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Alexander v. Liriano

December 18, 2008


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5745-06.

Per curiam.


Submitted December 8, 2008

Before Judges Carchman and Sabatino.

In this medical malpractice case, plaintiff, Wildon Alexander, appeals the Law Division's order of May 9, 2008, granting summary judgment to defendant Englewood Hospital and Medical Center ("Englewood Hospital"). We affirm.

In August 2004, plaintiff was admitted to Englewood Hospital for surgery to resect part of his colon. As part of the surgery, a nasogastric tube was placed into his throat. It is not certain who prepared the tube before the procedure or who specifically inserted the tube into plaintiff's throat. The tube remained in place for four days. Plaintiff complained the day after the surgery of soreness in his throat. He allegedly developed an infection in his throat because the tube may not have been properly sanitized.

Plaintiff subsequently was diagnosed with a condition known as odynophagia, which makes it painful for the person to swallow. He was re-admitted to another hospital in December 2004, four months after his colon surgery, with continuing symptoms related to his throat pain and digestion. He lost weight and claims to have sustained discomfort for more than two years until his throat symptoms subsided.

Plaintiff filed this malpractice action in the Law Division, naming as defendants Englewood Hospital, two individual physicians involved in his care, and "John Doe" and "Jane Doe" defendants. The two physicians named in the complaint were not employees of Englewood Hospital. In fact, no individual employees were named in the complaint as defendants, and plaintiff did not amend his pleadings to substitute any persons for the fictitiously-named defendants under Rule 4:26-4. His complaint alleges that defendants were negligent and deviated from "proper and accepted medical standards."

During the discovery period, plaintiff served an a expert report from a nurse, L. Sue Raychel, RN BSN. Her expert report essentially consists of a factual narrative of what happened to plaintiff. She stresses that plaintiff "had to live with pain for a long time before it ceased." Significantly, the report does not identify any individual nurses or other employees of Englewood Hospital who allegedly were responsible for the inadequately-sanitized tube. The report also does not identify any particular standard of care from which anyone deviated.

Englewood Hospital moved for summary judgment, which the Law Division granted on the papers, after both counsel waived oral argument. After plaintiff appealed*fn1 that ruling, the motion judge issued a supplemental written opinion, pursuant to Rule 2:5-1(b), explaining his reasoning. Plaintiff contends that the motion judge erred in finding Nurse Raychel's expert report inadequate to support potential liability by the hospital.

In reviewing the issuance of summary judgment, we apply the familiar tests of Rule 4:46 and Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court 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, supra, 142 N.J. at 540; see also R. 4:46-2(c). On appeal, we review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).

Viewing the record in a light most favorable to plaintiff, we are satisfied that summary judgment was appropriately entered in favor of Englewood Hospital, substantially for the cogent reasons expressed in Judge Robert Wilson's statement of reasons of July 9, 2006. We add only a few comments.

Subject to the so-called "common knowledge" exception not invoked by plaintiff here, it is well settled that a claim for medical malpractice or professional negligence by a health care worker must be supported by expert opinion. Parker v. Goldstein, 78 N.J. Super. 472, 479 (App. Div.), certif. denied, 40 N.J. 255 (1963); see also Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002); N.J.S.A. 2A:53A-27 (requiring an Affidavit of Merit at the commencement of the action). Such a liability expert must detail the standard of care for the professional, and identify how the professional deviated from that standard. Parker, supra, 78 N.J. Super. at 479.

Even taking the most indulgent view of Nurse Raychel's report, it fails to meet these requirements. In making that observation, we do not find that this nurse necessarily lacks the specialized training and knowledge to qualify as an expert witness under N.J.R.E. 702. The problem is that her report is bereft of opinions inculpating the hospital and its employees under applicable professional standards of care. ...

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