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Cardinale v. Losman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2008

DOLORES M. CARDINALE, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF PATRICK A. CARDINALE, PLAINTIFF-APPELLANT,
v.
DR. JACQUES G. LOSMAN, M.D., ST. MICHAEL'S MEDICAL CENTER, JANE ROE, R.N. AND RICHARD ROE, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-8112-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 26, 2007

Before Judges Weissbard and S.L. Reisner.

Plaintiff Dolores Cardinale, individually and as Administratrix Ad Prosequendum of the Estate of Patrick Cardinale (Patrick), her husband, appeals from two rulings of the Law Division: (1) an order granting summary judgment to defendant Dr. Douglas Jackson on statute of limitations grounds; and (2) a directed verdict in favor of defendant Dr. Jacques Losman at the conclusion of plaintiff's proofs at trial.

I.

Sometime in 1999, Patrick consulted Dr. Losman for an evaluation of treatment options concerning a heart murmur he had since childhood. Dr. Losman, a cardiac surgeon, examined Patrick in late 1999 and recommended an elective surgery to repair the heart murmur. On January 6, 2000, Dr. Losman performed the surgery at St. Michael's Medical Center in Newark, without incident. Although the surgery was uneventful, immediately after surgery Patrick developed malignant hypokalemia - a potentially life-threatening condition defined by an abnormally low potassium level. This condition is considered almost entirely idiosyncratic. It is thought to be a type of reaction to anesthesia that cannot be predicted, and has never been considered the fault of any physician. The malignant hypokalemia caused a temporary condition of acute kidney failure, severe left ventricular dysfunction, as well as respiratory insufficiency, requiring Patrick to be maintained on a ventilator. While on the ventilator, Patrick was conscious and communicated with his wife and family.

Following his surgery, Patrick came under the care of Dr. Jackson, a physician who was the director of cardiac anesthesia and the cardiothoracic intensive care unit at St. Michael's Medical Center. Dr. Jackson assisted in the care of all patients who had open-heart surgery, including Patrick, once they arrived at the cardiothoracic intensive care unit. At that point, Patrick's care became a collaborative effort between Dr. Jackson, Dr. Losman and a cardiologist.

At her deposition, plaintiff's wife testified that in the days following her husband's surgery, she was frequently present at the hospital and had many conversations with both Dr. Losman and Dr. Jackson. She knew that her husband experienced some complications as the result of the surgery and it was her understanding that Dr. Losman and Dr. Jackson were "jockeying medications to get him balanced out." Plaintiff testified at her deposition as follows:

Q: Did you speak to more than one doctor on the 7th?

A: Yes.

Q: How many doctors?

A: There were a lot. I don't know. I know at least two.

Q: Who were the two doctors that you remember speaking to on the 7th?

A: Dr. Jackson and Dr. Losman.

Q: And do you remember which of those you spoke to first?

A: I don't remember.

Q: And who was Dr. Jackson, as you understood it?

A: I believe he was in charge of the recovery room.

Indeed, Dr. Jackson's orders for the care of Patrick, both written and verbal, appear repeatedly in Patrick's hospital record for the post-surgical period.

On January 9, 2000, Dr. Jackson ordered that Patrick be given Propulsid. Dr. Jackson testified that Propulsid is a medication that is often employed in the critical care setting. Dr. Losman explained at his deposition that when critical patients on respirators are given liquid nutrition, the effects of their conditions and the sedation they are under can significantly decrease the motility of the digestive system, causing the liquid to accumulate in the stomach. Dr. Losman stated that this presented the potential for a "deadly danger" that the patient will vomit and aspirate some of the stomach contents into the lungs. Both Dr. Losman and Dr. Jackson explained that Propulsid was ordered for Patrick to assist in emptying his stomach.

In the five days following the surgery, Patrick's condition slowly improved. By January 13, 2000, the malignant hyperthermia was essentially resolved in that Patrick was noted to have clear lungs, normal renal function and a normal cardiac index. At that time he was being weaned from the ventilator. Despite the improvement, on January 14, 2000, Patrick experienced an episode of ventricular fibrillation and cardiac arrest. As a result of that occurrence, he sustained a massive brain injury, causing a permanent vegetative state. Subsequent exams by neurologists and other experts confirmed that Patrick was essentially brain-dead and would never recover. As a result, he was removed from a ventilator and died on May 6, 2000.

Plaintiff testified that she and her family were not satisfied with the explanations they subsequently received from Dr. Losman regarding Patrick's case. On a number of occasions prior to Patrick's death, Dr. Losman allegedly stated that Patrick's condition was the fault of the attending nurses, who permitted his potassium levels to get too low, inducing the cardiac arrest. Based on Dr. Losman's suggestion of nursing malpractice, plaintiff had Patrick's 1000 page medical chart reviewed by a nursing expert, Audrey Stephan. In a report dated November 20, 2000, Ms. Stephan concluded that there was no negligence by the nurses or the hospital. However, she suggested other causes for Patrick's death having to do with the administration of Propulsid (generic name cisaprid) postoperatively.

As a result of Ms. Stephan's report, plaintiff had the entire medical chart, as well as all other medical records, reviewed by Dr. Jack Rosenberg, Pharm.D, Ph.D., an expert pharmacologist. In a report dated May 6, 2001, Dr. Rosenberg criticized the administration of pharmacological substances, particularly Propulsid, to patients, such as Patrick, with depleted levels of potassium. Dr. Rosenberg's report did not state that Dr. Losman ordered Propulsid for Patrick; rather, the report was silent regarding the physician or physicians who ordered Propulsid. At his deposition, however, Dr. Rosenberg testified that at the time he prepared his report, he knew from his review of the hospital records that the order for Propulsid was made by Dr. Jackson:

Q: Do you know when the Propulsid was ordered for the first time?

A: I have on the 19th he received an order from Dr. Jackson, 10 milligrams every six hours for high residuals on the 19th.

Q: Where?

A: On the 9th. I'm sorry. On the 9th.

Q: Where does it say Dr. Jackson ordered that?

A: I remember that's what he said.

Q: You remember it from where?

A: From the case that it was Jackson who wrote this order.

Q: So when you wrote your report back in May of 2001, you knew that Jackson had written the order for the Propulsid; is that right?

A: When I looked at it, yes, I did know that.

Dr. Rosenberg later certified that he was confused by counsel's questions, and in fact his report was meant to refer to Dr. Losman as the doctor who prescribed the Propulsid. Based on Dr. Rosenberg's report, plaintiff filed suit on August 8th, 2001, against Dr. Losman, St. Michael's Medical Center and a number of John Doe defendants.

In his answer to Uniform Form C Interrogatory No. 7 that requests:

If you contend that the plaintiff's damages were caused or contributed to by the negligence of any other person, set forth the name and address of the other person and the facts upon which you will rely in establishing that negligence,

Dr. Losman responded, "we make no such claims at this time."

In response to a request to "state the names and addresses of all consultants or other physicians who saw, examined and treated plaintiff at your request," Dr. Losman simply answered, "See St. Michael's chart."

As a result of Dr. Rosenberg's suggestion, plaintiff had all of these medical records as well as the Rosenberg and the Stephan reports reviewed by Dr. Arthur Meltzer, M.D., an expert cardiologist. In his report dated February 11, 2002, Dr. Meltzer repeatedly and specifically stated that Dr. Losman was negligent for prescribing Propulsid to Patrick and was responsible for his death. Although Dr. Meltzer had a complete copy of the St. Michael's chart, he never mentioned Dr. Jackson as being involved in Patrick's care, as having prescribed Propulsid to Patrick, or as having any responsibility for his death. Thus, there is no mention of Dr. Jackson in Dr. Meltzer's report, in Dr. Rosenberg's report or in Ms. Stephan's report.

Dr. Meltzer's report further stated:

In my opinion, within a reasonable degree of medical certainty, Dr. Losman violated the standard of care as defined by the FDA and Janssen Pharmaceutica (the manufacturer of (Cisapride) by:

1. Starting Cisapride therapy on January 9th . . . .

2. Continuing Cisapride therapy from January 10th-January 13th . . . .

3. Continuing Cisapride therapy after Mr. Cardinale developed diarrhea.

4. Starting and continuing Cisapride therapy when Mr. Cardinale was receiving extraordinary amounts of intravenous potassium . . . .

5. Starting and continuing Cisapride therapy when the Mr. Cardinale's QTC was 450 msec.

Dr. Losman's deposition was not taken until January 9, 2003. At that time, he asserted that he never wrote any prescriptions for Propulsid for Patrick. Plaintiff suggests that this was the first time she learned of the potential liability on the part of Dr. Jackson.

However, Dr. Jackson points out that Dr. Losman actually informed plaintiff long before his deposition that it was not he, but Dr. Jackson, who ordered Propulsid for Patrick. That statement was made in a certification of Dr. Losman's counsel, dated July 3, 2002, filed in opposition to the motion of St. Michael's for summary judgment, a motion that plaintiff herself did not oppose. In that certification, commenting on the expert report of Dr. Meltzer that had been served by plaintiff, counsel stated:

Since the plaintiff has not yet deposed Dr. Losman, the plaintiff's expert witness is unaware of the fact that Dr. Losman did not "start" the Cisapride on January 9 and did not "continue" the Cisapride from January 10 to January 13th.

Instead, the Cisapride was ordered on January 9th by Dr. Jackson and reordered by Dr. Jackson on January 12th. The patient was in the CCU at this time and upon information and belief, Dr. Jackson was the director of the CCU. Under the doctrine of apparent authority, St. Michael's Medical Center may be liable for Dr. Jackson's acts. Similarly, it may be that Dr. Jackson was salaried by St. Michael's.

The hospital's motion was granted on August 22, 2002. Based upon Dr. Losman's deposition testimony, on February 14, 2003, plaintiff moved to amend her complaint to join Dr. Jackson as a defendant. That motion was granted on March 7, 2003, and plaintiff filed an amended complaint joining Dr. Jackson on March 19, 2003, two years and ten months after Patrick's death. Answers were then filed on behalf of Dr. Losman and Dr. Jackson.

After Dr. Jackson was joined as a defendant, his deposition was conducted, during which he admitted to writing the orders for Propulsid for Patrick. Plaintiff then had the matter reviewed by a fourth medical expert, Dr. Reed Oxman, M.D., an intensive care specialist and the only one of plaintiff's experts that had Dr. Jackson's deposition transcript available for review. In a report dated March 24, 2004, Dr. Oxman concluded that "the deviations from accepted standards of care rendered to Patrick Cardinale by Dr. Jackson, the pharmacists and the ICU nurses caused the cardiac arrest that led to Mr. Cardinale's death."

Dr. Jackson moved for summary judgment based on the statute of limitations. That motion was granted. Plaintiff's motion for leave to appeal was denied on August 13, 2004. Based on Dr. Oxman's report, plaintiff again amended her complaint to join certain nurses as defendants, but they were subsequently dismissed. The case was tried solely against Dr. Losman on February 2, February 6, and February 8, 2006. Dr. Rosenberg was plaintiff's liability expert.

Dr. Rosenberg testified that he is a recognized expert in pharmacology, has written numerous texts and reference books on the subject and has taught medical students in this area. He is a long-time Professor of Pharmacy Practice and Pharmacology at Long Island University, and is responsible for the drugs administered in numerous nursing homes. He testified at length regarding his substantial credentials. Dr. Rosenberg testified that in his opinion, Dr. Losman had a responsibility to be aware of the drugs that were being prescribed to his patient by other physicians, particularly Dr. Jackson. Moreover, he stated that Dr. Losman had a duty to countermand the orders for Propulsid written by Dr. Jackson, and that his failure to do so constituted a deviation from medical standards that caused Patrick's death.

In voir dire, however, Dr. Rosenberg conceded that he has never written an order for the prescription of a medication, has no training in nursing, has not obtained an M.D. degree, has never attended medical school, is not a licensed physician, and has never taught a formal course at a medical school. Dr. Rosenberg further testified that he has never worked in an intensive care or cardiac care unit, has never worked in a cardiac recovery room, has never worked with cardiac surgeons, has never worked with anesthesiologists, and has never worked with intensivists.

Dr. Rosenberg's position was that although he did not have an M.D., this did not affect his ability to render an opinion in this case because he was dealing with a pure pharmacological issue. He did not criticize the surgery performed by Dr. Losman. Despite having never performed cardiac surgery, he believed that he was competent to render an opinion in this matter because the issue was whether or not the prescribing of a medication to a particular patient in a set of particular circumstances by a physician was proper or improper.

An excerpt of the relevant testimony of Dr. Rosenberg's cross-examination is as follows:

Q: Okay. Now, one last area. It's your testimony that Dr. Losman should have countermanded Dr. Jackson's order for the Propulsid, correct?

A: That is correct.

Q: And Dr. Losman should have countermanded Dr. Jackson's order for the Propulsid because Dr. Losman should be aware that Propulsid can cause cardiac arrythmia.

A: Correct.

Q: And in your view, any doctor in that intensive care unit that was prescribing medication or recommending medication was in the exact same position. Is that true?

A: That's correct.

Q: Any doctor in that. ICU should have been aware that this Propulsid was dangerous in this patient.

A: That's correct.

Q: And any doctor in that ICU should have known that that Propulsid was so dangerous, the order should have been countermanded.

A: That's correct.

Q: And you say that even though you have never worked in an ICU, you've never worked in a CCU, you've never written orders for a man to receive Propulsi[d], you've never worked on a day to day basis with a cardiac surgeon an anesthesiologist or an intensivist.

A: That's correct.

Q: That's your opinion.

A: That's correct. Judge Garruto ruled that Dr. Rosenberg was not qualified to render an opinion as to Dr. Losman's responsibility to be aware of and to countermand Dr. Jackson's orders. As a result, without Dr. Rosenberg's testimony plaintiff could not sustain a prima facie case and the judge granted Dr. Losman's motion to dismiss pursuant to R. 4:37-2(b).

II.

On appeal, plaintiff argues as follows:

POINT I: THE TRIAL COURT'S DISMISSAL OF THE WRONGFUL DEATH CLAIM AGAINST DEFENDANT DR. JACKSON WAS IN ERROR.

POINT II: THE TRIAL COURT'S DISMISSAL OF THE SURVIVAL ACTION AGAINST DR. JACKSON WAS IN ERROR.

POINT III: THE COURT ERRED IN EXCLUDING THE EXPERT TESTIMONY OF DR. JACK ROSENBERG.

We are unpersuaded and, accordingly, affirm both orders under review.

III.

We first address the contentions regarding Dr. Jackson. In her written opinion, the motion judge correctly recognized that defendant's statute of limitations claim had to be analyzed separately with respect to the wrongful death and survivorship causes of action, even though the critical facts underlying each were the same.

A. The Wrongful Death Claim

The motion judge disposed of plaintiff's wrongful death claim by citing our opinion in Presslaff v. Robins, 168 N.J. Super. 543, 546 (App. Div. 1979), for the proposition that the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), is not applicable to claims under the Wrongful Death Act, which contains its own limitation period. N.J.S.A. 2A:31-3. Rather, the discovery rule only applies to an accrual period of limitations. Indeed, that is the holding of Presslaff. Because Patrick died on May 6, 2000, the Wrongful Death two-year limitation period required that suit be filed by May 6, 2002. Because Dr. Jackson was not added as a defendant until March, 2003, the Wrongful Death claim was time-barred.

However, the motion judge failed to address Negron v. Llarena, 156 N.J. 296 (1998), in which the Court held that the doctrine of substantial compliance was available to ameliorate strict application of "substantive" statutes of limitations, such as that found in the Wrongful Death Act. The Court found nothing in the legislative history of the Act suggesting that "'the Legislature intended to foreclose the familiar doctrine of substantial compliance in the [statute of limitations] context.'" Id. at 304 (quoting Cornblatt v. Barow, 153 N.J. 219, 240 (1998)). Quoting from our opinion in Bernstein v. Bd. of Trustees of Teachers Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977), Negron set out the elements of substantial compliance as follows:

(1) (T)he lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim[;] and (5) a reasonable explanation why there was not a strict compliance with the statute.

[Negron, supra, 156 N.J. at 305.]

In this case we conclude that plaintiff failed to establish factors (3) and (5), for the same reasons and based on the same facts that serve to bar her survivorship claim under the discovery rule, to which we now turn.

B. The Survivorship Claim

In rejecting the survival action, the motion judge stated the following:

The question is whether plaintiff's claim accrued in November 2000 when the nursing expert opined that, "The inclusion of 16 doses of Propulsid during the four day period prior to the patient's cardiac event in the presence of coexisting hypokalemia is a factor in need of consideration regarding any role its administration may have played." Pg. 3 of Stephan's Report. Or did plaintiff's claim accrue in May 2001 when Dr. Rosenberg, the pharmacological expert, offered his report concurring with the nursing expert's findings? This court believes that plaintiff's survival action accrued in November 2000, when the nursing expert opined the use of Propulsid was a possible cause of the decedent's heart attack.

The next question before this court is whether plaintiff moved with "reasonable diligence" in discovering the person responsible for proscribing Propulsid to the plaintiff's decedent, which is the alleged cause of the decedent's death. Here, plaintiff investigated and disposed of an early lead provided by defendant Dr. Jacques Losman that the cause of plaintiff's death was nursing malpractice in November 2000. The nursing expert report authored by Audrey Stephan, Ed.D, R.N., C.C.R.N. stated that the administration of Propulsid was the more likely cause of the decedent's heart attack. Stephan's report did not explicitly name the physician who prescribed Propulsid for the decedent. Plaintiff took this new lead to a pharmacological expert, Dr. Jack Rosenberg, who agreed with the nursing expert's findings, but, like, the expert before him, did not opine who the responsible party was in the written report authored in May 2001.

Both of these experts had the decedent's complete hospital chart. The names of the defendant doctors, Jacques Losman, M.D., and Dr. Douglas Jackson, M.D., appear throughout the hospital chart in the days following the decedent's heart surgery through the heart attack. Although one could argue that Dr. Jackson's signature is hard to decipher, one can easily tell that the signature of Dr. Jackson was not the same as the more legible signature of Dr. Losman. The hospital notes of January 9, 2000, show the word "Propulsid" with the signature of someone other than Dr. Losman. Furthermore, there are more legible nursing notes referring to orders from Dr. Jackson from roughly the same period of January 9, 2000. Probably the easiest method to decipher the signature of this physician other than Dr. Losman was to ask Dr. Losman himself. This was done, but only through the deposition of Dr. Losman conducted on January 9, 2003. He was not asked the question through use of a simple letter request previous to the filing of the complaint in August 2001 or through the use of a written interrogatory prior to his deposition.

A medical malpractice/survival action has a two-year statute of limitations. N.J.S.A. 2A:14-2; N.J.S.A. 2A:15-3. Therefore, plaintiff's claim would have accrued in November 2002. Dr. Jackson was not joined as a defendant until March 2003, which was approximately 4 months after the statute of limitations would have expired. Therefore, plaintiff's amended complaint naming Dr. Jackson as a defendant was not timely, and is barred on statute of limitations grounds.

We agree.

The involvement of Dr. Jackson in, and his responsibility for, the administration of Propulsid should have been known to plaintiff in ample time to have added him within the limitations period, based on the following: (1) plaintiff's own testimony in deposition that both Dr. Jackson and Dr. Losman were involved with Patrick's post-operative complications and were "jockeying medications to get him balanced out"; (2) Patrick's medical chart, which made clear that someone other that Dr. Losman had ordered the Propulsid; and (3) the July 3, 2002 certification filed by Dr. Losman, in opposition to the Hospital's summary judgment motion, that specifically stated Dr. Jackson's responsibility for prescribing the Propulsid. While it does not alter our conclusion, we express our disapproval of the litigation gamesmanship reflected in Dr. Losman's answer to interrogatories quoted earlier. A more direct and candid response would have highlighted Dr. Jackson's involvement and, likely, resulted in a timely amendment of the complaint.

While it is true that none of plaintiff's experts, Ms. Stephan, Dr. Rosenberg*fn1 or Dr. Meltzer, implicated Dr. Jackson, the fact that one or more of the experts may have been negligent in reviewing the hospital chart does not establish due diligence on plaintiff's part, a prerequisite for application of the discovery rule. We are not persuaded by plaintiff's argument that Mancuso v. Neckles ex rel. Neckles, 163 N.J. 26 (2000) and Gallagher v. Burdette-Tomlin Mem'l Hosp., 163 N.J. 38 (2000), dictate a contrary result. Unlike Mancuso, this is not a case where there was justified reliance "on competent expert advice that one or more of [the] treating physicians did not contribute to the patient's injuries . . . .," Mancuso, supra, 163 N.J. at 37. See also Gallagher, supra, 163 N.J. at 41-42. In the present case, all of the experts focused on the administration of Propulsid; the only question was who prescribed the drug. Ms. Stephan did not identify anyone. Likewise, Dr. Rosenberg did not identify anyone in his report, although he later claimed that he had Dr. Losman in mind. Dr. Meltzer directly identified Dr. Losman as the culpable party in his report. As we have pointed out, however, both Rosenberg and Meltzer should have concluded from a careful review of the chart that Dr. Losman did not order the medication, even if they could not decipher who did. Counsel had in his possession the certification of July 3, 2002, identifying Jackson, as well as his own client's recollection of Jackson's involvement. Under these circum- stances, we cannot discern in the Mancuso-Gallagher rationale a basis for a finding of diligence on plaintiff's part. For the same reasons, we find plaintiff's reliance on Guichardo v. Rubinfeld, 177 N.J. 45 (2003), to be misplaced.

Adverting to our prior discussion of the substantial compliance doctrine, nor do these facts show "general compliance with the purpose of the statute," or "a reasonable explanation why there was not a strict compliance with the statute."

C. The Fictitious Pleading Rule

The same facts discussed above also provided the basis for the motion judge's rejection of the fictitious pleading rule to permit the addition of Dr. Jackson. The judge stated:

The last issue before this Court is whether the fictitious pleading rule under Court Rule 4:26-4, which allows the plaintiff to use a "John Doe" count when filing the complaint. When the defendant's true name is found, the plaintiff is allowed to amend the complaint to reflect the true identity of the defendant, and the amendment relates back to the filing of the original complaint. However, "the rule will not protect a plaintiff who had ample time to discover the unknown defendant's identity before the running of the statute of limitations." Comment to R. 4:26-4 (citing Matynska v. Fried, 175 N.J. 51, 53 (2002)).

In Matynska, supra, the plaintiff, who had undergone hip replacement surgery, filed a complaint alleging medical malpractice during the post-surgical period caused her to suffer complications. While plaintiff specifically named certain doctors and nurses as defendants, she did not name a physician who had covered hospital rounds for his partner, plaintiff's orthopedic surgeon, for several days following the surgery, and whose name appeared twice in plaintiff's hospital chart. Plaintiff sought for leave to file an amended complaint two years after the original complaint was filed, and four years after the events of which complained occurred. The Supreme Court upheld the trial court and appellate decisions denying plaintiff's motion to amend the complaint, making clear that plaintiff "had an obligation to investigate all potentially responsible parties in a timely manner but did not do so. In short, the [plaintiff] failed to cross the due diligence threshold, and thus the lower courts properly denied her right to amend the complaint." Id. at 53.

Here, the court finds that the plaintiff did not move with "due diligence" in prosecuting her claim against Dr. Douglas Jackson. Dr. Jackson's name appears throughout the medical chart. One can tell that the signature authorizing the administration of Propulsid on January 9, 2000, was not that of Dr. Jacques Losman. Nursing notes in the appropriate period reflect orders from a "Dr. Jackson." The Court feels the plaintiff could have easily determined his identity of Dr. Jackson at an earlier point in time than January 2003. Therefore, the Court finds that this matter parallels the reasoning behind Matynska, supra, and that plaintiff cannot rely on Rule 4:26-4 to relate her claims against Dr. Jackson instituted in March 2003 to the original complaint filed in August 2001.

We agree. Thus, under any of the several analyses described above, plaintiff's motion to add Dr. Jackson was late, albeit only by about two and a half months.*fn2

IV.

After the plaintiff rested her case, defense counsel for Dr. Losman moved for an involuntary dismissal pursuant to R. 4:37-2(b), stating:

The issue in this case is whether or not Dr. Losman deviated from accepted standards of medical care as a specialist in cardiac surgery and I submit that the testimony of Dr. Rosenberg, the pharmacologist is not adequate to set out a standard of care in this case and therefore, the case should be dismissed as a matter of law.

Plaintiff appeals from the trial judge's grant of Dr. Losman's motion, arguing that the proposed expert need not be employed in the same profession as the defendant, and is not required to have actual, hands-on experience in the field of inquiry. Plaintiff argues that our state's flexible approach to the qualification of experts mandates that the trial judge should have allowed the case to go forward on the basis of Dr. Rosenberg's opinion as to the malpractice committed by Dr. Losman.

Defendant responds by noting that while the competency of Dr. Rosenberg on pharmalogical issues cannot be disputed, Dr. Rosenberg could not testify as to the protocols and procedures surrounding the countermanding of drugs in the emergency care unit of a hospital. Quite simply, the record indicates that Dr. Rosenberg had never worked in an intensive care or cardiac care unit, had never worked in a cardiac recovery room, had never worked with cardiac surgeons, had never worked with anesthesiologists, and had never worked with intensivists. The record also shows that Dr. Rosenberg had never written a prescription for medication and had never attended medical school. Judge Garruto agreed with defendant's position. The judge stated, in relevant part:

The issue in this case is whether or not Dr. Rosenberg is competent to offer the opinions necessary for this matter to go to the jury. Dr. Rosenberg is a pharmacologist. He has spent his life examining the many drugs that have been used in the care and treatment of patients. I don't think that there is anyone that's probably more qualified to offer an opinion as to use of the drug on individual patients as in this case.

This patient had two contraindications to utilize the drug. He clearly indicated that the package insert is not only something that comes with the drug but is considered legally to be an intrical [sic] part of the medication.

And contraindications according to the expert is that you shouldn't use it. While he did recognize that medications can be used for something called off label use, not a term used here, but which I often use in conjunction with uses not for which the drug did not receive FDA approval and I could indicate as an example that the medication Rogaine, which is now utilized for hair loss originally approved as a cardiac drug and during the course of the use of that drug, it was utilized in patients as an off label use and an off label use is certainly admissible.

The point that was made by Dr. Rosenberg is that the off label use is not permitted in the face of the contraindication and certainly not permitted in a black box warning. So . . . what can he testify about? He can testify that this medication in a patient such as this who had two contraindications was a proximate cause of the patient's death and that there's a serious dispute as to that.

He can certainly testify that it could be without the standard of care, outside the standard of care to utilize this medication in a patient with these contraindications. While it is true that he is not a neurosurgeon, he is not a cardiologist, he is not a cardiac surgeon, he's not a nurse, I point out he's also not a pathologist.

Now, there are lots of things that people aren't, but they have to be reasonably related to what they're talking about in order - - I certainly indicate that that might be of some persuasive effect, but the jury and the Court looks at, I don't think that it is of any particular persuasive effect. He certainly did not rely alone on the PDR.

That's served as a foundation for his opinions together with the great deal of additional other knowledge that he had in this area. What is troubling, however, is how does he know that it is permissible - -that the standard of care would require this defendant to countermand an order written by another physician while the patient is on what I believe to be that patient's service.

As I understand it, Dr. Jackson was the director of the cardiac intensive care unit. I don't know - - that only thing Dr. Rosenberg mentioned is that he has seen a record where one doctor countermanded another doctor's order and wrote this is garbage, words to that effect. I don't see how he has any indication to know or any basis for - - I mean, it seems to be logical that you can do that, but it doesn't - - it doesn't - - I don't know what the standard of care is within a particular institution by a medical professional and so I have serious questions as to his competency to offer that opinion and if it's based upon what he testified about, it seems to me that it's probably a net opinion and I'd like counsel to address that issue. That's the issue that's troubling.

THE COURT: That's my point. How does he know - - how does he define the responsibilities of the attending? He is not an attending, there is no indication that he knows what that is. That's just a net opinion.

[PLAINTIFF'S COUNSEL]: I submit that it is not. He's testified that the attending he mentioned, the captain of the ship and it's not the captain of the ship doctrine.

THE COURT: That's exactly my point. I think that Dr. Rosenberg, I don't know what - - if they have a captain of the ship doctrine in the other states in which he testifies, but it seems to me that he really has none of the pegs of his foundation for that opinion is that doctrine which does not apply.

THE COURT: But the idea of captain of the ship is really misdirected in terms of the disposition of this motion. It's only one little element of how does he know what the standard of care is in the interactions between two physicians in the hospital? How does he know that?

He doesn't work in the hospital, he's not there on a daily basis, he's not given seminars on that, he doesn't deal with patient flow through a hospital, how that is supposed to be conducted, he's not a hospital administrator who could tell us what happens, who is responsible for the patient at different periods of time. I think these are serious problems.

[PLAINTIFF'S COUNSEL]: Judge, with all due respect, the doctor's testimony was that he monitors the care of I believe something like 16 nursing homes with hospital-type setting and monitors the drugs he prescribes to them by physician.

THE COURT: Exactly. I don't have a problem with him doing the drugs that he can talk about the standard that applies to either a nurse practitioner or applies to a physician in prescribing the drugs to a person with these contraindications. I have no problem with that. I think that he is extremely well qualified to talk about that, what is not qualified to talk about is the interaction between two physicians in the hospital.

As sympathetic as I am to the position of the plaintiffs in this case, I think that the evidence doesn't support the case against Dr. Losman going to the jury. It is the Court's opinion that Dr. Rosenberg is eminently well qualified to discuss the issues of the drug, the issues of the drug's use in persons who have one more of the contraindications and to indicate that the drug was a proximate cause - - the use of the drug in this case was a proximate cause of the death of the decedent and it is also within his province to indicate that based upon his education, training, and experience that it would be inappropriate for a physician to prescribe this drug to a patient with the decedent's pre-existing conditions.

This is not in any way an off label use as has been suggested by the defendant. However, the defect in the case is as I have said before the absence of the appropriate qualifications of Dr. Rosenberg to testify as to the interaction between the attending and the physician and Dr. Jackson.

Accordingly, I will enter an order of involuntary dismissal.

We review a trial court's determination as to whether a witness has the requisite training, education or experience to testify as an expert witness, N.J.R.E. 702, under an abuse of discretion standard. Carey v. Lovett, 132 N.J. 44, 64 (1993). See also Carbone v. Warburton, 11 N.J. 418, 424 (1953) (suggesting a "clearly erroneous" standard of review).

Our courts have adopted what may fairly be described as a liberal approach to the question of what type of background on the part of a proposed expert passes muster under N.J.R.E. 702. In Sanzari v. Rosenfeld, 34 N.J. 128, 137 (1961), heavily relied on by plaintiff, the Court said:

We have held that an expert in a malpractice action need not have had personal experience with the situation under investigation to testify to the applicable standard of care. His knowledge may derive from observations of the methods used by members of the profession or from his study of professional treatises and journals. Carbone v. Warburton, supra, 11 N.J. at p. [sic] 425.

Sanzari approved testimony by a licensed physician as an expert concerning approved methods of anesthetic treatment by dentists. The physician in question had specialized in dental anesthesiology for a long period of time. Sanzari, supra, 34 N.J. at 137-38. Carbone approved testimony by a general practitioner physician as an expert concerning the standard of care on the part of an orthopedist. Carbone, supra, 11 N.J. at 425-27. In James v. City of East Orange, 246 N.J. Super. 554 (App. Div. 1991), the court permitted a physician who was a pathologist to testify against an emergency room physician. The pathologist exhibited considerable familiarity with the work of emergency room physicians based on his observations, discussions with other doctors, attending meetings and conferences and generally keeping abreast of the professional literature. Id. at 559-60. See also Rosenberg by Rosenberg v. Cahill, 99 N.J. 318, (1985); Adamson v. Chiovaro, 308 N.J. Super. 70, 77-78 (App. Div. 1998); Hudgins v. Serrano, 186 N.J. Super. 465, 473- 76 (App. Div. 1982); Lewis v. Read, 80 N.J. Super. 148 (App. Div.), certif. granted, 41 N.J. 121 (1963). In Hake v. Manchester Twp., 98 N.J. 302, 311-16 (1985), a police dispatcher was permitted to render expert testimony as to a hanging victim's chance of survival if emergency personnel had properly administered cardiopulmonary resuscitation.

Despite these cases, we conclude that Judge Garruto ruled correctly. Dr. Rosenberg, an acknowledged expert in the field of pharmacology, had no basis in his background to support his opinion that Dr. Losman committed malpractice in failing to properly oversee the medications being prescribed to Patrick and failing to countermand Dr. Jackson's order for Propulsid. We need not repeat the testimony set out above, which clearly demonstrated his lack of familiarity with the requisite standard of care or, to the extent he expressed such familiarity, his lack of qualifications to do so. See Crespo v. Martin, 244 N.J. Super. 413 (App. Div. 1990). As the court observed in James, supra, 246 N.J. Super. at 562, Crespo reflected a situation where "there was an utter absence of any degree of qualification for the witness to state his opinion with respect to the question at issue." The same is true here. We emphasize that our ruling does not rest on Dr. Rosenberg not being a licensed physician but, rather, on his lack of qualifications. We conclude that the trial judge did not abuse his discretion in finding Dr. Rosenberg unqualified to render an expert opinion as to Dr. Losman's deviation from a standard of care. As a result, granting the motion for involuntary dismissal was not erroneous.

Affirmed.


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