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Portis v. Strain

August 13, 2009

MARY PORTIS, PLAINTIFF-APPELLANT,
v.
JEFFREY STRAIN, M.D., AND AARON H. CHEVINSKY, M.D., DEFENDANTS-RESPONDENTS, AND KENNEDY GABREGIORISH, M.D., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-3313-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2009

Before Judges Yannotti and LeWinn.

Plaintiff Mary Portis appeals from the May 11, 2007 order of the trial court granting summary judgment to Aaron H. Chevinsky, M.D., dismissing her complaint against him with prejudice; and from the June 26, 2007 order denying her motion for reconsideration.*fn1 For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. On December 7, 2002, plaintiff was admitted to Morristown Memorial Hospital for a total knee replacement which was performed by a surgeon, Dr. Robert Goldman, who is not a party. During the course of plaintiff's hospitalization, she developed symptoms consistent with a bowel obstruction. As a result, Dr. Gabregiorish, a surgical resident, conducted two surgical consults with Dr. Chevinsky on December 8, 2002.

Hospital records indicate that the first consult took place at 7:10 p.m., and a follow-up surgical consult occurred at 11:30 p.m.

Plaintiff underwent a laparotomy performed by Dr. Chevinsky's associate, Dr. Strain, at 3:30 p.m. on December 9, 2002. Plaintiff alleged that, as a result of the delay in her undergoing the laparotomy, she suffered "significant complications resulting in excess of 277 days of hospitalization . . . ."

On December 9, 2004, plaintiff filed a medical malpractice complaint against Dr. Strain. On or about September 5, 2006, plaintiff filed an amended complaint adding Dr. Chevinsky.

Plaintiff explained that the delay in naming Dr. Chevinsky as a defendant was due to the fact that she did not receive her hospital records until one month prior to the date on which the statute of limitations expired. Following receipt of those medical records, plaintiff retained Dr. William Flynn as an expert; he executed an Affidavit of Merit as to Dr. Strain on January 12, 2006. Dr. Flynn advised plaintiff at that time that based upon his review of the records, he did not find any negligence on the part of any other doctors. Plaintiff asserted in her motion papers that Dr. Flynn "advised that, in order for him to make any specific findings concerning the conduct of any other doctors, [her attorney] would need to complete the deposition of Dr. Strain."

Plaintiff took Dr. Strain's deposition on May 2, 2006; the following colloquy occurred between plaintiff's attorney and Dr. Strain:

Q: Who is Dr. Chevinsky?

A: Dr. Chevinsky was my . . . associate at Morris County Surgical.

Q: Looking at this form, can you tell if Dr. Chevinsky saw the patient?

A: I can't discern the signature on the right lower.

Q: Okay. On the right lower corner there is a D/W and then it says Dr. Chevinsky it appears.

A: Uh-huh.

Q: What . . . in your understanding, does the notation D/W in a hospital chart mean?

A: You'd have to consult the person that actually wrote that note.

Q: Okay. Do you ever use the notation D/W in your chart notations?

A: No, I do not.

Q: Okay. Is Dr. Chevinsky your partner who requested you to ...


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