Nicholas v. Mynster

• Decision Date: 25 April 2013
• Citation: 213 N.J. 463,64 A.3d 536
• Parties: Edward NICHOLAS and Tracy Nicholas, Plaintiffs–Respondents, v. Dr. Christopher MYNSTER, Dr. Rekha Sehgal, Joseph J. Diorio, M.D., Dr. Timothy Rhymes, SJH Regional Medical Center, STIHL Incorporated, and Francis Carini, Defendants–Appellants.
• Court: New Jersey Supreme Court

213 N.J. 463

64 A.3d 536

Edward NICHOLAS and Tracy Nicholas, Plaintiffs–Respondents,

v.Dr. Christopher MYNSTER, Dr. Rekha Sehgal, Joseph J. Diorio, M.D., Dr. Timothy Rhymes, SJH Regional Medical Center, STIHL Incorporated, and Francis Carini, Defendants–Appellants.

Supreme Court of New Jersey.

Argued Oct. 11, 2012.

Decided April 25, 2013.

Mary Ann C. O'Brien argued the cause for appellant Dr. Christopher Mynster (Crammer, Bishop & O'Brien, attorneys).

Karla M. Donovan argued the cause for appellant Dr. Rekha Sehgal (Buckley & Theroux, attorneys).

E. Drew Britcher, Glen Rock, argued the cause for respondents (Britcher, Leone & Roth and Saltz Mongeluzzi Barrett & Bendesky, attorneys; Brian E. Fritz, on the briefs).

Abbott S. Brown, West Orange, submitted a brief on behalf of amicus curiae The New Jersey Association for Justice (Bendit Weinstock, attorneys; Mr. Brown and Alan Y. Medvin, Newark, on the brief).

John Zen Jackson, Morristown, submitted a brief on behalf of amici curiae Medical Society of New Jersey and The American Medical Association (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Jackson and Cecylia K. Hahn, Morristown, on the brief).

Justice ALBIN delivered the opinion of the Court.

In this medical-malpractice case, we must determine whether, under the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act or Act), L. 2004, c. 17, codified in part at N.J.S.A. 2A:53A–41, plaintiffs' medical expert possesses the statutory credentials necessary to testify against defendant physicians. In both Ryan v. Renny, 203 N.J. 37, 999 A.2d 427 (2010), and Buck v. Henry, 207 N.J. 377, 25 A.3d 240 (2011), we held that, generally, a plaintiff's medical expert testifying to the standard of care allegedly breached by a defendant physician must be equivalently credentialed in the same specialty or subspecialty as the defendant physician. Here, the two defendant physicians who treated plaintiff Edward Nicholas for carbon monoxide poisoning were board certified in emergency medicine and family medicine. Plaintiffs' expert physician was board certified in internal and preventive medicine and specialized in hyperbaric medicine, including the use of hyperbaric oxygen in the treatment of carbon monoxide poisoning.

Defendants moved to bar the testimony of plaintiffs' expert and for summary judgment. Defendants claimed that plaintiffs' expert could not testify to the standard of care because he did not practice in the same medical specialty as defendants. The court denied the motion to bar plaintiffs' expert from testifying. The court ruled that expertise in the treatment of the condition was sufficient even if the expert did not share the same medical specialty as the defendant physicians. The court implicitly denied the summary judgment motion as well. The Appellate Division denied defendants' motion for leave to appeal.

We now reverse. N.J.S.A. 2A:53A–41 of the Patients First Act 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. The trial court failed to apply the equivalency requirements of the Patients First Act.

We reject plaintiffs' argument that, under N.J.S.A. 2A:53A–41(a)(1), their medical expert, who did not specialize in either emergency or family medicine, was statutorily authorized to testify because he was “credentialed by a hospital to treat patients for [carbon monoxide poisoning].” Under a plain textual reading of the Act, plaintiffs cannot establish the standard of care through an expert who does not practice in the same medical specialties as defendant physicians. For that reason, plaintiffs' medical expert is barred from testifying to the standard of care governing defendants. Because plaintiffs cannot establish the applicable standard of care, summary judgment must be granted in favor of defendants.

I.

A.

Plaintiff Edward Nicholas is in the business of home construction and remodeling. On April 8, 2005, while operating a gas-powered saw in a homeowner's enclosed basement, Nicholas was exposed to noxious fumes and became ill. At about 3:00 p.m. that day, Nicholas arrived at the emergency room of South Jersey Healthcare (SJH) Regional Medical Center in Vineland suffering from shortness of breath, respiratory distress, muscle cramps, nausea, and hyperventilation. Dr. Christopher Mynster, a physician board certified in emergency medicine, saw Nicholas on his arrival and directed that a nurse give him 100% oxygen through a face mask.¹Carbon monoxide poisoningwas the suspected cause of Nicholas's condition. After blood gas tests revealed that Nicholas was suffering from “acute carbon monoxide poisoning,” Dr. Mynster administered Ativan to Nicholas to deal with his agitation and muscle cramps. Dr. Mynster also called Dr. Rekha Sehgal, the “attending physician,” to have Nicholas admitted to the hospital. Dr. Sehgal was board certified in the practice of family medicine.²

Dr. Sehgal consulted with Dr. Mynster and transferred Nicholas to the Intensive Care Unit. There, Dr. Sehgal continued Nicholas on a regimen of 100% oxygen and Ativan. In addition, she prescribed the drug Zofran³ and directed that Nicholas's carbon monoxide levels be monitored. By 4:00 p.m., Dr. Sehgal turned Nicholas's care over to Dr. Timothy Rhymes, Nicholas's primary care physician.⁴

Ultimately, Nicholas suffered brain damage, including a seizure disorder, and other bodily injuries as a result of carbon monoxide poisoning.

B.

On March 29, 2007, plaintiffs Nicholas and his wife, Tracy, filed a medical-malpractice action in the Superior Court, Law Division against Dr. Mynster and Dr. Sehgal and five other named defendants.⁵ The complaint alleged that, in treating Nicholas for carbon monoxide poisoning, Drs. Mynster and Sehgal “fail[ed] to provide medical care in conformance with the requisite standards of medical care.” The complaint specified that Drs. Mynster and Sehgal failed to order proper diagnostic testing, to administer adequate amounts of oxygen to Nicholas, and to refer Nicholas to specialists and a facility with a hyperbaric chamber that could “appropriately treat carbon monoxide poisoning.” Nicholas's wife filed a loss-of-consortium claim. Plaintiffs alleged that the negligence of the two doctors caused Nicholas to suffer injuriesthat “may be permanent, irreparable and severe.”

In their answers, Drs. Sehgal and Mynster denied that they acted negligently and demanded that plaintiffs file an affidavit of merit to support their lawsuit, as required by N.J.S.A. 2A:53A–27.

C.

Plaintiffs filed affidavits of merit signed by Dr. Lindell K. Weaver, a physician “Board Certified in the medical specialty of Internal Medicine, Pulmonary Diseases, Critical Care, and Undersea & Hyperbaric Medicine,” and Dr. James Doghramji, a physician also board certified in Internal Medicine. ⁶ In both affidavits, Drs. Weaver and Doghramji expressed their opinions that a “reasonable probability” exists that the care exercised by Drs. Mynster and Sehgal in the case of Nicholas “fell outside acceptable professional standards or treatment practices.” ⁷

Defendant Mynster moved for summary judgment based on plaintiffs' failure to file an affidavit of merit from a specialist in emergency medicine.⁸ Defendant Mynster withdrew the motion after plaintiffs submitted Dr. Doghramji's curriculum vitae, which indicated that Doghramji was on the staff of the Department of Emergency Medicine at Chestnut Hill Hospital in Philadelphia, Pennsylvania.

D.

In advance of trial, plaintiffs presented an expert report only from Dr. Weaver. In his report, Dr. Weaver maintained that he was licensed to practice medicine in Utah and Arizona, board certified in internal medicine with subspecialty certifications in critical care medicine and pulmonary disease, and board certified in preventive medicine with subspecialty certifications in undersea and hyperbaric medicine.⁹ Dr. Weaver indicated that he had a clinical practice in hyperbaric medicine and critical care, which “include[d] evaluating and managing patients with acute carbon monoxide poisoning as well as those with sequelae following poisoning.” ¹⁰ In his view, “[h]yperbaric oxygen is the treatment of choice for acute carbon monoxide poisoning.” He explained that treatment with “[h]yperbaric oxygen is accomplished by placing patients within chambers, pressurized with either air or 100% oxygen, while the patient breathes 100% oxygen at pressures greater than sea level.” He noted that in 2004 “there were 489 hospital-based hyperbaric chamber systems.”

Dr. Weaver posited that “[i]n 2005, the standard of care mandated that Mr. Nicholas should have been referred” for treatment by hyperbaric oxygen. In support of that position, Dr. Weaver cited to several authorities, including himself.¹¹ In particular, Dr. Weaver noted that the editors of the New England Journal of Medicine stated in 2002 that “[h]yperbaric-oxygen treatments within 24 hours after acute carbon monoxide poisoning should be the standard of care.” 347 New Eng. J. Med. 1053 (2002). Dr. Weaver identified the failure of Drs. Mynster and Sehgal to refer “Nicholas immediately for hyperbaric oxygen” as a direct cause of the “severe carbon monoxide-related [sequelae]” suffered by Nicholas. He concluded that, had Nicholas promptly received hyperbaric oxygen, “his problems would have been prevented, or mitigated.” It was undisputed that SJH Regional Medical Center did not have the capability of providing hyperbaric oxygen in 2005.

At his 2010 deposition, Dr. Weaver admitted “that there was a difference of opinion in the literature in 2005 as to the indications for hyperbaric oxygen for carbon monoxide poisoning” and that “there was some literature indicating that hyperbaric oxygen therapy could potentially be harmful to patients.” He also acknowledged that he neither...