On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4648-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Miniman.
Plaintiffs, Cary Schwinn and his wife, Pamela Schwinn,*fn1 appeal from an order of summary judgment dismissing their medical malpractice action against defendants John Vitale, M.D., an internist; Wall Family Medical Center, Dr. Vitale's practice group; Mary T. Mitskavich, M.D., an otolaryngologist or ear, nose and throat (ENT) specialist; and Coastal Ear, Nose and Throat, her practice group.
The record discloses that plaintiff Cary Schwinn suffered from sinusitis. After other treatments failed, on October 2, 2002, Dr. Vitale placed him on a course of tapering Prednisone and antibiotics, ultimately administering 420 milligrams of the corticosteroid Prednisone over six days along with a fourteen-day course of antibiotics, commencing on October 3. Following a CAT scan on October 4 that indicated both chronic and acute sinusitis, a retention cyst in the maxillary sinus, and a septal deviation to the left,*fn2 Dr. Vitale referred plaintiff to Dr. Mitskavich for further treatment by a specialist.
Dr. Mitskavich acknowledged the referral in a letter to Dr. Vitale, stating in that letter that she planned to administer an additional course of steroids and antibiotics, which she did, prescribing a tapering dose of 390 milligrams Prednisone over twelve days and the antibiotic Levaquin over twenty-one days,*fn3 along with saline irrigation, the decongestant Humabid, the nasal steroid spray Flonase, and the nasal decongestant spray Afrin. When plaintiff's condition did not improve, she performed surgery on December 5, 2002, preceding that surgery with an additional administration of 390 milligrams Prednisone to reduce swelling and operative bleeding. The surgery was successful.
Thereafter, plaintiff developed avascular osteonecrosis in his right hip, allegedly as the result of the administration of the steroids. He underwent bilateral hip replacements on November 10, 2003.
In a medical malpractice complaint filed on October 13, 2004, plaintiff set forth causes of action against defendants based on allegations of failure to warn of the consequences of utilizing steroids, failure to obtain plaintiff's informed consent, failure to provide alternative treatments, and failure to refer him to other physicians for consultations. The latter two causes of action were not pursued.
New York internist Perry Berg, M.D., was retained as plaintiff's expert. When his deposition was taken in 2007, Dr. Berg had been in practice for fifty-five years. At that time, he primarily treated geriatric patients, and he kept office hours two days a week. Dr. Berg had frequently served as an expert for both plaintiffs and defendants in New York, New Jersey and Connecticut. He was initially board certified in internal medicine in 1960 and was last board certified in 1977. He is not an ENT specialist, and he has never conducted ENT surgery. He has done no research in avascular necrosis and has not written on the subject. However, he treated two patients who developed avascular necrosis after a course of steroid treatment, the most recent being approximately fifteen years ago. In one case, the steroids were prescribed by a neurologist for an acute exacerbation of multiple sclerosis; in the other, the steroids were prescribed by a rheumatologist for the treatment either of lupus or rheumatoid arthritis. Dr. Berg agreed that both treatments were proper.
Dr. Berg issued two certificates of merit in this matter and an expert's report, dated April 18, 2006. In that report, Dr. Berg noted that as the result of treatment provided by Dr. Vitale and Dr. Mitskavich, plaintiff received 1200 milligrams of Prednisone between October 2 and December 4, 2002. The doctor commenced by noting that "avascular necrosis can be associated with short courses of steroids, in high doses."*fn4 He then stated:
I consider that [plaintiff's] treatment by both doctors was a breach of good medical care in that a modicum of communication and planning could have eliminated at least one and probably two of his courses of steroids without any decrease in the completeness of that care.
The doctor recognized that Dr. Mitskavich had testified in her deposition that, although she was unaware that plaintiff had been treated previously with steroids, even if that fact had been known she still would have instituted "maximum medical therapy" prior to considering surgery, consisting of Prednisone in tapering does, Levaquin, Flonase, Humibid, Afrin nasal spray, and saline nose drops. However, Dr. Berg concluded:
Once the treatment [instituted by Dr. Vitale on October 2] was begun, Dr. Mitskavich should have been made aware of it in the event that she wished to make changes to qualify it as maximal medical therapy. Once Dr. Mitskavich was aware that Mr. Schwinn had failed a course of treatment almost identical to what she was imposing, she could have prepared to do surgery when this failure was evident and when Mr. Schwinn had received a presurgical course of steroids, obviating another course of precisely what he had just taken. In the total absence of this simple communication and planning, Mr. Schwinn underwent three courses of toxic medication, never documented to clearly be of any value to him. It was a departure from the appropriate standard of care between Dr. Vitali and Dr. Mitskavich in their failure to communicate with each other concerning the course of treatment that had taken place. The continued use of steroids by Dr. Mitskavich exposed Mr. Schwinn to an unnecessary risk of an avascular necrosis and also was a departure from the standard of care. I find these to be lapses from good medical care and the proximate cause of Mr. Schwinn's avascular necrosis.
On August 7, 2007, Dr. Berg's deposition was taken. Dr. Berg testified that the incidence of the development of avascular necrosis following administration of steroids was so low that it need not be communicated to a patient as a risk factor. Plaintiff's attorney asked the doctor: "[W]as there a duty to warn Mr. Schwinn that [avascular necrosis] was a risk of the treatment that he was getting?" Dr. Berg responded:
I believe there is a duty to warn about steroid side effects. That specifically avascular necrosis would be what is mentioned is difficult for me to say. I believe that there has to be a conversation about the side effects of prednisone which run the gamut of diabetes, osteoporosis, ...