Opinion
DOCKET NO. A-1366-13T1
07-31-2014
SITSOFE AWUKU, Plaintiff-Appellant, v. SHELLEY JONES-DILLON, MD; ESTATE OF AKINGBOJU GBAYISOMORE, MD; and NEWARK BETH ISRAEL MEDICAL CENTER, Defendants-Respondents.
Michael I. Okechuku, PC, attorneys for appellant (Chinemerem N. Njoku, on the brief). Vasios, Kelly & Strollo, P.A., attorneys for respondents Shelley Jones-Dillon, M.D. and Newark Beth Israel Medical Center (Lauren M. Strollo, of counsel; Scott A. Leaman, on the brief). The Pandos Law Group, LLC, attorneys for respondent Estate of Akin Gbayisomore, M.D. (Debra V. Urbanowicz-Pandos, of counsel; Lisa DeMarzo-Rabke, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-55-10. Michael I. Okechuku, PC, attorneys for appellant (Chinemerem N. Njoku, on the brief). Vasios, Kelly & Strollo, P.A., attorneys for respondents Shelley Jones-Dillon, M.D. and Newark Beth Israel Medical Center (Lauren M. Strollo, of counsel; Scott A. Leaman, on the brief). The Pandos Law Group, LLC, attorneys for respondent Estate of Akin Gbayisomore, M.D. (Debra V. Urbanowicz-Pandos, of counsel; Lisa DeMarzo-Rabke, on the brief). PER CURIAM
Improperly pled as Estate of Akingboju Gbayisomore.
In this appeal, plaintiff seeks reversal of the trial court order denying her motion to bar expert reports submitted on behalf of defendants Drs. Shelly Jones-Dillon and the late Akin Gbayisomore (collectively defendants), the remaining defendants in this medical malpractice action. We affirm in part and reverse in part.
In her complaint, plaintiff alleges that on January 9, 2008, she appeared at the Newark Beth Israel Medical Center Emergency Room (ER), where she presented with symptoms of an acute stroke. She contends defendants deviated from accepted standards of care in the treatment of those symptoms. Plaintiff's expert, Mustafa Al-Chalabi, M.D., who is board certified in emergency medicine, authored a report in which he opined plaintiff's "left leg weakness, lack of coordination, gait abnormality, flaccid arm and need for assisted care to perform even basic hygiene and personal care resulted from the cerebrovascular accident (CVA) and left hemiplegia suffered by [plaintiff]" while under defendants' care and that her injuries "are a direct and proximate result" of the failure of defendants "to administer the tissue Plasminogen Activator, also known as '[T]PA.'"
In response to this report, Dr. Jones-Dillon, who at the time of plaintiff's treatment was acting in her board certified capacity in emergency medicine, submitted an expert report prepared by Randy Tartacoff, M.D., who, like Dr. Jones-Dillon, is board certified in emergency medicine. In addition, she also presented an expert report prepared by Jeffrey C. Pollock, M.D., who is board certified in neurology to "contest plaintiff's proofs as to causation." In his initial report dated May 17, 2011, Dr. Pollack opined plaintiff "was not a candidate for TPA. She likely had [an] onset of her stroke while asleep with fluctuating symptoms and signs subsequently with the completion of the full stroke at approximately 12:30 p.m. This history is not compatible with a patient who would receive TPA." The report concludes with Dr. Pollock stating, that "[t]he exact onset of the stroke was unknown; she had relatively rapid improvement in symptoms and signs; and the subsequent completion of the stroke occurred many hours after initial onset well beyond the 3 hour TPA window. I certainly see no deviation from standards of neurological practice in this case." Dr. Pollock also authored a subsequent report dated April 24, 2012, discussing his findings based upon an Independent Medical Examination (IME) he performed on plaintiff on April 17, 2012. That report essentially reiterates most of what was contained in his earlier report. However, it omits the conclusion in his earlier report that there was no deviation from the standard of care. It does not opine, within a reasonable degree of neurological certainty, the cause of plaintiff's stroke. Rather, it rules out her being a candidate for TPA treatment, once again concluding that plaintiff's "fluctuating symptoms would not be a reason to treat this patient with TPA. This would be considered an evolving stroke. . . . This history is not compatible with a patient that would receive TPA."
Dr. Gbayisomore was board certified in internal medicine and attended to plaintiff both while she was admitted to the ER and to the Intensive Care Unit (ICU). He proffered an expert report from Dr. Fong Wei, a board certified internist. Dr. Wei issued a report in which he concluded that "Dr. Gbayisomore's care was well within the standard of care for internal medicine." He also challenged the financial analysis from plaintiff's certified public accountant (CPA), Anthony Nini. He noted the opinions of Nini as to plaintiff's likely advancement and compensation were more likely associated with an individual possessing a nursing degree — MS or BSN — rather than someone like plaintiff, who "was employed full[-]time as a clerk and has several medical conditions which would be expected to interfere with Mr. Nini's highly optimistic projections. She has already had a TIA [transient ischemic attack] on a background of uncontrolled diabetes mellitus, uncontrolled hypertension, hyperlipidemia and obesity."
In addition to Dr. Wei, Dr. Gbayisomore also presented Dara Jamieson, MD., as an expert witness. Dr. Jamieson is board certified in neurology. She opined that plaintiff's stroke "was due to progressive distal arterial thrombosis" and that her acute stroke did not result from "a deviation from the standard of care because there was no appropriate intervention, thrombolytic or mechanical, that could have impacted her neurological outcome."
In an earlier interlocutory ruling, the trial court dismissed plaintiff's claims against Dr. Gbayisomore because plaintiff failed to submit an affidavit of merit from an expert in internal medicine. We granted plaintiff's motion for leave to appeal this interlocutory order and summarily reversed the court's order. We stated: "The doctor was not functioning as an internist, but rather in an emergency capacity at the time of the alleged malpractice. As a consequence, the affidavit of merit served by plaintiff was given by an appropriately credentialed physician." Awuku v. Szapiel, AM-000155-11T3 (App. Div. December 7, 2011).
Plaintiff is now making the reverse argument, namely, Judge Randal C. Chiocca erred when he denied her motion to bar the expert reports of Drs. Pollack, Wei, and Jamieson, because they are not board certified in emergency medicine. We disagree.
N.J.S.A. 2A:53A-41 provides that in medical malpractice actions, "a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L.1995, c. 139 (C.2A:53A-26 [to -29]) 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 other criteria set forth in this statutory provision. Plaintiff contends defendants' experts failed to meet the additional requirements contained in subsection 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 or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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 American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue
involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association;
[N.J.S.A. 2A:53A-41a].
Plaintiff contends there is no authority supporting defendants' attempt to circumvent the statutory requirements for expert testimony in medical malpractice cases by taking the position that multiple experts may testify as to separate elements of the claim brought. Plaintiff offers no support for this contention. Nonetheless, the reports proffered by defendants' experts unquestionably include their opinions as to whether there was a deviation from the standard of care on the part of the respective defendants on whose behalf the reports were prepared. For example, Dr. Pollack concludes his May 25, 2011 report by opining, "I certainly see no deviation from standards of neurological practice in this case." Similarly, Dr. Jamieson, in her report, concluded "Dr. Gbayisomore's care in treating [plaintiff's] acute ischemic stroke was not a deviation from the standard of care[.]" Finally, Dr. Wei, in his report, opined that "Dr. Gbayisomore's care was well within the standard of care for internal medicine." Thus, defendants' attempt to isolate their experts' testimony to the issue of causation is simply not borne out by the record.
That said, the trial court did not err in denying plaintiff's motion to bar the expert reports proffered on behalf of Dr. Gbayisomore because he was not providing treatment to plaintiff in his capacity as a board certified internist. In our earlier ruling, we stated: "The doctor was not functioning as an internist, but rather in an emergency capacity at the time of the alleged malpractice. As such, the affidavit of merit served by plaintiff was given by an appropriately credentialed physician." Awuku, supra, AM-000155-11T3 (App. Div. December 7, 2011).
The statutory requirement under N.J.S.A. 2A:53-41a that the expert providing testimony possess equivalent specialty credentials as the party on whose behalf the testimony is proffered only applies where "the care or treatment at issue involves that specialty." (Emphasis added.) Because Dr. Gbayisomore was not rendering care or treatment in his capacity as an internist, he was not required to produce an expert similarly credentialed. For all intents and purposes, he was functioning as a general practitioner at the time he treated plaintiff. Under those circumstances, there was no requirement that his experts be board certified in emergency medicine. Rather, the testimony of Drs. Jamieson and Wei is governed by N.J.S.A. 2A:53A-41b which provides:
b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:
(1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or
(2) the instruction of students in an accredited medical school, health
professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or
(3) both.
[N.J.S.A. 2A:53A-41.]
Plaintiff does not contend that Drs. Wei and Jamieson do not meet the requirements of subsection b. As such, the trial court did not err in denying plaintiff's motion as to Drs. Wei and Jamieson.
We reach a different conclusion as to Dr. Pollock. At the time she provided treatment to plaintiff, Dr. Jones-Dillon was acting in her board certified capacity in emergency medicine. She has proffered Dr. Tartacoff as one of her experts and he too is board certified in emergency medicine. Dr. Pollock, however, is not equivalently-credentialed. The first report expressly addresses deviation from a neurological perspective and the second report renders no opinion on causation. Instead, the second report is a repetition of the first report without the label of deviation:
The fluctuating symptoms would not be a reason to treat this patient with TPA. This would be considered an evolving stroke. Again, the lack of timing of onset of the exact symptoms and signs makes TPA impossible to administer. In this case, the subsequent fluctuating symptoms would not be
a reason to subsequently change course and give TPA.
As I noted in my earlier report, in summary, Ms. Awuku is not a candidate for TPA. She likely had onset of her stroke while asleep with fluctuating symptoms and signs subsequently with the completion of the full stroke at approximately 12:30 p.m. This history is not compatible with a patient that would receive TPA. The exact time of onset of the stroke was unknown; she had relatively rapid improvement in symptoms and signs; and the subsequent completion of the stroke occurred many hours after the initial onset well beyond the 3 hour TPA window.
While we find no prohibition against presenting expert testimony limited to a particular aspect of a medical malpractice claim, such as proximate cause or damages, the report must specifically address that issue. Here Dr. Pollock renders no such opinion on causation or damages. At best, his reports can be characterized as ruling out TPA as a course of treatment, which indirectly expresses his opinion, contrary to plaintiff's expert, that Dr. Jones-Dillon did not deviate from acceptable standards of care when she failed to administer TPA to plaintiff. Because he was not equivalently credentialed in emergency medicine, he was not qualified to offer testimony on behalf of Dr. Jones-Dillon. Consequently, the trial court erred in denying plaintiff's motion to bar the expert testimony of Dr. Pollock.
Finally, plaintiff contends the testimony of defendants' economic expert, Jeffrey Rubin, Ph.D., should be barred "to the extent that he relied on the medical reports of [d]efendants' experts." This contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). With the exception of Dr. Pollock, we have upheld the trial court order denying plaintiff's motion to bar defendants' experts from testifying. As for Dr. Pollock, the fact that we reverse the trial court order does not preclude consideration of his report by Dr. Rubin. See N.J.R.E. 703 (stating that the bases for expert opinion, "if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence"). Thus, to what extent, if any, Dr. Rubin's opinions may include information obtained from Dr. Pollock's reports should await resolution at the time of trial.
Affirmed in part, reversed in part and remanded for further proceedings. 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