JOHNNY MEDINA v. CEASAR G. PITTA, M.D., ANTHONY L. PANARIELLO, M.D., BETTY A. CERVENAK, M.D. and PALISADES EYE ASSOCIATES, and RIVERSIDE SURGERY & LASER CENTER and CLARA MAASS MEDICAL CENTER
DOCKET NO. A-5023-12T1
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
August 11, 2015
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION. APPROVED FOR PUBLICATION August 11, 2015.
Argued October 6, 2014 – Decided August 11, 2015
Before Judges Espinosa, St. John and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5532-11.
Paul
Christine M. Jones argued the cause for respondent Ceasar G. Pitta, M.D. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Ms. Jones, on the brief).
Erica C. Avondoglio argued the cause for respondents Anthony L. Panariello, M.D., Betty A. Cervenak, M.D. and Palisades Eye Associates (Giblin & Combs, LLC, attorneys; Ms. Avondoglio, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In this medical malpractice action, plaintiff retained an expert who was “fully retired” before any of the defendant physicians treated him. Plaintiff appeals from an order granting summary judgment to defendants on the ground that, pursuant to the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA),
I.
A.
Plaintiff, a diabetic, was referred to defendants in October 2007 by his endocrinologist because he was seeing spots. The vision in his right eye was 20/40 and in his left eye was 20/50. He was diagnosed with proliferative diabetic retinopathy, which means he had retinal changes in both eyes due to diabetes.
It is unnecessary to give a detailed account of plaintiff‘s treatment history with defendants. Over the course of the years following plaintiff‘s first appointment on October 10, 2007, Dr. Ceasar G. Pitta performed a number of procedures on plaintiff, beginning with a vitrectomy on the left eye and laser treatment on the right eye on October 16, 2007. He later performed these procedures on the right eye on multiple occasions: November 17, 2009, January 19, 2010, April 20, 2010, and January 25, 2011. Dr. Anthony L. Panariello performed what he described as a “complex cataract surgery” on plaintiff‘s right eye on January 5, 2011. There were no complaints relative to a retinal detachment in the first post-operative visit. However, when plaintiff saw Dr. Leonard Feiner on
B.
The amended complaint, filed in November 2011, alleged that Dr. Pitta, Dr. Panariello, Betty A. Cervenak, M.D., and Palisades Eye Associates were negligent in the care provided to plaintiff during the time period from 2007 to 2011.3
In his October 24, 2011 expert report, Dr. Peter H. Morse opined, “Mr. Medina lost the sight in his right eye because of inadequate and dilatory treatment by Dr. Pitta. Drs. Panariello and Cervenak were also negligent in caring for the patient but to a lesser degree.” He stated that, as of plaintiff‘s first appointment with Dr. Pitta in October 2007, “his eyes were eminently salvageable with adequate and timely treatment” and remained so in January 2009. At his deposition, Dr. Morse also stated that plaintiff‘s eye was still “eminently salvageable with laser treatment” in July 2009.
Dr. Morse acknowledged that Dr. Pitta‘s treatment notes from July 2009 reflect that he recommended laser treatment to plaintiff and that “[p]atient wishes to defer treatment.” Dr. Morse agreed that plaintiff did not want laser treatment at that time and did not return to Dr. Pitta until November 2009. Dr. Morse testified he thought plaintiff‘s eye still remained salvageable in November 2009. He stated further that the vitrectomy with laser treatment performed by Dr. Pitta in November 2009 was the proper treatment and, in fact, there was some restoration of vision as of December 2009. Dr. Morse testified that his report contained all his opinions with regard to deviations from the standard of care.
Dr. Morse was also questioned about the earliest dates that Dr. Panariello and Dr. Cervenak deviated from accepted standards of care. He identified October 25, 2010 as the date of Dr. Panariello‘s first deviation from standards of medical care. He did not find any deviations in care in the cataract surgery performed by Dr. Panariello on January 5, 2011. Turning to Dr. Cervenak, Dr. Morse stated, “essentially, she only had one visit on the 20th of October 2010.” He testified that, despite Dr. Cervenak‘s recommendation that plaintiff have a cataract extraction, she deviated from accepted standards of medical care because she failed to order a B-scan and make sure plaintiff had follow-up for the inflammation in his eye.
C.
In December 2011, each of the defendants filed answers and demanded an affidavit of merit (AOM),
Plaintiff served an AOM, dated November 7, 2011, prepared by Dr. Morse, along with a copy of his curriculum vitae. Dr. Morse‘s curriculum vitae states he is board certified in ophthalmology. The list of hospital and administrative appointments ends with the following:
1993-Present Staff Physician
McKennan Hospital
Sioux Falls, SD
1993-Present Staff Physician
Sioux Valley Hospital
Sioux Falls, SD
However, Dr. Morse was not a staff physician at either hospital at the time his curriculum vitae was provided to defendants as a “current resume.”
According to the parties, the trial court held a Ferreira5 conference on February 15, 2012, where plaintiff‘s counsel represented that he served an AOM and expert report written by Dr. Morse, a board certified ophthalmologist, and defendants posed no objections to his report or qualifications.6
Dr. Panariello and Dr. Cervenak did not identify themselves as specialists in their answers. The curriculum vitae provided with their answers to interrogatories stated they were board certified in ophthalmology. Those answers were served on March 16, 2012, approximately one month after plaintiff was required to serve an AOM.
A case management order, dated July 26, 2012, set September 2, 2012 as the final date for the service of expert reports on behalf of plaintiff.
At his deposition on January 10, 2013, Dr. Morse testified he had “fully retired” on January 1, 2007. Since that time, he had not treated any patients or had privileges at any hospitals. He had not instructed any students in an accredited medical school, health professional school, accredited residency or clinical research program for six months to one year before his retirement. When asked for an updated curriculum vitae, Dr. Morse replied, “There has not been an updating in 20 years, and there isn‘t going to be.”
D.
Plaintiff did not file any motion to be permitted to obtain a new expert or extend the discovery end date. A motion for summary judgment was filed on behalf of Dr. Cervenak and Dr. Panariello on or about January 24, 2013, arguing that Dr. Morse did not meet the qualification requirements of the PFA to provide expert testimony on the applicable standard of care. Dr. Pitta‘s motion for summary judgment was filed on or about February 22, 2013. Plaintiff‘s opposition was limited to a letter in which he merely asserted that Dr. Morse‘s credentials satisfied the requirements of
Plaintiff filed a motion for reconsideration in which he maintained Dr. Morse was qualified to testify as an expert witness. He also contended, for the first time, that the doctrines of substantial compliance and extraordinary circumstances warranted a dismissal without prejudice. At oral argument on this motion, plaintiff‘s counsel stated he had intended to raise these issues at oral argument of the summary judgment motions, which he did not attend. Counsel also admitted that when he first called him, Dr. Morse advised him that he was retired “somewhere around 2007” and asked if that would be a problem. Counsel replied that he would look into it but that he did not think so.8
The motion judge denied the motion for reconsideration and set forth his reasons in a written opinion.
II.
Plaintiff raises a number of arguments for our consideration in his appeal. We turn to the central question here, whether Dr. Morse was qualified, pursuant to the requirements of the PFA, to testify on the appropriate standard of care applicable to each of these defendants. We conclude that he was not.
The qualification and competency of a witness to provide expert testimony are matters that lie within “the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion.” Carey v. Lovett, 132 N.J. 44, 64 (1993). The trial court‘s discretion “can, of course, be guided by statute.” Ryan, supra, 203 N.J. at 50.
Any expert testimony proffered by plaintiff was subject to the PFA, which established enhanced qualification requirements for experts who provide testimony or execute AOMs in medical malpractice cases.9 The requirements vary, depending upon whether the defendant physician is a
A.
We first consider the qualification requirements for expert testimony against Dr. Pitta. Plaintiff argues that the PFA does not define “specialized” and does not require experts to be credentialed by a hospital, engaged in active clinical practice or involved in the instruction of students to testify against specialists, such as Dr. Pitta, who are not board certified. Therefore, he contends Dr. Morse satisfies the requirements of the PFA. This argument lacks merit.
The PFA explicitly refers to specialties and board certifications “recognized by the American Board of Medical Specialties [(ABMS)] or the American Osteopathic Association [(AOA)].”
Further, we agree with the motion judge that the statute requires “contemporaneity,” meaning the proposed expert must actively practice in the specialty at the time of the alleged deviation to satisfy the qualification requirements of subsection (a). In Ryan, the Court explained what the requirements were for application of the waiver provision,
For example, where the defendant is a specialist or subspecialist, the person providing the testimony against him “shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty[.]”
N.J.S.A. 2A:53A-41(a) (emphasis added). Further, where the defendant is board certified, the witness against him must also be board certified in thesame specialty or subspecialty and ”during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to” active clinical practice or teaching of the specialty or subspecialty. N.J.S.A. 2A:53A-41(a)(2) (emphasis added). Likewise, where the defendant is a general practitioner, the expert witness, ”during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to” teaching or to active clinical practice as a general practitioner or in a practice that encompasses the medical condition or includes performance of the procedure at issue.N.J.S.A. 2A:53A-41(b) (emphasis added).[Id. at 57-58.]
To satisfy the “strict time limit” requirement applicable for testimony against Dr. Pitta, a proposed expert had to practice in the specialty of ophthalmology at the time of the alleged deviation. Dr. Morse was vague as to when such deviation occurred, stating plaintiff‘s vision loss was caused by Dr. Pitta‘s “inadequate and dilatory treatment,” but conceded that plaintiff‘s vision remained salvageable as late as November 2009. Even if plaintiff is afforded all favorable inferences, the alleged delay in treatment could occur no earlier than Dr. Pitta‘s first appointment with plaintiff in October 2007. It is undisputed that Dr. Morse was no longer practicing in the specialty of ophthalmology at that time. Therefore, he did not meet the qualification requirements to testify as to the standard of care applicable to Dr. Pitta.
B.
Under the PFA, additional qualification requirements apply if the defendant physician, like Dr. Panariello and Dr. Cervenak, is board certified.
[I]f the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty . . . the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist . . . who is board certified in the same specialty or subspecialty . . . and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist . . . the active clinical practice of that specialty or subspecialty . . . or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist . . . an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty . . . or
(c) both.
[
N.J.S.A. 2A:53A-41(a) (emphasis added).]
Plaintiff acknowledges that Dr. Morse would not satisfy the PFA‘s additional requirements for testifying against a board certified specialist, such as Dr. Panariello and Dr. Cervenak. However, he contends
Plaintiff‘s estoppel argument was raised for the first time in plaintiff‘s motion for reconsideration. This was inappropriate. To properly contest the motions on this ground, plaintiff was required to present his argument in his written opposition to the motions. Pressler & Verniero, supra, comment 2 on
Reconsideration is to be utilized only in those cases “in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.” D‘Atria v. D‘Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In short, a motion for reconsideration provides the court, and not the litigant, with an opportunity to take a second bite at the apple to correct errors inherent in a prior ruling. Filing a motion for reconsideration does not provide the litigant with an opportunity to raise new legal issues that were not presented to the court in the underlying motion. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Despite the procedural infirmity, we consider plaintiff‘s estoppel argument and find it inapplicable to the facts in this case.
Just as “it is the duty of litigants to make a good faith effort to obtain an equivalently-qualified expert in a malpractice case,” Ryan, supra, 203 N.J. at 56, a defendant physician must comply with the requirement established in Buck, supra, 207 N.J. at 396, to alert the plaintiff to the higher standard to be met by identifying their specialty, if applicable, in the answer.
This is not a case in which the deficiency in Dr. Morse‘s qualifications relates to one of the more specialized requirements applicable to a board certified specialist. The deficiency lies in the fact he was retired and not practicing at the time of the alleged deviations in care by Dr. Panariello and Dr. Cervenak.
As we have noted, the PFA imposes “strict time limits” tied to the date of the occurrence that is the basis for the malpractice action for each of the categories of physicians. See Ryan, supra, 203 N.J. at 57. In the case of a specialist who is not board certified, the expert
III.
Plaintiff also argues that the doctrines of substantial compliance and extraordinary circumstances should apply to reverse the dismissal with prejudice. Plaintiff raised the issues of substantial compliance and extraordinary circumstances for the first time in his motion for reconsideration.12 Nonetheless, we address plaintiff‘s contention to clarify that the doctrines of substantial compliance and extraordinary circumstances do not apply when the qualifications of a witness to “give expert testimony” are measured under the PFA.
The enhanced qualification requirements of the PFA explicitly apply to both the affiant for an AOM and the expert witness a plaintiff seeks to rely upon at trial.
the analysis required to determine the appropriate disposition when the sufficiency of a proposed expert‘s qualifications is challenged differs sharply depending upon whether the issue is raised within a challenge to the sufficiency of the AOM or in a summary judgment motion.
“The core purpose underlying the [AOM] statute is to require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.” Ryan, supra, 203 N.J. at 51 (citation and internal quotation marks omitted). A “plaintiff‘s failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice.” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003) (citing
The AOM must be served “[i]n the early stages of a medical malpractice action,” and a Ferreira conference, held “within ninety days of the service of an answer,” was “intended to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit . . . .” Buck, supra, 207 N.J. at 382-83 (citing Ferreira, supra, 178 N.J. at 154-55). If an AOM was deemed to be deficient, the plaintiff would “have to the end of the 120-day time period to conform the affidavit to the statutory requirements.” Ferreira, supra, 178 N.J. at 155. Although the goal is to safeguard “otherwise worthy causes of action . . . [from being] needlessly dismissed,” Buck, supra, 207 N.J. at 383 (citing Ferreira, supra, 178 N.J. at 154-55), it is understood that under the AOM statute, “the failure to file an appropriate affidavit within the statutory time limits may result in dismissal of even meritorious cases.” Id. at 382 (citing Ferreira, supra, 178 N.J. at 154).
When the challenge targets the qualifications of a witness to testify regarding the standard of care, the analysis is governed by the summary judgment rule,
The AOM statute‘s procedural requirements apply in the earliest stage of the litigation, when discovery is almost certainly incomplete, and a dismissal for non-compliance may be warranted even if a claim has merit. In summary judgment motions, the determination as to whether a
The summary judgment motions here were filed well after the exchange of interrogatories and expert reports and the deadline set in the case management order for the production of plaintiff‘s expert reports. The motions followed the deposition of plaintiff‘s sole expert as to the standard of care and alleged deviations in care. There was no motion filed by plaintiff to extend discovery or to seek an alternative expert. It cannot be disputed that the record was ripe for summary judgment.
Similarly, there is no question that expert testimony was required for plaintiff‘s claims to succeed. “To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.” Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations omitted); accord Nicholas, supra, 213 N.J. at 478.
It is generally recognized that in the ordinary medical malpractice case the standard of practice to which [the defendant-practitioner] failed to adhere must be established by expert testimony, and that a jury generally lacks the requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.
[Rosenberg v. Cahill, 99 N.J. 318, 325 (1985) (citation and internal quotation marks omitted).]
The need for expert testimony regarding deviation from the appropriate standard is not limited to medical malpractice, but applies “in nearly all malpractice cases.” Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 362 (2004); accord Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). Moreover, “[a] party cannot defeat a motion for summary judgment merely by submitting an expert‘s report in his or her favor. In order for such a report to have any bearing on the appropriateness of summary judgment, it must create a genuine issue of material fact.” Brill, supra, 142 N.J. at 544 (citation omitted) (declaring an expert opinion “based on erroneous or nonexistent facts is worthless“); see, e.g., Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002) (“The very object of the summary judgment procedure . . . is
Without testimony from a statutorily authorized expert, plaintiff cannot establish the applicable standard of care. Therefore, summary judgment was appropriate. Nicholas, supra, 213 N.J. at 468.
The doctrine of substantial compliance may be invoked when dismissal is sought based upon deficiencies in an AOM “so that technical defects will not defeat a valid claim.” Ferreira, supra, 178 N.J. at 151 (emphasis added). It is not intended to shield a plaintiff from the dismissal of a claim that is substantively defective. Moreover, the application of the doctrine to summary judgment motions would materially erode the jurisprudence that has developed since Brill and eviscerate the remedial purpose of the PFA to establish enhanced qualification requirements for expert witnesses as part of “a comprehensive set of reforms affecting the State‘s tort liability system, health care system and medical malpractice liability insurance carriers,”
Similarly, the analysis required for a summary judgment motion does not allow for a claim of extraordinary circumstances. When a party concludes circumstances exist that would warrant relief, the appropriate course of action is to pursue remedies such as those afforded by Rules
Because the doctrines of substantial compliance and extraordinary circumstances would subvert rather than promote the remedial purpose of the PFA, we conclude these doctrines are inapplicable when summary judgment is sought based upon a failure to meet the PFA‘s enhanced qualification requirements for testifying experts.
IV.
After reviewing plaintiff‘s remaining arguments in light of the record and applicable legal principles, we conclude that the arguments raised in Points I, V, VI, VII and VIII lack sufficient merit to warrant more than the following limited discussion.
In Point I, plaintiff cites the requirements of the AOM statute that an expert be either board certified in the general area or specialty or have five years’ clinical practice in the general area of specialty. He argues that Dr. Morse is qualified to testify pursuant to these requirements because he is “currently a Board Certified Ophthalmologist and had practiced as a Board Certified Ophthalmologist from 1971 to 2007.” In Ryan, supra, 203 N.J. at 52, the Court observed that the original requirements for the affiant of an AOM set forth in the AOM statute were modified by the PFA, which “provide[d] more detailed standards for a testifying expert and for one who executes an affidavit of merit, generally requiring the challenging expert to be equivalently-qualified to the defendant.” Therefore, plaintiff‘s effort to cast Dr. Morse as a qualified expert because he meets the more generalized requirements of the AOM statute is unavailing.
In Point V, plaintiff argues that, as a result of defendants’ failure to object to Dr. Morse‘s qualifications until February 2013, the proper remedy was to permit
Plaintiff argues in Point VI that, as a result of defendants’ “misfeasance,” he was deprived of his right to oral argument on the summary judgment motions and later held to a higher standard applicable to his motion for reconsideration. Plaintiff‘s counsel, who did not appear for oral argument of the summary judgment motions, certified he was never informed of the date and time for oral arguments. He contends he was denied his right to oral argument as a result. However, counsel relocated his office on March 2, 2013, and did not inform any of the defendants of his new contact information. Moreover, plaintiff was given a full opportunity to present his arguments at the motion for reconsideration. We find no error on this record.
Plaintiff also argues the AOM statute and the PFA violate the New Jersey Constitution (Point VII) and that the statutes are invalid because the Legislature failed to follow the procedure for the adoption of rules of evidence set forth in
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Notes
if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.