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Virduet v. St. Mary Hospital

October 26, 2009

CARMEN VIRDUET AS GUARDIAN AD LITEM FOR CONSUELO MUNIZ, PLAINTIFF-APPELLANT,
v.
ST. MARY HOSPITAL, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1156-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 30, 2009

Before Judges Carchman, Parrillo and Lihotz.

Eighty-four-year old Consuelo Muniz was taken by ambulance to St. Mary Hospital (defendant) complaining of shortness of breath. A chest x-ray taken approximately one-and-one-half hours after her arrival diagnosed Muniz, who has a history of osteoporosis, with bilateral shoulder fractures. Alleging that the fractures occurred at the hospital, Muniz's daughter Carmen Virduet (plaintiff)*fn1 , as her guardian ad litem, sued defendant for medical malpractice. Eventually, the lawsuit was dismissed on defendant's motion for summary judgment, simultaneous with the court's denial of plaintiff's motion for supplemental discovery. Plaintiff appeals from the November 20, 2008 order embodying these decisions. We affirm.

The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. On March 28, 2005, an ambulance was summoned to plaintiff's Hoboken residence because her mother had been ill and was suffering from respiratory problems. Muniz was unable to ambulate due to a stroke she suffered in the 1990s. Muniz, who does not speak English, also suffered from osteoporosis since at least 1996 and more recently from dementia.

In addition to members of the Hoboken police and fire departments, three members of the Hoboken Volunteer Ambulance Corps and two paramedics from Jersey City Medical Center responded to the scene and attended to Muniz for over one-half hour. During this time, Muniz was receiving oxygen but was unable to speak. She was then transported out of plaintiff's third-floor apartment by members of the ambulance team either, according to one emergency medical technician (EMT), in a stair chair using the "draw sheet method"*fn2 and wheeled down in an elevator, or, according to plaintiff, on a stretcher and carried down three flights of stairs. Although plaintiff, who accompanied her mother to the hospital, heard Muniz scream during transport, presumably out of fear of falling, the EMTs reported the patient was transported without incident.

Muniz arrived in the emergency room of St. Mary Hospital around 11:00 a.m. Plaintiff advised the triage nurse that Muniz "had been coughing x 1 1/2 weeks" and also had "weakness" and "body aches." A nursing note, timed 11:47 a.m., records this history and further indicates that Muniz had decreased range of motion (ROM) of her left arm.

Dr. Sau Yan Yee, the on-duty emergency room physician, examined Muniz around noontime. His notes indicate that physical examination of the extremities revealed "no edema," referring, however, to Muniz's lower extremities. Dr. Yee made no notation as to ROM, explaining that, as is his own custom, he would have reviewed the triage nurse's notes only and, based upon the complaints documented therein, would have confined his physical examination to Muniz's head, neck, chest, abdomen, and lower extremities. Yet he acknowledged that there was a nursing entry prior to his physical examination recording a decreased ROM of Muniz's left arm. Dr. Yee did not report any patient complaints of shoulder pains nor indications of trauma or edema to either the patient's arms or shoulders.

At approximately 12:30 p.m., Muniz had a bedside chest xray, which revealed pneumonia and a fracture of the left shoulder. Later that day, x-rays taken around 5:00 p.m. confirmed the left shoulder fracture and a subsequent x-ray of the right shoulder at 7:00 p.m. revealed a fracture there as well.

Dr. Achyut Gandhi relieved Dr. Yee around noontime as emergency room physician. He said that Muniz had suffered a seizure while in the emergency department and his notes, timed 6:45 p.m., indicate: "Grand mal seizure times 1, witnessed and post ictal. Check CAT scan of the head." Dr. Gandhi diagnosed Muniz as suffering from pneumonia and fracture of the left shoulder. According to Dr. Gandhi, nothing in the patient's record indicated that she had sustained any fall or injury while she was in the emergency department. Muniz was eventually admitted to a medical floor of the hospital.

Plaintiff, who was by her mother's side practically the entire day in the hospital, also witnessed nothing happening to Muniz in the emergency room to cause the shoulder fractures. However, according to plaintiff, her mother was moved to another bed in a different room outside her presence to undergo a CT scan of the chest, a procedure that supposedly lasted up to thirty minutes. Plaintiff also said that the nurses were "a little rough" when they returned Muniz to her emergency room; that they hit the wall with the bed on which Muniz was laying; and that her mother complained to stop moving the bed, because she was dizzy. Plaintiff was also shielded from her mother's view during an x-ray performed behind a curtain in the patient's room, when she allegedly heard Muniz scream. Contrary to plaintiff's account, but as she herself acknowledges, there is no record that a CT scan of Muniz's chest was ever ordered or performed on March 28, 2005.

About one-and-one-half years after she was diagnosed with bilateral shoulder fractures, Muniz suffered a fracture of the right hip. This fracture was deemed to be "spontaneous" in nature, due, no doubt, to her longstanding condition of osteoporosis.

In her medical malpractice complaint against defendant filed on May 2, 2007, plaintiff alleged negligence, claiming that Muniz presented to the hospital without fractures and that one-and-one-half hours after her admission, she was diagnosed with two shoulder fractures. In support of her cause of action, plaintiff offered the expert report of Dr. Gerald Melnick, who opined that the shoulder fractures must have occurred in the hospital: "[a]llowing the injuries to occur, in whatever way, represents . . . negligence on the part of the hospital staff."

In its answer, defendant denied plaintiff's allegation and on September 30, 2008, filed a motion for summary judgment, arguing that there exists no genuine issue of material fact and, therefore, defendant is entitled to judgment as a matter of law in the absence of any proof that defendant's medical care was either negligent or the proximate cause of Muniz's injuries. In her order of November 20, 2008, the judge granted defendant's motion and dismissed plaintiff's complaint, concluding that the doctrine of res ipsa loquitur does not apply; ...


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