Opinion
DOCKET NO. A-1093-13T2
09-03-2014
VERONICA WILLIAMS, Plaintiff-Appellant, v. ATLANTICARE REGIONAL MEDICAL CENTER, JAMES LOWE, M.D., and JESSICA COSTABILE, D.O., Defendants, and JOSEPH ZERBO, D.O., Defendant-Respondent.
Messa & Associates, P.C., attorneys for appellant (Richard J. Heleniak, on the brief). Crammer, Bishop & O'Brien, attorneys for respondent (Timothy B. Crammer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and Leone. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2228-09. Messa & Associates, P.C., attorneys for appellant (Richard J. Heleniak, on the brief). Crammer, Bishop & O'Brien, attorneys for respondent (Timothy B. Crammer, on the brief). PER CURIAM
In this medical malpractice case, we granted leave to appeal from two orders of the trial court that prevented plaintiff from using the testimony of her expert witness at trial against one of the defendant doctors.
The trial court's August 9, 2013 written opinion applied the Supreme Court's recent decision in Nicholas v. Mynster, 213 N.J. 463 (2013), and concluded that plaintiff's expert is not qualified to testify against Dr. Zerbo because the expert is not a specialist in the same field. At the same time, the court denied Zerbo's motion for summary judgment and permitted plaintiff to serve a new expert report from a qualified expert.
However, on Zerbo's motion for reconsideration, the trial court entered an order on September 12, 2013, that vacated the latter portion of the August 9 decision and order. The September 12 order dismissed plaintiff's case against Zerbo on the ground that plaintiff is out of time to obtain a qualified expert witness to support her cause of action against Zerbo.
We affirm the court's August 9, 2013 order and reverse its September 12, 2013 order.
I.
Plaintiff Veronica Williams injured her neck in a motor vehicle accident in January 2006. On June 19, 2007, defendants James Lowe, M.D., and Joseph Zerbo, D.O., jointly performed spinal surgery on plaintiff while she was under endotracheal anesthesia. Lowe specializes in neurological surgery and Zerbo in orthopedic surgery, and both are board certified in their specialties. They practice out of the same medical offices and advertise spine surgery as a specialty.
The doctors described plaintiff's surgery as "anterior cervical discectomy with fusion and plating." Plaintiff was discharged from the hospital on the same day as the surgery, but that afternoon she had difficulty breathing and her neck was swelling. She returned to the hospital. The complications were determined to have been the result of a tear in her pharynx caused by insertion of anesthesia tubes during the surgery. The tear was repaired by emergency surgery, and she remained hospitalized for several weeks. Later in 2007, she experienced further complications of the original spine surgery and additional surgery had to be performed to correct her condition.
In June 2009, plaintiff filed a medical malpractice complaint against Drs. Lowe, Zerbo, and other defendants. Zerbo filed his answer on September 3, 2009, and demanded an affidavit of merit pursuant to N.J.S.A. 2A:53A-27.
The court held a telephone conference on September 4, 2009, in accordance with Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 154-55 (2003), but Zerbo's counsel did not participate because he had not received notice of the conference. At the conference, the court set a deadline of November 27, 2009, for plaintiff to serve any affidavits of merit. On or about November 2, 2009, plaintiff served an affidavit of merit by Gregory J. Przybylski, M.D., a board certified neurological surgeon specializing in spinal surgery.
On May 3, 2010, Zerbo moved to dismiss plaintiff's complaint against him on the ground that Przybylski's affidavit did not comply with the requirements of N.J.S.A. 2A:53A-41 because the affiant did not specialize and was not board certified in Zerbo's specialty of orthopedic surgery. On September 14, 2010, the trial court denied Zerbo's motion and held in a written opinion that plaintiff's affidavit of merit complied with the requirements of N.J.S.A. 2A:53A-41. The court reasoned that Przybykski, Lowe, and Zerbo all practiced and were qualified in the overlapping subspecialty of spine surgery, which was the type of plaintiff's treatment that led to her allegations of malpractice. The court concluded that Przybylski was qualified to testify as an expert and to provide an affidavit of merit against both spine surgeons.
After the court's ruling, the parties engaged in discovery. Plaintiff served an expert report by Przybylski in January 2012, and the parties took his deposition in December 2012.
In the meantime, the case was re-assigned to a different judge, and on April 25, 2013, the decision in Nicholas v. Mynster, supra, 213 N.J. 463, was published. The Supreme Court held N.J.S.A. 2A:53A-41 requires 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. The plaintiff in Nicholas was required to produce an affidavit of merit by a specialist in each of the two defendant doctors' specialties despite the overlapping areas of their practice and their treatment of the same condition in the patient. Id. at 484.
In June 2013, immediately before the trial date, Zerbo filed a motion in limine that again challenged Przybylski's qualification to testify against him under N.J.S.A. 2A:53A-41. Zerbo argued that the Supreme Court's recent decision in Nicholas was applicable to the facts of this case, and that Zerbo was entitled to summary judgment because plaintiff did not have a qualified expert against him. On August 9, 2013, the trial court issued its decision determining in light of Nicholas that plaintiff's affidavit of merit did not comply with N.J.S.A. 2A:53A-41 and that Przybylski would not be permitted to testify at trial in support of plaintiff's claim that Zerbo committed malpractice.
However, the court viewed the previous judge's September 2010 denial of essentially the same motion as the law of the case until the issuance of the Supreme Court's superseding 2013 decision in Nicholas. Consequently, the court concluded that the intervention of clarifying legal authority entitled plaintiff to obtain new expert testimony and therefore denied Zerbo's motion for summary judgment without prejudice. It gave plaintiff approximately two months to produce a new expert report against Zerbo from a qualified expert in the field of orthopedic surgery.
Zerbo filed a motion for reconsideration of the August 9, 2013 order, arguing that the trial court erroneously permitted plaintiff time to file a new affidavit of merit and expert report. He argued that the court was "palpably incorrect" in that regard because plaintiff was not entitled to rely on the earlier incorrect decision of the trial court. Zerbo further argued that "plaintiff simply would not have had the opportunity to cure the defect in her affidavit of merit" if the court had originally decided his motion to dismiss in accordance with the principles discussed in Nicholas and had dismissed plaintiff's complaint.
After hearing argument on Zerbo's motion, the trial court issued an order and written decision on September 12, 2013, vacating the portion of the August 9 order granting plaintiff the opportunity to file a new affidavit of merit and expert report. Because the result of the court's ruling was that plaintiff did not have a qualified expert for trial against Zerbo, the court also granted summary judgment to Zerbo and dismissed plaintiff's complaint against him with prejudice.
While these proceedings were occurring in the trial court, plaintiff twice filed a motion before us for leave to appeal. We initially denied leave to appeal from the August 9, 2013 order. However, when plaintiff sought leave to appeal from the September 12, 2013 order, we granted plaintiff leave to appeal from both orders. The issues before us address whether the trial court correctly ruled that Przybylski is not qualified to testify as an expert against Zerbo and whether it correctly precluded plaintiff from producing a new expert to replace Przybylski.
II.
A plaintiff filing a lawsuit for "malpractice or negligence by a licensed person in his profession or occupation . . . shall . . . provide each defendant" an affidavit of merit. N.J.S.A. 2A:53A-27. The affidavit of merit must explain "that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." Ibid. If the affidavit is not filed within a maximum of 120 days from the filing of the defendant's answer and the defendant moves to dismiss, the action will usually be dismissed with prejudice. Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010).
The affiant must be "an appropriate licensed person." N.J.S.A. 2A:53A-27. In medical malpractice actions, the affiant and any expert witness against a doctor must also meet additional requirements established by N.J.S.A. 2A:53A-41. "The basic principle behind that statute is that 'the challenging expert' who executes an affidavit of merit in a medical malpractice case, generally, should 'be equivalently-qualified to the defendant' physician." Buck v. Henry, 207 N.J. 377, 389 (2011) (quoting Ryan v. Renny, 203 N.J. 37, 52 (2010)). The statute provides: "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," then the expert witness must be the same specialist or subspecialist. N.J.S.A. 2A:53A-41(a). Furthermore, if the defendant doctor is board certified in that specialty, the expert must either be board certified or must be credentialed by a hospital to treat patients with the condition that is the subject of the malpractice allegations. Ibid.
In Nicholas, supra, 213 N.J. at 482, the Court held that the hospital credentialing alternative to board certification of the expert witness does not replace the requirement that the expert practice in the same specialty but only substitutes for board certification of the expert. That holding is not relevant to the dispute in this case.
Here, plaintiff alleges medical malpractice by Zerbo for injuries allegedly sustained during spinal surgery. Zerbo specializes in orthopedic surgery. Przybylski does not specialize in orthopedic surgery. His specialty is neurological surgery. Both orthopedic and neurological surgery are recognized specialties by the ABMS and AOA, but spinal surgery is not a recognized specialty or subspecialty by either of those organizations.
Plaintiff argues Zerbo's treatment did not involve his specialty of orthopedic surgery, but instead "the separate specialty of spinal surgery in which Zerbo practiced but for which no specialty or sub-specialty certification is recognized by or available through either the [ABMS] or the [AOA], but which specialty has its own medical society and own special fellowship and training." The trial court's original September 14, 2010 decision agreed with plaintiff's argument.
But plaintiff's argument misperceives when medical treatment "involves" a specialty, and mistakenly assumes that specialties not recognized by either the ABMS or the AOA are nevertheless acceptable under the terms of N.J.S.A. 2A:53A-41. In Nicholas, supra, 213 N.J. at 487, the Court applied a broader meaning of when treatment "involves" a specialty than plaintiff would have us apply. In that case, one defendant physician specialized in emergency medicine and another in family medicine. Id. at 469. The patient arrived at the emergency room with carbon monoxide poisoning and the emergency medicine specialist treated the patient with 100% oxygen and medication. Ibid. The family medicine specialist, working as the attending physician, then admitted the patient and augmented his medications. Ibid. Although the treatment was overlapping, the Court found that "both defendants rendered treatment within their specialties." Id. at 487. The Court applied the statutory requirement that an expert must practice the same specialty as a defendant and held that the plaintiff was required to prove the defendants' negligence by specialists in emergency medicine and in family medicine. Ibid.
In this case, plaintiff's surgery in June 2007 involved both Zerbo's specialty of orthopedic surgery and Lowe's specialty of neurological surgery. Plaintiff needs an equivalently-qualified specialist to testify against each of those defendants.
Additionally, the Supreme Court has noted that N.J.S.A. 2A:53A-41 only recognizes specialties that are listed by the ABMS or the AOA. In Buck, supra, 207 N.J. at 389, the court stated, "[t]he statute sets forth three distinct categories" of doctors: "(1) those who are specialists in a field recognized by the [ABMS or the AOA] but who are not board certified in that specialty; (2) those who are specialists in a field recognized by the ABMS [or the AOA] and who are board certified in that specialty; and (3) those who are 'general practitioners.'"
The statute repeatedly uses the words "specialist," "subspecialist," and "specialty" in conjunction with the limiting phrase "recognized by the [ABMS] or the [AOA]." In fact, this pairing and limitation appears in the statute eleven times. N.J.S.A. 2A:53A-41. Consequently, N.J.S.A. 2A:53A-41 does not recognize specialties or subspecialties that are not listed by the ABMS or the AOA, such as spine surgery.
Setting forth the sequence of the court's analysis in determining whether an expert is qualified to testify against a doctor, the Supreme Court stated in Buck, supra, 207 N.J. at 391:
[T]he first inquiry must be whether a physician is a specialist or general practitioner. If the physician is a specialist, then the second inquiry must be whether the treatment that is the basis of the malpractice action "involves" the physician's specialty. When the treatment "involves" the physician's specialty the equivalency requirements apply, otherwise the specialist is subject to the same affidavit requirements as if he were a general practitioner.
Zerbo is a specialist in orthopedic surgery. Plaintiff's treatment involved this specialty. Plaintiff is required by N.J.S.A. 2A:53A-41 to present an expert witness who specializes in orthopedic surgery.
Plaintiff further argues that this interpretation of N.J.S.A. 2A:53A-41 will cause meritorious claims to be dismissed and will increase the cost of pursuing medical malpractice lawsuits. Plaintiff's policy argument does not authorize this court to deviate from the clear statutory language as interpreted by the Supreme Court. In fact, the Legislature enacted the statute in response to policy arguments from varying points of view regarding the scope and nature of medical malpractice cases and the effect such litigation has on the costs of and the public's access to health care.
N.J.S.A. 2A:53A-41 is part of the "New Jersey Medical Care Access and Responsibility and Patients First Act," L. 2004, c. 17. The legislation
was a response to the "dramatic escalation in medical malpractice liability insurance premiums, which [was] creating a crisis of affordability in the purchase of necessary liability coverage for our health care providers." N.J.S.A. 2A:53A-38(b). The Legislature, in part, attributed the steep increase in premiums to the State's tort-liability system. N.J.S.A. 2A:53A-38(d).
[Nicholas, supra, 213 N.J. at 479 (alteration in original).]
Finally, we find insufficient merit to warrant extensive discussion in a written opinion, R. 2:11-3(e)(1)(E), in plaintiff's argument that the law of the case doctrine required that the court's September 14, 2010 order permitting Przybylski to testify against Zerbo should stand. Simply stated, the trial court could reconsider the first judge's decision on the ground that the Supreme Court's intervening decision in Nicholas, supra, 213 N.J. 463, superseded the prior order. See Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 302 (App. Div. 2004).
We conclude that the trial court correctly ruled by its August 9, 2013 decision and order that plaintiff's expert, Przybylski, is not qualified to testify against Zerbo.
III.
The trial court also ruled correctly on August 9, 2013, that plaintiff should have the opportunity to replace Przybylski as an expert witness in the circumstances of this case. Its September 12, 2013 ruling on defendant's motion for reconsideration erroneously deprived plaintiff of such an opportunity and dismissed the complaint against Zerbo.
Citing Rosenberg, supra, 366 N.J. Super. at 301-03, plaintiff argues she is entitled to additional time to find a qualified expert because she "understandably relied on a prior ruling of a court in the same case." In Rosenberg, the defendants moved for summary judgment on the eve of trial arguing the plaintiffs needed an expert to prove negligence when an elevator dropped precipitously down three stories before coming to a stop. Id. at 296. Although a prior judge had denied an earlier motion raising the same argument, the trial judge granted the defendants' motion because of a newly decided appellate decision, but the trial judge also refused to give the plaintiffs the opportunity to find an expert. Id. at 296-97. We reversed, stating that, at the very least, the plaintiffs should have been given the opportunity to obtain an expert because they "understandably relied upon the prior ruling of a court in the same case." Id. at 302-03.
Zerbo argues that any reliance on the September 14, 2010 order of the prior judge is irrelevant because plaintiff would not have had an opportunity to obtain a new expert if the first judge had decided the motion in Zerbo's favor. However, as the Court stated in Buck:
The core purpose underlying the [Affidavit of Merit] statute is to require plaintiffs . . . to make a threshold showing that their claim is meritorious, so that lawsuits lacking substance can be dismissed at an early stage of litigation. [T]here is no legislative interest in barring meritorious claims brought in good faith[.]
[Buck, supra, 207 N.J. at 393 (alteration in original) (citations omitted) (internal quotation marks omitted)].
In Buck, the Supreme Court concluded that the plaintiff had acted in good faith in producing an affidavit of merit, but that confusion about the specialty in which the defendant doctors were practicing caused the plaintiff to rely on an affiant that may not have qualified under N.J.S.A. 2A:53A-41. Buck, supra, 207 N.J. at 395. The Court remanded for a Ferreira conference and also instructed the trial court to give plaintiff additional time to provide an affidavit if it decided that plaintiff's existing affidavit of merit was inadequate. Ibid.
Here, the court held a Ferreira conference, but Zerbo's attorney did not have notice and did not participate. His answer, filed one day before the Ferreira conference, did not indicate that Zerbo's specialty was orthopedic surgery when he treated plaintiff. Plaintiff acted in good faith in serving an affidavit of merit prepared by a spine surgeon, and the trial court initially agreed with plaintiff's position that such an affidavit was sufficient. The clarification of the law in Nicholas gave Zerbo the opportunity to present again his motion to dismiss the complaint on the ground that Przybylski was not qualified to testify against him. The ground argued by Zerbo against application of the law of the case doctrine, that Nicholas clarified the law, was also a ground upon which the trial court was authorized to reopen discovery and to permit plaintiff to produce a new expert witness.
Unlike Knorr v. Smeal, 178 N.J. 169, 179-80 (2003), this is not a case were Zerbo should be estopped from claiming an inadequate affidavit of merit or be barred by the doctrine of laches from moving to dismiss plaintiff's complaint against him late during the litigation. Zerbo moved to dismiss the complaint early in the litigation, before discovery and other motion practice had been conducted. From plaintiff's point of view, however, the considerations in Knorr, id. at 176-77, of efficiency and avoiding wasted resources also apply here, where the parties relied on the trial court's ruling that Przybylski was qualified to supply an affidavit of merit and to testify against Zerbo.
In fact, because this litigation proceeded through three years of discovery and pretrial preparation, the purposes of strict enforcement of the affidavit of merit statute are not served in these circumstances. See id. at 176 ("The statute's essential goal is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial." (citing Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001)). The sufficiency of plaintiff's affidavit of merit was decided by the trial court in September 2010, and she was entitled to rely on that decision.
The true issue here is whether plaintiff has a qualified expert to proceed to trial against Zerbo. Like those cases where an expert had to be replaced at the eleventh hour because of unforeseen developments in the case, see, e.g., Klimko v. Rose, 84 N.J. 496, 502 (1980); Brun v. Cardoso, 390 N.J. Super. 409, 419-20 (App. Div. 2006); Nadel v. Bergamo, 160 N.J. Super. 213, 217-18 (App. Div. 1978), the ruling favorable to Zerbo just before trial was unforeseen by plaintiff and should not also deprive her of a witness and undercut her case at the last minute. Plaintiff should have the opportunity to seek a new expert.
The trial court was correct in granting such a right by its initial written decision and order. Indeed, we adopt the reasoning of the trial court's thoughtful decision issued on August 9, 2013. The court should not have second-guessed itself and vacated part of that decision and its implementing order. We reinstate the order of August 9, 2013, although the trial court shall of course adjust the discovery deadlines and trial date contained in that order.
Affirmed in part, reversed in part, and remanded for further proceedings and trial in accordance with our decision. 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 APPEALATE DIVISION