DEMETRIOS PAPADOGONAS VS. DR. DEREK S. LEE (L-3363-17, 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NOT FOR PUBLICATION WITHOUT THE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-0653-19T3
DEMETRIOS PAPADOGONAS,
Plaintiff-Appellant,
v.
DR. DEREK S. LEE,
Defendant-Respondent
and
MEADOWLANDS HOSPITAL
MEDICAL CENTER, INC.,
Defendant.
_____________________________
Submitted December 15, 2020 – Decided January 8, 2021
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3363-17.
Robert A. Skoblar, attorney for appellant.
Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys
for respondent (Michael R. Ricciardulli, of counsel and
on the brief; Meghan E. Walsh, on the brief).
PER CURIAM
Plaintiff Demetrios Papadogonas appeals from the Law Division's
September 3, 2019 order granting defendant Dr. Derek S. Lee's motion for
summary judgment and dismissing plaintiff's medical malpractice complaint
against defendant with prejudice. Plaintiff also challenges a second order issued
on September 3, that granted defendant's motion to quash a subpoena plaintiff
served upon Newark Beth Israel Medical Center seeking defendant's disciplinary
records while employed at that institution. We affirm.
While swimming in Greece on September 10, 2015, plaintiff suffered a
left tympanic membrane perforation, which is an eardrum rupture. Plaintiff
sought medical treatment in Greece and was treated with antibiotics and ear
drops. After he returned to New Jersey, plaintiff saw an ENT specialist 1 about
his left ear and was prescribed a regimen of antibiotics. Soon after, plaintiff
developed a fever, cough, and chest pain. On September 21, plaintiff went to
1
An ENT specialist is a physician who specializes in the treatment of diseases
and disorders that affect the ear, nose, and throat.
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the Meadowlands Hospital Medical Center and was admitted to the intensive
care unit and treated with a broad spectrum of antibiotics.
The next day, defendant examined plaintiff. Defendant diagnosed
plaintiff with the following conditions: (1) eustachian tube dysfunction, (2)
nasal septal fracture, deviation, (3) nasal septal perforation, (4) inferior turbinate
hypertrophy, (5) collapsed nasal valves, and (6) chronic otitis media. Defendant
recommended that plaintiff undergo two surgeries, a nasal septal perforation
repair and a left tympanomastoidectomy 2 to repair a perforation of the tympanic
membrane.
On September 23, defendant performed surgery to repair plaintiff's septal
perforation. Two days later, defendant performed a left tympanomastoidectomy
on plaintiff.
After plaintiff was discharged from the hospital, he complained of hearing
loss in his left ear. He soon began receiving treatment from Michael Katz, M.D.,
an ENT specialist. Dr. Katz examined plaintiff and found he was still suffering
2
A tympanomastoidectomy is the performance of a tympanoplasty and
mastoidectomy together. Mastoidectomy surgery removes diseased air cells
from the mastoid bone. During a tympanoplasty, the surgeon will graft the
tympanic membrane (eardrum) and reconstruct the middle ear in order to retain
or restore hearing.
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from a tympanic membrane perforation. On July 8, 2016, Dr. Katz performed a
left tympanostomy on plaintiff, but his hearing did not improve.
Plaintiff eventually filed a medical malpractice complaint against
defendant and alleged that defendant deviated from accepted standards of
medical care while performing the two surgeries and caused his hearing loss.
To sustain a prima facie cause of action for medical professional liability
negligence, a plaintiff must establish by expert testimony the relevant standard
of care, a breach of that standard of care, and a causal connection between the
breach and the plaintiff's injuries. Rosenberg v. Tavorath, 352 N.J. Super. 385,
399 (App. Div. 2002). "Absent competent expert proof of these three elements,
the case is not sufficient for determination by the jury." Ibid. (citations omitted).
In an attempt to meet this requirement, plaintiff retained Dr. Katz, who
rendered two expert reports identifying the standard of care applicable to the
surgeries and defendant's alleged deviations from that standard.3 However, the
first report Dr. Katz issued on June 15, 2017 did not address the causal
connection between defendant's alleged breach of the standard of care and
plaintiff's injuries in any way, shape, or form.
3
Contrary to plaintiff's assertion in response to defendant's motion for summary
judgment, Dr. Katz never opined that the surgeries defendant performed were
"unnecessary."
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In his second report, rendered on August 8, 2018, Dr. Katz stated that
"[h]earing loss secondary to [the] surgery [defendant performed on plaintiff's
left ear] is a well[-]known risk and complication and can be caused by multiple
factors including damage to the ossicular chain, failure to the repair of the
perforation and damage to the inner ear." Dr. Katz also opined that "[i]t is not
possible to determine whether [plaintiff's] permanent hearing loss was a result
of the infection/initial trauma or the resultant surgery without a preoperative
hearing test to which we can compare." No preoperative hearing test was
performed in this case. At a subsequent deposition, Dr. Katz again made clear
that he was unable to "offer any opinions on causation" and that the opinions he
did render "were limited to the issue of deviation[.]"
As the matter progressed toward summary judgment, plaintiff served a
subpoena upon Newark Beth Israel Medical Center where defendant used to
work. Plaintiff had learned that defendant was suspended from that institution
in the past because he had a dispute with a patient over the payment of a bill and
he wanted to obtain copies of defendant's disciplinary records. Defendant filed
a motion to quash the subpoena, arguing that the records were not relevant to
the medical malpractice issue before the court.
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After conducting oral argument, Judge Kimberly Espinales-Maloney
rendered a comprehensive written opinion on September 3, 2019 granting
defendant's motion for summary judgment and his motion to quash the subpoena
seeking his disciplinary records. In granting summary judgment to defendant,
the judge concluded that plaintiff's expert, Dr. Katz, never opined that any of
defendant's deviations from the standard of care actually caused the hearing
deficit. As Judge Espinales-Maloney explained:
Here, the record shows that plaintiff has retained Dr.
Katz, a board certified [otolaryngologist], as his expert.
Dr. Katz has authored two expert reports, which set
forth deviations from the standard of care on the part of
Dr. Lee. Specifically, Dr. Katz has three opinions
regarding deviation: 1) that the tympanoplasty was
performed prematurely, without giving the eardrum a
chance to heal spontaneously; 2) performance of a
mastoidectomy on the patient without evidence of
coalescent mastoiditis[;] and 3) performance of the
septoplasty during the hospitalization. However, a
review of both reports demonstrates that Dr. Katz does
not provide any causation opinion connecting the
alleged deviations to plaintiff's claimed damages. The
reports make no mention of proximate causation.
Moreover, during Dr. Katz deposition[,] he testified
that his initial report did not contain any opinions on
causation. Further, Dr. Katz admitted at his deposition
that without having seen the results of a hearing test
performed prior to Dr. Lee's ear surgery, he could not
provide an opinion as to whether plaintiff's hearing loss
is the result of negligence on the part of Dr. Lee.
Therefore, plaintiff cannot meet his burden of proving
causation through expert medical testimony as required
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by case law. Since plaintiff has not a made prima facie
showing of negligence, specifically the proximate
cause prong—this court finds plaintiff's [c]omplaint
must be dismissed with prejudice. Therefore, this court
will grant defendant's [motion for summary judgment].
The judge also granted defendant's motion to quash plaintiff's subpoena
on Newark Beth Israel Medical Center. In so ruling, the judge stated:
Here, this court finds the subpoenas issued to Newark
Beth Israel Medical Center are unreasonable and will
not lead to the discovery of admissible evidence. This
court finds the information sought by plaintiff is
irrelevant to the issues in this matter. Specifically,
plaintiff is pursuing a negligence claim against Dr. Lee.
This court does not find documents relating to Dr. Lee's
suspensions from a different hospital to be relevant to
the allegations of negligence in this case. Pursuant to
[N.J.R.E. 401], relevant evidence is defined as
"evidence having a tendency in reason to prove or
disprove any fact of consequence to the determination
of the action." Here, this court does not find that Dr.
Lee's prior suspensions will prove or disprove the
negligence claims alleged by plaintiff. Moreover,
plaintiff argues this case is about performing
unnecessary surgeries for money. This court does not
agree with [plaintiff's] assertion regarding the subject
matter of the case. A review of the [c]omplaint
indicates the case is a negligence/medical malpractice
case. Thus, this court does not find Dr. Lee's
suspensions to be relevant. Lastly, this court agrees
with defendant that Dr. Lee's character is not an issue
nor does plaintiff . . . have a right to impeach Dr. Lee's
credibility. Whether [sic] Dr. Lee's testimony
regarding insurance payments has no bearing on the
issues in this matter. Additionally, plaintiff's request is
now moot since this court has granted defendant's
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[motion for summary judgment][.] Therefore, this
court will grant defendant's [motion to quash the
subpoena] served on Newark Beth Israel Medical
Center.
This appeal followed.
Our standards of review in this matter are well established. In reviewing
a grant of summary judgment, we apply the same standard under Rule 4:46-2(c)
that governs the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J.
344, 349-50 (2016). We consider the factual record, and reasonable inferences
that can be drawn from those facts, "in the light most favorable to the non-
moving party" to decide whether the moving party was entitled to judgment as
a matter of law. IE Test, LLC v. Carroll, 226 N.J. 166, 184 (2016) (citing Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). With regard to the
discovery issue, a trial court's decision to quash a subpoena is entitled to a
deferential standard of review; therefore, decisions regarding "discovery matters
are upheld unless they constitute an abuse of discretion." In re Custodian of
Records, Criminal Div. Manager, 214 N.J. 147, 162-63 (2013) (citing Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).
On appeal, plaintiff raises the same arguments he unsuccessfully
presented to Judge Espinales-Maloney. We have considered plaintiff's
contentions in light of the record and the applicable legal principles and
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conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Espinales-Maloney
properly granted summary judgment to defendant and correctly quashed
plaintiff's subpoena seeking defendant's disciplinary records. We therefore
affirm substantially for the reasons expressed in the judge's September 3, 2019
written opinion.
Affirmed.
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