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Ho v. Kluger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 perforation of the sigmoid colon.

On the next day, 5/21/03 she underwent a laparotomy with resection of the damaged segment of colon and the making of a colostomy. This was a result of the perforation.

On 9/2/03 she again underwent surgery. At surgery three procedures were performed. The colostomy was closed and the colon was reconnected. This procedure was a result of the surgery for the original perforation. She also underwent repair of an umbilical hernia and the excision of a chest wall mass. These were not related to the prior surgery.

Around 4/20/06 she underwent surgery again with the resection of the prior anastomosis which had strictured down, and the making of a colostomy again. This stems from the original surgery for the perforation.

On 9/14/06 she once more underwent surgery and had the colostomy again closed and the colon reconnected. This was also a consequence of the original perforation.

The December 28, 2006 letter was not in affidavit form.

The motions for summary judgment were first argued on January 5, 2007. Defendants claimed that plaintiffs' responding papers were insufficient to preclude summary judgment, that this type of injury is a risk of the colonoscopy without a deviation, and that Maltz did not state otherwise. The defendants also contend that at the January hearing, plaintiffs' counsel emphasized they were pursuing the informed consent claim. They allege Ho spoke little English but was asked to sign a consent form in English without an understanding of its contents. The judge denied the first motion for summary judgment without prejudice, and permitted further discovery.

Dr. Maltz submitted another letter dated January 24, 2007.*fn2

It stated:

I have reviewed the recent depositions of Sinwan Ho and Kenneth Y. Lee. Based on their testimonies that Sinwan Ho has limited English skills and that she was not told of the possibility of a complication of the procedure, there is a reasonable possibility that a deviation of the standard of care occurred. In addition, according to the deposition of Sinwan Ho she complained of pain after the procedure and was not examined by either nurse or doctor. This also raises the reasonable possibility that a deviation of standard of care occurred. (Emphasis added.)

This letter was submitted to the judge, but summary judgment was granted to all defendants at the argument of February 16, 2007. The judge noted that Dr. Maltz's reports referred to a "reasonable possibility that a deviation of the standard of care occurred" as to the defendants. According to the judge, But the expert reports are just utterly deficient here. A reasonable possibility is not enough and I know I made it clear to plaintiff's counsel on January 5 that he had to pull this case together or there was going to be an unfavorable result to him and his client.

Well, that result is going to occur. I'm granting summary judgment to all of the defendants in this case. These reports do not measure up. I gave plaintiff's counsel a second chance. He didn't meet it and I have no doubt that Dr. Maltz is a bright man, a fine doctor, and probably carefully chose his words. He didn't state anything in the initial report about deviations. He wanted to see, apparently, what the deposition testimony was going to be, and obviously he couldn't opine on deviations from a review of medical records.

And then when he saw the deposition testimony, all it did was, accepting the truth of the deponents' testimony, this raises a reasonable possibility of a deviation. Well, that's not adequate and I see no reason to bring this case back a third time so that plaintiff's counsel can do what should have been done before the close of discovery last year.

By motion dated February 27, 2007, plaintiffs moved for reconsideration. The motion refers to a certification of Dr. Maltz "that he made a mistake by using a wrong word in his previous expert report and now he provide[s] the court with a new report with correct terminology." Defendants objected to the consideration of new material for the first time by a motion for reconsideration.

Dr. Maltz's certification of February 23, 2007, provides in part:

3. At the request of the attorneys for the plaintiffs, I reviewed documents produced and deposition testimony taken in discovery in this action. From these documents, I was able to furnish an expert report on January 24, 2007.

4. In this report, there are two places that I used word "possibility" by mistake.

5. When I typed this report, there is a place "possibility of a complication of the procedure", I continued [sic] use the word "possibility" instead of "probability" habitually when it came to "a reasonable probability that a deviation of the standard of care."

6. It happened again by mistake at the last sentence, "This also raises the reasonable probability (typo possibility) that a deviation of standard of care occurred."

7. What happened that I typed "possibility" instead of "probability" was purely mistyping. It is not my intention to use the word of "possibility".

The February 23, 2007, certification attaches a report from Dr. Maltz that quotes deposition testimony of plaintiff Ho that she doesn't speak English well, that Dr. Kluger did not try to find an interpreter to assist her in understanding the procedure, and did not explain what a colonoscopy is, that she was "not aware" of the risks and he did not explain the "possibility of perforation at any time." Based thereon Dr. Maltz opined:

On the basis of the depositions noted above it appears that Ms. Ho has limited English skill and Dr. Kluger did not inform Ms. Ho of the possibility of complication prior the procedure. Thus, there is a reasonable probability that there was a deviation of the standard of care which required patients to be informed of the possibility of a complication from a procedure they are about to undergo.

Dr. Maltz also quoted portions of the deposition where plaintiff stated that no one from Surgicare interpreted for her, and her daughter was not asked to translate for her while there. He further referred to deposition testimony that following the procedure, Ms. Ho complained of pain and was taken to a restroom. As a result, the doctor ended his report by saying:

Since Sinwan Ho had abdominal pain after the procedure and she complained of the pain to the individual charged with monitoring her care post procedure, this should have been evaluated by a nurse or if necessary by the physician. Since according to the deposition this was not done, there is a reasonable probability that the care would be a deviation of the standard of care.

As I discussed in my previous report, the following operations were directly resulted from the perforation caused by the colonoscopy and polypectomy dated May 20, 2003. On 5/21/03 she underwent a laparotomy with resection of the damaged segment of colon and the making of a colostomy. This was a result of the perforation.

On 9/2/03 she again underwent surgery. At surgery three procedures were performed. The colostomy was closed and the colon was reconnected. This procedure was a result of the surgery for the original perforation. She also underwent repair of an umbilical hernia and the excision of a chest wall mass. These were not related to the prior surgery.

Around 4/20/06 she underwent surgery again with the resection of the prior anastomosis which had strictured down, and the making of a colostomy again. This stems from the original surgery for the perforation.

On 9/14/06 she once more underwent surgery and had the colostomy again closed and the colon reconnected. This was also a consequence of the original perforation.

The above depositions do not alter the conclusions that I reached in my October 6, 2005 and December 28, 2006 reports.

As noted, reconsideration was denied for the reasons stated in the April 5, 2007 orders. The plaintiffs argue they "met their expert opinion obligations such that their case should be reinstated and permitted to proceed through discovery".

Plaintiffs argue summary judgment was improperly granted and reconsideration should have been granted. They appeal only from the denial of reconsideration although they argue that summary judgment was improperly granted in the first place.*fn3 Defendants argue that the February 16, 2007, decision was proper, and that plaintiffs only addressed the informed consent claim which had no merit. The defendants note that Dr. Maltz's January 24, 2007, report does not refer to a "reasonable degree of medical probability," as required by the statute, and that the one submitted on the motion for reconsideration was produced too late, following the prior dismissals.

We appreciate the defendants' frustration with the discovery and reports, and appreciate the judge's rulings in January and February. However, the motion for reconsideration was premised on a mistake (R. 4:50-1(a)) and therefore was more than a rehash of the defenses to the prior motions. We are satisfied that the papers require that we reverse the judgment on the informed consent claim, as there was both a showing of "the physician's failure to disclose sufficient information for the patient to make an informed decision about the comparative risks of various treatment options" and an affidavit of merit addressed to this type of "medical malpractice" which "is based on negligence." Baird v. Am. Med. Optics, 155 N.J. 54, 70-71 (1998).*fn4

We agree with the motion judge that, considering the papers as a whole, there is no basis on which to reinstate most of the claims. While plaintiffs argue that there was enough to sustain all theories, there is an insufficient showing in the certifications of Dr. Maltz of negligence or causation attributable to the specific defendants as a result of the post- surgical events following the colonoscopy on May 20, 2003, at defendant Surgicare. Moreover, for purposes of the issue before us, there is a distinction between negligence or malpractice based on lack of informed consent, which is premised on the failure to disclose what a reasonably prudent patient would want to know, as opposed to more traditional medical malpractice, which is a deviation from a standard of professional care, and the proofs involved. See, e.g., Acuna v. Turkish, 192 N.J. 399, 415 (2007).

We reverse as to the informed consent count embodied in count 3 of the complaint, which was not the subject of Kluger's and Surgicare's January 2007 motion.*fn5 The references to the deposition testimony and corrected affidavit of merit suggest sufficient allegations of malpractice with respect to adequately explaining the risks of a colonoscopy and obtaining the patient's consent for the procedure. A jury question is presented.

We condition the reversal on the reinstated defendants' ability to move for attorneys' fees and costs incident to the motions for summary judgment and motion for reconsideration which resulted in the February 16, 2007, and April 5, 2007, orders, both of which could have been avoided by the original submission of appropriate discovery.*fn6

The orders of April 5, 2007, are affirmed except as to the dismissal of count 3 of the complaint, and we remand as to that Count.


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