohol abuse. The hospital records do not indicate that Mr. Toro told the ER staff that he had any mental illness, or that they observed any signs that he was mentally ill. The staff did note that he had some tremors in one arm. Dr. Hanna, the attending ER physician, testified at his deposition that he gave Mr. Toro Ativan to treat the tremors.
The ER records reflect that when Mr. Toro was first brought to the hospital, he was unable to sign consent forms. However, by the time he was discharged, he was able to sign his name on the forms. The records also reflect that at the time he was discharged, several hours after he was first admitted to the ER, Mr. Toro was alert and oriented to person, time and place. The ER records did not indicate that Mr. Toro asked for assistance in obtaining a ride home. When discharged, Mr. Toro had $36 dollars and a cell phone. There was a bus stop on the hospital grounds. Tragically, about four hours after he left the hospital, Mr. Toro was struck and killed by two cars while trying to cross a busy highway on foot.
Plaintiffs sued and then settled with the drivers, but also sued the hospital and Dr. Hanna, who moved for summary judgment after the close of discovery. In opposing the motions, plaintiffs did not produce evidence that the ER personnel had a duty to arrange transportation home for a non-intoxicated, physically able, mentally alert patient. Plaintiffs did not provide an expert report establishing the standard of care in discharging patients from the ER. Nor did they provide an expert report establishing that Dr. Hanna or any of the ER nurses misdiagnosed Mr. Toro's physical or mental condition.
Plaintiffs also sued several other defendants, whose summary judgment motions were granted. Those defendants are not involved in this appeal.
The trial judge granted summary judgment to the hospital and Dr. Hanna, reasoning that plaintiffs needed expert testimony to establish those defendants' professional negligence. He rejected plaintiffs' argument that they could rely on the jurors' common knowledge.
On this appeal, plaintiffs contend once again that they did not need an expert because, as they put it, defendants' "duty and breach thereof are within the common knowledge of the average juror." See Sanzari v. Rosenfeld, 34 N.J. 128, 141-44 (1961); Nowacki v Comm. Med. Ctr., 279 N.J. Super. 276, 291-92 (App. Div.), certif. denied, 141 N.J. 95 (1995). We cannot agree. Plaintiffs' common knowledge argument is based on factual assertions not supported by the record and is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
On this appeal, plaintiffs have not argued that Dr. Hanna misdiagnosed Mr. Toro's physical or mental condition, a claim that would clearly require expert testimony.
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In their statement of facts, and the argument portion of their reply brief, plaintiffs infer that Dr. Hanna's deposition testimony established the standard of care. We cannot agree. The only conceivably relevant portion of Dr. Hanna's deposition consisted of his answer to a hypothetical question about the hospital's obligation to arrange transportation for a patient who was being released. However, the hypothetical posed to Dr. Hanna asked him to presume that the patient was intoxicated at the time he was being released from the ER. There is no evidence that decedent was intoxicated when he was discharged from the ER. To the contrary, the medical evidence established that he was not intoxicated or otherwise physically or mentally impaired. Asking Dr. Hanna a hypothetical question which included facts for which there was no record evidence, did not produce an admission sufficient to establish the standard of care or that defendants violated that standard.
As the Supreme Court recently held, an expert cannot base an opinion on presumed facts that are "not only unsupported by the factual evidence, but directly contradict[] that evidence." Townsend v. Pierre, ___ N.J. ___, ___ (2015) (slip op. at 4, 21). In that case, overgrown bushes on defendant's property blocked the view of drivers attempting to turn left from the adjacent street. Id. at 5. However, the driver who caused the accident, and her passenger, both testified that before making the left turn, she had driven beyond the point where the bushes blocked her view. Id. at 5-6. There was no evidence to the contrary. Id. at 6.
Plaintiff's expert opined that it was negligent not to trim the shrubbery, that the defendant driver "must have been mistaken" about her line of sight, and therefore the overgrown bushes caused the accident. Id. at 11. In that situation, the Court held that the expert rendered an admissible opinion on negligence, but he rendered a net opinion on causation, because there was no evidence that the presence of the bushes caused the accident. Id. at 25-26. Townsend is on point here, where there was no evidence that decedent was intoxicated or otherwise incapacitated when he was released from the ER.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION