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Ho v. Kluger

August 11, 2009

SINWAN HO AND KENNETH Y. LEE, PLAINTIFFS-APPELLANTS,
v.
LAWRENCE S. KLUGER, GASTROMED HEALTHCARE, P.A., AND SURGICARE OF CENTRAL JERSEY, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1409-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 4, 2009

Before Judges Stern and Waugh.

Plaintiffs appeal from orders of April 5, 2007, denying reconsideration of orders granting summary judgment to defendants and dismissing the complaint with prejudice on February 16, 2007. The April 5, 2007, orders note that plaintiff "fail[ed] to set forth a basis for reconsideration" as required by Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) as to defendants Dr. Lawrence Kluger and Gastromed Health Care, and that "there is still no evidence at all against defendant Surgicare," the surgical center where a colonoscopy was performed on plaintiff Ho on May 20, 2003. The dismissal of February 16, 2007, was based on the failure of plaintiff's expert to provide a viable affidavit of merit or provide an opinion within a reasonable degree of medical "probability" as opposed to "possibility."

Ms. Ho suffered a perforated bowel during the colonoscopy, underwent a laparotomy with a resection the next day, and ultimately had her sigmoid colon removed. Defendants insist discovery was never provided, plaintiff never appeared for depositions or produced an adequate report, and that the matter was dismissed twice for discovery violations before the present issues arose and that the issues concerning the reports and affidavits of plaintiffs' expert, Dr. Charles Maltz, have to be understood in that setting.

The discovery end date was September 15, 2006, and Dr. Maltz's first affidavit of merit was served thereafter.*fn1 In his affidavit of merit, dated October 5, 2005, Dr. Maltz, Director of G.I. Inpatient Service at the Cornell Weill Medical College in New York, stated:

1. I am a licensed physician in the State of New York and have been board certified in Gastroenterology for more than five years.

2. I have no financial interest in the outcome of the within case.

3. This patient, Ho, Sinwan, underwent a colonoscopy and polypectomy on 5/20/03 and had a perforation of the colon as a complication of the procedure.

4. If the patient were not informed of this possibility of complication prior to the procedure, there is a reasonable probability that the care would be a deviation of the standard of care.

5. If the patient had abdominal pain after the procedure this should be evaluated by a nurse, or if necessary by the physician. If this was not done there is a reasonable probability that the care would be a deviation of the standard of care.

On December 28, 2006, Dr. Maltz further wrote:

This patient underwent a colonoscopy and polypectomy on 5/20/03 and had a ...


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