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Cohen v. Maman

June 27, 2007

KAREN COHEN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF STEVEN D. COHEN AND KAREN COHEN, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
ARIE MAMAN, M.D., HARLAN J. SICHERMAN, M.D., CLIFFORD GLADSTONE, M.D., NEW BRUNSWICK CARDIOLOGY GROUP, P.A., UMDNJ AND ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, MARK PREMINGER, M.D., LARRY SHINDELMAN, M.D., JACK STROH, M.D., AND DIANE MCGLAUFLIN, R.N., DEFENDANTS, AND JAMES BOUDWIN, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11362-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2007

Before Judges Lefelt and Sapp-Peterson.

Plaintiff Karen Cohen (plaintiff) sued several physicians, including defendant James Boudwin (defendant or Boudwin), and Robert Wood Johnson University Hospital, alleging medical malpractice for failing to diagnose her husband Steven Cohen (Cohen) with pheochromocytoma, a tumor on the adrenal gland and the condition from which Cohen died. Plaintiff, having settled with or dismissed her suit against all other defendants, except Boudwin, now appeals from Judge Ciccone's summary judgment in favor of defendant. On appeal, plaintiff argues, essentially, that defendant was not entitled to summary judgment because her expert established a prima facie case of malpractice against Boudwin that, contrary to the motion judge's view, did not constitute a net opinion. We affirm.

Here are the facts. Cohen wanted to undergo elective umbilical hernia surgery but, on September 1, after pre-admission testing disclosed an abnormal EKG, Boudwin, Cohen's family practitioner, referred him to a cardiologist. When Cohen saw the cardiologist on October 18 he was asymptomatic.

However, Cohen informed the doctor of his history of palpitations accompanied by lightheadedness and chest pain radiating down the left arm. Cohen revealed that over the last year he had, "approximately once a month[,] 2-3 minutes of a rapid heart rate, [and] [o]n other days he ha[d] palpitations that [we]re not persistent."

The cardiologist found Cohen's blood pressure to be hypertensive at 128/94 and 124/96 in different arms, and 140/98 in the right after five minutes. The doctor recommended an "echocardiogram to assess his atrial size, [] a Stress Test to evaluate him for any possible coronary ischemia, and a Holter monitor for 24-hour surveillance of his cardiac rhythms."

The cardiologist's report to Dr. Boudwin indicated that if the exercise stress test was negative and there was no "evidence of structural cardiac disease on his echocardiogram," then Cohen would have "no prohibitive cardiac risk for general anesthesia and surgery." The report also warned that in the future, if his palpitations increased in frequency or if he developed "a recurrence of lightheadedness in conjunction with the palpitations," then Cohen could be considered for an electrophysiologic study. The cardiologist then noted that Cohen "will need his blood pressure to be followed closely. Should it remain elevated, I would treat him with antihypertensive agents . . . such as an Ace inhibitor or Norvasc."

When Boudwin received the report on October 21, he did nothing; he did not call Cohen and never discussed the letter with him. Thus, the last time before Cohen's death that Boudwin saw him was on September 1, when the doctor had recommended that Cohen see the cardiologist.

In early November, Cohen had his stress test and echocardiogram. The Holter monitor recorded some atrial entopic rhythm that apparently was not of concern. However, during the stress test, Cohen's blood pressure peaked at 180/88 and before the test, the cardiologist recorded a resting pressure of 140/100, which was regarded as abnormal, although not of pressing concern as Cohen was cleared for surgery. Later, approximately one week before his surgery, another physician recorded Cohen's blood pressure at 124/82, which is completely normal.

On December 6, Cohen was admitted to the hospital for his elective surgery, and he unfortunately died soon after the surgery was completed. During an autopsy the examiner discovered the pheochromocytoma on Cohen's adrenal gland. Pheochromocytoma is a rare, but curable, form of hypertension. Along with elevated blood pressure, pheochromocytoma patients often have headache, palpitations, sweating, and lightheadedness in some combination. Although as many as 75% of pheochromocytomas are not diagnosed, anesthesia and surgery are known precipitants of crisis in patients with the condition.

Dr. Berg, plaintiff's expert, opined that Boudwin's failure to closely follow Cohen's blood pressure, as recommended by the cardiologist, was a deviation from the standard of care for family practitioners, and that the "failure was a significant factor in bringing about the ultimate harm to [Cohen]."

Defendant argued in the trial court that Dr. Berg's report constituted a net opinion and moved for summary judgment. Judge Ciccone agreed with defendant, and also concluded that the expert would have to go outside the "four corners of the report by a lot" to establish a prima facie case against Boudwin. Therefore, the judge ...


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