Opinion
DOCKET NO. A-0876-13T1
02-03-2016
MARK LANG and DORIS LANG, INDIVIDUALLY, AND DORIS LANG, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOSEF F. LANG, Plaintiffs-Appellants, v. MORRISTOWN MEMORIAL HOSPITAL, GORYEB CHILDREN'S CENTER, BLAIR BELTZER, M.D., CHILTON MEMORIAL HOSPITAL, COLIN O'REILLY, D.O., HOWARD E. COREY, M.D., ERIC LAZAR, M.D., MELISSA THOMAS, M.D., NORTH JERSEY PSYCHIATRY ASSOCIATES, LLC, AND DR. CECILIA WANG, Defendants-Respondents.
J. Edmund Bryak argued the cause for appellant (Law Offices of Conrad J. Benedetto, attorneys; Conrad J. Benedetto, on the brief). Anthony Cocca argued the cause for respondents AHS Hospital Corp./Morristown Medical Center, Eric Lazar, M.D., Howard Corey, M.D., Colin O'Reilly, M.D., and Melissa Thomas, M.D. (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel; Nicholas F. Spindler, on the brief). Raymond J. Fleming argued the cause for respondent Chilton Hospital (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Fleming, of counsel and on the brief; Christopher Klabonski, on the brief). William J. Buckley argued the cause for respondents North Jersey Psychiatry Associates, LLC and Dr. Cecilia Wang (Schenck Price Smith & King, attorneys; Mr. Buckley, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4879-12. J. Edmund Bryak argued the cause for appellant (Law Offices of Conrad J. Benedetto, attorneys; Conrad J. Benedetto, on the brief). Anthony Cocca argued the cause for respondents AHS Hospital Corp./Morristown Medical Center, Eric Lazar, M.D., Howard Corey, M.D., Colin O'Reilly, M.D., and Melissa Thomas, M.D. (Bubb, Grogan & Cocca, LLP, attorneys; Michael S. Bubb, of counsel; Nicholas F. Spindler, on the brief). Raymond J. Fleming argued the cause for respondent Chilton Hospital (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Fleming, of counsel and on the brief; Christopher Klabonski, on the brief). William J. Buckley argued the cause for respondents North Jersey Psychiatry Associates, LLC and Dr. Cecilia Wang (Schenck Price Smith & King, attorneys; Mr. Buckley, on the brief). PER CURIAM
Plaintiffs, the parents and estate of Josef F. Lang, appeal from the July 12, 2013 order dismissing their complaint with prejudice for failing to state a claim, on the basis that their expert's qualifications did not "match up" with the specialties of the defendant-physicians. Plaintiffs also appeal from the August 14, 2013 order dismissing their complaint with prejudice as to defendant Chilton Memorial Hospital for failing to comply with the affidavit of merit (AOM) statute. N.J.S.A. 2A:53A-27. Plaintiffs further appeal from the September 17, 2013 order denying plaintiffs' motion to reconsider the July order dismissing the North Jersey Psychiatry Associates, LLC, and Dr. Cecilia Wang (collectively, the psychiatry defendants), as well as Morristown Memorial Hospital, Goryeb Children's Center, Eric Lazar, M.D., Howard E. Corey, M.D., Colin O'Reilly, D.O., and Melissa Thomas, M.D., (collectively, the AHS defendants).
We will refer to the deceased child by his first name to distinguish him from his parents. We intend no disrespect.
The AHS defendants state that they were improperly named in the complaint "Morristown Memorial Hospital" and "Goryeb Children's Center," instead of AHS Hospital Corp./Morristown Medical Center.
Although plaintiffs listed only the September order on their notice of appeal, we discern from their brief it was their intention to appeal from all three orders, and as these issues as to all defendants are fully briefed, we have chosen to deal with them all. But see W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review.").
At the time of his tragic death in 2011, Josef was an obese seventeen-year-old, who had been treated for hyperactive attention deficit disorder and autism. He was prescribed a number of medications to allow him to remain at home and attend a special school. Dr. Wang, a psychiatrist, took over Josef's care in 2009, following the death of Josef's previous psychiatrist. Dr. Wang described the then fifteen-year-old Josef as a "[six] foot tall, 250 pound, non-verbal autistic child with severe physical and developmental disabilities."
On September 20, 2011, Josef was admitted to Chilton Memorial Hospital where he was found to be experiencing renal failure and septic shock. He was stabilized and transferred to Morristown Memorial Hospital/Goryeb Children's Hospital (Goryeb). Josef had emergency colon surgery the following day and, on September 28, 2011, he died from a pulmonary embolism.
In December 2012, Mark and Doris Lang, individually, and Doris Lang as personal representative for the estate of Josef F. Lang, filed their original complaint alleging medical malpractice against the AHS defendants; Chilton; the psychiatry defendants; and Blair Beltzer, M.D. Plaintiffs filed an amended complaint in January 2013.
There is no information in the record concerning Dr. Beltzer's status in this lawsuit; she was not a party in the orders on appeal. We were informed at oral argument that she never filed an appearance and may not have been served.
Drs. Thomas and O'Reilly, who provided the initial care for Josef upon his admission to Goryeb, are board certified in pediatrics with a subspecialty in pediatric critical care medicine. Dr. Corey, board certified in pediatric nephrology, became involved in Josef's treatment because of Josef's renal failure. Dr. Lazar, board certified in surgery with a subspecialty in pediatric surgery, performed emergency abdominal surgery and an ileostomy.
An ileostomy is a surgical procedure "used to move waste out of the body when the colon or rectum is not working properly." U.S. Nat'l Library of Med., Ileostomy, MedlinePlus, https://www.nlm.nih.gov/medlineplus/ency/article/007378.htm (last updated Oct. 27, 2014).
"[A] physician defending against a malpractice claim (who admits to treating the plaintiff) must include in his [or her] answer the field of medicine in which he [or she] specialized, if any, and whether his [or her] treatment of the plaintiff involved that specialty." Buck v. Henry, 207 N.J. 377, 396 (2011). The psychiatry defendants filed an answer and cross-claim in February 2013, identifying Dr. Wang as practicing in the specialty of psychiatry. Chilton's answer and cross-claim, filed three days later, identifies itself as a non-profit hospital, and asserted that plaintiffs' claims must be supported by N.J.S.A. 2A:53A-27. The AHS defendants filed an answer and cross-claim in March 2013. In the middle of April 2013, the AHS defendants sent a letter to plaintiffs' counsel in lieu of an amended answer in which the specialties of the defendant-physicians were identified, indicating that an AOM in each specialty was required.
Pursuant to N.J.S.A. 2A:53A-27, within sixty days after the filing of an answer to a medical malpractice complaint, a plaintiff must:
provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment
practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit . . . upon a finding of good cause."[T]he failure to file an appropriate affidavit within the statutory time limits may result in dismissal of even meritorious cases." Buck, supra, 207 N.J. at 382.
On April 9, 2013, plaintiffs served the psychiatry defendants an AOM executed by Dr. Louis Flancbaum, a general surgeon. Plaintiffs' brief states that Chilton was also served with the AOM on April 9, 2013. AHS defendants were not served with the AOM prior to May 7, 2013, which is sixty days from the filing of their original answer.
In the AOM, Dr. Flancbaum wrote that he reviewed the decedent's medical records and plaintiffs' complaint. He stated:
This case involves the decline and untimely death of Decedent Josef F. Lang as a result of the negligence of defendants by failing to properly evaluate [his] medical condition, failing to provide proper treatments to him with respect to his then current medical state and condition, including the failure to provide the proper medications and dosages of said medication, which in turn caused pain, suffering and untimely death.
It is my professional opinion, to a reasonable degree of medical certainty, that the care and treatment rendered to Josef F. Lang by Defendant(s) . . . fell below and/or
deviated from the accepted standard of medical care.
Flancbaum concluded that the "deviations from the accepted standard of professional and pharmacology care increased" Josef's risk of harm and were "wholly and/or substantially contributing factor(s) in causing harm/loss/injury" and his untimely death.
On May 31, 2013, more than three weeks after the sixty-day statutory time frame had elapsed, the AHS defendants moved to dismiss plaintiffs' complaint for failure to state a claim, pursuant to the AOM statute, N.J.S.A. 2A:53A-29, and Rule 4:6-2(e). AHS defendants' counsel certified that two letters demanding AOMs for the named physicians in their respective specialties were sent to plaintiffs' counsel. AHS defendants' counsel further certified that numerous telephone calls were made in an attempt to find out why they had not been served with AOMs and a letter was sent to the presiding civil judge requesting a "Ferreira conference . . . to discuss the AHS [p]hysicians' issues with the lack of [p]laintiffs' [AOM][,]" but no conference was scheduled.
N.J.S.A. 2A:53A-29 states: "If the plaintiff fails to provide an affidavit or a statement in lieu thereof . . . it shall be deemed a failure to state a cause of action."
"The Ferreira conference is intended to resolve questions concerning the propriety of an affidavit [of merit] before the end of the statutory time limit so that otherwise worthy causes of action are not needlessly dismissed." Buck, supra, 207 N.J. at 383. "To staunch the flow of dismissal motions based on claims of non-compliance with the [AOM] statute," the Court "required that 'a case management conference be held within ninety days of the service of an answer' at which the professional defendant would raise 'any objections to the adequacy of the affidavit' served by the plaintiff." Id. at 382 (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003)). However, "reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 426 (2010).
On June 14, 2013, the psychiatry defendants filed a motion to dismiss asserting that the AOM provided by plaintiffs did not specifically identify a physician or entity that purportedly deviated from accepted standards of care, and thus failed to state a cause of action as to the psychiatry defendants. Because defendant Dr. Wang is a psychiatrist, defendants further asserted that Flancbaum's qualifications as a general surgeon did not comport with the AOM statute, the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act), or case law requiring that "the physician authoring the [a]ffidavit be specialized . . . in the same specialty as the physician against whom the [a]ffidavit is offered."
N.J.S.A. 2A:53A-41 of the Patients First Act pertains to the qualifications of an expert who gives testimony or executes an affidavit in a medical malpractice action. The statute "requires that plaintiffs' medical expert must 'have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty' as defendant physicians." Nicholas v. Mynster, 213 N.J. 463, 468 (2013) (alteration in original) (quoting N.J.S.A. 2A:53A-41).
By letter dated June 19, 2013, more than 120 days after Chilton filed its answer on February 15, 2013, Chilton submitted a motion to dismiss with prejudice for failure to serve an AOM. In its accompanying certification, Chilton asserted that Flancbaum's "blanket affidavit" did not comport with N.J.S.A. 2A:53A-27, which requires plaintiffs "to provide each defendant with an affidavit of an appropriate licensed person . . . ." (emphasis added).
"[F]ailure to file an affidavit of merit concerning a specific defendant constitutes a failure to state a cause of action against that defendant." Fink v. Thompson, 167 N.J. 551, 560 (2001) (quoting In re Petition of Hall, 147 N.J. 379, 390 (1997)).
The motion judge granted "both motions for summary judgment[,]" stating: "The qualifications of the proposed expert do not match up with the defendants in any particulars . . . ." The judge stated that pursuant to Paragon Contractors, he was required to dismiss the action with prejudice.
Plaintiffs filed a motion for reconsideration arguing: 1) the court erred by not scheduling a Ferreira conference within ninety days in which deficiencies in the AOM could have been addressed; 2) plaintiffs satisfied the three conditions outlined in Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454 (1999), that are required to shift the burden of proof to defendants; and, 3) plaintiffs made a "good faith effort[] to provide an affidavit by a physician with the same board certification as the [d]efendant-[d]octors." On August 14, 2013, the court dismissed plaintiffs' complaint with prejudice for failure to comply with the AOM statute, as to defendant Chilton.
The three identified criteria are: first, plaintiff-victim must be "entirely blameless[;]" second, the injury must "bespeak[] negligence[;]" and third, all "potential defendants must be before the court." Estate of Chin, supra, 160 N.J. at 465.
We apply "a plenary standard of review from a trial court's decision to grant a motion to dismiss pursuant to Rule 4:6-2(e)." Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certifs. denied, 208 N.J. 366, and 208 N.J. 368 (2011). "[A] motion to dismiss pursuant to Rule 4:6-2(e) may be granted only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"The core purpose underlying the [Affidavit of Merit] statute is 'to require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of the litigation.'" Paragon Contractors, supra, 202 N.J. at 421. (quoting In re Petition of Hall, supra, 147 N.J. at 391). Enacted in 2004 pursuant to the Patients First Act, the Legislature directed that in a medical malpractice action:
a person shall not give expert testimony or execute an affidavit . . . on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the
testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties
"The basic principle behind N.J.S.A. 2A:53A-41 is that 'the challenging expert' who executes an affidavit of merit in a medical malpractice case, generally should 'be equivalently-qualified to the defendant' physician." Buck, supra, 207 N.J. at 389 (quoting Ryan v. Renny, 203 N.J. 37, 52 (2010)).or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(c) both.
[N.J.S.A. 2A:53A-41.]
At issue in our Supreme Court's 2013 decision in Nicholas, supra, was whether plaintiffs' expert, a board-certified physician in internal and preventive medicine, was authorized to testify to the standard of care applicable to the treatment of carbon monoxide poisoning in a medical malpractice lawsuit against defendant-physicians who were board certified in emergency medicine and family medicine. 213 N.J. at 463. The Court stated:
No one disputes that physicians practicing in all four of these specialty areas may treat carbon monoxide poisoning. However, there is no statutory exception -- other than the waiver provision of N.J.S.A. 2A:53A-41(c) -- that permits a physician specializing in internal and preventive medicine to serve as an expert witness against a physician specializing in emergency or family medicine, even though each is qualified to treat a patient for carbon monoxide poisoning.The Court held: "Under a plain textual reading of the [Patients First] Act, plaintiffs cannot establish the standard of care through an expert who does not practice in the same medical specialties as defendant physicians." Id. at 468.
[Id. at 484.]
Plaintiffs assert that "[d]efendants deviated from the required standard of care as general practitioners outside their specialties or subspecialties . . . ." For example, plaintiffs allege: "The procedures for the prevention and treatment for deep vein thrombosis are techniques that are learned during medical school and as an intern, and prior to the [d]efendants' fellowships[s] into their specific specialty and subspecialty." Flancbaum's very short affidavit does not make this assertion, nor does it identify a particular standard of care that was deviated from. Applying the Court's holding in Nicholas to the author of plaintiffs' AOM here, Dr. Flancbaum, a general surgeon, cannot establish the standard of a care for a psychiatrist, pediatric intensivists, a pediatric nephrologist or a pediatric surgeon.
AHS defendants also challenge whether Dr. Flancbaum meets the credentialing criteria of the statute, regardless of his specialty. They assert that Dr. Flancbaum's credentials do not satisfy N.J.S.A. 2A:53A-41(a), which requires that in situations when a health care professional "is both board-certified in a specialty or subspecialty, and the care and treatment at issue involves that specialty or subspecialty, the proposed expert must either be credentialed by a hospital, actively engaged in clinical practice in the same specialty or subspecialty, or an instructor in an accredited institution."
At the time of executing the AOM, Dr. Flancbaum was "a full time expert." Plaintiffs' brief states that Dr. Flancbaum is board certified in general surgery, bariatric surgery, trauma surgery and critical care surgery. However, "hospital credentialing alone does not satisfy the requirements of N.J.S.A. 2A:53A-41." Nicholas, supra, 213 N.J. at 486. Dr. Flancbaum retired as a surgeon in 2006, and thus does not satisfy the "active clinical practice" requirement of N.J.S.A. 2A:53A-41(a)(2)(a). In addition, plaintiffs state that "Dr. Flancbaum was not teaching in 2011." He thus does not satisfy the alternative requirement that a qualified affiant may be engaged in "the instruction of students in an accredited medical school." N.J.S.A. 2A:53A-41(a)(2)(b).
Plaintiffs state that Dr. Flancbaums' "authoritative" writings, which "assist in the training and teaching of students . . . are sufficient to satisfy [the credentialing requirement in] N.J.S.A. 2A:53A-41(b)(2)." N.J.S.A. 2A:53A-41(b) limits when a general practitioner may give expert testimony or execute an affidavit to when "the party against whom or on whose behalf the testimony is offered is a general practitioner . . . ." Here, none of the defendant-physicians are general practitioners; each has a recognized specialty.
N.J.S.A. 2A:53A-41(b) has similar credentialing qualifications to those set forth in N.J.S.A. 2A:53A-41(a). Thus, Flancbaum, who was neither in active clinical practice or an instructor at an accredited medical school during the requisite time period, is similarly not qualified to offer expert testimony or execute an affidavit under the provision for a general practitioner. See N.J.S.A. 2A:53A-41(b).
Consistent with the statutory requirements of N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41, as well as the controlling case law, the motion judge granted "both motions for summary judgment[,]" stating: "The qualifications of the proposed expert do not match up with the defendants in any particulars . . . ." Plaintiffs also provided no new evidence in its motion for reconsideration that the motion judge previously failed to consider. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).
Alternatively, plaintiffs seek to invoke the waiver provision of N.J.S.A. 2A:53A-41, which states:
c. 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) (emphasis added).]
Plaintiffs reliance on the "good faith effort" portion of the statute is unavailing; plaintiffs never filed a motion with the court seeking a waiver. "Courts are granted authority to waive the specialty qualification requirements under specifically defined circumstances, but only 'upon motion by the party seeking a waiver." Buck, supra, 207 N.J. at 390 (quoting N.J.S.A. 2A:53A-41(c)).
Defendants also challenge plaintiffs' assertions that a "good faith" effort was made. Plaintiffs state that they "have demonstrated the steps they took prior to . . . filing the complaint to obtain an equivalently qualified expert . . . ." Plaintiffs do not cite to anything in support of the actual steps taken.
Our September 12, 2014 order granted the AHS defendants' motion to strike portions of plaintiffs' appendix that included materials from other experts that were not part of the record below. --------
Given that plaintiffs did not file a motion seeking a waiver, provided no evidence to the court below as to the "good faith efforts" undertaken, and put forth an expert lacking training and acceptable credentials in the same specialties as the defendant-physicians, the motion court did not abuse its discretion in declining to apply N.J.S.A. 2A:53A-41(c) sua sponte. See Ryan, supra, 203 N.J. at 44 (holding that the waiver provision of N.J.S.A. 2A:53A-41(c) provides the trial court a broad grant of discretion).
Plaintiffs concede that "the [a]ffidavit did not name each [d]efendant as required by statute." In Fink, supra, 167 N.J. at 560, our Supreme Court stated: "If a plaintiff were permitted to name fifteen defendants and provide each with an affidavit specifying only that a claim against one defendant is meritorious, the statutory purpose of reducing frivolous lawsuits would be subverted or circumvented." There was therefore nothing beyond plaintiffs' complaint that notified defendants of the alleged merits of the malpractice claim as to each of them.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION