SANDRA NICHOLAS and CORY LEO, individually and as Administrators Ad Prosequendum of the ESTATE OF SANTINO MICHAEL LEO, Plaintiffs-Appellants,
HACKENSACK UNIVERSITY MEDICAL CENTER, Defendant-Respondent, and BRUCE FRIEDMAN, M.D., MARK SIEGEL, M.D., STEPHEN PERCY, M.D., and ABRAHAM ZERYKIER, M.D., Defendants.
January 16, 2018
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-4839-12.
William L. Gold argued the cause for appellants (Bendit
Weinstock, PA, attorneys; William L. Gold, on the briefs).
Richard J. Mirra argued the cause for respondent (Hoagland,
Longo, Moran, Dunst & Doukas, LLP, attorneys; Richard J.
Mirra, of counsel and on the brief; Andrew J. Obergfell, on
Judges Messano, Accurso and Vernoia.
Sandra Nicholas and Cory Leo, individually and as
administrators ad prosequendum of the estate of their
four-year-old son Santino Michael Leo, appeal from orders
resulting in the dismissal of their medical malpractice
action against defendant Hackensack University Medical Center
(HUMC). We reverse.
suffering seizures, Santino Michael Leo was admitted to HUMC
on April 30, 2011. While in HUMC's pediatric intensive
care unit (PICU), it was determined he had an airborne
infection, methicillin-resistant staphylococcus aureus, and
pneumonia. He developed acute respiratory distress, multiple
organ failure and sepsis, and passed away on May 13, 2011.
2012, plaintiffs filed a wrongful death and survivorship
medical malpractice complaint against HUMC, the child's
treating physicians, Dr. Bruce Friedman, Dr. Stephen Percy,
and Dr. Mark Siegel,  and fictitiously-named physicians, nurses
and other HUMC staff. At the time of the malpractice alleged
in the complaint, each of the named physicians was board
certified in pediatrics and in pediatric critical care.
support of their complaint, plaintiffs filed affidavits of
merit (AOM) from Dr. Howard Eigen, and Alisha Wursten, R.N.,
B.S.N. In his AOM, Dr. Eigen states he is a licensed
physician in the state of Indiana, "board certified and
credentialed by a hospital for at least five years in the
[sub]specialties of pediatric pulmonology and critical
care" and, "[d]uring the year immediately preceding
the date of the occurrence that is the basis of the claim or
action, . . . devoted a majority of [his] professional time
to the active clinical practice of pediatric pulmonology and
critical care." Dr. Eigen subsequently provided three
reports opining as to the alleged deviations from the
standard of care by Drs. Friedman, Percy and Siegel, and
other HUMC personnel,  and the manner in which the deviations
proximately caused the child's death. The parties waived
the Ferreira conference.
three years later, Dr. Eigen testified during his March 2015
deposition that he was board certified in pediatrics and in
the subspecialty of pediatric critical care, and in 2011 was
credentialed at the Riley Hospital for Children to practice
pediatric and pediatric critical care medicine. He also
testified that from 2006 through 2011, he served as the
medical director of the hospital's PICU, and was on call
approximately ten weeks per year providing care to the PICU
patients. When he was not on call, Dr. Eigen administered the
PICU and served as the vice-chairman of pediatrics for
clinical affairs. Dr. Eigen testified that between 2006 and
2011 he devoted twenty-five percent of his time to direct
patient care in the PICU, fifty percent to administrative
duties and twenty-five percent to seeing outpatients and
teaching residents in the outpatient clinics.
Friedman, Percy and Siegel moved for summary judgment,
arguing plaintiffs lacked proof they deviated from the
requisite standard of care because Dr. Eigen was not
qualified to testify as an expert under the New Jersey
Medical Care Access and Responsibility and Patients First
Act, N.J.S.A. 2A:53A-37 to -42. The physicians claimed Dr.
Eigen was not qualified to testify because he did not devote
the majority of his professional time to clinical practice
during the year preceding the alleged malpractice in 2011,
and therefore did not satisfy the requirements of N.J.S.A.
written opinion, the court noted the physicians' summary
judgment motions presented the following issue: "whether
[p]lainiffs' proffered expert[, Dr. Eigen, ] is qualified
as an expert under N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A.
2A:53A-41(a)(2) as required under Nicholas v.
Mynster, 213 N.J. 463 (2013)." The court determined
that although Dr. Eigen is board certified in pediatrics and
pediatric critical care, he did not satisfy the requirements
of either N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A.
2A:53A-41(a)(2)(b), "which require either devotion to
practice or the teaching requirement mandated for a board
certified expert." The court concluded Dr. Eigen did not
satisfy the statutory requirements because he "only
devoted a small percentage of his practice time to pediatric
critical care in the year prior to the date of the alleged
separate orders dated September 22, 2015, the court barred
Dr. Eigen's testimony against Drs. Siegel and Friedman,
and granted summary judgment in their favor, and barred Dr.
Eigen's testimony against Dr. Percy. Two weeks later, the
court entered an order granting Dr. Percy summary judgment.
October 2015, plaintiffs moved for an order permitting Dr.
Eigen to testify as to the standard of care and causation
against HUMC. Plaintiffs argued the court's order barring
Dr. Eigen's testimony as to the defendant physicians
under the Patients First Act did not preclude him from
testifying as an expert against HUMC.
hearing argument, the court denied the motion in a December
11, 2015 order. In its written opinion, the court noted
plaintiffs' liability claims against HUMC were premised
on the hospital's alleged vicarious liability for the
negligence of the defendant physicians, who the court found
were "employees of HUMC. The court reasoned that its
prior disqualification of Dr. Eigen as an expert against the
physicians precluded his testimony against the hospital, and
found it could not "allow [p]laintiff[s] to bootstrap
into evidence the excluded testimony of [the] dismissed
defendant doctors['] deviation [from] the standard of
care under the circumstances." The court determined that
plaintiffs could not use Dr. Eigen's testimony to support
their claim HUMC is liable due to the defendant
physicians' deviation from the standard of care because
Dr. Eigen was not qualified to testify concerning the
physicians' alleged negligence under the Patients First
Act. The court concluded Dr. Eigen was not permitted to
testify as to HUMC's alleged deviation from the standard
of care "because it would violate the rule of N.J.S.A.
2A:53A-41(a) et. seq."
filed a motion to correct the court's December 11, 2015
order to permit Dr. Eigen to offer proximate causation
testimony as to HUMC. In a February 11, 2016 order, the court
denied the motion. In its written opinion, the court found
Dr. Eigen's proximate causation testimony would be
"unduly prejudicial under the circumstances of this
case" because he "disavowed" offering standard
of care opinions as to HUMC in his reports and deposition. In
addition, the court found that permitting Dr. Eigen to
testify about proximate causation would be unduly prejudicial
to HUMC because the court's order barring his testimony
as to the defendant physicians would necessarily preclude
HUMC from cross-examining Dr. Eigen about the physicians'
alleged deviations from the standard of care.
February 17, 2016, HUMC moved for summary judgment claiming
plaintiffs lacked expert testimony establishing proximate
causation. Plaintiffs cross-moved to allow late service of an
expert report from Dr. Emily Dawson and substitution of Dr.
Dawson for Dr. Eigen as their expert. Plaintiffs argued that
late submission of the report should be permitted because
they could not have anticipated what they characterized as
the court's "novel" rulings barring Dr.
Eigen's testimony, and because Dr. Eigen retired and was
no longer available.
3, 2016, the court denied plaintiffs' cross-motion,
finding their need for a new expert was the result of their
failure to comply with N.J.S.A. 2A:53A-41, and their request
was made too late - a year and a half after the discovery end
date and following seven scheduled trial dates. The court
granted HUMC's summary judgment motion, finding
plaintiffs lacked an expert on proximate cause that was
essential to their malpractice claim. On ...