May 27, 2009
VINCENT S. CORSO, BY HIS GUARDIAN AD LITEM, GLYNIS CORSO, PLAINTIFF,
THE STATE OF NEW JERSEY AND THE ESTATE OF PHILLIP PIRACCI, DEFENDANTS.
VINCENT S. CORSO, BY HIS GUARDIAN AD LITEM, GLYNIS CORSO, PLAINTIFF-APPELLANT,
MICHAEL DEGENNARO, M.D., BERGENFIELD INTERNAL MEDICINE, JAMES ROBERTS, M.D., BERGEN NEUROLOGY CONSULTANTS, GEORGE LEBER, M.D., AND CARDIOLOGY CONSULTANTS, P.C., DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-5419-03 and L-9129-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 6, 2009
Before Judges Wefing, Parker and Yannotti.
Plaintiff Vincent S. Corso, by his Guardian Ad Litem Glynis Corso, appeals from two orders in docket number L-9129-03: one entered on September 19, 2005 granting summary judgment in favor of defendants George Leber, M.D., Cardiology Consultants, Michael DeGennaro, M.D., and Bergenfield Internal Medicine; and the other entered on October 7, 2005 granting summary judgment in favor of James Roberts, M.D., and Bergen Neurology Consultants. We affirm.
Plaintiff was injured on December 22, 2001 when he was struck by a car driven by defendant Phillip Piracci while he was crossing a street. Piracci left the scene of the accident without stopping and plaintiff alleges that at the time of the accident, Piracci was being treated by the defendant physicians for an uncontrolled seizure disorder, syncope and cardiac problems.
Eyewitnesses observed Piracci's car traveling at 25 m.p.h. through the intersection and continuing on after plaintiff was struck. The witnesses did not observe any brake lights and there was no evidence of tire marks indicating that Piracci had braked. Piracci had driven home and when police questioned him about the accident, he indicated that he had no recollection of hitting anyone.
Plaintiff's claim against the physicians is based upon their failure to notify the Motor Vehicle Commission (MVC)*fn1 of Piracci's conditions in accordance with N.J.S.A. 39:3-10.4. In rendering its decision, the trial court found that the physicians were not the proximate cause of plaintiff's injuries. The court noted that
[t]he investigators testified that there's no evidence that the defendant suffered any kind of a seizure. The investigator of the Fatal Accident Investigation Unit, Captain McGarrill, testified that he participated in the investigation of the accident involving the plaintiff and [defendant] exhibited no seizure activity since January of 2000. Therefore, the conduct of Dr. Leber and any other medical defendants was not a substantial factor of bringing about the injuries to the plaintiff.
The actions by Dr. Leber and the other medical defendants are too remotely and insignificantly related to the accident because the accident was not related to the defendant's disorder, if he had any, seizure disorder. Piracci was able to drive away from the accident and there's no indication that he was suffering a seizure at the time.
The following is a summary of Piracci's medical history relevant to this appeal. Piracci was eighty years old at the time of the accident on December 22, 2001. On February 25, 1998, Piracci was hospitalized after allegedly suffering a seizure while on vacation in Virginia. He was directed not to drive until he saw his doctor in New Jersey. A neurodiagnostic lab report from the Virginia hospital stated, however, that there was "[n]o clear evidence of seizure activity[.]"
Defendant Michael DeGennaro, M.D., board certified in internal medicine, was Piracci's primary care physician prior to the Virginia incident. DeGennaro testified that after it was determined that the Virginia incident was a "syncopal" episode, it was deemed a cardiac issue and Piracci was treated by defendant George Leber, M.D., who is board certified in cardiology and internal medicine. Leber first examined Piracci on March 3, 1998. He testified that he treated Piracci for aortic stenosis, and in October 1998, Piracci's aortic valve was replaced. Leber testified that Piracci had "an outstanding surgical outcome" and was "restored to excellent cardiovascular health."
On January 1, 1999, Piracci was admitted to Englewood Hospital and Leber indicated that Piracci "presented in the emergency room with a seizure episode that was grand mal in type." Leber testified that he wrote it up as a grand mal seizure for Piracci's discharge based upon emergency room records, not his own treatment. Leber testified that he could not state from his own knowledge whether it was a seizure because he is a cardiologist, not a neurologist.
Defendant James Roberts, M.D., a neurologist, first saw Piracci on January 3, 1999. He prescribed anti-seizure medicine because Piracci was admitted to the hospital after an episode "in which his entire body began to shake while he was sleeping." When Roberts performed tests on Piracci, the electroencephalogram (EEG) results were normal and there was no indication that Piracci had, in fact, suffered a grand mal-type seizure. Roberts nevertheless warned Piracci not to drive.
Piracci was admitted to the hospital again on January 28, 1999 with chest pain and a high fever. Roberts directed Piracci to make an appointment with him after discharge, but Piracci did not do so and Roberts never saw him again.
In February 1999, Leber prescribed anti-seizure medication for Piracci as directed by another neurologist who had examined Piracci. Leber testified that he saw no signs of dementia in Piracci at that time.
On April 27, 1999, Piracci was admitted to the hospital for what his wife believed was a seizure. A CT scan of the brain showed no acute hemorrhage. Piracci saw Leber again on April 29, 1999 after being released from the hospital. Leber believed that Piracci had suffered seizures because Dilantin, an anti-seizure medication, had been prescribed for him. Since he was a cardiologist and not a neurologist, he did not specifically treat Piracci for the suspected seizures. He continued to see Piracci, however, and testified that as of October 2001 -- about three months before the accident -- he saw no evidence of seizure activity.
After the accident on December 22, 2001, the police identified Piracci's vehicle from the eyewitnesses and went to his home to question him. According to the police report, Piracci stated that he had had two or three beers at an American Legion Post before driving home on the day of the accident. He could not remember whether he had taken his anti-seizure medication that afternoon but was certain he had taken it that morning. Piracci's wife stated that when he came home that day, he seemed fine. After the investigation, the police concluded that Piracci was the driver of the vehicle that struck plaintiff.
On January 15, 2002 -- about a month after the accident -- Leber again examined Piracci. At that time, Piracci appeared to be in "failing health." Leber testified that "[h]e was severely depressed. His wife had suddenly taken ill. He wasn't eating." His EEG was normal, however, which led Leber to believe that it was unlikely Piracci had a recurrent seizure disorder. In June 2002, Piracci suffered a syncopal episode and Leber warned him not to drive. Leber testified that he had not previously warned Piracci not to drive because "[t]here was never any documentation of any point in time where he actually completely blacked out."
In October 2002 -- ten months after the accident -- plaintiff's expert, John P. Greenberg, M.D., a neurologist, examined Piracci. In Greenberg's opinion, Piracci suffered from dementia and should have been prohibited from operating a vehicle. Greenberg further indicated that Piracci "suffered from a seizure disorder of at least twenty years duration" and that this also should have prohibited him from driving. Greenberg rendered a second report in August 2005 reiterating his earlier conclusions and added that after reviewing the accident reconstruction report, in his opinion Piracci suffered a condition that caused him to be deficient while driving.
In this appeal, plaintiff argues that the trial court erred: (1) in determining that discovery had been completed; (2) in failing to find that the physicians had a duty to report Piracci's condition to the MVC; and (3) in granting summary judgment when there was sufficient evidence presented from which a reasonable juror could find proximate cause.
Plaintiff first argues that discovery was still ongoing when defendants moved for summary judgment. According to plaintiff, further discovery would have produced additional evidence of defendants' alleged negligence because two additional depositions should have been taken -- of defendant Roberts and plaintiff's expert Greenberg.
During oral argument on September 16, 2005, the trial court indicated that it believed discovery had been completed when, in fact, depositions were scheduled beyond the motion date in accordance with a case management order, which had been entered on July 25, 2005. That same case management order stated, however, that summary judgment would be argued on September 16.
A party claiming that further discovery would change the outcome of the case bears the burden of demonstrating a likelihood that the additional discovery would provide the evidence to do so. Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 591 (App. Div. 2001). Discovery is not necessary, however, if it will not change the outcome of the case. Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div.), certif. denied, 180 N.J. 354 (2004).
Plaintiff relies on our decision in Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80 (App. Div. 2007). In Leitner, plaintiffs filed a complaint against the school district pursuant to the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. Plaintiffs' motion for an extension of discovery was denied and we reversed on the grounds that the individual defendants had not been deposed. Id. at 82, 89.
Leitner differs from the present case in that here all of the defendants have been deposed except for Dr. Roberts, who saw Piracci only twice while he was hospitalized in January 1999 -- almost three years before the accident occurred. Plaintiff does not indicate what testimony Roberts could have given to alter the outcome of the summary judgment motions.
Similarly, plaintiff's claim that his expert's deposition was necessary is not supported by the record. Dr. Greenberg had already produced two reports in which he opined that Piracci should not have been driving and that his doctors should have known that and reported it to the MVC. Greenberg's deposition would not have added any new evidence in support of plaintiff's case.
In view of the record before us, the trial court's assumption that discovery had been completed was harmless error.
Plaintiff next argues that defendants had a duty to report Piracci's condition to the MVC.
"Traditionally, courts have determined the circumstances under which a defendant owes a legal duty to another." Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 240 (2001) (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996)). "[T]he scope of the duty owed is a matter of law." Ibid. (citing Kelly v. Gwinnell, 96 N.J. 538, 552 (1984)). A trial court's determination of whether a duty is owed is, therefore, reviewed de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
N.J.S.A. 39:3-10.4 requires that:
Each physician treating any person sixteen years of age or older for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments, shall, within twenty-four hours after his determination of such fact, report the same to the Director of the Division of Motor Vehicles.
Defendants did not dispute that they have a duty to report certain conditions to the MVC under the statute. Each did, however, dispute whether he had a specific duty to report Piracci based upon his condition at the time each examined and/or treated him. DeGennaro treated Piracci from August 1995 to July 2001 and never noticed any signs of dementia or loss of motor skills, but was not Piracci's primary care physician between 1998 and July 2001 when Piracci was treated by Leber. Since the Virginia hospital reported that it was "unconvinced" Piracci had suffered a seizure, and DeGennaro thereafter relinquished primary care to Leber, there is no basis from which to conclude that DeGennaro had a duty to report the Virginia incident to the MVC.
With respect to the neurologist, Roberts, he placed Piracci on anti-seizure medication after first seeing him in January 1999. Although Roberts warned Piracci not to drive, he did not report Piracci to the MVC because tests done after the January 1999 hospitalization indicated there was no seizure activity. Roberts only saw Piracci twice and never saw him again after the second hospitalization in January 1999. In our view, the evidence with respect to Roberts does not support a duty to report Piracci to the MVC.
Leber first examined Piracci in March 1998 after the Virginia incident and also received the reports from the Virginia hospital indicating that Piracci had not suffered a seizure. Leber treated Piracci for cardiac issues only and diagnosed aortic stenosis for which Piracci's aortic valve was replaced in October 1998. He prescribed seizure medication only because a neurologist -- who is not a defendant here -- directed Leber to change the seizure medication previously prescribed by the neurologist. According to Leber, Piracci's cardiac issues did not cause any syncope. After the January 1999 hospitalization, however, Leber noted in the discharge report that Piracci had suffered a "grand mal seizure in type." Because Leber did not consider the seizure related to the cardiac problems for which he was treating Piracci, Leber did not report to the MVC. He did not view the cardiac problems as a cause for concern about Piracci's driving. Leber did, however, know that Piracci was taking anti-seizure medication and, at one point in his deposition, expressed concern that Piracci may not have been taking his medication as directed and he could suffer a second seizure. When Piracci was tested for blood levels of Dilantin, however, the levels were mostly within an acceptable range. In light of the evidence relating to Leber, we conclude that he had a duty to report Piracci to the MVC.
We agree with the trial court's finding that DeGennaro and Roberts had no duty to report Piracci to the MVC. We need not, therefore, consider whether their conduct proximately caused the accident.
With respect to Leber, however, plaintiff must demonstrate that his breach of the duty to report Piracci to the MVC proximately caused plaintiff's injuries. People Express Airlines v. Consol. Rail Corp., 100 N.J. 246, 264 (1985). In People Express, the Court defined proximate cause as "that combination of 'logic, common sense, justice, policy and precedent' that fixes a point in a chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." Ibid. (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78 (1966)).
Generally, proximate cause is an issue for a jury to decide. Fleuhr v. City of Cape May, 159 N.J. 532, 543 (1999). The court will decide proximate cause on summary judgment only where "reasonable minds could not differ on whether that issue has been established." Ibid. (citing Vega v. Piedilato, 154 N.J. 496, 509 (1998)).
In this case, plaintiff must demonstrate that a seizure or seizure-like condition caused the accident in order to establish proximate cause. Plaintiff argues that the mere fact that Piracci was driving and likely would not have been if Leber had complied with the statute is sufficient to demonstrate that Leber proximately caused the accident. Plaintiff also argues that he has presented sufficient evidence to conclude that Piracci suffered a seizure at the time of the accident. We disagree with both arguments.
Plaintiff relies on Hill v. Yaskin, 75 N.J. 139 (1977), in which the defendant left her car in a parking lot with the key in the ignition as directed by the parking lot owner. The vehicle was stolen and the plaintiff police officer was injured while chasing the stolen vehicle. The Supreme Court reversed the trial court's grant of summary judgment in favor of the defendants, and held that a jury should determine whether the defendant's conduct proximately caused the plaintiff's injuries because both the car owner and the parking lot owner "should have foreseen that [their] conduct unreasonably enhanced the hazard of theft of [the] automobile." Id. at 145-47.
Plaintiff similarly relies on Zinck v. Whelan, 120 N.J. Super. 432 (App. Div. 1972), in which the defendant left the key in the ignition of an unlocked car. We determined that the question of whether the defendant's actions were a proximate cause of the injury caused after the car was stolen should go to the jury because the defendant had created an increased hazard. Id. at 445. As the Supreme Court did in Hill, we concluded that intervening factors did not foreclose the defendant's liability. Ibid.
In Pfenninger, the plaintiff died after he had been given the wrong pipe to install in a trench that collapsed on him while he was installing the pipe. Although the pipe did not cause the collapse, the Court indicated that the plaintiff would not have been in the trench but for the installation of the wrong pipe and the jury should determine whether the defendant's providing the plaintiff with the wrong pipe created a foreseeable risk of harm. 167 N.J. at 242-43.
As each of these cases demonstrates, there can be more than one proximate cause, and intervening causes do not necessarily dispose of liability. N.J.S.A. 39:3-10.4 obligates a physician to report any medical condition that may cause loss of consciousness or impairment of motor coordination. Here, Piracci was hospitalized four times between the February 1998 incident in Virginia and the April 1999 incident of suspected grand mal seizure. Leber treated Piracci throughout this period. Leber testified that he suspected Piracci suffered seizures and knew that Piracci was taking anti-seizure medication, but saw no evidence of seizure activity. In other words, Piracci's repeated seizure-like incidents were apparently of unknown origin but, if any of those incidents had occurred while he was driving, it could have incapacitated him.
It is that potential incapacity that led us to conclude that Leber had a duty to report the incidents to the MVC. That is not to say that Leber's failure to report Piracci's condition disposes of the proximate cause issue. Plaintiff must demonstrate that Piracci suffered a reportable medical condition when the accident occurred to prove that Leber's failure to report the incidents proximately caused plaintiff's injury. If for example, the accident was caused by Piracci driving while intoxicated, as suggested by his report of having two or three beers before driving home that day, Leber's failure to report Piracci's medical conditions could not have proximately caused the accident.
At argument before us, plaintiff's counsel acknowledged that he could not prove that Piracci suffered from a reportable medical incident at the time of the accident. He cannot, therefore, prove that but for Leber's failure to report, the accident would not have happened.
The evidence indicates that at the time of the accident in December 2001, Piracci had not suffered any incidents since the April 27, 1999 hospitalization for a suspected grand mal seizure. Even if Leber had reported the earlier incidents, there is no guarantee that the MVC would have suspended or revoked Piracci's license. Under N.J.S.A. 39:3-10.6, the MVC would have undertaken an evaluation and screening before suspending or revoking his license. Moreover, he would have had the opportunity to apply for reinstatement of the license if he could demonstrate that he was seizure-free for one year. Div. of Motor Vehicles v. Granziel, 236 N.J. Super. 191, 195 (App. Div. 1989).
All of these factors lead us to conclude that plaintiff cannot prove that Leber's failure to communicate with the MVC was a proximate cause of his injuries.