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Virduet v. St. Mary Hospital


October 26, 2009


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

Per curiam.


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; that expert opinion is required to prove defendant's negligence; and that Melnick's expert report amounted to no more than a "net opinion":

This Court finds that there is no "common knowledge" exception applicable here. Expert testimony as to the hospital's professional negligence is required. Negligence must be proven. Procedures and standards must be established as the basis for demonstrating negligence. This Court finds that Dr. Melnick does not address causation in his report nor does he even refer to any standards or procedures against which to compare the hospital's conduct. Although he states that "discrepancies" between nurses' notes and radiology forms are "disturbing," he asks "Where [sic] when and how did she sustain these fractures? It seems clear that [she] sustained fractures while under the care of the St. Mary and/or radiology staff. Allowing such injuries to occur, in whatever way, represents, in my opinion, negligence . . . " Plaintiff argues that the patient didn't complain of pain during transport so the fractures must have happened at the hospital. There is no indication she complained during the one hour, 34 min. she was at [the] hospital before x-ray noted first fracture. There is a reference to one report of this 84 year old woman, diagnosed with dementia and numerous medical problems, having called out in pain while in the ER but her daughter, who remained with her in the ER testified that "nothing happened" in the ER. The daughter testified her mother remained in her bed in the ER. She testified to observing no treatment or lack thereof that caused harm to her mother.

This Court finds that, therefore, Dr. Melnick's report is a net opinion; an expert report is required and therefore plaintiff cannot establish a prima facie case even given all possible favorable inferences.

This Court finds that there are questions as to whether the plaintiff (1) had the fractures while at home (as with the later spontaneous hip fracture), was injured during transport, was injured at the hospital and/or was injured by the negligence of hospital personnel. Nonetheless, [plaintiff's] expert provides no professional standards[,] no analysis as to these questions [i.e.], age of fractures, force needed to fracture, care needed in transport or effect of transport methods (even though the plaintiff did not name the transporters)[,] care required at hospital that was not provided[,] or affirmative acts that were improper and/or negligent.*fn3



On appeal, plaintiff contends that the trial court erred in granting summary judgment because Dr. Melnick's expert report is not a "net opinion" and, in any event, the doctrine of res ipsa loquitur or Anderson v. Somberg*fn4 applies to establish plaintiff's prima facie case. We disagree with these alternative positions.

We review de novo the trial court's decision to grant summary judgment. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Employing the same legal standard as the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), it is appropriate to enter summary judgment when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

Once a legal duty to a plaintiff has been established, a prima facie medical negligence claim usually requires expert proof to establish the applicable standard of care, Rosenberg v. Cahill, 99 N.J. 318, 325 (1985), a deviation from that standard of care, Clark v. Wichman, 72 N.J. Super. 486, 496 (App. Div. 1962), and a causal link between the negligence and the injury. Germann v. Matriss, 55 N.J. 193, 205 (1970). See also Creanga v. Jardal, 185 N.J. 345, 354-55 (2005). We permit expert testimony "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. We require expert testimony "when the subject matter is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (2008).

It is clear that experts must explain the facts and assumptions upon which they base their ultimate medical conclusions. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The Buckelew Court continued its explanation of an inadequate "net opinion":

The "net opinion" rules appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, is inadmissible. It frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom. [Ibid.]

We will not permit expert opinion testimony to introduce speculation into the province of the fact finder "'if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 146 N.J. 569 (1996). In other words, the expert must give the "why and wherefore of his expert opinion." Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div. 1996), certif. denied, 145 N.J. 374 (1996), overruled in part on other grounds, Jerista v. Murray, 185 N.J. 175, 197-98 (2005). "Where . . . an expert offers an opinion without providing specific underlying reasons for the alleged malfunction, he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror." Ibid. Additionally, the expert testimony must be based "primarily on facts, data or other expert opinion established by evidence at the trial." Former N.J.R.E. 56(2)(a) (now embodied in N.J.R.E. 703).

Here, Melnick's report does not satisfy plaintiff's burden to demonstrate a genuine issue of material fact for trial, as it constitutes an inadmissible "net opinion". The expert does not explain when or how Muniz's fractures occurred so as to causally relate them to a negligent act or omission on the part of hospital staff. Melnick simply states a bare conclusion:

Where [sic] when and how did she sustain these fractures? It seems clear that this confused, Spanish speaking, 84 year old sustained these fractures while under the care of the St. Mary emergency and/or radiology staff.

Allowing such injuries to occur, in whatever way, represents in my opinion, negligence on the part of the hospital staff that lead to significant injury, pain and disability on the part of Mrs. Munoz.

Yet Melnick never explains why Muniz's fractures must have occurred while under the care of hospital staff, especially given her prior medical history of osteoporosis and her subsequent hip fracture, suggestive of a spontaneous genesis. Nor does the expert explain, in light of the absence of any proof of trauma or injury at the hospital and the conflicting testimony over the manner of Muniz's transport thereto, why he ruled out members of the ambulance squad or other attendees as the cause of Muniz's fractures. Equally absent is any citation to medical authorities or professional standards reasonably relied upon by experts in Melnick's field that he himself relied on in forming his opinion. Consequently, we conclude, as did the motion judge, that Melnick's report, which lacks the "why and wherefore" of his expert opinion, is an inadmissible "net opinion".


Plaintiff seeks to overcome the lack of expert proof by, alternatively, relying on the doctrine of res ipsa loquitur.

Res ipsa loquitur applies in situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of a defendant. Accordingly, the doctrine is utilized where (1) the accident which produced a person's injury was one which ordinarily does not happen unless someone was negligent, (2) the instrumentality or agency which caused the accident was under the exclusive control of the defendant, and (3) the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person. [Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 398 (2005) (internal citations omitted).]

See also Buckelew, supra, 87 N.J. at 526-27; Bornstein v. Metropolitan Bottling Co., 26 N.J. 263, 269 (1958).*fn5

For an occurrence to "bespeak negligence," the facts and circumstances must point toward negligence as the most probable explanation, not simply a possible one. Buckelew, supra, 87 N.J. at 526. Hence, "res ipsa is available if it is more probable than not that the defendant has been negligent." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999).

In the absence of direct evidence, it is incumbent upon the plaintiff to prove . . . the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected.

[Callahan v. National Lead Co., 4 N.J. 150, 154-55 (1950).]

The fact that the injury complained of does not ordinarily occur in the absence of negligence must either be supported by expert testimony or must be within the common understanding of the jury. We do not require the production of expert testimony, however, when the common knowledge of the jury "is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Estate of Chin, supra, 160 N.J. at 469. This common knowledge exception applies in those rare cases in which "the mistake was obviously the result of negligence." Id. at 471.

Importantly, the doctrine of common knowledge is applied somewhat restrictively in medical malpractice cases since the average juror may be unable to determine whether a plaintiff's injury would rarely occur in the absence of professional negligence. In that case, as noted, it is necessary within the context of a res ipsa loquitur case, for the plaintiff to present expert testimony if the jury cannot determine, based on its common knowledge, that the occurrence of a particular event ordinarily bespeaks negligence. Jerista, supra, 185 N.J. at 200 (discussing Buckelew, supra, 87 N.J. at 525-28).

Here, plaintiff did not prove the first element of res ipsa loquitur. As noted, there was no competent expert proof that bilateral shoulder fractures do not normally occur in the absence of negligence. In fact, plaintiff's expert could not opine what caused Muniz's bilateral shoulder fractures, much less to a reasonable degree of medical certainty. Nor, for that matter, are we persuaded that the average juror is able to infer negligence from the mere occurrence of the condition itself based on the juror's common knowledge or experience. In our view, shoulder fractures diagnosed during a patient's hospital stay is not an occurrence that ordinarily bespeaks negligence. Indeed, the fact the condition was diagnosed while in the hospital does not render it more probable than not the result of the institution's negligence. Rather, we are satisfied that the genesis and cause of the diagnosed condition involves evidence of a scientific and technical nature beyond the ken of the average juror, which was, as noted, entirely lacking in this case.

Plaintiff has also failed to prove the remaining elements of the res ipsa loquitur doctrine as well as all features of its Anderson v. Somberg variant. In a word, plaintiff has failed to exclude the possibility that Muniz's condition was due to a cause unconnected to defendant. No instrumentality has been identified as in Anderson v. Somberg, where a medical tool became lodged in the plaintiff's spine. Nor has plaintiff demonstrated that Muniz herself was entirely blameless. There was no evidence she was anesthetized or unconscious during her emergency room stay. And although she may have been unable to ambulate independently, there was no evidence she was unable to maneuver her upper body, including her arms. Most significant, Muniz was not under the exclusive control of hospital staff that day and plaintiff has failed to join all possible defendants who came into contact with her prior to her hospital admission, including those attending to her at plaintiff's apartment and those transporting her to the hospital. No competent proof suggests defendant was any more culpable than these other unnamed and unidentified individuals, yet plaintiff sued only the hospital.

Simply put, plaintiff did not demonstrate a genuine issue of material fact for trial nor prove a prima facie case of medical malpractice. Accordingly, the trial court properly granted defendant's motion for summary judgment.


Plaintiff next argues that summary judgment was inappropriate because the court erred in denying her motion to depose the triage nurses, deemed necessary to complete its expert's report. We disagree.

Some background is in order. Plaintiff filed this malpractice lawsuit on May 2, 2007. By order of July 18, 2008, discovery was extended, on plaintiff's motion, an additional ninety days to November 13, 2008, but no further extensions would be permitted. The order also required depositions of fact witnesses by September 1, 2008; plaintiff's expert reports by August 30, 2008; defendant's expert reports by September 30, 2008; and expert witness depositions by October 30, 2008.

On July 25, 2008, plaintiff served defendant with a notice to take the oral depositions on August 21, 2008, of the triage nurses present when plaintiff was admitted to defendant's emergency room on March 28, 2005. Defendant's counsel advised plaintiff that the nurses were not available on August 21, and attempts were made without success to reschedule the depositions for September 12, 2008. Despite being aware of the August 30, 2008 deadline for submission of her medical expert reports and that the depositions of the nurses did not go forward as scheduled on either August 21 or September 12, plaintiff made no attempt to reschedule the depositions after September 12, nor move to extend the discovery deadline, nor affirmatively move to compel the nurses' depositions. Instead, plaintiff waited until defendant moved for summary judgment when she then cross-moved for such relief, which the motion judge denied, concluding:

In regard to the cross-motion to depose the nurses, I don't know why that was not followed up with - by the plaintiff, but I find that there is really no reason given, you know, no matter what standard one wants to apply here in considering this, there's really no explanation as to why there was not more follow up in order to depose those nurses before the summary - before the discovery end date, which is tomorrow.

This case has had numerous, numerous extensions, most recently from March of '08 to August of '08, August '08 to November of '08. . . . But at this point I find that there is not, first of all, sufficient justification to indicate that there is something essential that could be provided; number two, I find that there's no explanation really as to why there was not more follow up in regards to trying to depose the nurses.

We find no abuse of discretion in denying plaintiff's discovery motion. There were multiple discovery extensions during which plaintiff failed to depose the nurses. Although the depositions ultimately scheduled were adjourned by defense counsel, plaintiff neither rescheduled the depositions, initiated a motion to compel them, nor notified the court or defense counsel that an expert report could not be served by the August 30, 2008 court-imposed deadline absent these depositions.

Lastly, we find no merit in the latter contention. While the nurses presumably could have established that Muniz did not have any complaints consistent with bilateral shoulder fractures upon presentation to defendant's emergency room, we fail to see how their testimony as to "timing" could lead to the inference, much less establish the probability, that Muniz's shoulders were fractured sometime thereafter and not before. But even assuming that the shoulder fractures occurred at the hospital, there has been no proffer whatsoever that the triage nurses are able to state what caused these fractures. In the absence of such testimony on their part, we cannot conceive how the nurses' depositions would have cured the fatal flaws noted in plaintiff's expert report.


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