Medina v. Pitta
| Citation | 120 A.3d 944,442 N.J.Super. 1 |
| Decision Date | 11 August 2015 |
| Docket Number | Docket No. A-5023-12T1 |
| Parties | Johnny MEDINA, Plaintiff–Appellant, v. Ceasar G. PITTA, M.D., Anthony L. Panariello, M.D., Betty A. Cervenak, M.D. and Palisades Eye Associates, Defendants–Respondents, and Riverside Surgery & Laser Center and Clara Maass Medical Center, Defendants. |
| Court | New Jersey Superior Court – Appellate Division |
Paul F. O'Reilly argued the cause for appellant (The Law Offices of James Vasquez, P.C., attorneys; James Vasquez, Cedar Grove, and Mr. O'Reilly, on the briefs).
Christine M. Jones argued the cause for respondent Ceasar G. Pitta, M.D. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, Fairfield, of counsel; Ms. Jones, on the brief).
Erica C. Avondoglio argued the cause for respondents Anthony L. Panariello, M.D., Betty A. Cervenak, M.D. and Palisades Eye Associates (Giblin & Combs, LLC, attorneys; Ms. Avondoglio, on the brief).
Before Judges ESPINOSA, ST. JOHN and ROTHSTADT.
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In this medical malpractice action, plaintiff retained an expert who was “fully retired” before any of the defendant physicians treated him. Plaintiff appeals from an order granting summary judgment to defendants on the ground that, pursuant to the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A–37 to –42, his proposed expert was not qualified to give expert testimony on the appropriate standard of care. He also appeals from the denial of his motion for reconsideration. For the reasons that follow, we conclude the proposed expert did not meet the qualification requirements of the PFA. We further consider plaintiff's argument that the doctrines of substantial compliance and extraordinary circumstances should preclude the dismissal of his complaint. We conclude that these doctrines are inapplicable when summary judgment is sought based upon a plaintiff's failure to secure an expert witness who is “statutorily authorized to testify” about the standard of care in a medical malpractice case. Therefore, a dismissal with prejudice was appropriate.
Plaintiff, a diabetic, was referred to defendants in October 2007 by his endocrinologist because he was seeing spots. The vision in his right eye was 20/40 and in his left eye was 20/50. He was diagnosed with proliferative diabetic retinopathy
, which means he had retinal changes in both eyes due to diabetes.
It is unnecessary to give a detailed account of plaintiff's treatment history with defendants. Over the course of the years following plaintiff's first appointment on October 10, 2007, Dr. Ceasar G. Pitta performed a number of procedures on plaintiff, beginning with a vitrectomy
on the left eye and laser treatment on the right eye on October 16, 2007. He later performed these procedures on the right eye on multiple occasions: November 17, 2009, January 19, 2010, April 20, 2010, and January 25, 2011. Dr. Anthony L. Panariello performed what he described as a “complex cataract surgery ” on plaintiff's right eye on January 5, 2011. There were no complaints relative to a retinal detachment in the first post-operative visit. However, when plaintiff saw Dr. Leonard Feiner on March 30, 2011, a B–Scan2 revealed that plaintiff had developed a retinal detachment
. Plaintiff now has no vision in his right eye.
The amended complaint, filed in November 2011, alleged that Dr. Pitta, Dr. Panariello, Betty A. Cervenak, M.D., and Palisades Eye Associates were negligent in the care provided to plaintiff during the time period from 2007 to 2011.3
In his October 24, 2011 expert report, Dr. Peter H. Morse opined, He stated that, as of plaintiff's first appointment with Dr. Pitta in October 2007, “his eyes were eminently salvageable with adequate and timely treatment” and remained so in January 2009. At his deposition, Dr. Morse also stated that plaintiff's eye was still “eminently salvageable with laser treatment” in July 2009.
Dr. Morse acknowledged that Dr. Pitta's treatment notes from July 2009 reflect that he recommended laser treatment to plaintiff and that “[p]atient wishes to defer treatment.” Dr. Morse agreed that plaintiff did not want laser treatment at that time and did not return to Dr. Pitta until November 2009. Dr. Morse testified he thought plaintiff's eye still remained salvageable in November 2009. He stated further that the vitrectomy
with laser treatment performed by Dr. Pitta in November 2009 was the proper treatment and, in fact, there was some restoration of vision as of December 2009. Dr. Morse testified that his report contained all his opinions with regard to deviations from the standard of care.
Dr. Morse was also questioned about the earliest dates that Dr. Panariello and Dr. Cervenak deviated from accepted standards of care. He identified October 25, 2010 as the date of Dr. Panariello's first deviation from standards of medical care. He did not find any deviations in care in the cataract surgery
performed by Dr. Panariello on January 5, 2011. Turning to Dr. Cervenak, Dr. Morse stated, “essentially, she only had one visit on the 20th of October 2010.” He testified that, despite Dr. Cervenak's recommendation that plaintiff have a cataract extraction
, she deviated from accepted standards of medical care because she failed to order a B-scan and make sure plaintiff had follow-up for the inflammation in his eye.
In December 2011, each of the defendants filed answers and demanded an affidavit of merit (AOM), N.J.S.A. 2A:53A–27. Dr. Pitta's answer complied with the requirement established by the Supreme Court in Buck v. Henry, 207 N.J. 377, 25 A. 3d 240 (2011)4 to “include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty.” Id. at 396, 25 A. 3d 240. His answer states, “Dr. Pitta is an ophthalmologist with a specialty in retinal disease who has provided care and treatment to Plaintiff....” In addition, Dr. Pitta demanded answers to Form A(1) Uniform Interrogatories, Interrogatory Forms, Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17–1(b) at 2604–06 (2015), which include a request for a copy of the current resume of plaintiff's expert.
Plaintiff served an AOM, dated November 7, 2011, prepared by Dr. Morse, along with a copy of his curriculum vitae. Dr. Morse's curriculum vitae states he is board certified in ophthalmology. The list of hospital and administrative appointments ends with the following:
However, Dr. Morse was not a staff physician at either hospital at the time his curriculum vitae was provided to defendants as a “current resume.”
According to the parties, the trial court held a Ferreira5 conference on February 15, 2012, where plaintiff's counsel represented that he served an AOM and expert report written by Dr. Morse, a board certified ophthalmologist, and defendants posed no objections to his report or qualifications.6
Dr. Panariello and Dr. Cervenak did not identify themselves as specialists in their answers. The curriculum vitae provided with their answers to interrogatories stated they were board certified in ophthalmology. Those answers were served on March 16, 2012, approximately one month after plaintiff was required to serve an AOM. N.J.S.A. 2A:53A–27.
A case management order, dated July 26, 2012, set September 2, 2012 as the final date for the service of expert reports on behalf of plaintiff.
At his deposition on January 10, 2013, Dr. Morse testified he had “fully retired” on January 1, 2007. Since that time, he had not treated any patients or had privileges at any hospitals. He had not instructed any students in an accredited medical school, health professional school, accredited residency or clinical research program for six months to one year before his retirement. When asked for an updated curriculum vitae, Dr. Morse replied, “There has not been an updating in 20 years, and there isn't going to be.”
Plaintiff did not file any motion to be permitted to obtain a new expert or extend the discovery end date. A motion for summary judgment was filed on behalf of Dr. Cervenak and Dr. Panariello on or about January 24, 2013, arguing that Dr. Morse did not meet the qualification requirements of the PFA to provide expert testimony on the applicable standard of care. Dr. Pitta's motion for summary judgment was filed on or about February 22, 2013. Plaintiff's opposition was limited to a letter in which he merely asserted that Dr. Morse's credentials satisfied the requirements of N.J.S.A. 2A:53A–41 because he “is ... board certified” in ophthalmology, “has held privileges at hospitals regarding ophthalmology, and he has also held positions in teaching schools on ophthalmology.” (Emphasis added).
By orders dated March 8, 2013, defendants' motions were granted. The motion judge noted plaintiff's failure to comply with Rule 4:46–2,7 but addressed the motion on the merits. Citing Ryan v. Renny, 203 N.J. 37, 999 A. 2d 427 (2010), the motion judge stated N.J.S.A. 2A:53A–41 required a “degree of contemporaneity” in the qualifications of the expert. The judge noted Dr. Morse testified he was no longer credentialed by a hospital to treat patients, had not been in active clinical practice since his retirement in January 2007, and had not instructed students since sometime before that date. The judge concluded, “The expert witness was not credentialed nor specialized at the time of the alleged deviation as required under N.J.S.A. 2A:53A–41.” The judge noted further that “plaintiff has not requested a waiver of the specialty provision, N.J.S.A. 2A:53A–41(c), nor argued that the...
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