August 15, 2013
CALVIN ALEXANDRE AIME SY, an infant by His Mother and Natural Guardian, LILIANE VERDEROSA-SY, and LILIANE VERDEROSA-SY, individually, Plaintiffs-Appellants,
MARK J. BRESCIA, M.D., NATASHA CHINN, M.D., PALISADES MEDICAL CENTER, jointly, severally and in the alternative,  Defendants, and THOMAS A. MIGLIACCIO, M.D., Defendant-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5639-10.
E. Drew Britcher argued the cause for appellants (Britcher, Leone & Roth, L.L.C., attorneys; Mr. Britcher, of counsel; Jessica E. Choper, on the brief).
Charles E. Murray, III argued the cause for respondent (Farkas & Donohue, L.L.C., attorneys; Evelyn C. Farkas, of counsel; Jennifer S. Gianetti, on the brief).
Before Judges Sapp-Peterson and Nugent.
Plaintiffs, Calvin Alexandre Aime Sy ("Sy"), an infant, by his mother and natural guardian, Liliane Verderosa-Sy ("Verderosa-Sy"), and Verderosa-Sy, in her individual capacity, appeal from the trial court order granting summary judgment to Dr. Thomas A. Migliaccio, the only remaining defendant in this medical malpractice case. We affirm.
These are the facts, viewed most favorably towards plaintiffs. Defendant is an obstetrician and a member of a group of practitioners to whom Verderosa-Sy presented for pre-natal care and the ultimate delivery of her son Sy. Defendant was one of the doctors who attended to her during the latter stages of her pregnancy. On the evening of May 4, 2010, she was admitted to Palisades Medical Center (Palisades). Around 4:30 p.m. on May 5, Dr. Migliaccio ruptured her membranes in order to induce labor. Dr. Migliaccio's next involvement occurred around 12:30 a.m. on May 6. He examined her and determined that she had dilated seven centimeters at that time. He saw her again that morning at 7:30 a.m. and determined that her labor was progressing normally. In addition to other physicians from Dr. Migliaccio's practice group, the nursing staff at the hospital also monitored Verderosa-Sy. At 8:30 a.m., Verderosa-Sy began complaining of back pain and asked for Dr. Migliaccio. She was told that he would see her in a few minutes. She was seen, however, by Dr. Brescia at 9:10 a.m. Following his examination, Dr. Brescia instructed the nursing staff that the pushing process should be continued. The nursing staff called Dr. Migliaccio at 10:27 a.m. and he went directly to Labor and Delivery. When he arrived, Verderosa-Sy was crowning. He delivered Sy at 10:35 a.m., at which time he immediately turned Sy over to the attending pediatrician.
In October 2010, Verderosa-Sy filed a complaint against Dr. Migliaccio, Dr. Mark. J. Brescia, Dr. Natasha Chinn,  and Palisades. The complaint alleged that defendants deviated from acceptable standards of care in their treatment and care of Verderosa-Sy, resulting in injuries to her and to Sy.
On January 28, 2011, plaintiffs served an Affidavit of Merit prepared by Dr. Joshua Holden, a board certified obstetrician and gynecologist. In the affidavit, Dr. Holden opined that defendants "deviated from acceptable obstetrical standards of care in their management of the labor course of Liliane Verderosa-Sy and the indirect treatment rendered to the infant, Calvin Alexandre Aime Sy." The doctor stated further that the deviations occurred, among other times, "during the course of labor and particularly in the monitoring of the fetal heart tracings." Dr. Holden additionally expressed the opinion that
within a reasonable degree of medical certainty, the fetal heart rate pattern shows signs of distress beginning on May 6, 2010 at 9:23 a.m. with decelerations down to 60 for 3 minutes, at 9:31 a.m. for 10 minutes, 9:44 a.m. for 13 minutes, 9:57 a.m. for 6 minutes with a decrease in variability afterwards. There is no documentation in the records of whether Pitocin was still being used; there is no documentation of intervention, i.e. shutting the Pitocin, fetal scalp electrode placement, operative delivery and/or cesarean section. In my opinion the continued distress evidenced on the fetal monitoring strips warranted immediate cessation of Pitocin drip and placement of fetal scalp electrode. Certainly by 10:20 a scalp electrode should have been placed, Pitocin stopped, patient rotated to left side with careful attention paid to the infant[']s ability to recover. This should have been followed by an immediate abdominal delivery or at the very least a timely instrument assisted delivery.
I further opine within a reasonable degree of medical probability, that the labor curve was also prolonged and there is no supporting documentation or explanation as to why this patient was allowed to labor so long. Liliane Verderosa-Sy was examined on May 5, 2010 at 11:25 p.m. and was found to be 7cm. On May 6 at 4:15 a.m., she was 8 to 9cm and then when rechecked at 5:45, proper standards would have been to deliver this baby by 6:00 or 6:30. This labor stage is abnormally long as there is no documentation of intrauterine pressure catheter placement or other intervention, including Pitocin titration or cesarean section.
I opine, within a reasonable degree of medical probability that . . . Dr. Thomas Migliaccio . . . deviated from good and accepted obstetrical standards of care in failing to perform a scalp electrode placement; in failing to stop the Pitocin; in failing to place Liliane Verderosa-Sy on her left side in causing and permitting prolonged stages of labor; in failing to perform an instrument assisted delivery; and in failing to perform an abdominal delivery. These deviations were all substantial factors in causing prolonged fetal distress, meconium aspiration, hypoxia and the resultant severe injuries and residual effects sustained by the infant. Accordingly, this represents a departure of good and accepted obstetrical practice which were significant factors in the injuries sustained by the infant, Calvin Alexandre Aime Sy.
Additionally, I opine that [Dr. Thomas Migliaccio] . . . deviated from good and accepted obstetrical and pediatric procedure in the delivery room, in the failure to immediately resuscitate and alleviate ongoing aspiration of meconium. Instead the defendant's placed the baby on the mother thus causing delays in the management of distressed infant and aggravating the already prolonged fetal distress.
On February 8, 2011, the court entered a case management order in which the court noted that the Affidavit of Merit had been served, with only Palisades having a potential objection to it. The order, among other things, directed that paper discovery be completed within "ninety (90) days, " depositions completed within "one hundred fifty (150) days" and that "final expert reports for the plaintiff on all issues shall be served within two hundred twenty (220) days."
In January 2012, plaintiffs served certified answers to interrogatories propounded upon them. In response to Interrogatory Number 9, Form A(1), requesting the identity of plaintiffs' expert witnesses, plaintiffs annexed the Affidavit of Merit and curriculum vitae of Dr. Holden. The court conducted a second case management conference on January 12, 2012. Following the conference, the court entered an order directing that "final expert reports for the plaintiff on all issues shall be served by April 13, 2012." Thereafter, in March 2012, plaintiffs executed stipulations of dismissals against Dr. Brescia and Palisades followed by a similar stipulation of dismissal for Dr. Chinn in April. Dr. Migliaccio was the only remaining defendant at that point.
On April 17, four days after plaintiffs' experts' reports on all issues were due, defendant filed a motion seeking summary judgment on the basis that plaintiffs had failed to serve an expert report critical of defendant's care and treatment. Plaintiffs opposed the motion and also filed a cross-motion seeking an order extending the time in which plaintiffs could serve final expert reports. Plaintiffs filed a supplemental certification opposing the motion and, in support of their cross-motion, included Dr. Holden's most recent report dated May 3, 2012 and the doctor's curriculum vitae. Defendant filed a response to plaintiffs' most recent submissions, to which plaintiffs filed a sur-reply that included excerpts from the deposition testimony of Dr. Brescia.
The court conducted oral argument on June 15. Defendant's chief argument was that it was undisputed that "the time frame that the plaintiff[s'] expert was criticizing begins at 9:20 a.m. on the date of delivery[, ]" and that it was undisputed that defendant was never contacted by the nursing staff during this time period. Plaintiffs argued, however, that the critical time period was not confined to 9:20 a.m. Rather, plaintiffs' expert opined that Verderosa-Sy was in prolonged labor much earlier, that Sy should have been delivered no later than 6:00 a.m., and that defendant saw Verderosa-Sy at 7:00 a.m. and did nothing. Counsel additionally argued the records revealed that Verderosa-Sy complained of back pain around 8:30 a.m. the morning of May 6, asked for defendant, was told that he would see her in a few minutes, but that defendant never saw her until shortly before she gave birth, effectively abandoning his patient.
Upon conclusion of oral argument, the court granted defendant's motion, placing its reasons on the record. The court concluded that Dr. Holden intended that his May 3, 2012 report serve as his expert report, not the Affidavit of Merit, and reasoned that had the doctor intended otherwise, "he could have simply photocopied his Affidavit of Merit and supplied that as his report." The court further explained:
He clearly took caution in asserting what it was that he believed. He excluded the information that had to do with everything that led up to the time frame during the delivery and the moments immediately before.
And that does not appear to be an oversight by the doctor. This [c]ourt takes the view that it was clear that two years later, after considering all the evidence that had been submitted to him, reviewing all the reports and things that he looked at, that he narrowed his scope and determined that the cause of action was as he related in his report.
In support of that finding, the [c]ourt indicates that in his first paragraph he indicates that he reviewed the case of Alexandre-Verderosa-Sy, and he reviewed the anticardium record, the fetal heart rate tracings, the inpatient records of the patient, the labor and delivery, the inpatient records of the baby boy while admitted at Palisades Medical Center and Jersey City Medical Center. And he's also reviewed the examination before trial of Dr. Migliaccio.
Based on that information, it is clear to the [c]ourt that his determination is exclusively listed in his report of May 3rd 2012. And based on that information — and it's not disputed — Dr. M. was simply not present and not notified at all during the time that the issue that became an issue, became an issue.
Turning to plaintiffs' cross-motion to extend time to permit plaintiffs an opportunity to submit a final report, the court inquired whether counsel "had not had the opportunity to otherwise do what it is that [counsel] sought to do at that point?" Plaintiffs' counsel responded that the "Affidavit of Merit didn't include things that the final expert report should include, such as . . . time reviewing the case, his fee for the report, and case review, his bill, his EBT testimony, his fee for testimony at trial. None of that was in the Affidavit of Merit." Plaintiffs' counsel also indicated that extending time to permit service of a final report would permit filling in "anything that was missing from the Affidavit of Merit." Based upon those representations, the court determined that plaintiff had not provided anything "persuasive" to warrant granting a further extension and therefore denied the motion. The present appeal followed.
On appeal, plaintiffs raise the following points for our consideration.
SUMMARY JUDGMENT WAS INAPPROPRIATELY GRANTED BECAUSE PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE CASE OF MEDICAL MALPRACTICE AGAINST DEFENDANT DR. THOMAS MIGLIACCIO.
THE TRIAL JUDGE FAILED TO UTILIZE THE CORRECT STANDARD IN RULING UPON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.
A. THE TRIAL COURT FAILED TO RECOGNIZE THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACTS THAT SHOULD HAVE PRECLUDED THE GRANT OF SUMMARY JUDGMENT.
B. THE TRIAL COURT FAILED TO VIEW THE RECORD IN THE LIGHT MOST FAVORABLE TO PLAINTIFF [AND] ERRONEOUSLY RULED THAT THE OPINIONS SET FORTH BY DR. HOLDEN IN HIS AFFIDAVIT OF MERIT WERE REPUDIATED BY HIM IN HIS MAY 3, 2012 REPORT.
C. THE TRIAL COURT FAILED TO SET FORTH FACTUAL FINDINGS AND CORRELATE THEM TO LEGAL CONCLUSIONS.
THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN N.J.R.E. 104 EVIDENTIARY HEARING PRIOR TO IMPOSING THE DRASTIC MEASURE OF DISMISSING PLAINTIFFS' COMPLAINT WITH PREJUDICE.
THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' CROSS-MOTION SEEKING ADDITIONAL TIME TO SERVE PLAINTIFFS' EXPERT REPORTS.
We have considered the arguments advanced in light of the record and applicable legal principles and reject each of the points advanced. We are satisfied that when reviewed under the appropriate standard of review, plaintiffs have presented no facts which established genuinely disputed issues of material fact that require resolution by a jury.
When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J.Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J.Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J.Super. 597, 601 (App. Div. 2007).
Plaintiffs urge that when the May 3, 2012 expert report and Affidavit of Merit are considered together, genuinely disputed issues of material fact arise. We disagree.
In the Affidavit of Merit, Dr. Holden characterizes Verdorosa-Sy's labor stage as abnormally long and that proper standards would have been to deliver Sy by 6:00 a.m. or 6:30 a.m. He also opines that the failure to "immediately resuscitate and alleviate ongoing aspiration of meconium by placing the baby on the mother and thereby causing delays in the management of a distressed infant and aggravating the already prolonged fetal distress" evidences further deviations, which caused severe injuries to Sy. In his report, which plaintiffs' counsel described as a final report in the May 3, 2012 letter accompanying the report, Dr. Holden states:
The fetal heart tracings show significant abnormalities beginning at 9[:]20AM. After that time until delivery, at 10[:]35AM, the tracings are discontinuous for very long stretches of time and the short parts that are visible show Category 3 elements with minimal variability. The obstetrical team deviated from the standard of care by not addressing the fetal heart rate tracing during this crucial time period. There is no documentation by the nurse acknowledging the severity of the tracing and of actions taken to discontinue the Pitocin and to discontinue the pushing efforts of the mother. There is no documentation notifying the responsible physician or his partners or the Laborist at the hospital of the fetal heart rate tracing. The physician should have been in the room with the patient, beginning at 9[:]20AM, and placed a fetal scalp electrode and stopped the maternal pushing efforts in order to better assess the fetal wellbeing. Also plans to expedite delivery with vacuum forceps or cesarean section should have been discussed with the patient.
When the facts are viewed in the light most favorable to plaintiffs, it is nonetheless undisputed that Dr. Holden expressed the opinion that the critical time period when the deviations occurred, which were causally related to the resulting injuries, commenced at 9:20 a.m. on May 6, 2010. It is also undisputed that Dr. Migliaccio was not contacted at that time or thereafter until 10:30 a.m. Thus, there is nothing in the expert report causally linking any deviation from the standard of care to Dr. Migliaccio.
Moreover, even assuming, as plaintiffs urge, that Dr. Holden intended that his Affidavit of Merit and expert report be considered together, the affidavit reiterates that the fetal heart rate showed signs of distress commencing at 9:23 a.m., once again, at a time when Dr. Migliaccio was not present nor had been contacted.
Insofar as the contention contained in Paragraph Seven of the affidavit in which Dr. Holden states that Verderosa-Sy's labor curve was prolonged and that "proper standards would have been to deliver this baby by 6:00 or 6:30[, ]" no standards are identified. An expert's opinion must be based on "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.'" Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). Expert opinion not supported by factual evidence or other data is considered a "net opinion" and is inadmissible. Ibid. To avoid presenting a "net opinion, " the expert must "give the why and wherefore of his or her opinion, rather than a mere conclusion." Ibid. (quoting Townsend, supra, 186 N.J. at 494). Dr. Holden's Affidavit of Merit fails to give the "why and wherefore" that "proper standards would have been to deliver Sy by 6:00 a.m. or 6:30 a.m." and the "final report" makes no reference to this time period as establishing a deviation causally related to the resulting harm. Consequently, defendant was entitled to the grant of summary judgment as a matter of law.
Finally, we discern no abuse of discretion in the court's denial of plaintiffs' request to submit a second final report. See Bender v. Adelson, 187 N.J. 411, 428 (2006) (holding that an appellate court reviews a denial of a motion to extend discovery under an abuse of discretion standard). The court specifically posed the question that if counsel "honestly believe[d] that the Affidavit of Merit serves the same purpose as a report, and you believe it is admissible at trial, then what would be the point in extending the time for you to have a final report completed?" In response, plaintiffs' counsel explained that the Affidavit of Merit did not include the expert's "time reviewing the case, his fee for the report and case review, his bill, his EBT testimony, his fee for testimony at trial. None of that was in the Affidavit of Merit." An extension of discovery to permit plaintiffs to fill in these omissions in the second final report would not affect the substantive deficiencies in Dr. Holden's Affidavit of Merit. Hence, the opinions expressed in the Affidavit of Merit, the only document that could remotely establish a prima facie case of negligence against Dr. Migliaccio, would remain a net opinion.