Opinion
DOCKET NO. A-2908-12T3
08-25-2015
M.B., by her Guardian Ad Litem, K.B., and K.B. and C.B., Individually, Plaintiffs-Appellants, v. ESTATE OF ROBERT KORNBLUM, M.D., JOAN SORENSON, M.D., and ESTATE OF MILA POLONSKY, M.D., Defendants, and NOEL R. SORVINO, M.D., ESTATE OF KENNETH S. NORD, M.D. and ST. BARNABAS HEALTH CARE SYSTEM, Defendants-Respondents.
Michael B. Zerres argued the cause for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Zerres, on the brief). Joseph L. Garrubbo argued the cause for respondents Estate of Kenneth S. Nord, M.D. and St. Barnabas Health Care System (Garrubbo & Capece, P.C., attorneys; Laurie Esteves DellaVentura, on the brief). Michael J. McBride argued the cause for respondent Noel R. Sorvino, M.D. (Mattia & McBride, P.C., attorneys; Mr. McBride, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli, and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-561-09. Michael B. Zerres argued the cause for appellants (Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte, attorneys; Mr. Zerres, on the brief). Joseph L. Garrubbo argued the cause for respondents Estate of Kenneth S. Nord, M.D. and St. Barnabas Health Care System (Garrubbo & Capece, P.C., attorneys; Laurie Esteves DellaVentura, on the brief). Michael J. McBride argued the cause for respondent Noel R. Sorvino, M.D. (Mattia & McBride, P.C., attorneys; Mr. McBride, on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
This medical malpractice action originally began as two separate complaints filed in January 2009 by sisters M.B. and K.B., naming as defendants a number of physicians as well as Saint Barnabas Health Care System. After joinder of issue, the cases were consolidated for discovery purposes. Following discovery, the parties engaged in extensive motion practice resulting in the trial court's decision granting summary judgment to defendants the Estate of Robert Kornblum, M.D., Noel Sorvino, M.D., the Estate of Kenneth Nord, M.D., and Saint Barnabas Health Care System on the issues of proximate cause and damages related to the belated diagnosis of M.B.'s cystic fibrosis.
The trial court also dismissed K.B.'s damages claim against defendants the Estate of Kenneth Nord, M.D. and Saint Barnabas Health Care System. K.B. also claimed these defendants failed to timely diagnose her cystic fibrosis. The court later granted summary judgment in favor of defendants the Estate of Robert Kornblum, M.D. and Dr. Sorvino, dismissing K.B.'s claim of delayed diagnosis of her cystic fibrosis. K.B. ultimately settled her wrongful birth claim against defendants the Estate of Robert Kornblum, M.D. and Dr. Sorvino. This settlement also disposed of M.B.'s wrongful birth claims against these same two defendants.
In this appeal, plaintiff challenges the March 2, 2012 order of the Law Division granting summary judgment in favor of defendant Dr. Sorvino, consequently dismissing with prejudice all of plaintiff's remaining claims against this physician. The motion judge held plaintiff failed "to establish both proximate causation and damages through expert testimony" to support her cause of action based on a delayed diagnosis of cystic fibrosis. The discrete issue before us is whether plaintiff can show that a three-year delay in the diagnoses of cystic fibrosis increased the risk of harm from this pre-existing condition. See Gardner v. Pawliw, 150 N.J. 359, 387 (1997).
"Plaintiff" refers to M.B. only.
Because the trial court dismissed plaintiff's claims as a matter of law, we must review all of the factual contentions in the record in the light most favorable to plaintiff. R. 4:46- 2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After carefully examining the record and mindful of the relevant standard of review, we affirm.
I
Plaintiff was born in 1994; her younger sister, K.B., was born four years later, in 1998. Although both girls were born with cystic fibrosis, they were not diagnosed with this genetic disorder until they were thirteen and eight years old, respectively. Plaintiff presented pediatrician Dr. Barbara K. Burton as an expert in pediatrics. Dr. Burton is a Professor of Pediatrics at Northwestern University Feinberg School of Medicine, Division of Genetics, Birth Defects and Metabolism, Children's Memorial Hospital. Dr. Burton is both a research scientist and a practicing physician. She has "an academic office in the hospital" where she does research, and she sees her patients "in a shared clinic area that is [hers] three half-days of the week[.]"
The trial court denied Dr. Sorvino's motion to bar Dr. Burton from testifying as an expert in the field of pediatrics. The motion judge rejected Dr. Sorvino's characterization of Dr. Burton as a geneticist who works primarily in a hospital-based setting and is therefore not competent to opine on whether Dr. Sorvino deviated from the standard of care applicable to a general pediatrician. Dr. Sorvino did not appeal the Law Division's decision in this respect.
Dr. Burton submitted a report dated September 7, 2010, in which she explained that cystic fibrosis (CF) is "a complex and eventually lethal genetic disorder for which there is currently no cure." CF "involves many different organ systems," including the pancreas. This "causes a problem with the secretion of the pancreatic enzymes which are responsible for the digestion of food." However, "[t]he most serious problem for patients with CF relates to the effect of the disorder on the lungs." Despite recent advancements in respiratory therapy and pharmacological treatment, it is probable plaintiff "will require at least one lung transplant due to progressive respiratory insufficiency." According to Dr. Burton, although "improvements in supportive care have resulted in a prolongation of life expectancy . . . [l]ife expectancy is currently in the mid to late 30's."
Dr. Kornblum was plaintiff's pediatrician from August 31, 1994 through January 5, 1998. Plaintiff was thereafter treated by Dr. Sorvino. When plaintiff was first examined by Dr. Sorvino, she had what Dr. Sorvino characterized as "generalized" symptoms consistent with a diagnosis of CF — a persistent cough, coughing up sputum, and digestive problems. Dr. Sorvino referred both plaintiff and her younger sister to a gastroenterologist, the late Dr. Kenneth Nord, because they both presented symptoms of abnormal stools.
Dr. Nord saw plaintiff's younger sister on November 25, 2003. In a letter dated February 17, 2004, Dr. Nord apprised Dr. Sorvino that "[o]utstanding laboratory studies include a sweat test, 72 hour fecal fat collection and quantitative serum trypsin." The language used by Dr. Nord — "outstanding laboratory studies include a sweat test" — leaves obscured whether he was waiting for the results of these diagnostic tests that he had ordered, or whether he was advising Dr. Sorvino to consider ordering these tests. It is clear, however, that plaintiff's sister did not take a sweat test as a result of this consultation with Dr. Nord in November 2003.
According to the Center for Disease Control and Prevention:
The most common test for CF is called the sweat test. It measures the amount of salt (sodium chloride) in the sweat. In this test, an area of the skin (usually the forearm) is made to sweat by using a chemical called pilocarpine and applying a mild electric current. To collect the sweat, the area is covered with a gauze pad or filter paper and wrapped in plastic. After 30 to 40 minutes, the plastic is removed, and the sweat collected in the pad or paper is analyzed. Higher than normal amounts of sodium and chloride suggest that the person has cystic fibrosis.
[U.S. Dep't of Health & Human Servs., Facts About Cystic Fibrosis, Nat'l Insts. of Health, 2-3 (Nov. 1995), http://www.cdc.gov/excite/ScienceAmbassador/ambassador_pgm/lessonplans/high_school/Am%20I%20a%20Carrier%20for%20Cystic%20Fibrosis/Cystic_Fibrosis_Fact_Sheet.pdf.]
On October 28, 2004, almost a year later, Dr. Nord saw plaintiff's five-year-old sister for a follow-up consultation. By letter dated January 10, 2005, Dr. Nord wrote to Dr. Sorvino again describing gastric symptoms generally associated with CF. Dr. Nord informed Dr. Sorvino that he had ordered a battery of diagnostic tests, including a sweat test. In her deposition, Dr. Sorvino acknowledged she received Dr. Nord's letters ordering a sweat test be performed. Despite this, Dr. Sorvino testified that "no one went for the sweat test" in 2003 or 2004. Dr. Sorvino did not order the sweat tests and did not follow up with Dr. Nord to determine whether he ordered them independently.
In June 2007, Dr. Sorvino referred plaintiff to Dr. Dagnachew Assefa, a pediatric pulmonologist, because the child was experiencing chronic coughing. According to Dr. Sorvino, when plaintiff coughed, she expelled a green sputum, which is a bacteria commonly found in CF patients. Dr. Assefa saw plaintiff on June 11, 2007. His "evaluation notes" documented a chronic cough, which previous physicians had attributed to a diagnosis of early childhood asthma. However, plaintiff had not responded to asthma medication; a culture revealed the presence of pseudomonas aeruginosa bacteria, something usually only found in CF patients.
Dr. Assefa ordered a sweat test be performed on plaintiff. In August 2007, plaintiff tested positive for CF. This prompted Dr. Assefa to order that her younger sister also be tested, because "it's customary to look for other children in the family." The test confirmed Dr. Assefa's suspicions. K.B. was also diagnosed with CF. According to Dr. Assefa, given the availability and effectiveness of neonatal screening for CF, most children are diagnosed early in order to begin treatment as soon as possible. At the time his deposition was taken in January 2012, Dr. Assefa was treating both sisters.
In September 2007, plaintiff was diagnosed as suffering from "severe exocrine pancreatic insufficiency." As explained by Dr. Assefa, this is caused by "the failure of the pancreatic gland to produce enzymes that are important to digest food." Plaintiff also had pseudomonas aeruginosa bacteria. Dr. Assefa testified that despite ordering a treatment regimen that involved plaintiff receiving both oral and intravenous antibiotics, he was unable to eradicate the bacteria.
Dr. Assefa also testified regarding plaintiff's damages and the causal relationship the delay in diagnosing and treating plaintiff's disorder had to potential measure of damages:
Q. Is the treatment that's provided to children who are diagnosed after newborn screening geared towards decreasing the chances of developing a pseudomonas bacteria or problems such as glucose intolerance in the future?
. . . .
A. I cannot give an opinion on that one because it is not a clear thing. It's not a clear answer.
Dr. Assefa also provided the following deposition testimony in response to questions asked by counsel for the Estate of Dr. Kornblum and Joan Sorenson, M.D.:
Q. At the time that you treated [plaintiff] for her pseudomonas bacteria, did you form an opinion that the age at which she was diagnosed with cystic fibrosis had anything to do with your inability to eradicate the pseudomonas bacteria?
A. No.
Q. Do you — as part of your training, does the age at which a patient is diagnosed with CF, is that related in any way to the ability to eradicate pseudomonas bacteria?
A. No.
. . . .
Q. Does the time of diagnosis of cystic fibrosis have any affect [sic] on the severity of pancreatic insufficiency?
A. No.
Q. With regard to the glucose intolerance, at the time you treated [plaintiff], have you ever formed an opinion that the age at
which she was diagnosed with cystic fibrosis had any affect [sic] on her glucose intolerance level?
A. No.
Q. Am I correct that given time, mostly — most patients with cystic fibrosis will develop glucose intolerance?
A. Yes.
Dr. Assefa gave the following testimony when questioned by counsel for the Estate of Dr. Kornblum and Dr. Sorenson about the pseudomonas:
Q. Do you know for how long — are you able to determine for how long she had it prior to that visit [on July 1, 2007]?
A. No.
Q. Are you able to determine whether she had it for one week as opposed to a year prior to your first visit?
A. No.
Q. Is it just as possible that she developed it right before the visit that you saw her first as it is when she was younger?
. . . .
A. Possible. That's speculation.
. . . .
It would be speculative because you don't have any data there.
Dr. Assefa also testified concerning plaintiff's psychiatric and emotional wellbeing. At the time of this deposition, plaintiff was seventeen years old. Dr. Assefa testified that after her diagnosis, plaintiff "develop[ed] depression, anxiety and panic attack [disorder]." Because these matters were outside his field of expertise as a pediatric pulmonologist, Dr. Assefa emphasized she needed to see a psychiatrist. Dr. Assefa stated plaintiff has told him on several occasions that she was too depressed to do her CF therapy. She was taking medication prescribed to treat anxiety disorders. According to Dr. Assefa, she may have had a consultation with a psychiatrist and a social worker the last time she was hospitalized for CF related treatment.
Plaintiff was deposed on Tuesday, December 28, 2010, thirteen months before Dr. Assefa's deposition. She was then sixteen years old. When asked when was the last time she had seen a physician "for anything," she said she had seen a psychiatrist on Friday (four days before her deposition). Plaintiff was hospitalized for two weeks in connection with CF. When she was discharged to go home, the psychiatrist at the hospital advised her to attend daily treatment at the outpatient psychiatric center instead of returning to school. At the time of her deposition, she was going to this outpatient psychiatric center "every day through the week." Plaintiff was formally diagnosed as suffering from depression and anxiety. She was taking three different psychiatric medications to treat her depression, anxiety, and panic attacks.
The CF made returning to school impractical and potentially dangerous. She testified she was "going to the nurse every day and just sleeping and coughing all the time." Consequently, she could not attend classes or keep up with her academic work. Her daily experiences were "just getting really unbearable to handle." Plaintiff's counsel also served a "Life Care Plan" for plaintiff prepared by a registered nurse.
Defendants' two experts, Dr. William Kottler and Dr. Joel Rosh, were both deposed and questioned about proximate causation in this case. Dr. Kottler acknowledged it is generally advocated that CF patients begin treatment as early as possible. He also recognized that the medical literature includes reports that have concluded children diagnosed with CF early have better pulmonary function and better clinical outcomes. Early diagnosis and treatment may also prevent serious deterioration or death and irreversible lung damage from occurring at a young age. Because there is no cure for CF at this time, the goal in treatment is to delay the natural progression of the disease. Dr. Kottler also agreed "that the sooner the treatment begins, the sooner the treatment can help alleviate some of the patient's symptoms[.]" With respect to the bacteria, Dr. Kottler testified "[i]t's impossible to say when colonization occurs." He also could not give an "honest answer" about when plaintiff may have developed the bacteria. Dr. Rosh did not offer any opinion on causation.
II
Against this record, the trial judge granted Dr. Sorvino's motion for summary judgment on both causation and damages. The motion judge gave the following explanation in support of his ruling:
[T]here is no expert opinion as to the crucial area with regard to . . . whether [plaintiff's] condition became worse, [or] indifferent[.] [T]here's no specificity either by Dr. Assefa or Dr. Burton and the court finds that no reasonable jury could find [in plaintiff's favor or] could get over that burden with regard to [plaintiff] and . . . thus, [I] grant summary judgment as to Dr. Kornblum as to [plaintiff] only based upon, again, no expert issue on that critical issue with regard to [plaintiff] because we recognize it's a fatal disease, life expectancy is just as the charge goes with life expectancy in any trial, and that was the opinion, you know, life will be what it is. There's a statistical basis, I think it [is] 34 years, if I recall from the papers, but again, the child could live longer or shorter. But. . . Dr. Assefa could not point — Dr. Burton didn't even approach that issue and Dr. Assefa could not say with any specificity as to the detriments that have been caused to . . . the plaintiffs.
We review a trial court's decision granting or denying a motion seeking summary judgment using the same standard used by the trial judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We must determine, based on the competent evidential materials submitted by the parties, whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. Based on our review of the record, we are satisfied there are no material issues of fact in dispute and the case is ripe for disposition as a matter of law.
In Gardner, supra, 150 N.J. at 387-89, the plaintiff claimed her treating obstetrician's negligent failure to perform certain diagnostic tests increased the risk of a pre-existing condition that ultimately resulted in the premature birth and death of her child. The trial judge in Gardner dismissed the plaintiff's complaint because she failed to prove a proximate causal relationship between the defendant's alleged negligent conduct and the death of the fetus. Id. at 388. In reversing the trial court's decision, which had been affirmed by this court on direct appeal, the Supreme Court established the following standard:
When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether
performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases. We reach that conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. See Scafidi, supra, 119 N.J. at 108; [Evers v. Dollinger, 95 N.J. 399, 417 (1984)].
[Id. at 387 (emphasis added).]
Scafidi v. Seiler, 119 N.J. 93 (1990). --------
Applying these standards to the facts we have described, we discern no legal basis to overturn the trial court's ruling in favor of defendants. Plaintiff's experts did not offer an opinion, within a reasonable degree of medical probability, that Dr. Sorvino's failure to give the sweat test in 2003 or 2004 increased the risk of harm from the preexistent condition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION