Opinion
DOCKET NO. A-1937-13T3
01-08-2016
ANTHONY BROWN, Plaintiff-Appellant, v. Dr. ROBERT CARUSO and Dr. WILSON NUKEA, Defendants-Respondents, and LAKEA JOHNSON and ST. MICHAEL'S HOSPITAL, Defendants.
Howard A. Gutman, attorney for appellant. Mattia & McBride, P.C., attorneys for respondent Dr. Robert Caruso (Alex W. Raybould, on the brief). Rosenberg Jacobs & Heller, PC, attorneys for respondent Dr. Wilson Nuesa (Wayne E. Paulter, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9706-10. Howard A. Gutman, attorney for appellant. Mattia & McBride, P.C., attorneys for respondent Dr. Robert Caruso (Alex W. Raybould, on the brief). Rosenberg Jacobs & Heller, PC, attorneys for respondent Dr. Wilson Nuesa (Wayne E. Paulter, of counsel and on the brief). PER CURIAM
In this medical malpractice case, plaintiff Anthony Brown appeals from trial court orders dated October 6, 2011, granting defendant Dr. Robert Caruso's motion to dismiss; December 2, 2011, denying reconsideration; September 12, 2013, granting defendant Dr. Wilson Nuesa's motion for summary judgment; and October 25, 2013 denying reconsideration. For the reasons that follow, we affirm.
We note that plaintiff's appendix is missing several key documents, including the Law Division orders denying plaintiff's motion to reinstate and granting Dr. Nuesa's motion for summary judgment, as well as this court's order denying plaintiff's application for an interlocutory appeal. Furthermore, several documents included in plaintiff's appendix are incomplete, including plaintiff's complaint and the Law Division order granting Dr. Caruso's motion to dismiss. The failure to include a complete record of items often impedes appellate review. See Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). In this case, however, we have no reason to believe that a rule-compliant appendix would alter our legal analysis.
I.
We derive the salient facts from the summary judgment record, viewed in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On November 24, 2008, plaintiff underwent a robot- assisted laparoscopic prostatectomy at St. Michael's Medical Center (Medical Center). Dr. Caruso, a board certified urologist, performed the surgery, assisted by Lakea Johnson, a physician's assistant (P.A. Johnson). Dr. Nuesa was the anesthesiologist for the operation. The surgery took more than five-and-one-half hours to complete, beginning at 9:50 a.m. and concluding at 3:30 p.m.
Following the procedure, plaintiff was taken to the post-anesthesia care unit (PACU). While in the PACU, plaintiff complained of pain in both of his legs. Dr. Nuesa examined plaintiff and found "tightness in both legs," which he attributed to "muscle spasm." To help alleviate plaintiff's symptoms, Dr. Nuesa "ordered Versed and Toradol," explaining that "Toradol is obviously for the pain, and the Versed has a muscle relaxant capability." However, plaintiff's symptoms persisted. At 4:50 p.m., Dr. Caruso ordered plaintiff to perform "lower extremity exercises," but plaintiff's condition continued to worsen. At 7:45 p.m., plaintiff complained of numbness in both legs. Dr. Caruso treated this symptom by prescribing Valium, to be taken by plaintiff "as needed for calf pain."
Approximately six hours later, at 1:35 a.m. the next day, Dr. Caruso issued an order for plaintiff to undergo venous doppler testing, in light of continuing complaints of tightness and numbness. Dr. Caruso also ordered blood work, the results of which were reported at 3:48 a.m. and revealed markedly elevated levels of creatine phosphokinase (CPK). According to plaintiff's anesthesiology expert, Joseph Stirt, M.D., this represented "a muscle breakdown product found in elevated cases of rhabdomyolysis," a condition indicating "extreme acute ongoing destruction of muscle tissue, [a] medical emergency." At 2:00 p.m. that day, plaintiff was diagnosed with compartment syndrome — a recognized complication associated with robot-assisted laparoscopic prostatectomies. Plaintiff underwent emergency surgery, but nevertheless suffered permanent injuries to his legs.
On November 19, 2010, plaintiff filed the instant lawsuit against Dr. Caruso, Dr. Nuesa, P.A. Johnson, and the Medical Center, asserting claims of negligence and res ipsa loquitur. To support his claims against Dr. Caruso, plaintiff served an affidavit of merit (AOM) signed by Raymond Ippolito, M.D., a general surgeon.
On September 6, 2011, Dr. Caruso filed a motion to dismiss, asserting that Dr. Ippolito was not qualified to provide an AOM against him, as he was not a board-certified urologist. At the Ferreira conference on October 6, 2011, the judge considered the motion to dismiss and concluded that Dr. Ippolito's AOM did not "comply with the specialty/sub-specialty obligations required by [N. J.S.A. 2A:52A-41(a)]" and issued an order dismissing all claims against Dr. Caruso with prejudice. Thereafter, he also denied plaintiff's motion for reconsideration.
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
This court denied plaintiff's application for an interlocutory appeal of Dr. Caruso's dismissal. On November 19, 2011, the trial court dismissed all claims against P.A. Johnson and the Medical Center, also for failure to provide an AOM. On August 9, 2012, plaintiff filed a motion to reinstate his claims against Dr. Caruso, arguing that his claims of common knowledge and res ipsa loquitur did not require an AOM. The judge denied the motion.
In light of the dismissal of the claims against Dr. Caruso, P.A. Johnson, and the Medical Center, discovery proceeded only with respect to the claims against Dr. Nuesa. Plaintiff retained Dr. Stirt, who provided an expert report concluding that "the failure to promptly diagnose and treat [plaintiff] for bilateral lower extremity compartment syndrome . . . represented a deviation from the standard of care and resulted in his permanent loss of normal leg function." However, Dr. Stirt conceded at his deposition that no negligence was committed by any doctor until 7:45 p.m., when plaintiff complained of numbness in his legs and an investigation was not conducted to rule out compartment syndrome.
On July 29, 2013, Dr. Nuesa filed a motion for summary judgment, asserting that his services as plaintiff's attending anesthesiologist ended at 4:30 p.m., the day of the surgery. Therefore, even assuming the validity of Dr. Stirt's expert opinion, Dr. Nuesa argued that he could not have been the physician who purportedly deviated from the standard of care at 7:45 p.m. Plaintiff's medical record reflects other physicians attending to plaintiff after 4:30 p.m. on November 24, 2008, but does not reference Dr. Nuesa after that time.
In opposition to the motion for summary judgment, plaintiff submitted a certification from Dr. Stirt, alleging that Dr. Nuesa was negligent for not staying involved in plaintiff's post-surgical care upon receiving plaintiff's initial complaints of tightness in his legs. This claim had never been asserted by Dr. Stirt prior to Dr. Nuesa's motion for summary judgment.
Following oral argument, the motion judge made two key determinations. First, he found that neither Dr. Stirt's expert report nor his deposition included any specific allegations that Dr. Nuesa violated the standard of care. Second, he concluded that Dr. Stirt's certification submitted in opposition to the summary judgment motion was a "sham affidavit," and thus was insufficient to defeat the pending motion. Accordingly, the judge granted Dr. Nuesa's motion for summary judgment, and subsequently denied plaintiff's motion for reconsideration.
II.
On appeal, plaintiff argues that the trial court erred in rejecting the AOM submitted by his surgeon expert, Dr. Ippolito. He further asserts that he should have been granted additional time to provide an AOM, because Dr. Caruso's answer did not designate his area of specialization. Alternatively, plaintiff argues that res ipsa loquitur applies, because he went in for a prostatectomy and sustained permanent damage to his legs, an area of his body not involved in the surgery. Lastly, plaintiff argues that the court erred in rejecting Dr. Stirt's certification as a "sham affidavit," and otherwise granting summary judgment to Dr. Nuesa.
A.
We first address the order granting Dr. Caruso's motion to dismiss. We afford this decision no deference, reviewing all decisions on motions to dismiss de novo. Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 600 (App. Div. 2014) (citation omitted), certif. denied, 221 N.J. 492 (2015). The court granted Dr. Caruso's motion to dismiss based on plaintiff's failure to produce an AOM in the appropriate specialty within the statutory timeframe.
N.J.S.A. 2A:53A-27 requires that a claim for injuries allegedly caused by the malpractice of a licensed professional be supported by an affidavit from a professional in the same specialty, attesting that the claim has merit. If a plaintiff fails to provide an AOM, "it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29.
In a medical malpractice case, the AOM is subject to the requirements of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to - 42, which states, in pertinent part:
a. If the party against whom or on whose behalf the testimony is offered is a specialist . . . and the care or treatment at issue involves that specialty . . . 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 . . . 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 . . . the expert witness shall be:
. . . .
(2) a specialist . . . who is board certified in the same specialty . . . .
[N. J.S.A. 2A:53A-41.]
In this case, plaintiff did produce an AOM to support his claims against Dr. Caruso. However, the motion judge rejected the AOM because the expert who signed it, Dr. Ippolito, did not meet the requirements of N.J.S.A. 2A:53A-41. More specifically, the judge concluded that Dr. Ippolito, a general surgeon, was not board-certified in the same specialty as Dr. Caruso, a urologist.
Plaintiff argues that Dr. Ippolito was sufficiently qualified to author the AOM against Dr. Caruso because the operative report dictated by Dr. Caruso for plaintiff's surgery specifically indicated, at the top of the report, "SURGEON: Robert Caruso, M.D." Therefore, plaintiff argues, surgery was the relevant specialty for purposes of identifying a qualified specialist to submit an AOM. We are not persuaded.
Plaintiff does not contest that Dr. Caruso is a board-certified specialist in urology, nor does he contest that the relevant procedure in this case was a urologic surgery. As Dr. Caruso was undisputedly a urologist, plaintiff was required to produce an AOM signed by an expert in urology. Plaintiff submits no case law or credible argument to the contrary.
Next, plaintiff argues that he was entitled to additional time, beyond the statutory limits, to submit an AOM from a specialist in urology. Citing Buck v. Henry, 207 N.J. 377 (2011), plaintiff claims that Dr. Caruso violated his obligation to indicate his specialization in his answer, leaving plaintiff to speculate as to Dr. Caruso's specialty when procuring an expert to sign the AOM. Without clarification from Dr. Caruso, plaintiff contends that he had a reasonable, even if mistaken, belief that Dr. Caruso was merely a surgeon. Accordingly, plaintiff claims that he was entitled to a sixty-day extension, beginning on the date of the Ferreira conference, to obtain an AOM from a urologist. He made this request during the Ferreira conference, which the court denied.
Plaintiff correctly states that our Supreme Court's decision in Buck now requires medical malpractice defendants to include their specialization in their answer, and indicates that failure to do so can warrant an extension of the AOM deadline. Id. at 395-96. However, the Court was clear that this new rule, implemented in 2011, was not meant to apply retroactively. Id. at 396. Dr. Caruso correctly points out that Buck was decided more than three months after he filed his answer to plaintiff's complaint.
Specifically, the Court stated, "From this point forward, a physician defending against a malpractice claim . . . must include in his [or her] answer the field of medicine in which he [or she] specialized, if any, and whether his [or her] treatment of the plaintiff involved that specialty." Ibid.
Relatedly, plaintiff also argues that he was entitled to an extension — following the Ferreira conference at which the motion judge rejected his AOM — to file a new AOM because the conference did not occur within ninety days of the answer, in violation of the Supreme Court's explicit instruction for such a timeframe. See Ferreira, supra, 178 N.J. at 154 ("[W]e propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions."). Thus, plaintiff claims he had no way of knowing that his AOM was deficient until the judge ruled on it, and had no time to submit a compliant AOM once he learned of the deficiency at the conference.
This argument is similarly unpersuasive. "Everyone is presumed to know the law. Ignorance standing alone can never be the basis of a legal right." Emanuel v. McNell, 87 N.J.L. 499, 504 (E & A 1915) (citation and quotation marks omitted). Although it is true that Ferreira conferences were implemented to help attorneys and litigants avoid the dismissal of meritorious claims, Paragon Contrs. v. Peachtree Condo. Ass'n, 202 N.J. 415, 424 (2010), they do not exist for the purpose of extending rights and deadlines beyond what is prescribed by statute. Accordingly, the fact that the Ferreira conference was held after the expiration of the ninety-day period prescribed by the Supreme Court does not warrant an extension, as plaintiff argues. The Court has directly addressed this argument: "At issue here is what effect the failure to hold a Ferreira conference will have on the time limits prescribed in the statute. The answer is none." Ibid.
Moreover, we note that the record fails to support plaintiff's claim that he had no way of knowing that his AOM was deficient until the court ruled on it. On May 3, 2011, Dr. Caruso filed his answer to plaintiff's complaint. On June 29, 2011, plaintiff served the AOM signed by Dr. Ippolito. In a letter dated July 1, 2011, counsel for Dr. Caruso immediately objected to the AOM, specifically noting that his client is a urologist and that Dr. Ippolito is a surgeon. Thus, plaintiff was alerted to the deficiency in his AOM two months before the expiration of the 120-day statutory timeframe. See N.J.S.A. 2A:53A-27. Nevertheless, plaintiff failed to take advantage of this opportunity to submit a compliant AOM.
Alternatively, citing to Hubbard v. Reed, 168 N.J. 387 (2001), plaintiff argues that he was not required to produce an AOM for his claims that sounded in res ipsa loquitur and common knowledge. This argument also lacks merit.
First, this is clearly not a case that involves the "common knowledge" doctrine, which applies when "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). Plaintiffs in common knowledge cases do not need expert testimony at trial to establish the standard of care or a deviation therefrom. Hubbard, supra, 168 N.J. at 394.
Here, the allegations of negligence are not those which can be easily deciphered by a layperson without the assistance of medical expert testimony. Plaintiff attempts to analogize this case to the fact patterns in common knowledge cases, such as a surgeon leaving a foreign object in the patient's body after surgery or a dentist extracting the wrong tooth. Such cases are clearly distinguishable from the situation under review. Unlike the cases cited by plaintiff, the negligence allegations here would require expert testimony as to the risks and potential dangers of prostatectomies, as well as the causes and effects of compartment syndrome. Plaintiff's attempt to label this as a common knowledge case is unfounded.
Once again, the deficiencies in plaintiff's appendix are problematic, as the page of the complaint which asserts specific allegations of negligence against Dr. Caruso is missing from the appendix. --------
Plaintiff also contends that res ipsa loquitur claims are exempt from the AOM requirement, citing Janelli v. Keeper, 317 N.J. Super. 309 (Law Div. 1998). This Law Division ruling, however, was expressly rejected by this Court. Hubbard v. Reed, 331 N.J. Super. 283 (App. Div. 2000), rev'd, 168 N.J. 387 (2001). While the Supreme Court ultimately reinstated the rule from Janelli, it qualified the rule to only exempt res ipsa cases from the AOM requirement when they do not require expert testimony during trial:
[I]n a res ipsa loquitur action, the jury is allowed to infer a defendant's negligence "where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." It may be necessary for a plaintiff in such actions to present "expert testimony to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence" in order to meet the first prong of the res ipsa loquitur test. An affidavit of merit would be required in those cases.
Hubbard v. Reed, 168 N.J. 387, 391 n.1 (2001) (emphasis added) (citations omitted) (quoting Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)).
The Supreme Court had previously clarified in Buckelew that the first prong of the res ipsa test requires expert testimony unless, "as a matter of common understanding, the injury . . . raises an inference of negligence." Buckelew, supra, 87 N.J. at 527 (emphasis added). As we have already concluded regarding the common knowledge doctrine, this case is not one where an average layperson could resolve the issues without the benefit of expert testimony.
Therefore, plaintiff was required to produce an AOM from a board-certified urologist. As he did not produce such an affidavit within 60 days of filing his lawsuit, or within 120 days upon a showing of good cause, N.J.S.A. 2A:53A-27, the court did not err in granting Dr. Caruso's motion to dismiss, or denying plaintiff's motion for reconsideration..
B.
We next address the court's decision to grant Dr. Nuesa's motion for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When reviewing an order granting summary judgment, we "employ the same standard [of review] that governs the trial court." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). In the absence of a genuine factual dispute, we grant no deference to the motion court and review all legal conclusions de novo. Henry, supra, 204 N.J. at 330.
Regarding Dr. Nuesa, plaintiff challenges the motion court's conclusion that Dr. Stirt's certification was a "sham affidavit," and thus insufficient to defeat the motion for summary judgment. The "sham affidavit" doctrine refers to the practice of "disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts that affiant's prior deposition testimony." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002) (citation omitted). When such an affidavit has been submitted, "the alleged factual issue in dispute can be perceived as a sham, and as such it is not an impediment to a grant of summary judgment." Ibid.
Here, there is a clear contradiction between Dr. Stirt's prior deposition testimony and the certification he submitted in opposition to Dr. Nuesa's motion for summary judgment. Nowhere in the record, prior to plaintiff's receipt of Dr. Nuesa's motion for summary judgment, does Dr. Stirt specifically allege any negligence on the part of Dr. Nuesa. The most telling evidence in this respect is the following colloquy from Dr. Stirt's deposition:
Q: Between 3:30 and 5 o'clock, it was reasonable to, as you told us, address the patient's possible muscle spasms as opposed to compartment syndrome, right?This deposition testimony makes clear that, in Dr. Stirt's expert opinion, no negligence was committed by any doctor until 7:45 p.m. on November 24, 2008, when plaintiff first complained of numbness in his legs.
A: Correct.
. . . .
Q: Okay. The standard of care did not require a workup for compartment syndrome before the changing condition at 7:45 p.m.; true?
A: True.
Q: And there was an important change in the patient's condition at 7:45 p.m., that is, the development of numbness as opposed to tightness; true?
A: True.
. . . .
Q: [The] negligence begins at the time he's informed of the patient's change in condition after 7:45 p.m.?
A: That's correct.
Dr. Stirt's certification, however, presents an opinion which directly contradicts his deposition testimony. The certification states that Dr. Nuesa was negligent for leaving plaintiff's care without "alert[ing] the next physician to the possibility of compartment syndrome." Restated, Dr. Stirt alleges in his certification that Dr. Nuesa's negligence began at 4:30 p.m., when his care of plaintiff ended. This clearly contradicts his previous assessment that the negligence began at 7:45 p.m., when plaintiff first reported numbness in his legs.
Because the certification submitted in opposition to the motion for summary judgment directly contradicts Dr. Stirt's prior deposition testimony and raises new allegations of negligence, it clearly constituted a "sham affidavit." Therefore, the motion judge did not err by declining to consider Dr. Stirt's last-minute certification.
Plaintiff next asserts that there was a genuine factual dispute regarding the time Dr. Nuesa ceased involvement in plaintiff's care. The record, however, fails to provide support for this claim.
Dr. Nuesa testified at his deposition that his care of plaintiff ended at 4:30 p.m. on November 24, 2008. Additionally, Dr. Nuesa points to plaintiff's medical chart, which contains no entry by him, or any entry referencing him, after 4:30 p.m. that day. Thus, Dr. Nuesa has provided both direct and circumstantial evidence to support his assertion that his care of plaintiff ended at 4:30 p.m. on November 24, 2008. To the contrary, plaintiff cannot point to any evidence in the record that indicates that plaintiff remained under Dr. Nuesa's care after 4:30 p.m. Instead, plaintiff argues that the lack of any documentation specifically confirming that Dr. Nuesa ended his shift at 4:30 p.m. indicates that he, in fact, remained as plaintiff's attending anesthesiologist. We are not persuaded. The record is insufficient to create a genuine issue of fact regarding this issue.
To defeat a motion for summary judgment, a plaintiff must present competent expert testimony establishing the appropriate standard of care and that the defendant breached that standard. Ziemba v. Riverview Med. Ctr., 275 N.J. Super. 293, 301-03 (App. Div. 1994). Without considering the certification submitted by Dr. Stirt, the record simply contains no specific expert allegations of negligence by Dr. Nuesa. Accordingly, the motion judge did not err in granting summary judgment in favor of Dr. Nuesa, or denying reconsideration.
Plaintiff's remaining appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION