On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1772-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Simonelli and Hayden.
Plaintiff John Kennedy appeals from a June 3, 2011 order granting defendant Dr. Julie E. Renda's motion pursuant to Rule 4:37-2(b), and dismissing plaintiff's medical malpractice case. We affirm.
We summarize plaintiff's most pertinent evidence. On July 20, 2005, plaintiff collapsed at his home and was taken to St. Clare's Hospital. At St. Clare's he was seen in the emergency room and underwent a CAT scan that was interpreted as normal by Dr. Rene P. Manzo, a neuro-radiologist.*fn1 Based on that normal reading, and plaintiff's history of alcohol use, a second doctor, Dr. Berman, diagnosed plaintiff as suffering from alcohol withdrawal and admitted him to the hospital. A third doctor, Dr. Lisa Li, a hospitalist,*fn2 provided medical care to plaintiff in the hospital on July 21, and then on July 22 she turned over plaintiff's care to Dr. Renda, a board certified internist who also practiced as a hospitalist.
Relying on Dr. Manzo's initial CAT scan reading, Dr. Renda did not order another CAT scan. Instead, she ordered urine and blood cultures, because plaintiff had spiked a fever. Those tests were negative for the presence of an infection. Because plaintiff's condition appeared stable, she discharged him from the hospital on July 24.
However, over the next few days his condition again worsened. Plaintiff's family took him to Morristown Memorial Hospital, where doctors diagnosed him as having a brain abscess. However, by that time, the brain infection had progressed to the point that plaintiff was left with a permanent seizure disorder.
Plaintiff's expert, Dr. Robert Fuhrman, an internist, opined that Dr. Renda should not have accepted Dr. Berman's initial diagnosis of alcohol withdrawal, because plaintiff's symptoms of a seizure, followed later by a severe headache and a fever, were not consistent with alcohol withdrawal. He testified that "what should have been done should have been seeking consultation, perhaps with a neurologist, or an infectious disease person." We quote in full the remainder of his direct testimony on the issue of what Dr. Renda should have done:
It was my opinion that - that if --that in order to better explain the events that in my judgment were unexplained, one could have sought the help of a neurologist, or an infectious disease specialist to try to help resolve the questions. And they would have been a higher authority.
I wouldn't question [Dr. Renda's] inability to refute the radiologist. I didn't know that it was a neuroradiologist's interpretation of the CAT scan. I wouldn't be able to tell that there was something abnormal that the neuroradiologist didn't see.
But I still felt very uncomfortable with the diagnosis. And in my judgment, the standard of care would warrant a better interpretation of those facts [than] we were given by the diagnosis of alcohol withdrawal.
During Dr. Fuhrman's testimony, the trial judge sustained an objection to questions about Dr. Renda's failure to order additional CAT scans or an MRI, because Dr. Fuhrman did not identify those alleged omissions as deviations in his deposition. Plaintiff's counsel later confirmed that Dr. Fuhrman had not rendered an opinion that Dr. Renda should have ordered those additional tests. Instead, he argued that Dr. Fuhrman should be allowed to testify that, if Dr. Renda had referred plaintiff to a neurologist or other expert, that expert "could" have ordered additional tests that were more ...