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Vitrano by Vitrano v. Schiffman

December 1, 1997

PETER VITRANO, AN INFANT BY HIS GUARDIAN AD LITEM, FRANK VITRANO AND FRANK VITRANO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
DONALD SCHIFFMAN, M.D., MATTHEW FELDMAN, M.D., BERNARD ETRA, M.D., JOSEPH FRUCHTER, M.D., HERBERT COLE, M.D. AND ALVIN EDELSTEIN, M.D., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication December 1, 1997.

Before Judges Brochin, Wefing and Braithwaite. The opinion of the court was delivered by Braithwaite, J.A.D.

The opinion of the court was delivered by: Braithwaite

The opinion of the court was delivered by

BRAITHWAITE, J.A.D.

In this medical malpractice case, plaintiffs *fn1, Peter Vitrano, an infant by his guardian ad Litem, Frank Vitrano, and Frank Vitrano, individually, appeal from a summary judgment granted to defendants Donald Schiffman, M.D., Matthew Feldman, M.D., Joseph Fruchter, M.D., and Alvin Edelstein, M.D. Plaintiffs do not appeal from summary judgment granted to Herbert Cole, M.D. Plaintiffs' claim against defendant Bernard Etra, M.D. was voluntarily dismissed.

Plaintiff was born on September 18, 1975, in Hackensack. From his birth until approximately age seven and then from age ten to fourteen, plaintiff received pediatric health care from Drs. Schiffman, Etra, Feldman and Fruchter. From March 1983 until October 1985, plaintiff was under the care of defendant pediatricians Drs. Cole and Edelstein.

When plaintiff was sixteen years old he complained of two lumps in his groin accompanied by abdominal pain and discomfort. He was examined by Joseph Vitale, M.D., who found the "[patient] had both testicles in his canals, not in scrotum. " Dr. Vitale diagnosed plaintiff with cryptorchidism, "a developmental defect of the testicles" that is present at birth. Dr. Vitale referred plaintiff to John F. Kerns, M.D., a urologist.

Dr. Kerns examined plaintiff and diagnosed bilateral undescended testes. In January 1992, he successfully performed orchiopexy surgery on plaintiff. Dr. Kerns described the procedure as "using sharp and blunt dissection, the cord was freed up and the testicle was dissected free. . . . a tunnel was made down into the scrotal sac and a small opening made in the scrotum." This procedure was completed on both the right and left testes. In his report dated December 15, 1993, Dr. Kerns stated that he found that both testes were undescended and "were found to be in the inguinal canal, and appeared to be of moderate size."

Plaintiffs commenced this litigation against defendants contending that they deviated from the accepted standard of medical care in failing to diagnose congenital undescended testes. Defendants essentially assert that it was impossible for all the board-certified pediatricians over so many years to have missed congenital undescended testes and, therefore, that the testes must have been descended but retractile, or plaintiff must have suffered from secondary ascent of the testes.

On a motion for summary judgment, the Judge ruled that the opinion of plaintiffs' liability expert, Joseph A. Silverman, M.D., was a net opinion. She therefore determined that he would not be permitted to testify at trial. Plaintiffs were then given the opportunity to provide additional reports, which they did. After reviewing the additional reports the motion Judge concluded that there was no genuine issue with respect to a material fact pursuant to Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). Summary judgment was therefore granted to defendants and plaintiffs' complaint was dismissed.

Our review of the record convinces us that the trial Judge erred in concluding that plaintiffs' expert's opinion was a net opinion. We are further satisfied that a genuine issue of material fact exists as to the liability of Drs. Schiffman and Feldman and therefore reverse the summary judgment granted to them. We affirm the summary judgment granted to Drs. Edelstein and Fruchter.

I

We observe at the outset that Dr. Feldman's records show that he examined plaintiff at birth and noted that both of plaintiff's testes had descended. Further, upon plaintiff's discharge from the hospital, he was examined by Dr. Schiffman, who reported that plaintiff's testes were down or descended. During his childhood, plaintiff had routine doctor visits and was examined at least sixty times. One-fourth ...


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