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Cohen v. Maman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 granted defendant's motion and dismissed plaintiff's complaint. This appeal ensued.

To establish negligence, the expert's testimony must show the applicable standard of care, a deviation from that standard, and that the deviation was a proximate cause of the injury. Gardiner v. Pawliw, 150 N.J. 359, 375 (1997). "[A]n expert's bare conclusion, unsupported by factual evidence, is inadmissible" as a net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

According to Berg, when Cohen's blood pressure went up, "in the context of the other episodic features, it [sh]ould have triggered" a consideration of pheochromocytoma. Through all of Cohen's visits to Dr. Boudwin's office from February through the last visit on September 1, however, the doctor never recorded an abnormal blood pressure. The only abnormalities that Boudwin became aware of were those reported to him in the cardiologists' report.

In his deposition, Berg explained what it was that Dr. Boudwin, as a family practitioner, specifically did wrong: "[H]aving referred the patient for consultation and being informed that blood pressures were now elevated and should be followed carefully[,] [h]e did not at any time do any further blood pressures." Thus, Berg believed that because Boudwin did no monitoring whatsoever, a deviation occurred. Even if we assume that this aspect of Berg's opinion was sufficiently grounded in the facts to pass muster, plaintiff still does not get to the jury.

Berg at no time, even after three opportunities, defined what was required under the pertinent standard for close monitoring. Indeed, in the doctor's third report, he quoted from one of the other depositions indicating that it would have been appropriate for Boudwin "to have the consult note 'staring at [him] when he saw his patient the next time', whenever that would be." Berg never indicated that upon receipt of such a report from the cardiologist, the standard of care required Boudwin to see Cohen earlier or at least before his surgery, and if Boudwin did not have to see Cohen before his surgery, there would have been no way that the diagnosis could have been made before Cohen's unfortunate death.

It is, therefore, the proximate cause element that supports the trial court's determination. Berg opined that Boudwin's failure to monitor Cohen was "a significant factor in bringing about the ultimate harm to Mr. Cohen." For the reasons we have explained, it is this portion of Berg's opinion that is net, and Judge Ciccone correctly dismissed plaintiff's complaint.

Affirmed.

20070627

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