JOSHUA PIPERATO VS. ALLISON LAM, M.D. (L-2081-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3569-17T1
JOSHUA PIPERATO, by his Parents
and Natural Guardians, CHRISTOPHER
PIPERATO and ANA PIPERATO, and
CHRISTOPHER PIPERATO, and ANA
PIPERATO, Individually,
Plaintiffs-Appellants,
v.
ALLISON LAM, M.D., JONATHAN
GAMSS, M.D., STEPHANIE FOLTZER,
PA-C, ALEKSEY IKHELSON, PA-C,
and EMERGENCY MEDICAL
ASSOCIATES,
Defendants,
and
ALDRIN GUERRERO, RN, JAMIE
NIGRO, RN, JOYCE IANNUZZI, RN,
NADIA PORCARO, RN, and CLARA
MAASS MEDICAL CENTER,
Defendants-Respondents.
__________________________________
Submitted January 30, 2019 - Decided August 23, 2019
Before Judges Accurso, Vernoia and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-2081-15.
Gair Gair Conason Rubinowitz Bloom Hershenhorn
Steigman & MacKauf, attorneys for appellants
(Christopher J. Donadio, on the briefs).
De Cotiis Fitzpatrick Cole & Giblin LLP, attorneys for
respondents (Catherine Joan Flynn, of counsel and on
the brief; Stefanie L. Rokosz, on the brief).
PER CURIAM
Plaintiffs Christopher and Ana Piperato on behalf of themselves and
their minor son Joshua, appeal from the entry of summary judgment dismissing
their medical malpractice complaint against defendant registered nurses Aldrin
Guerrero, Jamie Nigro, Joyce Iannuzzi, and Nadia Porcaro and their employer
Clara Maass Medical Center and the denial of their motion for
reconsideration.1 Because we conclude plaintiffs established a prima facie
case of professional negligence on the summary judgment motion, we reverse.
Although defendants failed to file a statement of material facts in
accordance with Rule 4:46-2(a), the following essential facts appear
1
Plaintiffs settled their claims against defendant doctors and physician
assistants and their employer Emergency Medical Associates and those parties
are not participants in this appeal.
A-3569-17T1
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undisputed. When Joshua was seven years old, he caught his foot in a
trampoline. His father took him to an urgent care center the next day. The
doctor there diagnosed Joshua with a sprained ankle.
When Joshua's pain persisted, his mother the following day took him to
the emergency department at Clara Maass for treatment. Although Nurse
Nadia Porcaro testified at deposition that Joshua should have received a
focused assessment, she was on duty that day and did not perform one. She
could not explain why. She did not examine Joshua's foot or test pulses or
sensations in his foot or leg. Joshua was evaluated by a physician assistant,
who ordered an x-ray that showed no fracture or dislocation. Joshua was
diagnosed with a foot sprain and discharged.
As Joshua's pain persisted over the next two days, his parents took him
back to the emergency department at Clara Maass two more times. When his
father took him three days after his injury, the day after their first visit, he
reported that Joshua had been restless and in pain the night before and had run
a fever. Nurse Joyce Iannuzzi, the triage nurse, although noting Joshua
presented with "foot pain — swelling," failed to assess his foot. She did not
take Joshua's blood pressure, although she noted his heart rate of 160 beats a
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minute was elevated. According to one of plaintiffs' experts, the normal heart
rate for a seven-year-old is between 80 and 120 beats a minute.
Nurse Porcaro saw Joshua again during that visit, and again failed to
examine his foot or ankle, check pulses or sensations in his leg or foot, or
assess his skin temperature or color. Joshua was again evaluated by the same
physician assistant, who applied a splint to Joshua's leg and provided him with
crutches. Joshua was again discharged with a diagnosis of foot sprain.
That night, Joshua's mother testified Joshua was awake the entire night,
crying and in a great deal of pain, not allayed by pain medication. At 3 a.m.,
Joshua's father took him back to the emergency department at Clara Maass.
Nurse Jamie Nigro was the triage nurse on duty. Nurse Nigro took some of
Joshua's vital signs but did not examine his foot, check pulses in his foot or
leg, or assess his pain level. Nurse Aldrin Guerrero also examined Joshua that
morning. Nurse Guerrero completed a pain assessment, recording Joshua's
pain level at six on a scale of ten. Despite performing gastrointestinal,
genitourinary, integumentary, neurological, and respiratory assessments, Nurse
Guerrero could not recall performing, and there are no notes in the medical
records indicating, a skin or sensation assessment or a pulse check of Joshua's
lower leg.
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A different physician assistant examined Joshua on that visit.
Performing a physical exam, she noted tenderness to the left foot, mild
swelling, and ecchymosis (bruising) of the lateral and medial aspects of the left
foot. The physician assistant reapplied the splint and a prescription was
written for Motrin for pain as needed. Joshua was discharged around 6 a.m.
with a diagnosis of foot sprain.
That morning, Joshua's mother took him with her to work. When he
went to use the bathroom, she saw his leg was purple and he stopped
responding to her. She called Joshua's pediatrician, who told her to take
Joshua immediately to Hackensack Medical Center. On arrival at 12:30 p.m.,
Joshua was noted to be pale, fussy and uncomfortable. His left leg was
cyanotic and cold to touch. A Doppler signal showed no pulses in his lower
left extremity and an ultrasound revealed deep vein thrombosis.
Joshua was diagnosed with severe compartment syndrome and taken into
surgery for a fasciotomy. Following surgery, Joshua developed septic shock
and went into respiratory failure requiring ventilator support. That led to a
lifesaving, below-knee amputation. When a free flap repair was unsuccessful,
Joshua's leg was amputated above his knee.
A-3569-17T1
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Plaintiffs served several expert reports in the course of discovery
directed to the substandard care Joshua received from the nurses, physician
assistants and doctors at Clara Maass responsible for his treatment. Among
those reports was one rendered by a registered nurse, Jamie Byerly, that
defendant nurses deviated from the accepted standards of emergency nursing
practice by failing to properly assess and document findings of Joshua's
complaint of lower extremity pain and swelling and failing to communicate the
findings of that assessment to the physician or physician assistant.
In order to meet their burden of demonstrating those deviations harmed
Joshua and contributed to the resulting amputation of his leg, plaintiffs served
the report of an expert in emergency medicine, Diane Sixsmith, M.D., board
certified in internal medicine and emergency medicine, who opined that "[t]he
nursing assessments performed by Nurse Iannuzzi, Nurse Nigro, Nurse
Porcaro, and Nurse Guerrero were deficient and incomplete and were a
contributing factor to the misdiagnosis of Joshua Piperato."
In addition to providing a causation opinion with regard to the nurses,
Dr. Sixsmith also rendered an opinion that defendant physician assistants
deviated from the standard of care, as did defendant emergency room
physicians who supervised them and co-signed their records. Dr. Sixsmith
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further opined that defendant Emergency Medical Associates, which employed
both the physicians and the physician assistants, deviated from accepted
standards by failing to ensure the proficiency of one of the physician
assistants.
Plaintiffs served a report by a second expert in emergency medicine, Jill
M. Baren, M.D., who concluded the physician assistants deviated significantly
from the standard of care by, among other things, failing to ensure that the
nursing assessments were adequately performed. Dr. Baren opined that the
failure of the physician assistants and supervising physicians to ensure that
each and every necessary nursing assessment was adequately completed
contributed to the patient's ultimate outcome.
Plaintiffs served several other reports, directed to both deviation and
causation, focused on the actions of the physician assistants and their
supervising doctors. The number of reports was made necessary by what
followed from Joshua's injury. As Dr. Alik Farber, plaintiff's expert vascular
surgeon, explained:
It is likely that Joshua Piperato suffered a left
leg injury that likely had a crush component and
developed a compartment syndrome that was not
tested for and diagnosed in a timely fashion at the
[Clara Maass emergency department] on multiple
occasions. Additionally he likely developed an
A-3569-17T1
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infection of his compromised muscle with Group A
Strep that led to further and progressive tissue injury,
septic shock and systemic inflammatory response
syndrome. Deep venous thrombosis (DVT) likely
occurred in a secondary fashion
Dr. Farber opined that had Joshua been tested "for compartment
syndrome and/or infection, muscle enzymes etc., such tests would have been
abnormal prompting further diagnostic workup and medical specialty
consultation." In his opinion, had the appropriate testing been done, Joshua
would have been correctly diagnosed on his second visit to the emergency
department at Clara Maass at "a point in time where there was much less tissue
affected by the compartment syndrome and/or infection."
In Dr. Farber's view, had Joshua been correctly diagnosed on that second
visit, the deep vein thrombosis likely would not have occurred and amputation
would have been avoided. Noting the dramatic change in Joshua's leg in the
hours between his leaving Clara Maass the last time and his appearance at
Hackensack Medical Center, Dr. Farber further opined that a correct diagnosis,
even as late as Joshua's last visit to Clara Maass, would have likely saved his
leg.
To specifically address the contribution of the infection Joshua suffered
to the loss of his leg, plaintiffs served an expert report by an internist and
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specialist in infectious diseases, Angelo Scotti, M.D., who opined that had
Joshua's compartment syndrome been diagnosed and treated in a timely
fashion, the deep vein thrombosis and secondary infection that led to the
amputation would have been avoided. He further opined that even without a
compartment syndrome diagnosis, it is likely appropriate laboratory testing
would have yielded abnormal results demonstrating early systemic infection.
Dr. Scotti opined that had Clara Maass initiated anti-microbial therapy on
Joshua's second or even third visit, when he "had a much lighter bacterial
burden," the infection would likely have been successfully treated and
amputation avoided.
After the close of discovery, the settlement of plaintiffs' claims against
the doctors, the physician assistants and their employer, and an eleventh hour
adjournment of the fourth — and agreed upon — trial date by defendant nurses
and Clara Maass, they moved for summary judgment asserting plaintiffs failed
to present any evidence that the negligent care and treatment allegedly
provided by defendant nurses was a proximate cause of Joshua's injuries.
Plaintiffs opposed the motion, relying on Dr. Sixsmith's report that
assessments of Joshua by defendant nurses "were deficient and incomplete and
were a contributing factor of the misdiagnosis of Joshua Piperato."
A-3569-17T1
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Plaintiffs also submitted an affidavit from Dr. Sixsmith in opposition to
the motion, stating that she agreed with Nurse Byerly's assessment that
defendant nurses deviated from the standard of care. As she is not a nurse,
however, Dr. Sixsmith explained she would not typically testify at trial to
those deviations. Dr. Sixsmith stated her testimony at trial would focus on the
"medical significance [of those deviations] based on [her] more than 40 years
of experience as an emergency room physician."
Focusing on the role of nursing assessments in patient care, Dr. Sixsmith
opined that such assessments not only provide important information to
physicians handling the immediate care of the patient, but also to those
reviewing the records of that care. She explained that assessments of an
injured limb are critical to diagnosing compartment syndrome and deep vein
thrombosis, including skin assessments, sensation assessments, capillary refill
assessments, pulse assessments and pain assessments. "Compartment
syndrome and [deep vein thrombosis] can cause changes in all of these
assessments, that is why nursing assessments over time in the emergency can
play a significant role in such a diagnosis." Dr. Sixsmith averred that
"[c]ertainly, here the failure of the nurses to properly assess played a
substantial role in the failure to diagnose."
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Dr. Sixsmith noted the undisputed fact that Joshua "was never seen by a
physician" at Clara Maass, nor was one consulted. She opined:
Incredibly, this was true even though this child
presented to the ER on three consecutive days with
worsening complaints as reported by the family,
including things like unrelenting pain, fever, and
crying all night. A child with a sprain should be
getting better, not worse.
....
The nurses at issue failed to assess pain. These
failures . . . again caused harm to the patient. In
compartment syndrome cases, pain assessments are
very important, as typically, the first sign of
compartment syndrome is pain out of proportion to the
injury.
Dr. Sixsmith opined that had a physician been consulted on this case, the
correct diagnosis would have been made. She opined that the nurses' failure to
have a physician see Joshua was a "substantial cause of the misdiagnosis."
Plaintiffs' theory as to the nurses was clear; had they performed proper
assessments and documented the pain and swelling in Joshua's leg, the
physician assistants and their physician supervisors would have been alerted to
undertake further inquiry to determine the cause of the boy's pain. Plaintiffs
contended their failure to do so contributed to the amputation of Joshua's leg.
To that end, they relied on the deposition testimony of one of the defendant
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doctors responsible for reviewing and signing off on Joshua's chart, Dr.
Jonathan Gamss. He testified that had there been documentation "in the chart
that supported pain out of proportion to exam, so then there probably would
have been a more involved workup that would be taking place of the patient,"
including "[h]aving an orthopedist involved, doing some other assessments of
the neurovascular supply."
Plaintiffs argued that their expert on the nursing standard of care, Nurse
Byerly, opined that defendant nurses failed to properly assess and document
Joshua's complaint "of lower extremity pain and swelling" meaning "they
could not communicate their assessment findings to the physician or
[physician assistant]." In addition to their reliance on Dr. Sixsmith's opinion,
plaintiffs also relied on Dr. Baren's opinion that the failure of the physician
assistants and supervising doctors to ensure the necessary nursing assessments
were adequately completed contributed to the resulting amputation of Joshua's
leg. Finally, plaintiffs also submitted and relied on the reports of Drs. Farber
and Scotti to the effect that had appropriate tests been done timely, a correct
diagnosis and treatment would have followed and amputation would have been
avoided.
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Defendants objected to plaintiffs' submission of Dr. Sixsmith's affidavit
on the motion. They contended it was at odds with her deposition testimony
and served after the close of discovery. Specifically, they relied on the
following excerpt from Dr. Sixsmith's deposition:
Q: And you're not offering any opinions as to
causation in this case, are you?
A: No.
Q: I'm right, you're not—
A: I'm not.
Defendants contended Dr. Sixsmith's was a sham affidavit offered to counter
plaintiffs' failure to offer expert opinion that the negligent care allegedly
provided by defendant nurses was a proximate cause of Joshua's injuries. See
R. 4:46-5(b).
The trial court judge granted the motion. The judge found plaintiffs'
"main report" from Dr. Byerly "had several pages with regard to the standard
of care for each one of the nurses who had seen Joshua at the hospital." But
"[w]hat this report did not do is give any opinion with regard to causation of
the ultimate injury or damage" Joshua suffered. The judge refused to consider
Dr. Sixsmith's affidavit because it was supplied months after the discovery end
date and "was in contradiction not only to her report, but specific testimony in
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her deposition where . . . she indicated that she was not providing an opinion
on causation."
The judge found Dr. Farber's opinion "does not begin to address . . . the
alleged negligence of the nurses. It doesn't make reference to their actions, it
doesn't give us an indication as to why the things he did suggest would have
prevented this ultimate amputation." The judge found Dr. Farber "just
provides that in broad strokes and clearly is . . . talking about either the
[physician assistants] or the doctors who would be ordering that type of
diagnostic work-up."
Although satisfied plaintiffs established on the motion that defendant
nurses deviated from the standard of care, the judge noted plaintiffs needed to
have an expert "opine that the actions of these nurses resulted in the ultimate
damage and/or injury" Joshua sustained. The judge concluded "after
reviewing all of the reports and going through Dr. Farber's deposition
testimony trying to essentially bridge, for lack of terms, his opinion to Ms.
Byerly's" she could not find plaintiffs had offered an opinion on causation .
Plaintiffs moved for reconsideration arguing three points. First, as to the
nurses, plaintiffs argued Dr. Sixsmith offered a causation opinion as to the
nurses in her report and reiterated it at her deposition, and that defendants'
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argument to the contrary relied on taking a snippet of the deposition out of
context. Second, plaintiffs argued they established causation even without Dr.
Sixsmith's opinion because the nurses failed to appreciate or document that
Joshua was experiencing pain out of proportion to injury. Dr. Gamss testified
that had pain out of proportion to injury been documented, there likely would
have been "a more involved workup," which Drs. Farber and Scotti opined
would have led to Joshua being properly diagnosed and treated, thus saving his
leg.
Third, as to the hospital, plaintiffs argued it was not entitled to summary
judgment even if the complaint against the nurses was dismissed. They
claimed the judge overlooked an existing order entered by another judge
dismissing plaintiffs' direct claims against Clara Maass, but specifically
preserving "[t]he claims asserted against Clara Maass Medical Center under
apparent authority" for the negligence of the settling defendant physicians and
physician assistants. Specifically, plaintiffs contended Clara Maass was
vicariously liable for the negligence of the physicians and physician assistants
because plaintiffs accepted care for Joshua in the reasonable belief that those
defendants were rendering treatment on behalf of Clara Maass even though
they were actually employed by Emergency Medical Associates. See Estate of
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Cordero, ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 310 (App. Div.
2008).
Defendants opposed the motion. Regarding the nurses, they argued
plaintiffs were only rehashing the arguments they made in opposition to
summary judgment. Regarding the hospital, defendants argued first that the
prior order was not addressed to its vicarious liability for the settling defendant
doctors and physician assistants, but only to its nurse employees.
Alternatively, and although not having addressed the issue on their motion,
defendants argued that plaintiffs executed a "General Consent: Inpatient,
Outpatient & Emergency Department," putting them on notice that the
physician and physician's assistants were not employees of the hospital, and
thus that all of plaintiffs' claims against the hospital, including those based on
apparent authority, were properly dismissed.
The judge denied the motion for reconsideration. In a written opinion,
the judge ruled that plaintiffs had "failed to present evidence" relative to their
apparent authority claim. Specifically, the judge found that although plaintiffs
on reconsideration asserted "there was an 'abundance of testimony'" from
Joshua's parents and grandmother that they believed the health care providers
they encountered at Clara Maass were employees of the hospital, they merely
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appended the deposition transcripts of those witnesses without specific citation
to the portions supporting their contention.
The judge further noted that counsel offered nothing more at oral
argument as to how plaintiffs "were led to believe that the treating nurses,
physician assistants or doctors were Clara Maass employees." The judge
wrote, "[t]o the contrary, evidence was presented that the plaintiff's mother had
executed a document clearly outlining that the treating physicians were not
employees of Clara Maass," and "that the treating physicians wore clothing
that would identify the doctors as [Emergency Medical Associates]
employees." The judge concluded that for those reasons "and arguments in
defendant's brief," the claim of apparent authority fails. 2
As to the nurses, the judge wrote "it was necessary for an expert to opine
not only [on] the deviation of the nurses but also provide an opinion relating
their alleged deviation to amputation of [Joshua's] leg." The judge declined
2
As we observed in Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603,
612 (App. Div. 1984), while it is not always fatal for a judge to rely on the
reasons advanced by a party in deciding a motion, it is, of course "preferable
that . . . a judge states his or her reasons with particularity." Rule 1:7-4
requires the court to "find the facts and state its conclusions of law . . . on
every motion decided by a written order that is appealable as of right."
Reviewing courts "should not be forced to examine the moving papers and
attempt to glean the judge's reasons," Vartenissian, 193 N.J. Super. at 612, for
orders terminating litigation in light of the requirements of Rule 1:7-4.
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plaintiffs' suggestion "that the court should chain link the various opinions into
a complete opinion that the nurses were negligent and a proximate cause of the
ultimate injury," as plaintiff did not "provide any legal authority in this
regard." The court concluded "[a]s no expert opined directly to the relation of
the nursing deviations and the proximate cause of the amputation, the
plaintiff's claims against the nursing defendants could not be proven." This
appeal followed.
We review summary judgment using the same standard that governs the
trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). As
the parties essentially agreed on the material facts for purposes of the motion,
our task is limited to determining whether the trial court's ruling on the law
was correct. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998). Because a trial court does not enjoy the advantage
in discerning the law that it does in discerning the facts, a reviewing court
owes no special deference to the "trial court's interpretation of the law and the
legal consequences that flow from established facts." Manalapan Realty, L.P.
v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Our function, like that of the trial judge, is not "to weigh the evidence
and determine the truth of the matter but to determine whether there is a
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genuine issue for trial." Petro-Lubricant Testing Labs., Inc. v. Adelman, 233
N.J. 236, 256 (2018) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995)). Only "when the evidence 'is so one-sided that one party
must prevail as a matter of law'" should a court enter an order for summary
judgment. Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986)).
Having reviewed the evidence on the motion, we are satisfied summary
judgment should not have been granted on this record. To the extent the trial
court's opinions can be read to suggest plaintiffs needed to present a single
report as to the alleged negligence of the nurses addressing both deviation and
causation, we disagree.
As was pointed out by plaintiffs' counsel on the motion, as is typical in
nursing malpractice claims, their nursing expert, Byerly, a registered nurse,
although well-qualified to render an opinion on the nursing standard of care,
was not qualified to render a medical opinion that the deviations she identified
contributed to the amputation of Joshua's leg. See Sanzari v. Rosenfeld, 34
N.J. 128, 136 (1961). For expert opinion on causation, plaintiffs relied on Dr.
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Sixsmith, a physician board certified in both emergency medicine and internal
medicine.3
Contrary to the judge's finding on summary judgment that Dr. Sixsmith
"in neither her written report or in her deposition . . . address[ed] proximate
cause or causation between the nurse's treatment and the ultimate injury that
Joshua sustained," Dr. Sixsmith actually did both. In her report, Sixsmith
plainly stated, "[t]he nursing assessments performed by Nurse Iannuzzi, Nurse
Nigro, Nurse Porcaro, and Nurse Guerrero were deficient and incomplete and
were a contributing factor to the misdiagnosis of Joshua Piperato."
At Sixsmith's deposition, counsel for defendant nurses queried Dr.
Sixsmith specifically about that opinion. After confirming with the doctor that
she was not offering any opinion on standard of care but would instead defer to
the "nursing expert in this case that plaintiff has retained with respect to
standards of care applicable to nurses," counsel asked Sixsmith about the
causation opinion she was offering as to the nurses.
3
Because we conclude the court erred in excluding Dr. Sixsmith's affidavit on
the motion, we need not consider whether Dr. Gamss's testimony in
conjunction with plaintiffs' other experts was sufficient to get plaintiffs to a
jury on causation. We certainly see no impediment to plaintiffs pursuing those
proofs in addition to presenting Dr. Sixsmith's testimony as to causation at
trial.
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Specifically, defense counsel asked: "And Doctor, is it correct that in
reviewing your report dated November 17, 2016, on the fourth page of that
report is the only one sentence [quoted above] that you offer by way of
commentary on Nurse Iannuzzi, Nurse Nigro, Nurse Porcaro, and Nurse
[G]uerrero?" When Sixsmith agreed, defense counsel pressed further:
Q: There's no other opinion that you have in this
matter other than what's contained on page 4 in
that one sentence?
A: Correct.
Q: I have nothing further.
As we earlier noted, in addition to providing plaintiffs a causation
opinion relative to the nurses, Dr. Sixsmith also rendered an opinion that
defendant physician assistants deviated from the standard of care, as did
defendant emergency room physicians who supervised them and co-signed
their records. At the end of Sixsmith's deposition, at which she was also
questioned by two different lawyers representing defendant physicians and
physician assistants as well as counsel for their employer, Emergency Medical
Associates, counsel for one of the physicians and physician assistants engaged
the doctor in the following exchange:
Q: And you're not offering any opinions as to
causation in this case, are you?
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A: No.
Q: I'm right, you're not —
A: I'm not.
Q: That was a poorly worded question. And there's
nothing in the chart or any of the deposition
testimony to support that there was any visual
abnormality of the left calf on [Joshua's second
visit to Clara Maass] correct?
A: Correct.
Q: And am I correct that you are not offering any
opinion that there was a deviation from the
standard of care on [Joshua's first visit]?
A: Correct.
Q: Would you agree that an ankle sprain in a 7-
year-old is not a particularly unusual
occurrence?
A: Very common.
Q: And that following a sprained ankle in a 7-year-
old, that child can experience pain for several
days; is that right?
A: Yes.
Q: The pain isn't expected to go away within 48
hours, is it?
A: No.
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Q: And are you offering an opinion — you talked
earlier about getting a CT or an MRI or
ultrasound on [Joshua's second visit]. Are you
offering any opinions as to what those studies
would have shown had they been done?
A: No.
Q: Okay. That's all I have. Thank you.
At oral argument on the summary judgment motion, counsel for
defendant nurses and Clara Maass quoted only that portion of the exchange in
which Dr. Sixsmith said she was not offering any opinions as to causation in
the case, omitting that the question was asked of the doctor by a lawyer
representing different parties, and likewise omitting her own exchange with
the doctor in which Sixsmith confirmed the causation opinion she was offering
as to defendant nurses. 4 We have no need to explore whether candor required
4
When plaintiffs' argued on the summary judgment motion that counsel for
defendant nurses had the opportunity to ask Dr. Sixsmith at deposition the
basis for her opinion, the judge observed, "I assume she strategically avoided
that . . . given the doctor's report." We have no comment on counsel's strategy.
We note only that having chosen not to query the doctor about the basis for her
opinion when provided the opportunity, we see no grounds for objecting to an
affidavit conveying the information the doctor would have supplied at
deposition had counsel asked. See McCalla v. Harnischfeger Corp., 215 N.J.
Super. 160, 172 (App. Div. 1987) (holding a party has "no right to eschew
discovery and then object to the admission of the materials that were fairly
obtainable through interrogatories or depositions, and which logically flowed
from the expert report already provided").
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more. We note only that the representations led the trial court judge to
conclude, erroneously, that the affidavit from Dr. Sixsmith submitted on the
motion contradicted "specific testimony in her deposition where she indicated
. . . that she was not providing an opinion on causation."
As Dr. Sixsmith's affidavit plaintiffs submitted in opposition to summary
judgment was not at odds with either her report or her deposition testimony, it
was a mistaken application of discretion for the judge to refuse to consider it.
See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002) (holding "[c]ourts
should not reject alleged sham affidavits . . . where confusion or lack of clarity
existed at the time of the deposition questioning and the affidavit reasonably
clarifies the affiant's earlier statement"). If counsel for defendants was
genuinely confused by Dr. Sixsmith's deposition testimony, a request for an
N.J.R.E. 104 hearing may have been in order before arguing to the motion
judge that plaintiffs had submitted a sham affidavit in order to defeat summary
judgment.
As plaintiffs established a prima facie case of negligence against the
nurses sufficient to defeat summary judgment based on the expert opinions of
Nurse Byerly and Dr. Sixsmith, summary judgment was also improperly
entered in favor of defendant Clara Maass, as the hospital is subject to liability
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based on a theory of respondeat superior. See Arthur v. St. Peters Hosp., 169
N.J. Super. 575, 579-80 (Law Div. 1979). We are also convinced that
summary judgment was likewise improperly entered in favor of the hospital on
plaintiffs' theory of apparent authority.
The record is clear that Clara Maass never moved for summary judgment
on plaintiffs' apparent authority claim, which was clearly preserved by prior
order in the case. 5 Thus it was completely improper for the hospital to address
the claim on plaintiffs' motion for reconsideration. "The first prerequisite . . .
of due process is fair notice, so that a response can be prepared and the
respondent fairly heard." Nicoletta v. N. Jersey Dist. Water Supply Co., 77
N.J. 145, 162 (1978) (citing Avant v. Clifford, 67 N.J. 496, 525 (1975)). As
the hospital never sought judgment on the apparent authority claim, it was
error for the judge to decide on reconsideration that summary judgment was
5
Defendants' argument on the reconsideration motion that the order preserved
only plaintiffs' claims against the hospital based on its vicarious liability for
defendant nurses was plainly wrong. Defendant nurse employees possessed
actual authority to act on behalf of the hospital. See Arthur, 169 N.J. Super. at
579-80 (explaining doctrine of respondeat superior in hospital context). The
apparent authority claims obviously related only to those physician and
physician assistant employees of defendant Emergency Medical Associates,
who were without actual authority to act on behalf of the hospital. See Basil v.
Wolf, 193 N.J. 38, 67 (2007) (citation omitted) (explaining apparent authority
in hospital context).
A-3569-17T1
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proper as plaintiffs "failed to present evidence relative to this claim."
Plaintiffs had no obligation to respond to a motion for judgment the hospital
never made.
"[Summary judgment] is designed to provide a prompt, businesslike and
inexpensive method of disposing of any cause which a discriminating search of
the merits in the pleadings, depositions and admissions on file, together with
the affidavits submitted on the motion clearly shows not to present any
genuine issue of material fact requiring disposition at trial," Brill, 142 N.J. at
530 (quoting Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 641-42
(1995)), not "shut a deserving litigant from his [or her] trial," id. at 540
(quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 77 (1954)). As we are
satisfied plaintiffs have demonstrated bona fide causes of action entitling them
to fully expose their case to a jury, we reverse and remand the matter for trial.
See id. at 541.
Reversed and remanded. We do not retain jurisdiction.
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