PAUL CARR et al. v. MITCHELL H. BREZEL, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3628-04T23628-04T2

PAUL CARR and KATHERINE CARR, his wife,

Plaintiffs-Appellants,

v.

MITCHELL H. BREZEL, M.D.,

Defendant,

and

ATLANTIC CITY MEDICAL CENTER,

Defendant-Respondent.

 
 

Argued January 25, 2006 - Decided March 16, 2006

Before Judges Conley, Weissbard, and Winkelstein.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Docket No. ATL-L-31-00.

Michael B. Zerres argued the cause for appellants

(Blume, Goldfaden, Berkowitz, Donnelly, Fried, & Forte, attorneys; Mr. Zerres, of counsel; Brian E. Mahoney,

on the brief).

Apple Sulit-Peralejo argued the cause for respondent

(Fox Rothschild, attorneys; Eric M. Wood and Ms.

Sulit-Peralejo, on the brief).

PER CURIAM

In this medical malpractice case, plaintiffs Paul Carr and Katherine Carr, his wife, appeal from a summary judgment dismissing their claim against defendant Atlantic City Medical Center. We affirm.

The facts are simply stated. On January 8, 1998, Carr suffered injuries in a motor vehicle accident. He was taken by ambulance to the Atlantic City Medical Center (the hospital) where various procedures were performed, including a splenectomy. On January 21, 1998, Dr. Mitchell Brezel, a physician with staff privileges at the hospital, performed a percutaneous gastrojejunostomy tube placement (PGTP) on plaintiff. During the procedure, the tube was advanced through plaintiff's transverse colon into the greater curvature of the stomach, producing a large tear in the gastric wall and hemorrhage from the gastroepiploic artery. These injuries resulted in acute peritonitis and a severe abdominal compartment syndrome.

On January 3, 2000, plaintiff filed suit against Dr. Brezel and the hospital. Thereafter, plaintiff moved to bar defendants from producing certain expert witness testimony because of failure to provide reports within the time permitted by an earlier court order; on May 2, 2001, the hospital cross-moved for summary judgment on similar grounds, i.e., plaintiff's failure to provide an expert's report as to the conduct of the hospital. The motion judge denied defendant's motion for summary judgment without prejudice and directed that further discovery occur within thirty days, namely the deposition of Dr. Alan Simpson, chairman of the Radiology Department at the hospital, in order to determine whether Dr. Brezel had privileges to perform the procedure at issue.

On September 25, 2001, following Simpson's deposition, defendant renewed its motion for summary judgment. Presiding Civil Division Judge William C. Todd, III, heard oral argument on October 26, 2001 and granted the motion.

Thereafter, the matter was tried before a jury against Dr. Brezel, the sole remaining defendant, on six days in March 2004, resulting in a verdict of "no cause" in favor of the doctor. Accordingly, an order was entered dismissing the case. Plaintiff moved for a new trial; the motion was granted on May 17, 2004. On June 7, 2004, Brezel moved for leave to appeal that order, which we denied. While awaiting the second trial, plaintiff's claims against Brezel settled. Orders reflecting the final disposition were entered on February 17 and 25, 2005.

At the outset, we note the undisputed fact that Dr. Brezel was not an employee of the hospital at the time he performed the procedure on plaintiff. However, in reappointing Dr. Brezel to the Attending Medical Staff as an Assistant Attending in the Department of Radiology, on December 31, 1995, the hospital annexed a Privilege List that enumerated numerous procedures for which Dr. Brezel had requested privileges. In each instance, the privilege was noted as approved. The exact procedure performed on plaintiff, a percutaneous gastrojejunostomy, was not listed as one of the interventional procedures for which privileges were granted. Dr. Brezel conceded that the procedure, referred to as a percutaneous feeding tube placement, was not on the list, and he agreed that he could not perform a procedure for which he was not credentialed. However, on December 3, 1998, a new privilege list was provided to Dr. Brezel, which did list percutaneous enteral tube gastrostomies and procedures, undisputedly covering the procedure performed on plaintiff on January 21, 1998.

In his deposition, Dr. Simpson agreed that "the process in which doctors apply for privileges, is a process which basically makes sure that the applicant does have the skill level to perform a specific procedure" and further agreed ("absolutely") that the process is an important one "and doctors who are not granted privileges to perform procedures should not be performing them." According to Dr. Simpson, Dr. Brezel was, in fact, well-qualified to perform the PGTP on plaintiff. Significantly, in a certification, Dr. Simpson stated that the privilege to perform a PGTP "was subsumed in the privilege to perform a percutaneous nephrostomy," the latter being a procedure Dr. Brezel was privileged to perform under the December 31, 1995 list. Plaintiff did not submit any evidence to the contrary.

In granting defendant's motion, Judge Todd stated, in part, as follows:

The plaintiff suggests that an issue is presented as to whether or not Dr. Brezel*s privileges at the medical center as of the time this incident occurred extended to the specific type of procedure that*s at issue here. And that*s an issue that is apparently subject to at least debate, which is not to say that there*s a legitimate issue for the jury as to that, but it*s subject to debate. Dr. Brezel and at least one other individual, I believe a physician, have apparently indicated that Dr. Brezel did have privileges to perform this type of procedure even though it was not specifically set forth in the written document that reflected the grant of privileges to him prior to the time this incident occurred. As I understand it there was a subsequent written document reflecting his privileges which did specifically recite his ability to participate in that type of procedure. There is no expert, as I understand it, who implicates the hospital in any way. And this motion for summary judgment is based on that basic fact and the suggestion that without an expert the plaintiff is not able to prevail with respect to the hospital, first based on that basic proposition and then second in the context of it apparently being clear that the physician in question did not have any employment or agency relationship with the hospital. The plaintiff*s position is that no expert testimony is necessary, as I understand it, on the following theory: First, that a lay person could conclude that Dr. Brezel did not have privileges to perform this particular procedure; second, that a lay person could conclude that the defendant medical center was negligent in permitting Dr. Brezel to perform the procedure if in fact he was not permitted to do that, that is he did not have the appropriate privileges. And then there is an additional argument that is raised by the plaintiff suggesting that there is a claim, a viable claim against the medical center in terms of informed consent. I am inclined to grant the medical center*s motion for summary judgment. There are a number of reasons why that I need to discuss, I think just briefly. First, again, I*ve said this before but I think there is no real dispute that the defendant doctor is not an employee or agent so the hospital could not be responsible on the theory of respondeat superior. There is, as far as I understand the law, no basis for the contention, and this purely a matter of law, that the medical center has some responsibility in terms of informed consent. This was not, as I understand it, the medical center*s procedure to elect. There*s no indication there was any physician-patient relationship between the medical center and the plaintiff. Nothing that I know of which could give rise to the hospital*s obligation in terms of informed consent. Third, and this is what I think is most important to this analysis, is the argument that the hospital can be found negligent based on it permitting the doctor to perform the particular procedure in question if he did not have privileges. There is a question, and I think it*s arguably a close question, as to whether or not a lay person could conclude that Dr. Brezel did not have privileges to perform this procedure. I*m frankly not certain just how to resolve that issue. And I suppose when I*m not certain what I should do, if that was the operative question, would be to deny the motion for summary judgment. The reason I*m not certain is because the issue is this focused. At issue is interpreting the types of privileges that the doctor had. There are two physicians, the defendant Brezel and the other doctor that I referred to a few minutes ago who apparently prepared to testify that this was within what was contemplated. The argument that is made by the plaintiff is that that testimony could be rejected because the subsequent document makes a specific reference to that procedure. I don*t find that to be particularly compelling, but on this type of an application I have to give the plaintiff the benefit of all facts and all inferences and I suppose it is not illogical to infer that the privilege, the specific procedure in question, was not within what was contemplated at first because it was not specifically referred to, particularly given the subsequent reference and the subsequent privileged document. What*s problematic about it is that one might argue that that itself requires some understanding of the dynamics of the medical profession and that might require an expert. But I would not, based on that issue, grant this motion for summary judgment. I am satisfied that if the case turns on whether or not a lay person could conclude that Dr. Brezel did not have this privilege to conduct this procedure that that is an issue I would have to at least at this point leave to the jury. So my analysis is based on the conclusion that a jury might conclude that Dr. Brezel did not have the privilege to conduct this particular procedure. My response to that, however, is so what? Let me frame the issue this way. Assume there was a jury interrogatory presented at the conclusion of the proofs which was, did the defendant Brezel have the privilege to perform this procedure? And assume that the other theories that I*ve articulated are not in the case and the only theory that*s left is the theory that the hospital is responsible because it is allegedly negligent for permitting him to perform this procedure when he did not have the privilege to do that. So one could imagine the jury being asked the question, did Dr. Brezel have the privilege to perform this procedure? Which they could answer yes or no based on the analysis I just went through. I would think that the plaintiff would have to concede if the other theories that we*ve been discussing are out of the case that if the jury then answered that question yes, he did have that privilege, then that claim would fail and the jury would be asked no further questions about the hospital because there would be no basis for concluding that the hospital would be negligent for permitting the doctor to perform the procedure when he didn*t have the privilege. More importantly for this analysis, I*m prepared to assume that the jury would answer that question the other way, by concluding that the doctor in question did not have the privilege to perform that procedure. With that the question becomes, in my mind, how could the jury conclude without some expert testimony implicating the hospital that the fact that Dr. Brezel did not have the technical privilege to perform the procedure have any causal relationship to the incident in question? That is where I think that analysis, that theory falls. I suppose one could argue that the practice of having privileges in conjunction with the fact that in this case there was a poor result, which I suppose I have to assume could be established, together would permit the jury to infer that there was some causal link. But that seems to me to be entirely speculative, something that a jury could not do without the assistance of expert testimony. Certainly if I was a fact finder I wouldn*t know what in the world to do with that claim. In the simplest of terms, if someone came to me and said I can tell you for sure that Dr. Brezel did not have the privilege to perform this procedure yet he was permitted to perform this procedure, therefore the hosp, therefore is the hospital responsible, my response would have to be, in the simplest of terms, why? I don*t see why. I don*t see a causal link.

After hearing argument, the judge continued:

I am satisfied that the motion for summary judgment filed on behalf of the hospital should be granted, and only a few brief additional comments are appropriate. Most importantly, I will simply incorporate the analysis that I outlined a few minutes ago which I continue to feel is still an appropriate perspective on the matter. Based on that I*m satisfied that there is no genuine issue of fact for the jury with respect to this issue and that the medical center is entitled to summary judgment. My only additional comment is this: I don*t doubt that there may be cases where a hospital might be held responsible if it permits a physician to perform particular services within its facility for which he is not qualified where that does in fact cause a particular injury. One can easily think of a host of examples. If the hospital decided just for the heck of it to have its staff psychiatrist conduct a few surgeries, for example, I think most people would, first of all, conclude that that was irresponsible and inappropriate and negligence itself. But more importantly, one would assume in those cases that it would not be difficult for the plaintiff to establish that there was a causal link between the fact that someone who had absolutely no qualifications to perform the privilege, perform the procedure did in fact perform it and it resulted in an injury. But those aren*t the facts that have been presented here. I am satisfied that an expert would be required to make that causal link. And on that basis for the reasons I noted a few minutes ago I will grant the motion for summary judgment.

On appeal, plaintiff posits his argument as follows:

THE DEFENDANT-HOSPITAL SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT BECAUSE PLAINTIFFS HAD MARSHALED A PRIMA FACIE CASE ON BOTH DEVIATION AND CAUSATION AND, AT WORST, THERE WERE MATERIAL FACTUAL DISPUTES; INTERVENING CASE LAW DEVELOPMENTS FAVOR PLAINTIFFS' PURSUIT OF A CAUSE OF ACTION AGAINST THE DEFENDANT-HOSPITAL IN THE CIRCUMSTANCES, THE CASE SHOULD HAVE BEEN ANALYZED IN TERMS OF "INFORMED CONSENT" DOCTRINE, AND THE ABSENCE OF EXPERT OPINION ON CERTAIN MATTERS SHOULD NOT HAVE BEEN A BASIS FOR SUMMARY JUDGMENT.

A. THE MOTION COURT'S RULING.

B. POST-MOTION DEVELOPMENTS IN THE LAW OF CREDENTIALING FAVOR ANALYSIS OF THE CASE IN TERMS OF "INFORMED CONSENT" DOCTRINE.

C. THE ABSENCE OF EXPERT TESTIMONY ON CERTAIN SUBJECTS SHOULD NOT HAVE BEEN DEEMED FATAL TO PLAINTIFFS' CASE AGAINST THE DEFENDANT-HOSPITAL.

In reviewing a summary judgment, we employ the same standard as the trial court. Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). "'[W]e must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiffs.'" Coyne v. State Dep't of Transp., 182 N.J. 481, 491 (2005) (quoting Strawn v. Canuso, 140 N.J. 43, 48 (1995)). Applying that standard, our review is de novo. Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005).

Having reviewed plaintiff's arguments in light of the record and applicable law, we find ourselves in substantial agreement with Judge Todd. However, since plaintiff relies on "post-motion developments," not presented to Judge Todd, we supplement his opinion with the following discussion.

Plaintiff argues that Howard v. Univ. of Med. and Dentistry of N.J., 172 N.J. 537 (2002), decided after the hospital's motion for summary judgment was granted, supports permitting a claim for lack of informed consent based on the circumstances of this case. We disagree.

The doctrine of informed consent, a type of medical negligence, is based on a physician's duty to provide patients with sufficient information to enable them to "'evaluate knowledgeably'" the available options and their respective risks before submitting to a particular procedure or course of treatment. Perna v. Pirozzi, 92 N.J. 446, 459 (1983) (quoting Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972)). To succeed on such a claim, the plaintiff must prove that the physician withheld information regarding the risks of the procedure or treatment, the available alternatives, or the possible outcome if the plaintiff elects to forego treatment. Howard, supra, 172 N.J. at 548 (citing Perna, supra, 92 N.J. at 460). Additionally, the plaintiff must prove causation as measured by an objective standard; that is, the plaintiff must establish that a reasonably prudent patient in his or her position would have declined the treatment or procedure if informed of the risks that were not disclosed. Ibid. (citing Canesi v. Wilson, 158 N.J. 490, 504-05 (1999)). The burden of causation is not met if the plaintiff would have consented to the proposed treatment after receiving full disclosure. Id. at 548-49 (citing Largey v. Rothman, 110 N.J. 204, 215-16 (1988)).

In Howard, the Court extended the traditional informed consent analysis to allow a claim based on lack of informed consent when a physician allegedly made misrepresentations to a patient about his credentials and experience. Id. at 555-59. There, the plaintiff, who suffered a bad outcome from back surgery, namely a corpectomy, sued his physician on a misrepresentation theory, alleging that the doctor falsely claimed to be board certified and to have performed approximately sixty such surgeries annually over a period of eleven years. Id. at 543-44. In fact, the physician was only "board eligible," not yet board certified, and had performed only several dozen corpectomies in his entire career. Id. at 544. The Court disallowed the fraud claim, but permitted the action to proceed under an informed consent analysis. Id. at 554-59. The Court explained:

The allegation here is that defendant's misrepresentations concerning his credentials and experience were instrumental in overcoming plaintiff's reluctance to proceed with the surgery . . . [P]laintiff essentially contends that he was misled about material information that he required in order to grant an intelligent and informed consent to the performance of the procedure because he did not receive accurate responses to questions concerning defendant's experience in performing corpectomies and whether he was "Board Certified." Plaintiff allegedly was warned of the risk of paralysis from the corpectomy procedure; however, he asserts that if he had known the truth about defendant's qualifications and experience, it would have affected his assessment of the risk of the procedure. Stated differently, defendant's misrepresentations induced plaintiff to consent to a surgical procedure, and its risk of paralysis, that he would not have undergone had he known the truth about defendant's qualifications.

. . . .

[A]ssuming the misrepresentations are proved, if an objectively reasonable person could find that physician experience was material in determining the medical risk of the corpectomy procedure to which plaintiff consented, and if a reasonably prudent person in plaintiff's position informed of the defendant's misrepresentations about his experience would not have consented, then a claim based on lack of informed consent may be maintained.

[Id. at 556-57.]

We decline to extend Howard to the facts of this case, as urged by plaintiff. Informed consent, as outlined above, deals with a physician's failure to adequately disclose material information to a patient. Here, there was no physician-patient relationship between the hospital and plaintiff. As we stated in Bennett v. Surgidev Corp., 311 N.J. Super. 567 (App. Div. 1998), "we 'have found no cases, and are cited to none, in which the courts of New Jersey have recognized the obligation of a hospital to obtain informed consent before permitting surgery at its facility.'" Id. at 569 n.1 (quoting Baird v. Am. Med. Optics, 301 N.J. Super. 7, 12 (App. Div. 1997), modified on other grounds, 155 N.J. 54 (1998)). Likewise, our independent research has revealed no such case. Indeed, it would be extremely burdensome, cost-prohibitive, and generally infeasible to impose a duty on hospitals to obtain informed consent for each procedure from every patient within the facility. See President v. Jenkins, 357 N.J. Super. 288, 317 (App. Div. 2003) (considering whether duty to ensure physicians have malpractice insurance would be burdensome and cost-prohibitive if imposed on hospital), modified on other grounds, 180 N.J. 550 (2004)). Thus, we find no duty on the part of the hospital to disclose information regarding the risks of a particular procedure to plaintiff. That responsibility lies with the treating physician, here Brezel. See Baird, supra, 301 N.J. Super. at 12 (noting that hospital must generally rely on relationship between patient and physician and should not interfere or intervene in that relationship).

Moreover, even if the hospital could be deemed liable for inadequate disclosures made by Brezel, Howard is limited to a situation in which a physician makes an affirmative misrepresentation to a patient about the quality or extent of his or her professional experience. Howard, supra, 172 N.J. at 554-55. The Court specifically noted that our State has never imposed a duty on physicians to detail their background and experience as part of the necessary informed consent disclosure, and that it was not presently deciding that question. Id. at 554. Here, there is no suggestion that the hospital, or Brezel for that matter, affirmatively misrepresented to plaintiff that the privilege to perform a PGTP was specifically listed on Brezel's privilege sheet.

In any event, even if principles of informed consent are deemed applicable to this case, summary judgment was still appropriate. Plaintiff cannot succeed on his claims against the hospital without expert testimony to establish causation. As explained in Howard, the trial court must conclude that there is a genuine issue of material fact concerning two proximate cause questions in order to allow this type of informed consent case to proceed to trial. Id. at 559. The first inquiry, assuming a misrepresentation is established, is whether the more limited experience or credentials possessed by defendant could have substantially increased plaintiff's risk of injury from the procedure. Id. at 558. Expert testimony is required to make such a showing. Ibid. Second, the court must find a genuine issue of material fact as to whether that substantially increased risk would cause a reasonably prudent person not to consent to the procedure. Ibid. "If the true extent of defendant's experience could not affect materially the risk [of the injury that occurred], then the alleged misrepresentation could not cause a reasonably prudent patient in plaintiff's position to decline consent to the procedure." Ibid. Finally, in order to recover damages, the plaintiff has to establish a causal connection between the inadequately disclosed risk and the injury sustained. Id. at 559.

Here, plaintiff's informed consent claim fails to satisfy the first prong of Howard because he presented no expert testimony that Brezel's alleged lack of the privilege to perform a PGTP, especially in light of Brezel's extensive experience in interventional radiology, could have substantially increased his risk of injury from the procedure. Id. at 558. In addition, plaintiff has not presented evidence establishing a causal connection necessary to satisfy the damages element of an informed consent claim. Id. at 559.

Notwithstanding, plaintiff contends that a jury could determine, without the assistance of an expert, that:

(1) privileges are important and relate to patient safety; (2) a PGTP is not the same procedure as a percutaneous nephrostomy; (3) Brezel exceeded his privileges in performing a PGTP on plaintiff in January 1998; and (4) the hospital should be held liable for the wrongful exercise of privileges on its premises.

Although the necessity of expert testimony on items (2) and (3) is not free from doubt, we assume for purposes of this opinion, as the motion judge did, that a jury could decide those questions without an expert. At the least, it may be argued that there were material issues of fact respecting those areas, precluding summary judgment. However, the same may not be said for (4).

Summary judgment was appropriate on the ground that plaintiff failed to provide expert testimony establishing the standard of care applicable to the hospital and on the issue of causation linking any alleged breach to plaintiff's injury. The Court has held that, in order to establish a prima facie case of negligence in a medical malpractice action, "a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations omitted) (emphasis added). Regarding the third prong, plaintiff must prove by a preponderance of the evidence that the injury at issue "probably would not have occurred 'but for' the negligent conduct of the defendant." Id. at 377 (quoting Evers v. Dollinger, 95 N.J. 399, 415 (1984)).

The common knowledge doctrine provides an exception to this general rule when "the experience possessed by lay persons, without the explanations of experts, would enable a jury to determine that a defendant acted without reasonable care." Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 470 (1999). The common knowledge doctrine is properly invoked only in the rare medical malpractice case where the "carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience." Id. at 471 (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)).

The present case is not the type in which evidence of the defendant's negligence is so readily apparent as to justify use of the common knowledge exception. See, e.g., Chin, supra, 160 N.J. at 470-71 (expert testimony on professional standard of care not necessary to establish negligence when hysteroscope was incorrectly hooked-up, introducing gas into patient's uterus and bloodstream); Klimko v. Rose, 84 N.J. 496, 504 (1980) (common knowledge doctrine applicable when chiropractor performed second neck adjustment on patient after patient became dizzy, sweaty, lost appetite, and continued to feel ill hours later); Sanzari v. Rosenfeld, 34 N.J. 128, 143 (1961) (doctrine of common knowledge properly invoked when dentist administered anesthesia to patient without inquiring into history of hypertension, resulting in death). The fact that the privilege process is important to patient safety is not in itself sufficient to implicate liability on the part of the hospital without expert testimony as to the standard of care applicable to medical facilities regarding awarding privileges and monitoring the exercise of those privileges.

First, assuming the jury found that Brezel possessed privileges to perform a PGTP on plaintiff, expert testimony would be necessary on the standard of care regarding the issuance of privileges in order to determine whether the hospital was negligent in awarding Brezel that particular privilege. The evidence here does not support such a finding, as Brezel was the hospital's "star interventional radiologist," the section chief of the hospital's interventional radiologists, and became experienced in performing interventional radiological procedures while a fellow at Yale.

Second, assuming the jury found that Brezel did not have the privilege to perform a PGTP on plaintiff, the jury would be unable, in the absence of expert testimony on the standard of care regarding the monitoring of physicians with staff privileges, to establish whether the hospital breached that standard of care and whether any such breach proximately caused plaintiff's injuries. The standard of care applicable to hospitals in monitoring the physicians who practice within their facilities in order to ensure that the physicians are performing only those procedures for which they have technical privileges is a matter that is not within the common knowledge or experience possessed by lay persons, and thus requires expert medical testimony. Chin, supra, 160 N.J. at 469-70. As we have explained, "in the absence of an obligation to act, investigate, or 'check-up' on its physicians, there is no voluntarily-assumed duty." President, supra, 357 N.J. Super. at 316.

Moreover, as noted by Judge Todd, causation is particularly problematic here. A jury could not, without the assistance of an expert, conclude that the hospital's failure to stop Brezel from performing a PGTP on plaintiff, despite Brezel's apparent qualifications to perform the procedure, was a proximate cause of plaintiff's injuries. Although a jury may be able to conclude that a hospital is negligent in knowingly allowing a physician who lacks competence, experience, or adequate training to perform a procedure, such facts were not present here. See id. at 316 (noting hospital may be directly liable for its selection and appointment of unqualified, unskilled, or incompetent physician). Thus, a medical expert was necessary to establish the causal link required for the imposition of liability.

Affirmed.

 

Katherine Carr sued per quod. In this opinion, we will therefore refer to Paul Carr, the injured party, as plaintiff.

In arguing that a jury could use its common knowledge to determine that the hospital is liable for a wrongful exercise of privileges on its premises, plaintiff seems to confuse the absence of a privilege with the absence of the necessary qualifications. The two are not synonymous. While a privilege does reflect that the physician has the necessary qualifications to perform the particular procedure, the absence of a privilege does not necessarily mean that the doctor lacks the qualifications. Here, there is no evidence that Brezel was not qualified to perform a PGTP on plaintiff. To the contrary, he performed numerous interventional radiological procedures while a fellow at Yale, was the hospital's lead interventional radiologist, and would have been granted the specific privilege to perform a PGTP if he had included that particular request on his December 1995 privilege list.

(continued)

(continued)

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A-3628-04T2

March 16, 2006