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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...