Opinion
DOCKET NO. A-2887-13T1
04-06-2015
CRAIG SOON, Plaintiff-Appellant, v. DR. KYU C. CHAE, Defendant-Respondent, and EAST ORANGE HOSPITAL, COMFORT ODURO, CECILE VICTA, MARION POLON, ELLEN SCHMIDT, ANJUSUSAN IPE, BRENDA STEPHANS, NADIA JEAN PIERRE, ETHEL OKORONKWO, CATHERINE AMAGEE-COLE, JANE JUALO, CLAIRE PERALTA, OLUJUMOKE DADA, ANITHA ABRAHAM, AUREA LOQUE, TRICIA GRAVESAND, ROSEMAND DEANE, YOLANDA ST. PIEERE, V. EDWARD, VIOLET EDWARD, ARLENE SLAY, and MARGARET SMITH, Defendants.
James C. Dezao, attorney for appellant. Ruprecht Hart Weeks & Ricciardulli, L.L.P., attorneys for respondent (Michael R. Ricciardulli, of counsel and on the brief; Jessica J. Mahony, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-381-08. James C. Dezao, attorney for appellant. Ruprecht Hart Weeks & Ricciardulli, L.L.P., attorneys for respondent (Michael R. Ricciardulli, of counsel and on the brief; Jessica J. Mahony, on the brief). PER CURIAM
Plaintiff appeals from a June 21, 2013 order barring testimony from two of his expert witnesses and granting summary judgment to defendant Dr. Kye C. Chae (the "Doctor"). We affirm in part and reverse in part.
I.
Plaintiff was admitted to East Orange Hospital (the "Hospital") for treatment for diabetic ketoacidosis, sepsis, and a right thigh abscess. The Doctor, a specialist in general surgery, conducted a surgical consultation and subsequently performed surgery on plaintiff. The Doctor treated plaintiff's post-surgical wound but plaintiff developed complications resulting in a protracted hospitalization period.
Diabetic ketoacidosis is a pathological condition of excess acidity in the body resulting from insulin deficiency which can impair brain function and lead to coma or death. 10 Attorneys Textbook of Medicine § 74.22 (2015).
Plaintiff filed a complaint against the Doctor, the Hospital, and various other defendants (the "other parties") alleging "negligent care and treatment" resulting in "complications, including but not limited to, neurological deficits and significant bed sores . . . ."
Plaintiff first obtained an expert report from Dr. A. Peter Salas, a board certified specialist in plastic surgery, aesthetic mesotherapy, and general surgery. Dr. Salas opined that plaintiff's wound "may not have been managed optimally during [plaintiff's] hospitalization" because there were no "clear orders from the doctors in charge . . . regarding . . . care of [plaintiff.]"
Mesotherapy is a non-surgical technique using "microinjections into the skin achieving a desired therapeutic result." What is Mesotherapy?, The American Board of Aesthetic Mesotherapy, http://abameso.org/what.php (last visited Mar. 24, 2015).
Plaintiff then obtained an expert report from Dr. Kelly Johnson-Arbor, a board certified specialist in emergency medicine, medical toxicology, and undersea and hyperbaric medicine. She is not a surgeon like the Doctor. Dr. Johnson-Arbor concluded that the "wound care provided to [plaintiff] . . . fell below the generally accepted standards of care" and that the Doctor "failed to order an appropriate turning and repositioning regimen for [plaintiff]."
The Doctor moved to bar Dr. Salas' and Dr. Johnson-Arbor's testimony because they are not general surgeons and thus could not opine on the proper standard of care. The Doctor also moved for summary judgment because without expert testimony, plaintiff could not prove the requisite deviation from the standard of care of a general surgeon.
The judge held oral argument on the motions. Plaintiff argued that "general surgery [was] not a specialty" and that Dr. Salas and Dr. Johnson-Arbor were sufficiently qualified because they "specialized in wound care[.]" Plaintiff did not assert at that time that Dr. Salas or Dr. Johnson-Arbor were general surgeons. The judge granted the Doctor's motion to bar plaintiff's experts and granted summary judgment to the Doctor pursuant to Nicholas v. Mynster, 213 N.J. 463 (2013). Plaintiff moved for reconsideration, which the judge denied.
The judge granted summary judgment to the other parties, and plaintiff dismissed with prejudice the claims against the Hospital.
On appeal, plaintiff primarily contends that the judge erred in granting summary judgment because Dr. Salas and Dr. Johnson-Arbor were qualified to render opinions as to the standard of care applicable to the Doctor.
II.
A court should grant summary judgment when the record reveals "no genuine issue as to any material fact" and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We review a ruling on summary judgment de novo. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). In deciding whether summary judgment was properly granted, we apply "the same standard governing the trial court[.]" Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (citation and internal quotation marks omitted). We consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We also give the non-moving party "the benefit of the most favorable evidence and most favorable inferences drawn from that evidence." Gormley, supra, 218 N.J. at 86.
Applying these standards, we agree with plaintiff that summary judgment was inappropriate as to Dr. Salas because he was sufficiently credentialed to opine on the standard of care owed by the Doctor. However, we conclude that the judge properly barred the expert testimony of Dr. Johnson-Arbor.
The New Jersey Medical Care Access and Responsibility and Patients First Act (the "Patients First Act"), N.J.S.A. 2A:53A-37 to -42, requires that a plaintiff's medical expert possess statutorily delineated credentials to testify against a defendant physician. Specifically, the Patients First Act declares that:
In an action alleging medical malpractice, a person shall not give expert testimony . . . on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:Our Supreme Court has interpreted this statute to mean that "[w]hen a physician is a specialist and the basis of the malpractice action 'involves' the physician's specialty, the challenging expert must practice in the same specialty." Nicholas, supra, 213 N.J. at 481-82.
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties [("ABMS")] or the American Osteopathic Association [("AOA")] and the care or treatment at issue involves that specialty or subspecialty recognized by the [ABMS] or the [AOA], 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 or subspecialty, recognized by the [ABMS] or the [AOA], as the party against whom or on whose behalf the testimony is offered[.]
[N .J.S.A. 2A:53A-41 (emphasis added).]
Here, to satisfy the requirements of N.J.S.A. 2A:53A-41 and Nicholas, plaintiff's experts must specialize in general surgery to provide testimony. The Doctor testified at his deposition that he is a specialist in "[g]eneral surgery" and he is registered with the State of New Jersey as a specialist in general surgery. General surgery is also an established specialty by the ABMS.
Specialty and Subspecialty Certificates, American Board of Medical Specialties http://www.abms.org/member-boards/specialty-subspecialty-certificates/ (last visited Mar. 24, 2015) (listing "general surgery" as a recognized specialty).
A.
Giving plaintiff every favorable inference, as we must, the record reflects that Dr. Salas is a general surgeon, as well as a plastic surgeon and aesthetic mesotherapist, and currently performs surgeries. At his deposition, Dr. Salas testified that he is "board certified in general surgery . . . ." Dr. Salas' expert report states that he is a "Diplomate . . . American Board of Surgery." Dr. Salas also stated at his deposition that half of his business is "elective surgery" and the other half is "reconstructive surgery, which is basically wound care . . . ." Dr. Salas therefore meets the requirements of Nicholas and the Patients First Act because he is board certified in general surgery and "specialized at the time of the occurrence" in general surgery. N.J.S.A. 2A:53A-41.
We reject the Doctor's attempt to limit the testimony from Dr. Salas to the area of plastic surgery and therefore exclude his credentials in general surgery. Dr. Salas is board certified in both fields. The Doctor relies on the ABMS definitions of "plastic surgery" and "general surgery" in an attempt to show that Dr. Salas only practices in the field of plastic surgery because "plastic surgery" encompasses "reconstruction" while "general surgery" does not. However, the Doctor fails to note that the ABMS definition of "general surgery," on which he relies, includes "expertise in the diagnosis and care of patients with diseases and disorders affecting the . . . skin and blood vessels." By its very definition, a wound is a "[t]rauma to any of the tissues of the body" which includes the skin. Stedman's Medical Dictionary 2155 (28th ed. 2006).
American Board of Surgery, American Board of Medical Specialties http://www.abms.org/member-boards/contact-an-abms-member-board/american-board-of-surgery/ (last visited Mar. 24, 2015).
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B.
We conclude that the judge correctly barred the testimony of Dr. Johnson-Arbor because she does not meet the requirements of Nicholas and the Patients First Act. Dr. Johnson-Arbor is a licensed physician "board certified by the American Board of Emergency Medicine in Emergency Medicine, Medical Toxicology, and Undersea and Hyperbaric Medicine." While "[eighty percent] of [her] clinical time is spent caring for patients with chronic wounds," she is not a general surgeon and therefore cannot opine on the standard of care owed by the Doctor. She clearly does not "practice in the same specialty" as the Doctor. Nicholas, supra, 213 N.J. at 482.
We affirm that part of the order barring the testimony of Dr. Johnson-Arbor, reverse those parts of the order barring Dr. Salas' testimony and entering summary judgment for the Doctor, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION