Lisa R. Worthy v. Kennedy Health System ( 2016 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2698-14T1
LISA R. WORTHY,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. June 22, 2016
APPELLATE DIVISION
KENNEDY HEALTH SYSTEM; KENNEDY
MEMORIAL HOSPITAL-CHERRY HILL;
UNIVERSITY HEADACHE CENTER;
MILLICENT KING-CHANNELL, D.O.;
ROBERT F. HAHN, D.O.; COURTNEY
BAKER, D.O.; SEAN HUBBARD, D.O.;
ANTHONY BABE, D.O.; STEPHANIE
MARANO, R.N.; KRISTINE M. BROWN,
R.N., and JOAN MAZZARELLA, R.N.,
Defendants,
and
JOSEPH P. CURRERI,1 D.O. and
THOMAS WETJEN, D.O.,
Defendants-Respondents.
_______________________________
Submitted March 14, 2016 - Decided June 22, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-4906-08.
1
The caption mistakenly listed defendant's surname as
Currieri, which we have corrected in our opinion.
Messa & Associates, P.C., attorneys for
appellant (Joseph L. Messa, Jr., and A.
Christine Giordano, on the briefs).
Ronan, Tuzzio & Giannone, P.C., attorneys
for respondent Joseph P. Curreri, D.O.
(James M. Ronan, Jr., of counsel and on the
briefs; Anthony M. Tracy, on the briefs).
Blumberg & Wolk, LLC, attorneys for
respondent Thomas Wetjen, D.O. (Christopher
M. Wolk and Jeffrey P. Catalano, on the
brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Plaintiff Lisa R. Worthy filed this medical negligence
matter, alleging various defendants failed to properly diagnose
and treat her medical condition. On appeal, we examine whether
plaintiff met the requirements of Rule 4:26-4, the fictitious
name rule, to save her claims against one defendant, which the
trial judge dismissed as out of time. We also review proof
supporting causation regarding another defendant, who
successfully secured dismissal, arguing despite his alleged
failure to diagnose and treat plaintiff's condition she would
not have experienced a better outcome.
More specifically, plaintiff appeals from two orders
granting summary judgment dismissal in favor of two physician-
defendants. The first is a June 2, 2011 order in favor of
defendant Thomas Wetjen, D.O., finding all claims barred by the
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statute of limitations. The second is an April 11, 2014 order,
concluding plaintiff failed to present evidence supporting
proximate cause regarding the conduct of defendant Joseph P.
Curreri, D.O. On the date set to commence trial against the
remaining defendants, the parties resolved all claims.
Plaintiff also appeals from the separate motions denying
reconsideration of the summary judgment orders. Following our
review of the parties' arguments, in light of the record and
applicable law, we reverse.
I.
This matter arises from medical treatment and care
plaintiff received in October 2006. We limit our recitation of
facts and procedural history to the relevant issues presented on
appeal.
Plaintiff, who had a history of migraine headaches and
cervical disc disease, sought treatment from Robert Hahn, D.O.
and defendant Millicent King-Channell, D.O. from September 17 to
October 6, 2006. Despite various treatments, her ailments
persisted. On the morning of October 6, 2006, plaintiff
initially was treated by Dr. King-Channell, as a follow-up to
her September 29 appointment and then referred to defendant
Robert F. Hahn, D.O. for pain management and neck manipulation.
3 A-2698-14T1
The same day plaintiff saw Dr. Hahn, who administered an
injection and performed cervical spine manipulation therapy.
Following treatment, plaintiff took Xanax and Flexeril,
which had been previously prescribed for her headaches, and went
to work. After work, plaintiff and friends went to dinner,
during which she consumed two beers and two glasses of wine. In
the restaurant, plaintiff suffered "a syncopal episode," became
semi-conscious, developed slurred speech, an abnormal gait and
bilateral weakness. Emergency Medical Services were called and
at 8:40 p.m., plaintiff was taken to Kennedy Memorial Hospital.
Upon arrival, an intake nurse performed an assessment and
recorded plaintiff's report of a stabbing headache with nausea
and vomiting. Plaintiff was coherent when answering questions,
her eyes were open, and she obeyed commands; however, the nurse
recorded symptoms of generalized weaknesses throughout her body,
which she attributed to the use of alcohol and Xanax.
At 9:16 p.m., plaintiff was evaluated by an emergency
medicine physician. The physician was ultimately identified in
2010, more than two years after he provided treatment, as
defendant Dr. Wetjen.
Dr. Wetjen's notes stated plaintiff arrived at the hospital
by emergency medical services and was experiencing dizziness,
nausea, and vomiting after consuming two glasses of wine, two
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beers, and taking Xanax and Flexeril. Dr. Wetjen observed
plaintiff's pupils were sluggish as she followed commands and
answered questions, but he concluded plaintiff's neurological
examination was otherwise unremarkable. Dr. Wetjen opined
plaintiff suffered an accidental polydrug overdose.
At 12:40 a.m., on October 7, 2006, plaintiff was
administered anti-nausea medication and a CT scan was performed,
which proved negative. At 6:30 a.m., the intake nurse noted
plaintiff had an unstable gait and was having difficulty
walking. At 11:00 a.m., plaintiff was transferred to the
telemetry unit. Upon arrival, Courtney Baker, D.O., a first-
year Kennedy staff resident, conducted a physical examination
and prepared a treatment plan for plaintiff, who was awake but
"nonresponsive." Dr. Baker relied on the emergency room records
and family members' statements to formulate plaintiff's medical
history. She diagnosed plaintiff with accidental polysubstance
overdose.
Dr. Curreri first became involved when contacted by Dr.
Baker, more than fifteen hours after plaintiff arrived at the
emergency room. After Dr. Baker discussed plaintiff's
condition, Dr. Curreri accepted plaintiff as his patient. He
assumed responsibility for her at "around" noon on October 7,
2006. He assumed Dr. Baker obtained and reviewed the emergency
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room chart, which he did not review until noon on October 8,
2006. Dr. Curreri concluded plaintiff's condition was
consistent with polysubstance overdose. He also ordered a
neurological consultation, which was not directed to be
performed immediately, and prescribed aspirin.
Twenty-four hours later, Dr. Curreri examined plaintiff.
At that time, his diagnosis included: aspirational bronchitis,
hypophosphatemia, hypokalemia and a polysubstance overdose. He
noted plaintiff's speech was incoherent, she was letheragic, and
her mental status remained unchanged. Dr. Curreri asked the
neurologist to examine plaintiff that day, which occurred.
Following a neurological consultation by defendant Sean
Hubbard, D.O., plaintiff was transferred to Hahnemann University
Hospital, where an MRA and MRI revealed a narrowing of the right
vertebral artery, bilateral subacute thalamic infarcts, and left
cerebellar subacute infarct of the vertebral artery. In short,
plaintiff suffered a stroke. A cerebral angiography revealed a
non-occlusive dissection of the right vertebral artery at C1-C2,
secondary to mild irregularity. After receiving treatment at
various facilities, plaintiff was discharged home on November 4,
2006.
On September 26, 2008, plaintiff filed a complaint
asserting medical negligence, alleging the negligent
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manipulation of her neck caused vertebral artery dissection, a
tear in an artery in the neck that supplies blood to the brain,
which led to a stroke that was improperly diagnosed and treated.
She named as defendants not only Drs. Hahn and King-Channell,
but also Kennedy Health System (Kennedy), Kennedy Memorial
Hospital – Cherry Hill, Joseph P. Curreri, D.O., along with
several other doctors and nurses involved with plaintiff's care
whose specific identities were not determined because plaintiff
was unable to decipher their signatures on certain medical
reports.
The complaint, in place of a typed name, placed these
defendants' signatures in the caption along with a fictitious
party reference. As to each unknown professional, his or her
scanned undecipherable signature along with the identification
of his or her title, i.e., doctor or nurse. Further, throughout
the body of the complaint the signature is included when
reciting factual underpinnings of alleged negligence for which
plaintiff asserted his or her liability.
Kennedy accepted service on behalf of Kennedy Health
System, Kennedy Memorial Hospital, and Stephanie Marano, RN, but
declined to accepted service on behalf of the remaining nine
defendants. Returning the remaining summonses, Kennedy advised
the named physicians must be served through their offices.
7 A-2698-14T1
Specifically as to the unidentified defendants, Kennedy
identified one intern and stated "[t]he remaining names and
signatures were unidentifiable." Plaintiff's counsel requested
Kennedy's legal liaison identify "the individuals who authored
the medical records contained in [plaintiff's] chart." However,
she was unable to do so.
On November 18, 2008, plaintiff wrote to Kennedy's legal
liaison, stating:
You have refused to accept service of the
[c]omplaints for several of the defendants.
These defendants are identified with
particularity in the [c]omplaint and are
clearly agents, servants and/or employees of
Kennedy Health System. The identity of
these individuals is information that is in
the sole possession, custody and control of
Kennedy Health System. Therefore, any
attempts by you to avoid service on these
individuals is improper. As such, kindly
accept service on behalf of your agents,
servants, employees and identify the
individuals who authored the medical records
contained in [plaintiff]'s chart.
On November 16, 2009, plaintiff served twelve supplemental
interrogatories directing Kennedy and the other defendants to
provide the identity and job title of each of the six defendants
designated by their signature in the complaint, which again was
reproduced in the discovery request. When no response was
forthcoming by January 19, 2010, additional correspondence
renewed the request and sought voluntary compliance in an effort
8 A-2698-14T1
to avoid motion practice. Kennedy "informal[ly]" responded on
February 17, 2010, stating "despite good faith efforts" it could
not identify three of the treatment providers, but noted their
job titles. Two signatures were identified and no information
was provided regarding the remaining signature. Plaintiff moved
to strike Kennedy's answer and defenses for failure to provide
discovery, returnable on March 5, 2010.
On March 3, 2010, Kennedy sent a second "informal response"
to plaintiff's supplemental interrogatories. It addressed the
one signature not mentioned in its prior response, stating the
document on which the signature appeared was not generated by
Kennedy, but was believed to be from a provider rendering
treatment prior to plaintiff's admission to Kennedy. Kennedy
provided the identifications of Dr. Wetjen, a resident physician
and three nurses. Within a week, plaintiff sought leave to
amend the complaint, specifically substituting the names and
titles for the scanned signatures of defendants as revealed by
Kennedy, which was granted. Plaintiff also moved to restore the
now identified defendants to the active trial status, which was
also granted.2
2
The record also references plaintiff "had to seek court
intervention so that a witness could be produced [by Kennedy] to
identify signatures of the remaining defendants in the case."
(continued)
9 A-2698-14T1
Dr. Wetjen answered the complaint on November 24, 2010,
and, thereafter, moved for summary judgment, arguing plaintiff's
claim was barred by the statute of limitations and the improper
use of the fictitious party pleading rule did not save her
complaint from being untimely filed. After oral argument, the
trial judge granted Dr. Wetjen's motion on June 2, 2011.
Focusing on the absence of efforts to identify the
defendants prior to October 6, 2008, the trial judge rejected
plaintiff's contention the inclusion of defendants' signatures
sufficiently preserved her claims, making them timely. Although
finding no prejudice to Dr. Wetjen, the judge noted plaintiff
exercised no due diligence to ascertain Dr. Wetjen's identity
prior to initiating her legal action and, therefore, he rejected
reliance on the fictitious name procedure. Finally, the judge
was unpersuaded by plaintiff's alternative argument to apply the
discovery rule, delaying commencement of the statute of
limitations to August 6, 2008, the date plaintiff first
consulted counsel, finding the assertion unsupported.
(continued)
The designated witness, deposed on May 14, 2010, identified Dr.
Wetjen's signature. These pleadings are not in the record.
10 A-2698-14T1
The June 2, 2011 order dismissed the complaint as to Dr.
Wetjen, with prejudice. Reconsideration was denied.3
On March 13, 2014, Dr. Curreri moved for summary judgment.
He argued plaintiff failed to establish his conduct was a
proximate cause of or a substantial contributing factor to
plaintiff's injuries. Dr. Curreri maintained "plaintiff had not
submitted sufficient expert proofs to establish that there was
treatment available as of . . . noon on October 7, 2006, (the
time when Dr. Curreri first became involved in the care of
plaintiff), that could have improved or otherwise changed the
ultimate outcome in some material respect." Because plaintiff's
expert identified noon on October 7, 2006 as a critical time
period for necessary treatment to be administered, and Dr.
Curreri actually saw plaintiff after that time on October 7,
2006, he argued had he administered any treatments as asserted
by plaintiff, the final outcome would not have changed.
3
The orders entered on July 22, 2011 cause some confusion.
First, a July 22 order dismissed the complaint against Dr.
Wetjen with prejudice. A second order denied plaintiff's motion
for reconsideration of the summary judgment dismissal. A July
28, 2011 order prepared by the court simply states, "The [o]rder
signed on July 22, 2011 in regard [to] the above captioned
matter referencing Thomas Wetjen, DO is hereby vacated."
Finally an order, which has an illegible date and no file stamp,
presumably entered on August 5, 2011, denied reconsideration of
the summary judgment dismissal of Dr. Wetjen. Notwithstanding
the confusion created by these orders, plaintiff does not
dispute summary judgment was granted in favor of Dr. Wetjen, who
was dismissed from the case.
11 A-2698-14T1
In response, plaintiff refuted the factual assertions,
noting testimony from Dr. Baker stated she called Dr. Curreri
after plaintiff's admission on the evening of October 6, 2006 to
discuss a treatment plan, which he approved. Dr. Baker again
consulted with Dr. Curreri by telephone when she resumed her
shift at 7 a.m. on October 7, 2006. Dr. Curreri suggests the
call was not made until noon on that date.
The trial judge concluded Dr. Curreri had no contact with
plaintiff until sometime after noon on October 7, 2006, stating:
I don't see facts in dispute on that
point, and that point being when Dr. Curreri
came into contact with the patient. I find
based on what is . . . in the evidence from
the testimony of the parties, [Dr. Baker],
as well as Dr. Curreri and the notes, his
contact and his laying out a plan for the
care of . . . [plaintiff] . . . that all
attaches at . . . noon . . . timeframe on
the 7th.
And it's clear that the testimony from
[plaintiff's expert] is that the potential
options with respect to a patient of this
nature at that point in time would have been
the heparin treatment. . . . And he cannot
give an opinion that there would have been a
better outcome had[,] at that point in
time[,] Dr. Curreri ordered heparin
treatment. And without that in the record,
I can't hold the doctor in. So I'm going to
grant summary judgment as to Dr. Curreri.
Reconsideration was denied.
Plaintiff appealed from the June 2 and August 5, 2011
orders dismissing all claims against Dr. Wetjen. She
12 A-2698-14T1
subsequently amended the notice of appeal to include the April
11 and May 23, 2014 orders dismissing all claims against Dr.
Curreri.
II.
We "review[] an order granting summary judgment in
accordance with the same standard as the motion judge." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014). See also Townsend v. Pierre,
221 N.J. 36, 59 (2015). We "must review the competent
evidential materials submitted by the parties to identify
whether there are genuine issues of material fact and, if not,
whether the moving party is entitled to summary judgment as a
matter of law." Bhagat, supra, 217 N.J. at 38. See Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R.
4:46-2(c).
Further, all facts are viewed in a light most favorable to
the non-moving party, "keeping in mind '[a]n issue of fact is
genuine only if, considering the burden of persuasion at trial,
the evidence submitted by the parties on the motion . . . would
require submission of the issue to the trier of fact.'" Schiavo
v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div.
2015) (alteration in original) (quoting R. 4:46-2(c)), certif.
denied, 224 N.J. 124 (2016).
13 A-2698-14T1
A motion for summary judgment will not be defeated by bare
conclusions lacking factual support, Petersen v. Twp. of
Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving
statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App.
Div. 2013), or disputed facts "of an insubstantial nature."
Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.
4:46-2 (2016). "It is evidence that must be relied upon to
establish a genuine issue of fact. 'Competent opposition
requires competent evidential material beyond mere speculation
and fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super.
589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com,
Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)), certif.
denied, 220 N.J. 269 (2015).
"The practical effect of this rule is that neither the
motion court nor an appellate court can ignore the elements of
the cause of action or the evidential standard governing the
cause of action." Bhagat, supra, 217 N.J. at 38. It is only
"when the evidence 'is so one-sided that one party must prevail
as a matter of law,' the trial court should not hesitate to
grant summary judgment." Brill, supra, 142 N.J. at 540
(citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214
(1986)).
14 A-2698-14T1
Once we agree no genuinely disputed fact exists, we "then
decide whether the trial court's ruling on the law was correct."
W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (quoting Henry v. N.J.
Dept. of Human Servs., 204 N.J. 320, 330 (2010)). Such a
determination is "not entitled to any special deference," and is
subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
III.
We separately review plaintiff's challenge to the two
summary judgment orders.
A.
As to Dr. Wetjen, plaintiff initially argues her complaint
was timely filed under the discovery rule. She maintains a
material factual dispute exists whether the two-year statute of
limitations for medical negligence cases, N.J.S.A. 2A:14-2(a),
was tolled because she did not discover the right to legal
recourse until she spoke to counsel on August 6, 2008. We
disagree.
"Under special circumstances and in the interest of
justice, [New Jersey has] adopted the discovery rule to postpone
the accrual of a cause of action when a plaintiff does not and
cannot know the facts that constitute an actionable claim."
Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993); see also Baird
15 A-2698-14T1
v. Am. Med. Optics, 155 N.J. 54, 65 (1998) ("The discovery rule
delays the accrual of a cause of action until 'the injured party
discovers, or by an exercise of reasonable diligence and
intelligence should have discovered that he may have a basis for
an actionable claim.'" (quoting Lopez v. Swyer, 62 N.J. 267, 272
(1973))).
"The discovery rule is a rule of equity that ameliorates
'the often harsh and unjust results [that] flow from a rigid and
automatic adherence to a strict rule of law.'" Grunwald, supra,
131 N.J. at 492 (alteration in original) (quoting Lopez, supra,
62 N.J. at 273-74). "The question is whether the facts
presented would alert a reasonable person exercising ordinary
diligence that he or she was injured due to the fault of
another." Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J.
45, 52 (2000). A plaintiff bears the burden of proving he or
she was aware of an injury and "that the injury [was]
attributable to the fault of another." Id. at 53. However, a
plaintiff who merely lacks "knowledge of a specific basis for
legal liability or a provable cause of action" may not receive
the benefit of the discovery rule. Id. at 52.
Certainly plaintiff knew she suffered a stroke in October
2006. Nothing suggests she was misled regarding her diagnosis
or the nature of her care. Lynch v. Rubacky, 85 N.J. 65, 67-69,
16 A-2698-14T1
77 (1981). In fact, her certification only reflects she
discovered she could pursue legal redress after she met with her
attorney, not that she was unaware of her injury. Szczuvelek v.
Harborside Healthcare Woods Edge, 182 N.J. 275, 280, 283 (2005).
"To accept the premise that the statute did not begin to run
until she was advised by her attorney . . . would be to
disregard the basic policy of repose, which underlies the
statute of limitations, thus extending the threat of litigation
indefinitely." Rankin v. Sowinski, 119 N.J. Super. 393, 401
(App. Div. 1972). As a result, we conclude the discovery rule
does not apply.
However, we find compelling plaintiff's argument she
properly complied with the fictitious pleading rule, allowing
the cause of action against Dr. Wetjen to relate back to the
date her complaint was filed, which was within two years of her
injury.
Pursuant to Rule 4:26-4, "if the defendant's true name is
unknown to the plaintiff, process may issue against the
defendant under a fictitious name, stating it to be fictitious
and adding an appropriate description sufficient for
identification." "The fictitious defendant rule was promulgated
to address the situation in which a plaintiff is aware of a
cause of action against a defendant but does not know that
17 A-2698-14T1
defendant's identity." Gallagher v. Burdette-Tomlin Med. Hosp.,
318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163 N.J. 38
(2000). The rule's effect is to "render timely the complaint
filed by a diligent plaintiff, who is aware of a cause of action
against an identified defendant but does not know the
defendant's name." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11
(2005). When the plaintiff discovers the party's name,
"amendment of the complaint may relate back [to] allow an action
otherwise time-barred." Brown v. Kennedy Mem'l Hosp.-Univ. Med.
Ctr., 312 N.J. Super. 579, 587 (App. Div.), certif. denied, 156
N.J. 426 (1998). Accordingly, if a defendant is properly
identified by a fictitious name before expiration of the
applicable limitations period, an amended complaint substituting
a fictitiously named defendant's true name will relate back to
the date of filing of the original complaint. Viviano v. CBS,
Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of
Chemetron Corp., 62 N.J. 111, 120-23 (1973); see also R. 4:9-3
(allowing an amended complaint to relate back to the initial
complaint).
The trial judge heavily relied on the principle that "[t]he
identification of a defendant by a fictitious name . . . may be
used only if a defendant's true name cannot be ascertained by
the exercise of due diligence prior to filing the complaint."
18 A-2698-14T1
Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App.
Div. 2003) (citing Mears v. Sandoz Pharms. Inc., 300 N.J. Super.
622, 631-33 (App. Div. 1997)). This requires a plaintiff to
proceed with due diligence in ascertaining the fictitiously
identified defendant's true name. Farrell, supra, 62 N.J. at
120; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super.
203, 208 (App. Div. 1999).
Here, the judge had difficulty accepting the use of
signatures to identify the unknown professionals. He correctly
noted no specific authority allowed a party to paste a signature
in lieu of naming a party in the caption. Had plaintiff done
nothing more, we might easily reject such a practice. However,
fundamental fairness demands consideration of the totality of
the facts and circumstances before the ultimate sanction of
dismissal with prejudice issues. Following such a review, we
conclude these facts support counsel undertook the required
diligent inquiry.
The complaint did much more than simply include the pasted
signatures in the caption. Plaintiff utilized the information
available from Kennedy's records and identified not only the
professional's title, but also recited the factual basis for
liability. She further included the more traditionally found
John and Jane Doe references and a separate count for those
19 A-2698-14T1
defendants. These efforts were designed to relate as much known
information as possible to specify the unidentified
professionals.
Regarding diligence, while Dr. Wetjen was not identified
before the complaint was filed, this was not because counsel was
dilatory. The facts show plaintiff first understood she had a
right to file an action when she met with counsel on August 6,
2008, very near the expiration of the statute of limitations.
Counsel proceeded to gather Kennedy's records, obtain an
affidavit of merit and file a complaint in less than two months.
From that point, Kennedy was repeatedly asked formally and
informally to identify the "agents, servants, [or] employees"
who signed its charts. Letters, discovery requests and motions
to produce a witness to identify the signatures were issued.
For the most part, Kennedy ignored the requests, despite the
fact it exclusively controlled the pertinent information, at all
times. Kennedy did not release identification information until
the return date of plaintiff's motion to strike Kennedy's answer
and defenses approached. Only then did Kennedy issue an
"informal response" to plaintiff's supplemental interrogatories.
Had Kennedy responded when plaintiff first asked, Dr. Wetjen
would have been identified and served within a week of the
original filing.
20 A-2698-14T1
Unlike the authority relied upon by Dr. Wetjen, see
Johnston, 326 N.J. Super. at 205 (describing how the plaintiff
did not seek to add the newly identified party after waiting
almost a year once identified), here, plaintiff moved to amend
her complaint within days of learning Dr. Wetjen's identity.
Nor can we conclude plaintiff failed to investigate
potential claims against a physician whose name appeared
multiple times in her medical chart. See Matynska v. Fried, 175
N.J. 51, 54 (2002) (denying application of equitable tolling
principles when information was readily available). In this
matter, the names were not easily obtained from the medical
records and Kennedy was not forthcoming in providing actual
identifications.
Perhaps most importantly, Dr. Wetjen was not prejudiced by
the delay in formal identification as a potentially liable party
and the ultimate service of an amended complaint. Farrell,
supra, 62 N.J. at 122-23. Nothing impaired his ability to
defend the action. Mears, supra, 300 N.J. Super. at 631.
"Justice impels strongly towards affording the plaintiff[]
[her] day in court on the merits" of her claims. Farrell,
supra, 62 N.J. at 122; see also Fede v. Clara Maass Hosp., 221
N.J. Super. 329, 339 (Law Div. 1987) (stating a motion to
dismiss on statute-of-limitations grounds in the context of
21 A-2698-14T1
fictitious party practice is governed by "the interests of
justice.").
Following our review, we conclude plaintiff engaged in
diligent efforts, which were continually thwarted by Kennedy.
For more than fifteen months, Kennedy declined to provide the
requested identification of the doctors and nurses who attended
to plaintiff in its facility, as confirmed by their signatures
on charts, records and reports. The delay here falls squarely
on Kennedy's gradual response, which fairness dictates shall not
be shouldered by plaintiff. The motion judge's findings to the
contrary are not supported. The decision to dismiss Dr. Wetjen
is reversed and the June 2 and August 5, 2011 orders are
vacated.
B.
We turn to the order granting summary judgment to Dr.
Curreri. Among the claims stated in her complaint, plaintiff
alleges Dr. Curreri failed to diagnose, order diagnostic testing
and treat her stroke, misdiagnosed her condition, and failed to
alter treatment despite her failure to improve for more than
seventeen hours. The motion judge found plaintiff's expert
"c[ould] not give an opinion that there would have been a better
outcome had at that point in time Dr. Curreri ordered heparin
treatment." Plaintiff argues this was an abuse of discretion
22 A-2698-14T1
because materially disputed facts were presented to support
causation that would defeat summary judgment.
"A medical malpractice case is a kind of tort action in
which the traditional negligence elements are refined to reflect
the professional setting of a physician-patient relationship."
Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). To establish a
prima facie case for medical negligence, "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[.]"
Koseoglu v. Wry, 431 N.J. Super. 140, 156 (App. Div. 2013)
(alteration in original) (quoting Gardner v. Pawliw, 150 N.J.
359, 375 (1997)), certif. denied, 216 N.J. 4 (2013).
Under certain circumstances, a plaintiff "must prove that,
as a result of a defendant's negligence, she experienced an
increased risk of harm from that condition, and that the
increased risk of harm was a substantial factor in causing the
injury ultimately sustained." Gardner, supra, 150 N.J. at 375
(citing Anderson v. Picciotti, 144 N.J. 195, 210 (1996)).
The substantial factor test allows the
plaintiff to submit to the jury not whether
"but for" defendant's negligence the injury
would not have occurred[,] but "whether the
defendant's deviation from standard medical
practice increased a patient's risk of harm
or diminished a patient's chance of survival
and whether such increased risk was a
23 A-2698-14T1
substantial factor in producing the ultimate
harm." [Gardner, supra, 150 N.J. at 376].
Once the plaintiff demonstrates that the
defendant's negligence actually increased
the risk of an injury that later occurs,
that conduct is deemed to be a cause "in
fact" of the injury and the jury must then
determine the proximate cause question:
whether the increased risk was a substantial
factor in bringing about the harm that
occurred.
[Verdicchio, supra, 179 N.J. at 24.]
Plaintiff maintains her symptoms evident upon admission,
including her eyes gazing to the right, suggested a need for a
neurological consultation. However, Dr. Curreri did not examine
plaintiff for twenty-four hours after she was admitted to his
service, and the neurological exam, although ordered, was not
deemed urgent and was further delayed.
Plaintiff's expert Louis R. Caplan, M.D. stated there was a
need to consider a differentiated diagnosis before concluding
plaintiff suffered a polysubstance overdose. In his report, he
opined treating physicians ignored plaintiff's symptoms as
suggesting the more serious condition, stating:
If Dr. Hubbard and the other healthcare
providers at Kennedy Memorial Hospital
involved in [plaintiff]'s care and treatment
had identified that this was a neurologic
emergency then [plaintiff] would have been
considered for thrombolytic and or
anticoagulant treatment. As a result of the
negligence of the defendants, [plaintiff]
has permanent neurological injuries[,] which
24 A-2698-14T1
could have been prevented had the defendants
acted within the standard of care.
In his deposition testimony, Dr. Caplan reiterated that no
tests to determine whether plaintiff suffered a neurological
event were performed. Consequently, because "no adequate
investigation [and] no adequate differential diagnosis" was
performed, no treatment was administered. He also identified
other investigative procedures aiding a differentiated
neurological diagnosis, such as an MRI or MRA, would lead to a
course of treatment. Moreover, if the attending physician was
not trained in the area at issue, he or she was obligated to
call a trained and experienced neurologist to assist in the
diagnosis.
Both the trial judge and Dr. Curreri rely on this colloquy
as demonstrating lack of causation:
[DR. CURRERI'S COUNSEL]: If Heparin had
been administered to this patient by 12:00
noon on October 7, can you state an opinion
that this patient's outcome probably would
have been better.
[DR. CAPLAN]: No.
However, important to any analysis is the remainder of Dr.
Caplan's testimony, as follows:
Q. If heparin had been administered
by 12:00 noon on October 7, am I correct
that you cannot, therefore, state that the
failure to give heparin by 12:00 noon on
October 7, was a substantial factor in
25 A-2698-14T1
increasing the risk and harm to this
patient?
. . . .
A. No, I don’t think that necessarily
follows. You asked me if she'd been given
it at 12:00 noon. I can't say that would
have . . . made a difference. It depends on
when it was given whether it was more likely
than not that it would have been helpful.
But that would cover the time period between
when she came into the hospital and 12:00
noon the next day. That's the point at
issue.
. . . .
Q. If heparin had been given at any
point between 11:00 p.m. on the 6th and
12:00 noon on October 7, can you state the
opinion that the patient's outcome probably
would have been better?
A. The difficulty in answering the
question – I'd say this: I can't answer yes
or no. The reason I can't is we have
inadequate information. So it would depend
on what the findings were. As I said, we
don't have really a good detailed
neurological full examination early. We
don't have one really later. So I'm saying
that I think she got worse, but that's a
little hard to be absolutely certain. We
don’t have an imaging test. So we don’t
know if the imaging changed. And we don't
know when it would have been given.
So the answer is it would have given
her more chance depending on what the
findings were. Now, we don't know the
findings. So I can't really answer the
question. I can't answer yes or no. I
think it might have given her more of a
chance if it was given at the appropriate
26 A-2698-14T1
time after the appropriate imaging was done
depending on what the findings were.
When asked whether a decision to administer heparin at noon
on October 7 would have complied with the standard of care, Dr.
Caplan stated it would have made a difference and would have
complied with the standard of care.
Other facts also impact this issue. Dr. Baker, a Kennedy
staff intern who treated plaintiff following her admission to
the hospital, contacted Dr. Curreri to accept plaintiff as his
patient. Dr. Baker's memory of events is poor, but her hospital
notes record certain symptoms that prompted a neurological
consultation. Yet, Dr. Curreri did not order an expedited
consultation, causing its performance to be delayed for more
than twenty-four hours. Dr. Curreri accepted Dr. Baker's
diagnosis. However, he agreed if any evaluation does not
consider a diagnosis, tests would not be initially ordered. Dr.
Curreri acknowledged he did not consider an alternate
neurological diagnosis and, therefore, did not order additional
testing.
Viewing this record, in a light most favorable to plaintiff
as we must, we conclude the facts, including the expert opinion,
could support a finding Dr. Curreri deviated from the accepted
standard of care in failing to develop a differentiated
neurological diagnosis and, therefore, pursue an alternative
27 A-2698-14T1
course of medical treatment, which was a substantial factor in
contributing to the injuries plaintiff sustained. Gardner,
supra, 150 N.J. at 375.
The trial judge concluded Dr. Caplan did not assert "there
would have been a better outcome had[,] at that point in time[,]
Dr. Curreri ordered heparin treatment." (Emphasis added).
However, this is not the legal standard. "The substantial
factor test of causation requires the jury to determine whether
the deviation, in the context of the patient's preexistent
condition, was sufficiently significant in relation to the
eventual harm to satisfy the requirement of proximate cause."
Roses v. Feldman, 257 N.J. Super. 214, 218 (App. Div. 1992)
(quoting Battenfeld v. Gregory, 247 N.J. Super. 538, 546-47
(App. Div. 1991)). It then "becomes a jury question whether or
not that increased risk constituted a substantial factor in
producing the injury." Id. at 217 (quoting Battenfeld, supra,
247 N.J. Super. at 546-47).
The motion judge's conclusion considered only a portion of
Dr. Caplan's factual testimony. The expert opined had Dr.
Curreri acted when first advised of plaintiff's condition,
although he could "not be certain" because no testing was
performed, he believed "it would have given her more of a chance
. . . depending on what the findings were." Accordingly, the
28 A-2698-14T1
jury must determine whether Dr. Curreri's conduct was a
substantial factor in causing plaintiff's damages. Put another
way, "plaintiff's claim . . . from delayed diagnosis and
treatment will not be diminished or defeated by a demonstration
that delay itself was not the cause of her ultimate physical
injury." Evers v. Dollinger, 95 N.J. 399, 411 (1984). The
judge's erroneous analysis must be reversed and summary judgment
dismissal vacated.
IV.
In conclusion, we affirm the rejection of the discovery
rule as applicable here, but reverse the summary judgment
dismissal of claims against Dr. Wetjen, finding plaintiff's
timely complaint properly utilized the fictitious party
procedure. Plaintiff diligently pursued the identity of Dr.
Wetjen and promptly amended her pleadings when Kennedy finally
complied with discovery requests. Further, the judge improperly
granted summary judgment, dismissing Dr. Curreri. Not only did
the judge overlook evidence of causation provided by plaintiff's
expert, he employed the incorrect legal standard when assessing
the facts.
Accordingly, we reverse the June 2, 2011 and April 11, 2014
summary judgment orders, as well as the orders denying
29 A-2698-14T1
reconsideration. The matter is remanded for further
proceedings.
Reversed and remanded.
30 A-2698-14T1