On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-882-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Lihotz.
In this medical malpractice action, plaintiffs David and Harra Greenwald appeal from various orders barring their proposed expert from testifying and dismissing their complaint against defendants Dr. Sri Kantha, a board-certified pain management specialist and the NJ Institute for Minimally Invasive Spine Care, P.A. (the Institute), and Dr. Peter DiPaolo, an orthopedic surgeon. More specifically, plaintiffs' notice of appeal lists the following five orders which they contend were entered in error: (1) a September 25, 2009 order barring the testimony of Dr. David A. Yazdan as to standards of care associated with the care rendered by Dr. Kantha and granting summary judgment in favor of Dr. Kantha; (2) a November 13, 2009 order granting the motion of Dr. DiPaolo to bar Dr. Yazdan from testifying at trial; (3) a November 13, 2009 order denying the cross-motion of plaintiffs to waive the requirement of board certification of their expert; (4) a November 13, 2009 order denying plaintiffs' motion for reconsideration and denying plaintiffs' request for a waiver pursuant to N.J.S.A. 2A:53A-4(c) to permit the testimony of Dr. Yazdan; and (5) a January 5, 2010 order dismissing plaintiffs' complaint against Dr. DiPaolo. We affirm all of the orders of the Law Division.
The relevant facts are derived from evidence submitted by the parties in support of and in opposition to defendants' summary judgment motions. We view those facts in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff David Greenwald,*fn1 who was suffering from neck and back pain, was referred by defendant Dr. DiPaolo to Dr. Kantha whose practice is limited to anesthesiology and pain management. On February 1, 2005, Dr. Kantha performed a transforaminal epidurogram and epidural injection via the left C6-7 neuroforamen with radiological interpretation. On February 17, 2005, Dr. Kantha performed another transforaminal epidurogram and epidural injection via the left C5-6 neuroforamen with radiological interpretation. On March 15, 2005, Dr. Kantha performed a diagnostic left cervical facet joint injection at C5-6, C6-7 and C7-T1 with radiological interpretation. Dr. Kantha last treated plaintiff on March 23, 2005.
In April 2006, plaintiff came under the care and treatment of Dr. Yazdan, who operated on plaintiff, performing multiple level anterior cervical decompression. Notwithstanding the surgical procedures, plaintiff obtained no relief. He continues to suffer from multiple cervical radiculopathy and lumbar radiculopathy.
On March 2, 2007, plaintiffs filed a complaint alleging medical malpractice against defendants. Harra Greenwald, plaintiff's wife, asserted a per quod claim. Dr. Kantha and the Institute filed a joint answer, with Dr. DiPaolo filing his answer separately. On April 27, 2007, plaintiff filed a timely affidavit of merit in which Dr. Yazdan opined, based upon his review of the records of Dr. Kantha and his awareness of the treatment and surgery rendered by Dr. DiPaolo, that "there exists a reasonable probability that the case, skill and knowledge exercised by said defendants falls outside acceptable medical standards and treatment practices as engaged in by these defendants."
Emphasizing that Dr. Yazdan is a neurosurgeon and Dr. Kantha is an anesthesiologist whose practice is limited primarily to pain management, Dr. Kantha moved to dismiss plaintiffs' complaint for the failure to produce an adequate affidavit of merit. In response, plaintiffs submitted, among other opposition materials, a certification of Dr. Yazdan asserting his familiarity with the procedures used by Dr. Kantha and the standard of care required of a pain management specialist. Following oral argument, the court denied the motion to dismiss, finding neither of the parties provided information addressing the court's inquiry of whether pain management was a specialty or subspecialty recognized by the American Board of Medical Specialties.
Thereafter, the parties proceeded with discovery and Dr. Yazdan was deposed. In his deposition, he asserted that as a neurosurgeon, he was qualified to perform an epidural injection such as the procedure performed on plaintiff; however, he conceded he did not have any training in pain medicine and was not certified in pain management.*fn2 Dr. Yazdan stated he had performed epidural steroid injections many times, but never for the purpose of pain management. He also offered his opinion that "under no circumstance is an epidural steroid injection appropriate when there is other pathology that could be corrected surgically." Thus, Dr. Yazdan considered it a deviation from the standard of care to inject a patient who, as in this case, has stenosis because it traumatizes the nerve root or the area around it. Dr. Yazdan stated his belief that Dr. Kantha should not have attempted an epidural injection in plaintiff's case. Dr. Yazdan further expressed the categorical view that if "any pain management specialist [tries to perform a] transformal epidural injection in the stenotic foramen, it's malpractice."
Dr. Kantha filed a new motion which sought to bar Dr. Yazdan from testifying at trial to the accepted standards of care. Because the court was unable to determine the dates upon which the epidural injections were performed, it denied defendant's motion without prejudice.
Dr. Kantha again refiled the motion to bar and for summary judgment. By order of September 25, 2009, the court entered summary judgment barring Dr. Yazdan from testifying as to the accepted standards of care associated with the care rendered by Dr. Kantha to plaintiff and dismissing plaintiffs' complaint against Dr. Kantha. The court denied plaintiffs' motion for reconsideration and waiver of the same specialty or board-certification requirement, pursuant to N.J.S.A. 2A:53A-41(c).
Dr. DiPaolo also moved to bar Dr. Yazdan's expert reports and testimony, and on November 13, 2009, the court signed a separate order granting Dr. DiPaolo's motion. That same date, the court also denied, by separate order, the cross-motion by plaintiffs to waive the requirements of board certification under N.J.S.A. 2A:53A-41(c). On January 5, 2010, the court dismissed with prejudice plaintiffs' complaint against Dr. DiPaolo. That order was based upon the joint representation of counsel for plaintiffs and defendant Dr. DiPaolo that plaintiffs could not proceed to trial against Dr. DiPaolo without the testimony of Dr. Yazdan. This appeal ensued.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009). Summary judgment must be granted "if 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). If there is no genuine issue of material fact, we "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). Of course, a trial court's ...