KIM GLUCKER VS. ROBERT BARBALINARDO, M.D. (L-2373-13, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3567-15T2
KIM GLUCKER and OYVIND
KARLSEN, her husband,
Plaintiffs-Appellants,
v.
ROBERT BARBALINARDO, M.D., and
MONTCLAIR SURGICAL ASSOCIATES,
Defendants-Respondents.
————————————————————————————————————
Argued September 12, 2017 – Decided September 26, 2017
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-2373-
13.
Ernest P. Fronzuto argued the cause for
appellants (Fronzuto Law Group, attorneys; Mr.
Fronzuto, of counsel and on the briefs; Casey
Anne Cordes, on the briefs).
Louis A. Ruprecht argued the cause for
respondents (Ruprecht Hart Weeks &
Ricciardulli, LLP, attorneys; Daniel B.
Devinney, on the brief).
PER CURIAM
In this medical malpractice case, plaintiffs Kim Glucker and
her husband, Oyvind Karlsen,1 appeal from the March 18, 2016 Law
Division order granting the summary judgment dismissal of their
claims against defendant Robert Barbalinardo, M.D., a board-
certified general surgeon, and his surgical group, defendant
Montclair Surgical Associates, P.A. Plaintiffs also appeal from
an order, entered the same day, which denied their cross-motion
for waiver, pursuant to N.J.S.A. 2A:53A-41(c).2 Plaintiffs filed
suit after plaintiff suffered a ruptured spleen during a routine
colonoscopy performed by defendant. Because we conclude
plaintiffs satisfied the good faith standard of the waiver
provision of the Patients First Act, we reverse both orders under
review and remand for trial.
1
For ease of reference, we refer to Kim Glucker individually as
plaintiff and Dr. Barbalinardo as defendant.
2
N.J.S.A. 2A:53A-41(c) is part of the New Jersey Medical Care
Access and Responsibility and Patients First Act (Patients First
Act or Act), N.J.S.A. 2A:53A-37 to -42. One provision of the Act,
N.J.S.A. 2A:53A-41, "'establishes qualifications for expert
witnesses in medical malpractice actions' and 'provides that an
expert must have the same type of practice and possess the same
credentials, as applicable, as the defendant health care provider,
unless waived by the court.'" Nicholas v. Mynster, 213 N.J. 463,
479 (2013) (quoting Assembly Health & Human Services Committee,
Statement to Assembly Bill No. 50 at 20 (Mar. 4, 2004)). Commonly
referred to as "the waiver provision," N.J.S.A. 2A:53A-41(c)
"allows an alternative to the kind-for-kind specialty requirement
if a plaintiff has made a good faith effort but failed to identify
an expert physician in the specialty area available to testify."
Id. at 484.
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I
These are the most pertinent facts. On December 5, 2011,
plaintiff went to defendant for a routine colonoscopy. Defendant,
a board-certified general surgeon who performs colonoscopies, does
not have a sub-specialty. Plaintiff alleges that defendant
negligently ruptured her spleen during the course of the
colonoscopy. Following the colonoscopy, plaintiff experienced
increasing abdominal pain and went to the emergency room at
Mountainside Hospital, where doctors diagnosed an injury to her
spleen. On December 6, 2011, surgery to repair the injury proved
unsuccessful, and the next day, plaintiff underwent an exploratory
laparotomy and the removal of her spleen. Plaintiff remained in
intensive care until December 11, and went home on December 12,
2011.
After plaintiffs filed their complaint, they timely served
an affidavit of merit (AOM) from a general surgeon, Peter Sarnelle,
M.D., and an AOM from a gastroenterologist, Maxwell Chait, M.D.
Plaintiffs then moved to confirm that both experts qualified to
submit AOMs, pursuant to N.J.S.A. 2A:53A-41. On October 25, 2013,
the court ruled that Dr. Sarnelle's AOM satisfied plaintiffs' AOM
requirements, but that Dr. Chait's AOM did not.
In March 2014, Dr. Sarnelle withdrew as an expert due to
illness. On February 9, 2015, plaintiffs served two reports from
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proffered experts: Dr. Chait and an infectious disease expert,
Richard K. Sall, M.D.
On February 18, 2015, defendants filed a motion to bar the
report of Dr. Chait. Plaintiffs filed a cross-motion to allow for
an exception under N.J.S.A. 2A:53A-41(c). The motion judge barred
Dr. Chait from testifying as an expert and denied plaintiff's
cross-motion for an exception. However, the judge extended
discovery for ninety days and advised plaintiffs' counsel he could
return to have the court further address his request for an
exception, after completing additional searching for a replacement
expert.
On July 7, 2015, plaintiffs' counsel again filed a motion to
permit a waiver under N.J.S.A. 2A:53A-41(c), citing a "good faith"
effort since "none of the seventeen (17) potential surgical
experts" he contacted "were able to provide an opinion in this
matter." On August 7, 2015, the same judge heard oral argument,
initially found that plaintiffs "technically . . . met" the
requirements of N.J.S.A. 2A:53A-41(c) by "checking off the boxes."
However, the judge expressed concern that the certification of
plaintiffs' counsel lacked details about why the seventeen other
potential doctors could not serve as experts, and thus, he could
not discern a "good faith effort." On these grounds, the judge
denied the motion, but gave plaintiffs' counsel thirty days to
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provide a supplemental certification, explaining, "I want more
information on why the experts turned you down."
On September 1, 2015, plaintiffs' counsel submitted a
supplemental certification, detailing his extensive efforts to
secure a substitute expert for Dr. Sarnelle. These efforts
"included contacting attorney acquaintances, contacting the
memberships of attorney organizations and contacting a service
[which] finds experts for medical malpractice review." While the
expert witness service had fifty-eight general surgeons in its
databank, "most were excluded immediately since they do not perform
screening colonoscopies." The seven general surgery experts who
did perform colonoscopies "were all sub-certified in colo-rectal
surgery."
Plaintiff's counsel then contacted a second expert witness
referral service, which had forty-nine active general surgery
experts in its database. None of the experts proved capable of
providing the required testimony. Plaintiff's counsel then
summarized his efforts to obtain a substitute board-certified
general surgeon expert:
In all, my firm has contacted colleagues,
attorney organizations and two expert referral
services, which represents a broad cross-
section of referral sources for a medical
expert referral. From the expert referral
services alone, we know that over 100 general
surgery experts were considered; however they
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did not meet the case specific qualification
requirements. This, of course, does not
include the pool of general surgery experts
that cannot be quantified from colleagues and
attorney organization contacts, which
informally reviewed their potential general
surgery expert pool and determined that there
was not a fit for this case so as to not
provide a referral. Ultimately,
notwithstanding our diligent efforts, we have
been unable to locate a general surgery expert
that meets the qualifications requirements of
this case."
On November 20, 2015, the judge heard oral argument, and
remained unsatisfied with the supplemental certification and
continued to deny plaintiffs' waiver motion. The judge expressed
concerns plaintiffs were circumventing the statute, but denied
defendants' motion for summary judgment, citing "some alternatives
. . . short of summary judgment."
On February 2, 2016, defendants again moved for summary
judgment. On March 2, 2016, plaintiffs again cross-moved for a
waiver under N.J.S.A. 2A:53A-41(c). On March 18, 2016, the case
came before a different judge (the second judge) for oral argument.
Plaintiffs' counsel again argued his certification set forth
sufficient good faith efforts to warrant the grant of a waiver:
This is a case where a general surgeon is doing
a screening colonoscopy. Most general
surgeons, that is not within the scope of what
they do. . . . [T]he vast majority of
screening colonoscopies are done by
gastroenterologists.
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. . . .
And then we had . . . those expert referral
services, they have . . . over 100 general
surgery experts within their database. None
of them met the case specific qualifications
required in this case. General surgeon, not
sub-certified in any other field, [who]
performs screening colonoscopies.
The second judge agreed with plaintiffs, ultimately
acknowledging that a waiver was proper in this case. However,
apparently believing the law of the case doctrine precluded him
from granting the waiver, the second judge denied plaintiffs'
waiver request and granted defendants' motion for summary
judgment. This appeal followed.
II
In reviewing a grant of summary judgment, we apply the same
standard under Rule 4:46-2(c) that governs the trial court. See
Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436,
445-46 (2007). We "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).
7 A-3567-15T2
A.
In 2004, the Legislature enacted the New Jersey Medical Care
Access and Responsibility and Patients First Act (Act), N.J.S.A.
2A:53A-37 to -42. The Act set forth detailed standards for
testifying experts, "generally requiring the challenging expert
to be equivalently-qualified to the defendant[.]" Ryan v. Renny,
203 N.J. 37, 52 (2010). However, the Act further provided "for
waiver of the newly-tightened requirements in certain
circumstances[.]" Id. at 53. Specifically,
[a] court may waive the same specialty or
subspecialty recognized by the American Board
of Medical Specialties or the American
Osteopathic Association and board
certification requirements of this section,
upon motion by the party seeking a waiver, 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.
[N.J.S.A. 2A:53A-41(c).]
In Ryan, our Supreme Court reversed the decision of this
court "declaring that [the plaintiff] failed to satisfy the good
faith standard of the waiver provision of N.J.S.A. 2A:53A-
41(c)[.]" Ryan, supra, 203 N.J. at 61. In reversing, the Court
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found that a plaintiff satisfied the required good faith standard
and permitted a non-board-certified physician to testify that the
actions of a board-certified specialists did not meet the standard
of care. Id. at 45. The Court determined that counsel for the
plaintiff undertook efforts that were sufficient for the good
faith effort requirement. Id. at 56. The Court emphasized the
plain language of the waiver provision, which "directs the judge
to focus on the 'effort' the moving party made to obtain a
statutorily-authorized expert, and not on the reasons why a
particular expert or experts declined to execute an affidavit."
Id. at 55.
Indeed, the very existence of the waiver
provision makes it obvious to us that the
Legislature did not intend a malpractice case
to stand or fall solely on the presence or
absence of a same-specialty expert. If that
were the case, the Legislature would not have
provided for waiver or, at the very least,
would have declared that waiver was somehow
limited by the substance of an expert's
refusal to execute an affidavit. It did not
do so.
By the broad waiver provision, the
Legislature explicitly recognized that there
would be legitimate malpractice claims for
which a plaintiff would not be able to obtain
an affidavit of merit from an equivalently-
qualified expert or even from an expert in the
same field. It thus created a safety valve for
those cases by providing the judge with broad
discretion to accept an expert with
"sufficient training, experience and
knowledge to provide the testimony[,]" but
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only if plaintiff made a good faith effort to
satisfy the statute. The Legislature left it
to the "satisfaction of the court" to
determine whether an honest "effort" was made
to identify an expert in the same specialty
or subspecialty. It is the "effort" of the
movant that is the focal point of the waiver
provision.
[Id. at 55-56]
B.
The principal issue on this appeal is whether the second
judge properly applied the law of the case doctrine in upholding
the decision of the first judge, denying plaintiffs a waiver under
N.J.S.A. 2A:53A-41(c). Plaintiffs argue the second judge
erroneously applied the law of the case doctrine by following the
previous ruling that plaintiffs failed to meet the requirements
for a waiver pursuant to N.J.S.A. 2A:53A-41(c).
The law of the case doctrine provides "that a legal decision
made in a particular matter 'should be respected by all other
lower or equal courts during the pendency of that case.'" Lombardi
v. Masso, 207 N.J. 517, 538 (2011) (quoting Lanzet v. Greenberg,
126 N.J. 168, 192 (1991)); State v. Reldan, 100 N.J. 187, 203
(1985). Although non-binding, the doctrine is "intended to
'prevent relitigation of a previously resolved issue'" in the same
case, "by a different and co-equal court." Lombardi, supra, 207
10 A-3567-15T2
N.J. at 538-39 (quoting In re Estate of Stockdale, 196 N.J. 275,
311 (2008)).
However, the law of the case "doctrine is not an absolute
rule as 'the court is never irrevocably bound by its prior
interlocutory ruling[.]'" Jacoby v. Jacoby, 427 N.J. Super. 109,
117 (App. Div. 2012) (citations and internal quotation marks
omitted). Thus, when "there is substantially different evidence"
from that available at the time of the prior decision, "new
controlling authority, or the prior decision was clearly
erroneous[,]" the doctrine does not apply. Sisler v. Gannett Co.,
222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110
N.J. 304 (1988). The rule is discretionary, and the doctrine is
"applied flexibly to serve the interests of justice." State v.
Reldan, 100 N.J. 187, 205 (1985).
Here, we conclude the second judge mistakenly failed to
exercise his discretion when he declared himself "bound by" the
first judge's previous ruling. Pursuant to the above principles,
he was not required to follow the previous decision. See State
v. Hale, 127 N.J. Super. 407, 411 (App. Div. 1974). Because the
prior decision was clearly erroneous, and the second judge agreed
with plaintiffs that the record supported the grant of a waiver
under N.J.S.A. 2A:53A-41(c) but incorrectly believed he could not
11 A-3567-15T2
grant the waiver, the second judge's failure to exercise his
discretion warrants reversal of both orders under review.
The record here clearly establishes that plaintiffs made an
honest effort to identify an expert in the same specialty or
subspecialty as defendant. As Justice Long explained in Ryan, "It
is the 'effort' of the movant that is the focal point of the waiver
provision." Ryan, supra, 203 N.J. at 56. Plaintiffs' efforts to
identify and retain a qualified expert here were extensive, and
significantly greater than the efforts found adequate in Ryan.
Ibid. Contrary to Ryan, the first judge mistakenly focused on
"the reasons why a particular expert or experts declined" to serve.
Id. at 55.
Reversed and remanded. We do not retain jurisdiction.
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