JEANETTE F. STEVENSON v. WILBUR BOBILA, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2486-04T22486-04T2

JEANETTE F. STEVENSON,

Plaintiff-Appellant/

Cross-Respondent,

v.

WILBUR BOBILA, M.D.,

Defendant-Respondent/

Cross-Appellant,

and

RONALD P. WILLOUGHBY, D.O., ALLIANCE

FOR BETTER CARE, P.C.,

Defendants-Respondents.

_________________________________________________

 

Argued May 2, 2006 - Decided June 26, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, L-811-01.

Mark J. Molz argued the cause for appellant/

cross-respondent (Mark J. Molz attorney;

Stephen Cristal on the brief).

Sharon K. Galpern argued the cause for respondent/cross-appellant Wilbur Bobila, M.D. (Stahl & DeLaurentis, attorneys; Ms. Galpern on the brief).

Jill R. O'Keeffe argued the cause for respondents Ronald P. Willoughby, D.O. and Alliance For Better Care, P.C. (Orlovsky, Moody & Schaaff, attorneys; Ms. O'Keeffe on the brief).

PER CURIAM

Plaintiff Jeanette Stevenson appeals from an order of involuntary dismissal entered by the trial court at the close of the evidence in her medical malpractice suit against Wilbur Bobila, M.D., Ronald P. Willoughby D.O. and Dr. Willoughby's practice group, Alliance for Better Care, P.C. On appeal, plaintiff argues that a verdict should have been directed against Dr. Willoughby as the result of alleged admissions by him in his trial testimony, that the trial judge erred in dismissing plaintiff's case, and that she abused her discretion in barring the testimony of plaintiff's liability expert, Dr. Lipnack, on the applicable standard of care. A cross-appeal has been filed by Dr. Bobila raising various issues. We affirm.

Suit arises as the result of a systemic infection, sustained by plaintiff following treatment for an ulcer on her left foot, which required hospitalization and administration of intravenous antibiotics and an additional stay in a rehabilitation facility. Plaintiff has fully recovered from her injuries.

I.

The trial record discloses the following facts. On February 15, 1999, plaintiff, then a seventy-one-year-old diabetic, was seen for a regularly scheduled examination at Alliance for Better Care by Dr. Irving Epstein. At that time, she complained about a foot wound with drainage arising after she had applied a corn remover to a callus on the ball of her left foot. Dr. Epstein prescribed the antibiotic Keflex and referred plaintiff to Dr. Bobila, a surgeon, for a consultation, evaluation and treatment.

Plaintiff was seen by Dr. Bobila on February 16, 1999, at which time he observed an ulcer measuring one centimeter in the center of a two and one-half centimeter callus. After examining the foot and an x-ray of it, Dr. Bobila concluded that the ulcer was not infected. He therefore debrided the ulcer, removing the dead tissue around it, and according to an office note, ordered a podiatry consultation as the result of a fungal nail infection, bunions on the first toe and hammertoes on the second and third toes of plaintiff's left foot. Dr. Bobila testified that he told plaintiff to inspect and clean the wound daily, irrigate it with "Carrington Solution," apply intrasite gel, and cover it with gauze prior to wrapping the foot with a bandage. Plaintiff confirmed that Dr. Bobila instructed her to look at the foot, which she tried to do, but found awkward, and therefore used a mirror.

When plaintiff returned to Dr. Bobila on March 16, the wound was smaller, and no signs of infection were observed. Dr. Bobila testified that he assumed that his foot care instructions were being followed, since the affected area was clean and healing. The doctor's office notes indicate that plaintiff was instructed to continue with local care. On March 23, slight serous drainage was observed at the ulcer site. The callus was debrided, and plaintiff was advised to continue her daily wound care and to return in one week.

Plaintiff was unable to keep her March 29 appointment because she lacked a necessary referral, but saw Dr. Bobila for a final time on April 6. At that time, he observed the ulcer to be unchanged, and he again recommended podiatric care.

In the meantime, plaintiff had returned to Alliance for Better Care on April 2 for a scheduled office visit, and at that time was seen by Dr. Willoughby, who testified that he inspected plaintiff's foot and saw no sign of infection. Dr. Willoughby testified that he was aware at the time that plaintiff was being treated by Dr. Bobila and that she had an upcoming appointment with him.

Plaintiff did not consult with any physicians between April 6 and April 26, at which time she developed cramping in both legs, lightheadedness, shaking, and nausea with vomiting. She was seen by Dr. Willoughby, who contemplated potential diagnoses of hypoglycemia, a urinary tract infection, other abdominal problems, viral illness, or a bacterial infection related to her foot. After ruling out various conditions, the doctor determined that plaintiff's temperature of 102.5 degrees, general malaise and bilateral leg pain were most consistent with a viral illness. He testified that he ruled out a bacterial infection of the foot because of the lack of any complaints of focal pain by plaintiff. Foot pain was not recorded as a symptom on plaintiff's chart, and plaintiff testified that she could not recall whether her foot hurt at the time. However, plaintiff later testified that her daughter kept telling Dr. Willoughby to look at her mother's foot. Dr. Willoughby did not examine plaintiff's foot during the April 26 office visit.

That night, Dr. Willoughby telephoned plaintiff to inform her that her urine test was negative for infection. His office note regarding the call stated that "pt feels ok." On the following day, one of plaintiff's daughters telephoned Alliance to report that plaintiff's dizziness and lightheadedness seemed worse. Dr. Epstein, who took the call, advised the daughter to take plaintiff to the emergency room because he was concerned that she might be suffering a stroke. The daughter did not take Dr. Epstein's advice, and plaintiff was not seen by a physician that day.

On April 28, Dr. Willoughby learned of the prior day's call and instructed his nurse to telephone plaintiff to determine her condition. The nurse's office note states: "Spoke to pt -- pt did not go to ER last PM states feeling much better today -- legs cont[inue] to feel tired though. Offers no other complaints. Will [follow up with] Dr. W as directed." A second call was placed to plaintiff later in the day to instruct her to return to Dr. Willoughby's office on May 3 for blood work to determine her fasting blood sugar level.

On April 30, plaintiff was seen by podiatrist Andrew Teplica. Observing swelling and redness of the left leg with lymphangitis approaching the knee, as well as purulent discharge, Dr. Teplica diagnosed an infected diabetic ulcer and arranged for plaintiff's admission to Rancocas Hospital through the emergency room. Her emergency room chart stated: "The patient had a callus removed on February 16th and today developed swelling and redness of the left foot and leg."

Plaintiff remained under treatment for systemic streptococcus (strep) and staphylococcus aureus (staph) infections at Rancocas Hospital until May 7, 1999. Upon discharge, she was admitted to Marcella Rehabilitation Center, where she remained until May 18, 1999. At the time of trial plaintiff's foot remained healed, and she continued to live independently.

Prior to trial, plaintiff retained as her expert Eric Lipnack, D.O., a Fellow of the American Academy of Disability Evaluating Physicians and Diplomat of the American Academy of Pain Management, who was board certified by the American Academy of Physical Medicine and Rehabilitation. In his May 7, 2003 report, Dr. Lipnack stated:

Unfortunately, Dr. Bobila never stressed to Ms. Stevenson that her ulcer needed to be inspected daily and that she needed to make an appointment immediately with podiatry. Another unfortunate incident in this woman's illness occurred when she returned to her primary care physician, Dr. Willoughby. She present[ed] with constitutional symptoms, and was apparently ill, with a temperature of 102.5 degrees. Dr. Willoughby never inspected her foot, a problem he knew existed, several months earlier, and which he felt was severe enough to warrant a surgical consult.

Dr. Bobila's lack of thorough instructions to Ms. Stevenson began a chain of events that resulted in her becoming septic. Dr. Willoughby's incomplete physical examination and the resultant lack of diagnosis caused a further delay in treatment.

It is my opinion the treatment rendered Ms. Stevenson fell below the standard of care. I can say with a reasonable [degree] of medical certainty that the deviations increased the risk of serious infection, leading to sepsis and hospitalization.

In subsequent reports, Dr. Lipnack stated additionally that Dr. Willoughby's "failure to inspect [plaintiff's] foot on April 26, 1999, went against the standard of care one expects from their Primary Care Physician. Had he taken the time to inspect the foot, the infection could have been treated and the hospitalization avoided." With respect to Dr. Bobila, Dr. Lipnack additionally stated: "It was Dr. Bobila's responsibility to make it clear to Ms. Stevenson that daily inspection of her foot was critical. If he had done that, the admission to Rancocas Hospital could have been avoided."

At trial, Kevin Bell, M.D., a board certified internist appearing on behalf of Dr. Willoughby, testified within a reasonable degree of medical certainty that plaintiff was suffering from a virus on April 26, and not cellulitis (an inflammation of underlying tissue caused by the foot infection). He supported this conclusion by first observing that cellulitis causes pain, particularly when it is focused on the ball of the foot, and there were no recorded complaints of pain. Second, plaintiff felt better on April 28, whereas she would have been feeling "really poor" if she had been infected with strep and staph bacteria since the 26th. "She would have red streaking up her leg, a lot of pain, swelling, fevers, [she would] feel pretty miserable." Third, he noted that cellulitis and lymphangitis occur very rapidly, and the emergency room record of April 30 stated that plaintiff had first developed redness and swelling on the date of admission. Thus he concluded that no systemic infection had been present on April 26. Fourth, when plaintiff was admitted to the hospital, her white blood cell count was normal, suggesting the presence of a new infection, and her blood culture exhibited no bacterial growth, whereas it would have if the cellulitis had been present and shedding bacterial organisms for a substantial period of time. Dr. Bell testified further that if plaintiff had cellulitis on April 26, her treatment would have been no different from that administered on April 30: intravenous administration of antibiotics and debridement of the wound.

Stuart Burstein, M.D., a physician board certified in internal medicine and in infectious diseases who appeared on behalf of Dr. Willoughby, gave his opinion that plaintiff's cellulitis had developed within twenty-four hours of its diagnosis on April 30, and that plaintiff's normal white blood cell count was consistent with "a very early infection that the body really hasn't had the time to respond to yet." When asked what plaintiff's appearance would have been if the infection had been present since April 26, Dr. Burstein testified:

[I]f it had been present on the 26th, it would have been all the way up the leg and it would not only [have] spread up the leg, but it also would have caused more increased pressure in the leg and the tissue would have started to get necrotic and die and the skin would be peeling off after four days of untreated cellulitis especially if a person is walking. . . .

[I]f there was cellulitis on the 26th, I think by the 30th she would have probably been in septic shock and losing her leg. But what it would have looked like at the time, I don't want to predict. It would have been gangrenous, black. It would have been horrible.

Dr. Burstein stated, in contrast, on the 30th, plaintiff merely had "some redness." Although, on cross-examination, the doctor acknowledged that bacteria could have colonized the wound earlier, because "colonization goes on all the time," he stated that the bacteria did not go from colonization to invasion until twenty-four to forty-eight hours before diagnosis. He further stated that the earliest visible signs of the infection would have been present on the night of April 29 or the morning of April 30, and that the infection would not have been medically diagnosable before that twenty-four hour period.

As we have stated, plaintiff offered Dr. Lipnack, an expert in physical medicine and rehabilitation whose practice had always been focused in that area, as a liability expert on her behalf. In an extended voir dire, it was established that Dr. Lipnack had no experience in surgery other than that obtained in three months of a rotating internship. He admitted that he was not board certified in internal medicine and that if a diabetic patient had a foot ulcer, he would not be the physician to follow the patient. His treatment of diabetics was limited to the diagnosis and treatment of peripheral neuropathies caused by the disease. In this regard, the following colloquy occurred:

Q Doctor, can you give us a good faith estimate [of the number of patients seen with diabetes as a complicating factor]?

A 25, 30 percent.

Q All right. And, of those patients, how may of those patients develop complications from diabetes which you have already described as a progressive disease?

A Most of them, if they haven't they will. So, you have to be aware that some -- it's not if they're going to develop a complication, it's just when.

Q So, can I ask you whether you've seen a diabetic patient -- a female that has a foot ulcer before?

A Oh, many times.

Q And, have you participated in the care of that person after a debridement or some other surgical intervention?

A . . . I don't debride wounds. I -- when I see that sort of thing, I don't generally write prescriptions for antibiotics for wounds.

If I see somebody come into my office with a -- what appears to be a minor cellulitis, I'll put them on a -- Keflex or one of the other drugs you use for that sort of thing. But, I don't -- I don't personally get involved when it gets to be a significant problem. I refer them out to a specialist.

* * *

If someone came in with a ulcer on their foot that was more than superficial, I refer them to a specialist.

Dr. Lipnack admitted as well that he was not certified in infectious diseases. When asked if he knew how long it takes to develop symptoms of cellulitis, including warmth, redness and swelling, Dr. Lipnack responded, "Sorry, I can't answer that for you," and when asked why not, he answered "I don't know." However, he did give the opinion that there was no absolute developmental time frame.

Following a proffer by plaintiff's counsel of Dr. Lipnack as an expert in the standard of care applicable to Dr. Willoughby, the breach of that standard by him and proximate cause, the court ruled that the doctor, who was not a general practitioner, lacked knowledge of the care and treatment of diabetes and thus barred his testimony against Dr. Willoughby in these two areas. The court only permitted the doctor to testify as to the clinical manifestations of diabetes, including ulcers. Although the court deferred her ruling with respect to care and treatment by Dr. Bobila, she later ruled that Dr. Lipnack could testify to surgical debridements, which he had previously conducted under the supervision of vascular surgeons, and to communications with patients with respect to care of the foot -- a matter encompassed in the doctor's present practice.

Dr. Lipnack's substantive testimony regarding Dr. Willoughby attempted to focus upon his failure to examine plaintiff's foot on April 26. Despite multiple objections throughout direct examination, the doctor was permitted to testify that the signs of an infected foot would have included a "rather apparent" odor, redness, warmth, and swelling of the leg, that the fact that plaintiff's foot was "still tender" on April 2 usually indicated a continuing infection, that the existence of an infected foot would have been an appropriate differential diagnosis on April 26, and that Dr. Willoughby did not examine plaintiff's foot. Additionally, Dr. Lipnack testified that plaintiff's symptoms on April 26 were consistent with an infection, but not only was there no inspection of the foot, the record revealed no diagnostic tests such as a complete blood count or culture to rule out infection. The following exchange occurred:

Q Doctor, let me ask you a question about omissions.

A Okay.

Q [Based upon the records] with regard to the left foot, a physical exam by Dr. Willoughby was omitted, correct?

A Yes, it was.

Q And, what was the impact of that omission to Mrs. Stevenson?

A A diagnosis of an infected foot was not made.

Q And, what can you tell us about that? What was the progression of the disease after April 26th?

A The infection festered and she wound up in the hospital.

Q And, if there had not been that omission, could her hospitalization have been avoided?

A Yes.

Q Can you tell us, within a reasonable degree of medical certainty, whether those signs would have been available to Dr. Willoughby on April 26th, '99?

A Yes.

On cross-examination, Dr. Lipnack admitted that the tenderness in plaintiff's left foot reported on April 2 could have been from the wound, not infection, that no evidence of infection on April 2 or 6 had been adduced at trial, and that he was unable to say in the context of this case how long an infection could remain asymptomatic. He also admitted to the absence of any calls by plaintiff to Dr. Willoughby from April 2 to 26, the absence of any record of foot complaints on April 26 or 27, and that records indicated that plaintiff appeared to be feeling better on April 28. Further, when asked, Dr. Lipnack conceded that if plaintiff had gone to the emergency room on April 27 as Dr. Willoughby directed, she would have received the treatment necessary for her condition.

Dr. Lipnack agreed that any systemic infection sufficient to cause a 102.5 degree temperature and leg cramps on April 26 would have been "pretty severe" and would have also manifested in symptoms such as redness, swelling, discharge and warmth in the affected area. Yet the white blood cells that fight infection, for reasons that the doctor could not explain, were not elevated on April 30. Further, while concluding that a negative blood culture was indicative of no infection in the blood, the doctor could not explain in a manner consistent with his hypothesis of a four-day systemic infection the absence of any bacterial growth in the blood culture conducted on April 30, conceding "I'm not an expert in infectious diseases, as you've pointed out" and agreeing that he would defer to someone who was to reach a conclusion in this area. Dr. Lipnack also agreed that the degree of aggressiveness of strep and staph bacterial organisms was outside his area of expertise, and he stated that the condition of plaintiff's foot after a four-day systemic infection was beyond his experience and knowledge to describe.

With respect to Dr. Bobila, Dr. Lipnack testified on direct examination that he had not met the applicable standard of care, stating:

In my practice, I assume that patients know nothing. I hold them responsible for nothing. And, it's my job to convey to them what they need to do when they walk out of the office . . . . In a situation like Mrs. Stevenson, the critical thing is for her to inspect her foot care.

Dr. Lipnack testified additionally that Dr. Bobila's lack of thorough instructions "impacted the development of Mrs. Stevenson's situation." He stated:

Had Mrs. Stevenson had proper instructions and it had been observed that she is able to carry out those instructions . . . she would have been inspecting her foot on a daily basis, she would have noted that a change had begun, she would have contacted her primary care physician or a surgeon or a podiatrist and had early intervention . . . to stop the infection. I mean, infections start and they build. The earlier you get to an infection, the better off you are.

On cross-examination, Dr. Lipnack at times conceded that if plaintiff testified that she had been instructed that she had to inspect the condition of her foot, then there was no evidence of negligence on the part of Dr. Bobila, although he testified that it would also be necessary to ensure that plaintiff could perform the task. Further, he conceded that one can inspect a foot and nonetheless contract an infection. Only if a change were visualized could an infection be detected at a stage early enough in its progress to be treatable with oral antibiotics.

At the conclusion of the testimony, the attorneys for Doctors Bobila and Willoughby moved to bar the testimony of Dr. Lipnack as constituting a net opinion and for a directed verdict in their favor. The court granted the doctors' motions, finding that plaintiff had failed to meet her burden of proving a causal relationship between any breach of an applicable standard of care and her alleged damages.

II.

When considering motions for involuntary dismissal, the trial court must accept as true all evidence that supports the plaintiff's position and accord the plaintiff the benefit of all legitimate inferences that can be derived from the evidence. If reasonable minds can then differ with respect to the outcome, the motion must be denied. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

In a medical malpractice action such as this in which the matters discussed are beyond the knowledge of an average lay juror, to meet the burden of establishing a prima facie case warranting recovery, plaintiff must present expert testimony to establish the relevant standard of care, a breach of that standard, and a causal connection between the breach and plaintiff's injuries. Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999); Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). Further, the expert's opinion must be premised upon facts and data made known to him, N.J.R.E. 703. In the absence of such facts and data, the expert's opinion will be deemed to constitute an inadmissible net opinion. Matter of Yaccarino, 117 N.J. 175, 196 (1989); Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

When causation is at issue, an expert generally must testify that the alleged deviation from the standard of care was the "reasonably probable cause of the injurious condition" affecting the plaintiff. Germann v. Matriss, 55 N.J. 193, 208 (1970) (holding that evidence of whether tetanus spore was carried into plaintiff's mouth on allegedly negligently sterilized denture was insufficient to permit a jury to determine whether dentist's negligence was a proximate cause of plaintiff's fatal tetanus). For testimony in this context to be admissible, the expert must "give the why and wherefore" of his opinion, rather than a mere conclusion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

Because the plaintiff in the present case suffered from a preexisting condition, a diabetic foot ulcer, that could act in combination with the alleged negligence of Doctors Bobila and Willoughby to cause harm, plaintiff was not required at trial to provide prima facie evidence of "but for" causation, but only evidence that as the result of the doctors' negligence, she experienced an increased risk of harm from the ulcer, and the increased risk of harm was a substantial factor in causing the injury that she ultimately sustained, consisting of the need for in-patient administration of intravenous antibiotics and further debridement to cure the infection arising from the ulcer. Scafidi v. Seiler, 119 N.J. 93, 100 (1990); see also Gardner v. Pawliw, 150 N.J. 359, 375 (1997). Although the Scafidi standard is a less stringent one, its use does not eliminate a plaintiff's burden of establishing a nexus between the increased risk and the defendant's negligence. Pelose v. Green, 222 N.J. Super. 545, 551 (App. Div.), certif. denied, 111 N.J. 610 (1988).

We concur with the trial court's determination that plaintiff's evidence of causation, presented through her expert Dr. Lipnack, when viewed in the light of applicable precedent, was insufficient to raise a jury issue with respect to liability for her resultant hospitalization.

Dr. Lipnack opined that if plaintiff's infection had been earlier recognized, it could have been treated with orally administered antibiotics, and that hospitalization could have been avoided. The doctor claimed that Dr. Bobila deviated from the standard of care, and his negligence increased the risk to plaintiff, because he failed to instruct her to inspect her foot for infection and to determine that she could do so. However, the factual foundation for that conclusion was eliminated when plaintiff testified that she was aware of the need for foot inspection, and that she could accomplish it using a mirror. The fact that she was able to view the callus on the ball of her foot and to apply a corn remover to it provides additional evidence that plaintiff was capable of the inspection that Dr. Lipnack found necessary in the circumstances.

Dr. Lipnack also opined that plaintiff's symptoms on April 26 of markedly elevated temperature, disorientation, bilateral leg cramps, and nausea were consistent with a systemic infection caused by the presence of strep and staph bacteria originating in the ulcer on the ball of her left foot, and he faulted Dr. Willoughby for failing to examine plaintiff's foot on that day. However, it must be recalled that plaintiff claimed as her damages the need for in-patient administration of antibiotics. Dr. Lipnack was unable to provide any competent evidence that the treatment of plaintiff's systemic infection would have differed from that which she received if the infection had been detected on April 26 rather than April 30. Thus evidence of a causal relationship between any negligence on Dr. Willoughby's part and the damage allegedly sustained by plaintiff is absent.

Dr. Lipnack's testimony that the systemic infection diagnosed on April 30 was present and "pretty severe" on April 26 contains additional foundational flaws as the result of the doctor's admitted lack of expertise in the course and treatment of infectious diseases. Dr. Lipnack, an osteopathic physician who was not board certified either in internal medicine or infectious diseases, admitted that he did not treat diabetes or diabetic patients with significant infections, referring such patients to specialists for care. He did not know how long it took to develop symptoms of cellulitis, such as warmth, redness, swelling, and odor, and he did not write prescriptions or otherwise treat the condition, unless it was superficial in nature. Dr. Lipnack admitted that he had no expertise in treating patients suffering from cellulitis with intravenous antibiotics.

The doctor lacked knowledge as to the degree of aggressiveness of either strep or staph organisms. He could not explain, in a manner consistent with his hypothesis that on April 26 plaintiff was suffering from a "raging" systemic bacterial infection originating in the ulcer on her foot, why on April 30 she had a normal white blood cell count and her blood culture was negative for bacteria, stating the matters were beyond his expertise. Dr. Lipnack found outside his area of expertise a description of condition of plaintiff's left foot on April 26, if she were in fact suffering from a raging foot infection that caused systemic problems and a fever of 102.5 degrees. He also could not medically explain why plaintiff's symptoms had improved on April 29. Finally, in response to a juror's question whether there are different stages of infection, Dr. Lipnack stated "yes," but that he could not explain them. He further could not answer with reference to plaintiff's case how long an infection could be asymptomatic.

We find as the result of the foregoing that Dr. Lipnack's opinion that negligence on the part of Doctors Bobila and Willoughby causally increased the risk of harm to plaintiff lacked any foundation in fact, and thus that plaintiff failed to present prima facie evidence on an issue crucial to her cause of action. Buckelew, supra, 87 N.J. at 524; Nolan v. First Colony Life Ins. Co., 345 N.J. Super. 142, 155 (App. Div. 2001); Hemmen v. Atl. City Med. Ctr., 334 N.J. Super. 274, 289 (Law Div. 1999), aff'd o.b. 334 N.J. Super. 160 (App. Div. 2000). We thus affirm the court's similar ruling in this regard. See R. 4:37-2(b).

We decline to address the issue of whether the trial court improperly limited Dr. Lipnack's testimony with respect to the standard of care applicable to family physician Dr. Willoughby and his deviations from it, since even if evidence on that issue had been presented, Dr. Lipnack's admitted lack of expertise with respect to the diagnosis, course, and treatment of systemic infections rendered his conclusions with respect to causation fatally flawed.

III.

We find no factual support for plaintiff's argument that she was entitled to a finding of liability against Dr. Willoughby pursuant to R. 4:40-1 as the result of his alleged admission that he deviated from the standard of care by failing to examine plaintiff's foot on April 26, finding no support in the record for the claim that the alleged admission was made. Moreover, even if the alleged admission existed, legally crucial evidence of causation would still be absent from plaintiff's proofs, requiring a directed verdict regardless of any evidence of negligence.

IV.

In light of our resolution of the issues raised in plaintiff's appeal, we need not reach matters addressed by Dr. Bobila in his cross-appeal.

The judgment in favor of defendants is affirmed.

 

Incorrectly referred to as Wilbur Bobilla, M.D.

Dr. Bobila's expert, Dr. David Befeler, was not permitted to testify because his curriculum vitae had not been produced to plaintiff's counsel prior to the commencement of trial.

We note that plaintiff failed to make an application on this ground to the trial court, thereby barring its presentation on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973). Plaintiff's argument is nonetheless briefly addressed.

Plaintiff has not provided us with citations to the record that identify the alleged admission. It is not our duty to cure this omission. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).

(continued)

(continued)

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A-2486-04T2

June 26, 2006