On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8005-06.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Baxter and Coburn.
We granted defendant, Cooper Health Systems (Cooper), leave to appeal two interlocutory orders in this medical malpractice case that (1) precluded Cooper from utilizing two particular physicians as causation experts, and (2) precluded one of those physicians from examining plaintiff.*fn1 The two physicians never treated plaintiff but were members of the physician group that has regularly treated plaintiff since 2001, when he was one year old, for the injuries resulting from the alleged malpractice at the time of his delivery and birth. For the reasons that follow, we affirm.
Plaintiff was born in 2000, nearly three months prematurely. Plaintiff suffers from serious and complex neurological conditions, including cerebral palsy with right hemiparesis, autism, epilepsy and bilateral deafness. Plaintiff contends that these conditions were caused by the negligence of doctors at Cooper, which included the failure to administer prenatal steroids and take other appropriate measures to prevent or delay plaintiff's preterm delivery. Plaintiff contends that appropriate care would have prevented him from sustaining an intraventricular hemorrhage, resulting in brain damage.
Defendants deny any negligence. They also deny that plaintiff suffered an intraventricular hemorrhage. They contend the cause of plaintiff's brain damage was a left middle cerebral artery infarction, which was brought on by an infection (chorioamnionitis) in the mother and her premature rupture of membranes precipitating premature delivery, all of which could not have been avoided.
Shortly after his birth, plaintiff treated with the neurology division at duPont Hospital for Children in Wilmington, Delaware. Since 2001, he has treated regularly and continuously with the neurology group at Children's Hospital of Philadelphia (CHOP).*fn2 Since 2001, plaintiff has primarily treated with Dr. Dennis J. Dlugos, a member of that group, and he has seen other physicians and nurse practitioners in the group from time to time. Plaintiff's parents chose CHOP and this group because of the outstanding qualifications of the hospital and group and the proximity of CHOP to their home in South Jersey. Having this facility and group nearby for emergency situations, with plaintiff's records available and health care providers familiar with his situation was also a selection factor. Plaintiff's mother has taken plaintiff to CHOP in emergency situations since 2005, and in the last year and one half the frequency of emergency visits has increased due to an escalation in plaintiff's neurological problems.
Plaintiff's mother, who is a nurse at CHOP, knows that her son's care depends on the free exchange of ideas between the physicians comprising the neurology group, and she relies on that free exchange to assure high quality care for her son. The neurology group consists of about twenty-two physicians.
On two occasions, in 2003 and 2009, plaintiff underwent MRI studies at CHOP, which were interpreted by members of the neuroradiology group. Further studies are anticipated.
As the deadline for serving expert reports approached, Cooper sought to have plaintiff examined by Dr. Robert R. Clancy, a senior member of the CHOP neurology group. Plaintiff's counsel refused. Cooper moved to compel the examination. The motion was denied.
During this time frame, Cooper also served on plaintiff expert reports from Dr. Clancy and Dr. Robert A. Zimmerman, a senior physician in CHOP's neuroradiology group. Dr. Clancy's report included an opinion that the Cooper doctors did not breach the applicable standard of care. He also gave his opinion as to causation of plaintiff's injuries, which was along the lines we previously described as Cooper's position. Dr. Zimmerman's report set forth his review and interpretation of ten neuroimaging studies. The first study was conducted one day after plaintiff's birth and the others over the next two months. He concluded that the study conducted on the day after birth was normal but the study conducted three days later revealed an acute left middle cerebral artery infarction, and that the subsequent studies "show the evolution of that injury." This supported Dr. Clancy's causation opinion.
Cooper obtained the reports from Drs. Clancy and Zimmerman without plaintiff's permission or knowledge. Plaintiff moved to bar Cooper from using Drs. Clancy and Zimmerman as experts. Cooper advised the court and plaintiff that it did not intend to elicit from Dr. Clancy his opinion that the Cooper doctors did not breach the applicable standard of care. Cooper stated its intention to ...