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Nicholas v. Hackensack University Medical Center

Superior Court of New Jersey, Appellate Division

September 24, 2018

SANDRA NICHOLAS and CORY LEO, individually and as Administrators Ad Prosequendum of the ESTATE OF SANTINO MICHAEL LEO, Plaintiffs-Appellants,
v.
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.

          Argued January 16, 2018

          On 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 the brief).

          Before Judges Messano, Accurso and Vernoia.

          OPINION

          VERNOIA, J.A.D.

         Plaintiffs 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.

         I.

         After 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.

         In July 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, [1] 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.

         In 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, [2] and the manner in which the deviations proximately caused the child's death. The parties waived the Ferreira[3] conference.

         Almost 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.

         Drs. 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. 2A:53A-41(a)(2).

         In its 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 malpractice[.]"

         In 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.

         In 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.

         After 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."

         Plaintiffs filed a motion to correct the court's December 11, 2015 order to permit Dr. Eigen to offer proximate causation testimony as to HUMC.[4] 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.

         On 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.

         On June 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 ...


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