July 20, 2012
JOHN KENNEDY, PLAINTIFF-APPELLANT,
JULIE E. RENDA, D.O., DEFENDANT-RESPONDENT, AND LISA LI, D.O. AND RENE P. MANZO, M.D., DEFENDANTS
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 5, 2012
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 sensitive than the original CAT scan. The judge ruled that Dr. Fuhrman could not offer that opinion, because he did not testify about it in his deposition.
On re-direct, plaintiff's counsel asked Dr. Fuhrman to quote from his Affidavit of Merit, in which he opined: "In my opinion, [Dr. Renda] deviated from accepted medical standards by not getting appropriate consultation to explain these occurrences. And this led to a delay in the diagnosis of the brain abscess which was the likely source of the headaches, the fever, as well as the seizure."
Plaintiff also presented testimony from Dr. Richard Michael Hodosh, a neurosurgeon, who testified based on his review of the medical records that when plaintiff first came to St. Clare's he was suffering from a brain infection. He testified that plaintiff should have been treated with intravenous antibiotics and, if he had received that treatment he would have had "a much better chance" of avoiding a "worsening of his condition." He opined that the CAT scan was mis-read. He testified that the delay in diagnosis of plaintiff's infection contributed to his developing a permanent seizure disorder. On cross-examination, he confirmed that his report opined that Dr. Manzo had not properly interpreted the original CAT scan. He did not opine as to any deviation by Dr. Renda. Nor was he permitted to opine as to whether, if antibiotics were given starting on July 22, it would have made a difference to plaintiff's medical outcome. The judge ruled that such an opinion was not included in Dr. Hodosh's report.
In a lengthy oral opinion issued on May 25, 2011, Judge Robert J. Brennan concluded that Dr. Fuhrman's opinion was insufficient to establish Dr. Renda's liability. The judge reasoned that, although Dr. Fuhrman opined that Dr. Renda should have consulted with specialists, he had not opined as to what a consulting specialist would have done, or likely would have found, to speed up plaintiff's diagnosis. He also considered that Dr. Hodosh did not testify at all concerning any deviation by Dr. Renda. He concluded that plaintiff had not proven that any deviation in care to which Dr. Fuhrman testified was a proximate cause of the harm to plaintiff. In a supplemental written statement of reasons dated June 3, 2011, Judge Brennan further explained that plaintiff could not rely on Gardner v. Pawliw, 150 N.J. 359 (1997), because plaintiff failed to prove that Dr. Renda's negligence increased the risk of harm posed by plaintiff's pre-existing condition or that the increased risk was a substantial factor in producing the injury or harm to plaintiff.
We have reviewed the record in light of the well established standard applicable to a motion for judgment at the close of plaintiff's case. R. 4:37-2(b); Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Even accepting plaintiff's evidence as true and according him the benefit of all favorable inferences, we agree with Judge Brennan that plaintiff's proofs were insufficient to establish proximate cause, even under the more lenient standard set forth in Gardner, supra, 150 N.J. at 375 (a plaintiff with a pre-existing condition must show that the defendant's malpractice increased plaintiff's risk of harm from the pre-existing condition and that the increased risk of harm was a substantial factor in causing the injury plaintiff sustained).
Dr. Fuhrman opined that Dr. Renda should have referred plaintiff to specialists. But he did not explain what additional tests or examinations those doctors would have performed, and how and why their additional tests or examinations would likely have revealed the infection. Absent that information, he rendered a net opinion, at least on the issue of proximate cause. See Buckelew v. Grosbard, 87 N.J. 512, 524 (1981). Moreover, Dr. Hodosh, who evidently was retained to provide an opinion about malpractice by Dr. Manzo, only rendered testimony relevant to Dr. Manzo's deviation and its impact on plaintiff.
Plaintiff's trial proofs in this case were patently inadequate, and plaintiff's appellate arguments concerning the motion to dismiss are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We affirm the order on appeal, substantially for the reasons stated in Judge Brennan's cogent opinions.
In light of our determination, we need not address plaintiff's additional appellate arguments concerning evidence of his alcoholism.