August 21, 2008
JOYCE J. KRUSE, DECEASED, BY LEE BERTONCELLA, AS EXECUTRIX OF THE ESTATE, AND LEE BERTONCELLA, INDIVIDUALLY, PLAINTIFF-APPELLANT,
CAPITAL HEALTH SYSTEM,*FN1 THOMAS CHETNEY,*FN2 AND SUZANNE GENTHE, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1231-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2007
Before Judges Lintner and Graves.
Plaintiff Lee Bertoncella, as executrix of her mother's estate and individually, appeals from a summary judgment order entered on April 28, 2006, dismissing her wrongful death and survivorship action against defendants Capital Health System, Thomas Chetney, and Suzanne Genthe. Plaintiff also appeals from orders entered on May 12, 2006, and June 23, 2006, which denied her reconsideration motions. After reviewing the record and applicable law in light of the arguments advanced on appeal, we are convinced there are genuine issues of material fact that should not have been resolved by the motion judge. Therefore, we reverse and remand for such further proceedings as may be required to dispose of the case.
On February 1, 2002, Joyce Kruse (Kruse) who was sixty- seven years old, called 9-1-1 for medical assistance. When the East Windsor Volunteer Rescue Squad (the rescue squad) arrived on the scene at approximately 9:16 p.m., it found Kruse was conscious and alert, but agitated and in severe back pain. While Kruse was being evaluated by the rescue squad, she "passed out for 5/10 seconds [and] began vomiting." The rescue squad called a Mobile Intensive Care Unit (MICU),*fn3 which was owned by Capital Health System, for assistance. The MICU that responded was operated by defendants Thomas Chetney and Suzanne Genthe, two "mobile intensive care paramedics"*fn4 employed by Capital Health System, who were trained and equipped to provide advanced life support (ALS)*fn5 services. The MICU arrived at the scene at approximately 9:26 p.m. After evaluating Kruse's medical status, the MICU crew determined she did not require ALS and Kruse was released to the rescue squad, which was only qualified and equipped to provide basic life support (BLS).*fn6
The rescue squad departed for the hospital at 9:30 p.m., and the rescue squad records state Kruse was "unresponsive" when she was rushed into the emergency room at approximately 9:50 p.m.
Unfortunately, efforts to resuscitate Kruse were unsuccessful, and she was pronounced dead at 10:14 p.m. The cause of death was "acute myocardial infarction."
Plaintiff concedes defendants cannot be sued under a theory of negligence because they are protected by "good faith" immunity under N.J.S.A. 26:2K-14*fn7 and N.J.S.A. 26:2K-29.*fn8
Rather, to defeat "good faith" immunity, plaintiff must make a showing that defendants "'did not act in an objectively reasonable manner.'" Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 329 (App. Div. 2004) (quoting Frields v. St. Joseph's Hosp. & Med. Ctr., 305 N.J. Super. 244, 249 (App. Div. 1997)).
While case law involving good faith immunity as it relates to N.J.S.A. 26:2K-14 and N.J.S.A. 26:2K-29 is sparse, analogous authority exists involving the qualified immunity afforded public employees by N.J.S.A. 59:3-3.*fn9 "Good faith immunity under section 3-3 has two alternate components. A public employee either must demonstrate objective reasonableness or that he behaved with subjective good faith." Alston v. City of Camden, 168 N.J. 170, 186 (2001) (internal quotations and citations omitted). The question whether good faith immunity applies is generally "a question of fact to be resolved at a plenary hearing. Summary judgment under section 3-3, however, is appropriate if public employees can establish that their acts were objectively reasonable or that they performed them with subjective good faith." Canico v. Hurtado, 144 N.J. 361, 365 (1996) (internal citation omitted); see also Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 19 (App. Div.) ("We have held that the question of 'good faith' under N.J.S.A. 59:3-3 is generally a fact question to be resolved by a jury."), certif. denied, 188 N.J. 489 (2006); Frields, supra, 305 N.J. Super. at 248 ("[W]hether a person acted in good faith is often a question of fact which should be decided at a plenary hearing. . . . [E]ven a person who acted negligently is entitled to a qualified immunity, if he acted in an objectively reasonable manner." (citations omitted)).
In this case, plaintiff alleges defendants are not entitled to summary judgment because they "were reckless, did not act in good faith, or [they] did not act in a reasonably objective manner." To support her claims, plaintiff initially relied on a written report from her expert, Dr. Scott Slagel dated January 24, 2006. Nevertheless, following oral argument on April 28, 2006, the motion judge concluded Dr. Slagel's report was "not sufficient" to defeat defendants' motion for summary judgment:
Plaintiff points to the expert report of Dr. Slagel in order to create a genuine issue of material fact as to whether these defendants acted in good faith. With regard to that report, I have examined it. I find that that report speaks in terms of mere negligence. The fact that the expert used terms such as lack of good faith or recklessness does not raise that report to a higher level. I find that the language in the report is mere conclusory language and not sufficient with regard to the motion for summary judgment.
As a result, the [c]court finds that the plaintiff is unable to demonstrate that these defendants failed to act in good faith or that the conduct of these defendants was not objectively reasonable.
Of course, an expert is required "to give the why and wherefore of his or her opinion, rather than a mere conclusion," State v. Townsend, 186 N.J. 473, 494 (2006) (internal quotations omitted), and we are satisfied Dr. Slagel did so. Based on his review of the medical records, deposition transcripts, and other discovery materials, Dr. Slagel reported as follows:
After review of all the records you provided, I am troubled by several aspects of this case. There seems to be a significant disagreement in the description of Ms. Kruse'[s] condition by the BLS and ALS units. The BLS unit describes a patient that is in distress. They document two episodes of change in mentation, as well as someone so agitated and thrashing about they could not get reliable vital signs. The ALS unit describes a patient that was anxious but consolable, complaining only of lower back pain and nausea. During their brief evaluation, they imply the patient improved, but report they were unable to get a complete ECG due to her agitation. Shortly after their departure, the BLS squad again reports she was agitated and short of breath.
The paramedics were incorrect in their interpretation of the rhythm strip. While brief, the strip clearly shows Ms. Kruse was in a junctional rhythm at times, not a normal sinus rhythm as they report. Paramedics are expected to be able to interpret this rhythm and act upon it when needed. What is even more concerning to me is their failure to note the change in the rhythm while they were recording it. There was a significant change in the morphology of the QRS complex (the wave form) that accompanied the change in rhythm. This is obvious to anyone with minimal training in ECG interpretation, and should trigger a close examination of the rhythm strip.
An older patient with even questionable syncope should be monitored for a cardiac dysrhythmia. This is especially true for someone who is previously healthy and demonstrates an abnormal cardiac rhythm, as did Ms. Kruse. Given these circumstances, I am very surprised she was released to a lower level of care for transport to the hospital. The ALS crew should have established IV access and monitored her en route to the hospital, being prepared to treat her dysrhythmia if required. By not doing so, they violated their own protocol for treating a syncopal patient, and in fact deviated from what is the standard of care nationwide. They did not act in an objectively reasonable manner, or good faith.
The paramedics chose not to contact their base physician for direction, again a violation of their own protocols. Contact for medical command should have been established for assistance in interpreting the rhythm strip and direction of medical care. I firmly believe that given this constellation of symptoms and findings, no command physician would have agreed to consigning Ms. Kruse to [a] lower level of care. Her dysrhythmia and the severity of symptoms strongly suggest her illness is more than "the flu[."] By not contacting their command hospital, I believe the paramedics['] actions were reckless and again not in good faith.
It is my opinion, within a reasonable degree of medical certainty, the care provided by the paramedics in this case was well below the accepted standard, and they failed to act in an [objectively] reasonable manner, or good faith. Accepting the cause of death as "acute myocardial infarction" as determined by the coroner, then it is my opinion their actions contributed in a significant manner [to] Ms. Kruse['s] pain and suffering, an[d] eventual death.
Dr. Slagel's initial report was prepared prior to plaintiff's receipt of the incident reports prepared by defendants Chetney and Genthe. In a supplemental report, dated May 15, 2006, Dr. Slagel commented on the additional information contained in the incident reports as follows:
In the MICU patient care report completed by paramedic Genthe, there is no mention of the rhythm strip, or ECG. I was previously of the opinion the paramedics failed to notice the abnormal ECG. However, it is clear from the incident report submitted by paramedic Chetney that he noted the abnormality in the ECG, and attributed it to "electrolyte imbalance, hyperkalemia etc." He noted the abnormality, yet failed to act on it. This is quite disturbing.
Electrolyte imbalances serve enough to cause ECG abnormalities are not common. Certainly, a previously healthy woman such as Ms. Kruse would not be expected to have such an abnormality, even if she had been vomiting for a few hours. Had she been vomiting for a longer period, she might be expected to have lost potassium, an important electrolyte in the blood, resulting in a condition called hypokalemia. The paramedic on the other hand, felt her potassium level might be high, a condition referred to as hyperkalemia. This is not a condition that can be diagnosed from a brief rhythm strip alone, and in my opinion, the rhythm strip obtained does not suggest that particular abnormality. It does show another rhythm abnormality which can deteriorate into a life threatening rhythm that can be effectively treated by paramedics, provided of course they are at her side to treat it. This rhythm was completely missed by the paramedics.
What I find most disturbing, however, is that hyperkalemia sufficient to cause ECG abnormalities is a true emergency that paramedics can also treat. Paramedics know this. Though the paramedic's interpretation of the EKG was incorrect, his interpretation suggested to him another diagnosis equally emergent and potentially treatable by him, yet he chose to ignore it. If he truly believed the EKG to be abnormal and Ms. Kruse to be hyperkalemic, turning her care over [to] a BLS unit was well outside the accepted standard of care.
The incident reports make no mention of medical command. No reason is offered as to why medical command was not contacted, despite their recognition of the EKG abnormality. Their failure to contact medical command on a patient with even questionable syncope and an acknowledged abnormality on her EKG and then turn over her care to a BLS unit is unreasonable, and I believe goes beyond mere negligence. No command physician, when presented with a patient who was questionably syncopal, currently presenting symptoms of shock, and exhibiting a rhythm strip grossly abnormal like the one Ms. Kruse had, would authorize her release to a lower level of care.
The failure of the paramedics to contact medical command to discuss a patient this ill and instead take upon themselves the responsibility to consign Ms. Kruse to a lower level of care when all that they needed to do was make a quick phone call to the hospital is beyond reason, and I believe grossly negligent. Having wrongly determined how Ms. Kruse should be treated and transported[,] they chose to discount the history and symptoms demonstrated by Ms. Kruse and ignore the obvious ECG abnormalities that they were aware of. They failed to take their patient to the hospital, to monitor her, to read the EKG correctly, to make the correct diagnosis, to call the command physician, to provide lifesaving intervention, and even act on their mistaken diagnosis of hyperkalemia. They picked and chose what part of the history to use that would be consistent with their actions. These numerous events were more than mere negligence. Their conduct was so profoundly wrong that it was gross negligence. They failed to act in an objectively reasonable manner. They acted in bad faith.
The latest two incident reports have provided new admissions which documents that their conduct was far beyond a simple medical error or act of ordinary negligence.
A summary judgment motion should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining whether summary judgment is precluded by the existence of a "genuine issue" of material fact, a motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "'The papers supporting the [summary judgment] motion are closely scrutinized and the opposing papers indulgently treated.'" Lopez v. Swyer, 115 N.J. Super. 237, 241 (App. Div. 1971) (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)), aff'd, 62 N.J. 267 (1973). A meritorious motion for summary judgment will not, however, be defeated by "[b]are conclusions" unsupported by a factual basis. U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961). Applying these principles to the facts of this case, we conclude: (1) there was a sufficient factual basis for Dr. Slagel's opinions, and (2) based on Dr. Slagel's findings and conclusions, a reasonable jury could conclude that defendants were not entitled to good faith immunity. Thus, the evidence is not so "one-sided" that defendants "must prevail as a matter of law," Brill, supra, 142 N.J. at 540 (internal quotations omitted), and summary judgment was improvidently granted.
Because we are remanding this matter to the trial court, we comment briefly on the order of April 3, 2006, which denied plaintiff's motion to extend discovery. On January 6, 2006, the court entered an order extending the discovery end date until January 31, 2006, to enable plaintiff to secure incident reports prepared by Chetney and Genthe. However, because the incident reports were not sent to plaintiff's attorney until February 9, 2006, plaintiff filed another motion to extend the discovery end date. In a certification dated March 10, 2006, plaintiff's attorney accused defendants of causing the following problems:
(a) The deposition of the two named defendants was taken [on November 11, 2005,] but will have to be retaken now that the incident reports have been produced.
(b) Additional names have become known, which were withheld in answers to interrogatories. These people could have been deposed within the discovery period if their names had not been withheld.
(c) The very existence of the incident report[s] was withheld and only became known in the depositions. At the least, [defendant Capital Health System] was obligated to state [the reports] existed and [to] supply a privilege log if defendant is arguing a privilege in this matter.
(d) Plaintiff must supply the new incident reports and the re-depositions of defendants to its expert for a supplemental report.
When plaintiff's motion was argued on March 31, 2006, the court recognized there was "no trial or arbitration date set." Nevertheless, plaintiff's motion was denied. In our view plaintiff demonstrated good cause to extend discovery and the court mistakenly exercised its discretion by refusing to extend the discovery date. See Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 93 (App. Div. 2007) ("[I]n the absence of a fixed trial or arbitration date . . . the measure as to what constitutes good cause under [Rule] 4:24-1(c) is not high.").
To summarize: (1) we reverse the order granting summary judgment to defendant Capital Health System and its employees, Thomas Chetney and Suzanne Genthe, and the orders denying plaintiff's motions for reconsideration; (2) we reverse the order dated April 4, 2006, which denied plaintiff's motion to extend discovery; and (3) we remand for the entry of an order extending discovery for a period sufficient to allow plaintiff a reasonable opportunity to conclude discovery.
Reversed and remanded for proceedings consistent with this opinion.