On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-4927-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Plaintiff, Louise Detloff, as executrix of the estate of Mary Mazzei (Mazzei), appeals from the trial court order granting summary judgment dismissing her complaint alleging negligence, carelessness, and violations of the Omnibus Budget Reconciliation Act (OBRA), 42 U.S.C.A. § 1395i-3; 42 U.S.C.A. 1396r, on the part of defendant, Absecon Manor Nursing Center and Rehabilitation Center (Absecon Manor). In granting summary judgment, the trial court found as "a matter of law, a nurse is not qualified to a render medical opinion with respect to causation . . . ." We reverse and remand for trial on all claims except plaintiff's wrongful death claim.
The complaint arises out of the care and treatment defendant provided to plaintiff's decedent while she was admitted at Absecon Manor, a long-term care facility. The facts, when viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), reveal that at the time of her admission to Absecon Manor on June 23, 2004, Mazzei was eighty-four years old. She was admitted directly from Atlantic City Medical Center (ACMC) where she had been hospitalized for approximately one week, during which she developed skin tears. The discharge summary reported that Mazzei had a history of falling, which caused previous injuries to her right rib cage and pelvis, osteoporosis, dizziness of unknown etiology, gait disturbance, and chronic anemia. The discharge summary also reported that Mazzei had very poor stamina and needed assistance for bathing, dressing, walking and toileting.
While admitted to Absecon Manor, Mazzei fell on three occasions, with the third fall occurring on August 17, 2004. On that date, she fell while using a wheelchair to go to the bathroom to self-toilet. She sustained a fractured right hip and was transferred back to ACMC, where she remained for one week. During that admission, hospital records noted that she required maximal assistance to get out of bed, was unable to follow commands, and developed skin tears on her buttocks. She was returned to Absecon Manor on August 24.
The October 3, 2004 records from Absecon Manor note that Mazzei was being treated for a stage II left buttock decubitus ulcer and, by December 21, 2004, the records revealed that she was being treated for bilateral buttocks pressure sores. The records note further that she also developed a pressure sore on her right heel on November 7, and on the left heel five days later.
On March 18, 2005, Mazzei was readmitted to ACMC. Plaintiff's expert's report stated that the admission was due to Mazzei developing "urosepsis and an infected sacral ulcer[,]" while defendant's expert report stated the admission was due to Mazzei "develop[ing] mild congestive heart failure" which she reportedly had developed two months earlier, having a heart rate of 118, and an oxygen level of seventy percent.*fn1 When discharged approximately one week later, Mazzei was not returned to Absecon Manor. Rather, she was transferred to Greenbriar Nursing Home, where she remained until her death on June 2, 2005.
On June 16, 2006, an eleven-count complaint was filed on behalf of Mazzei, alleging negligence, recklessness, and violations of OBRA on the part of defendant. Two counts of the complaint asserted claims under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor Act, N.J.S.A. 2A:15-3. On August 31, 2006, plaintiff filed an affidavit of merit executed by Adrienne Abner, a licensed registered nurse who specializes in wound care nursing and nursing administration. On September 7, 2006, defendant filed its answer, separate defenses and cross-claims. On November 22, 2006, plaintiff filed a consent order executed by the parties confirming that all issues related to the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, had been appropriately addressed and that there was no need for a case management conference before a pre-trial judge as would be required by Ferriera v. Rancocas Orthopedic Assocs., 178 N.J. 144, 147 (2003).
The initial discovery end date for the completion of all pre-trial discovery was fixed at December 2, 2007. In a January 4, 2008 order, that date was extended by the court to April 5, 2008. On March 25, plaintiff's counsel filed a motion to further extend discovery, to which defense counsel consented. The extension was sought because the designated trial counsel had left the firm in January. The newly assigned counsel submitted a certification in support of the motion explaining that in addition to plaintiff's case, he was also responsible for the management of "a number of [other] complex medical and nursing home" cases.
While the discovery extension motion was pending, a notice of trial date generated by the court was issued scheduling the matter for trial on June 23. On April 25, the court entered an order denying the discovery extension request. In its written statement of reasons, the court stated:
In this instance, Plaintiff has failed to file the motion to extend discovery at
[a] time so as to have been returnable prior to the setting of arbitration or a trial date. Therefore, Plaintiff must establish exceptional circumstances to permit the relief requested. Although the court sympathizes with counsel['s] situation, Plaintiff has failed to show exceptional circumstances. Counsel certifies that he received this file in January 2008, three (3) months ago, yet there is no explanation for counsel's failure to request an extension of the time for discovery at a time so as to have been returnable within the original discovery period. In addition, counsel has failed to demonstrate that the discovery sought is essential to the preparation of this case[,] nor has he demonstrated that the circumstances surrounding the failure to move for a discovery ...