On appeal from Superior Court, Law Division, Cumberland County.
King, Deighan and Havey. The opinion of the court was delivered by Deighan, J.A.D.
Plaintiffs Melvin Hearon, Sr. and Elva Hearon, his wife appeal from a summary judgment, granted after commencement of trial, dismissing their complaint for medical malpractice. Prior to trial a summary judgment had been granted in favor of defendant Burdette Tomlin Memorial Hospital and, prior to the commencement of trial plaintiffs submitted to a judgment of voluntary dismissal of their complaint against defendant Dr. Rudolfo Garcia, R. 4:37-1(b).
After plaintiffs and their daughter had testified their medical expert, Luketu Nanavati, M.D. was the next witness to be presented. However, just prior to presenting his testimony, counsel for defendant Robert Sorensen, M.D. moved to bar any testimony of Dr. Nanavati or alternatively for summary judgment based upon his deposition taken the day prior to trial. After hearing argument of counsel and examining the deposition,
the trial court entered a "summary judgment" dismissing the complaint.
In December 1980, plaintiff Melvin Hearon, Sr. experienced shortness of breath and chest pain. He consulted his family physician, Dr. Garcia, who admitted plaintiff to the Burdette Tomlin Memorial Hospital. Dr. Garcia prescribed 40 milligrams of inderal three times a day. Inderal is a drug which reduces the heart's demand for oxygen and reduces heart pain or angina.
Dr. Garcia had plaintiff examined by Dr. Sorensen, an internist and Chief of Medicine on the hospital staff. Dr. Sorensen's first examination revealed a murmur over plaintiff's left artery.*fn1 He suggested that plaintiff undergo a coronary arteriography and that plaintiff's dosage of inderal be reduced to 20 milligrams three times daily.
This dosage continued until January 20, 1981 at which time Dr. Sorensen determined that plaintiff "was having increased angina and an impending heart attack." He recommended that the inderal be increased to the original dosage of 40 milligrams. On January 20 and 21, upon Dr. Sorensen's recommendation, two doses of inderal were withheld because of a decline in plaintiff's blood pressure. Sometime between January 20 and 22, 1981, plaintiff suffered an acute myocardial infarction. Subsequently, he was transferred to the services of Dr. Nanavati and later taken to the Presbyterian-University of Pennsylvania Medical Center. As a result of the heart attack plaintiff has been unable to return to work and is incapable of doing any household chores.
Before Dr. Nanavati was called to testify, defense counsel furnished the court with a copy of his deposition and moved to
bar the doctor's testimony or for a "summary judgment." Defense counsel referred to portions of Dr. Nanavati's deposition which seemed to indicate that Dr. Sorensen's treatment was not improper. Dr. Nanavati was not specifically asked at his deposition if Dr. Sorensen deviated from a medical standard to a reasonable degree of medical probability; he admitted that there is medical authority both for and against the proposition that inderal may aggravate the type of angina suffered by plaintiff. Dr. Nanavati also admitted that there are competent physicians who believe that inderal aggravates this type of angina and other competent physicians who hold the opposite view. Dr. Nanavati further stated that it would be appropriate for a physician who believed that inderal may aggravate the type of angina sustained by plaintiff to decrease the inderal dosage. The trial court did not read the deposition, but merely perused it during the arguments of counsel. After hearing ...