FRED GARAFFA v. JFK MEDICAL CENTER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4105-04T24105-04T2

FRED GARAFFA,

Plaintiff-Appellant,

v.

JFK MEDICAL CENTER; DAVID

LESSING, M.D.; ROBERT WOOD

JOHNSON UNIVERSITY HOSPITAL,

Defendants-Respondents.

_______________________________________

 

Argued May 24, 2006 - Decided

Before Judges Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

L-1053-04.

Scott I. Fegley argued the cause for appellant.

Christopher P. Massaro argued the cause for respondent JFK Medical Center (Cole, Schotz, Meisel, Forman & Leonard, attorneys; Mr. Massaro, on the brief).

Herbert Kruttschnitt III argued the cause for respondent David Lessing, M.D. (Grossman, Kruttschnitt & Heavey, attorneys; Susan E. Roberts, on the brief).

Sarah Hamilton Morley argued the cause for respondent Robert Wood Johnson University Hospital (Joseph A. DiCroce, attorney; Ms. Morley, on the brief).

PER CURIAM

Plaintiff Fred Garaffa appeals the entry of an order dated March 4, 2005, granting summary judgment, dismissing his complaint filed against defendants JFK Medical Center (JFKMC), David Lessing, M.D., and Robert Wood Johnson University Hospital (RWJUH), for alleged medical malpractice arising out of the treatment of plaintiff's right arm fracture. In granting summary judgment, the trial court concluded that expert testimony was required to establish the standard of care concerning the treatment of plaintiff's injury and that plaintiff's failure to produce such testimony was fatal to his claim. We affirm.

Our analysis begins with a reiteration of the basic principles of appellate review. Our standard of review of the trial court's grant of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). The ultimate question in a summary judgment motion is whether, upon a review of the pleadings, deposition testimony and other competent evidence presented, in the light most favorable to the non-moving party, a rational fact-finder could resolve the alleged disputed issue in favor of the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The record evaluated under that standard discloses the following facts. On March 7, 2002, at approximately 3:30 p.m., plaintiff, then sixty-three years old, injured his right arm while throwing a football. A broken bone in the upper region of his arm penetrated through his skin momentarily until his son placed a "makeshift sling" around his neck. Plaintiff was transported by ambulance to the emergency room at JFKMC. As a United States Army veteran, plaintiff was insured by the Veterans Administration (VA) Insurance Program; however, his policy did not cover emergency room visits.

While in the JFKMC Emergency Department, plaintiff was examined by an attending physician, Dr. Joanne Haddad, who ordered an EKG, a series of blood tests, and x-rays of plaintiff's chest, right shoulder, and right arm. Examination notes indicated a "gross deformity" of the humerus, the bone between the shoulder and the elbow. The x-rays revealed plaintiff suffered a complete oblique fracture through the distal third of his right humeral shaft with lateral displacement of the fracture fragments.

Dr. Haddad contacted Dr. David Lessing, a board certified orthopedic surgeon, for an orthopedic consultation regarding plaintiff's condition. Plaintiff certified that Emergency Room staff informed him "they were preparing [him] for emergency surgery." According to both plaintiff and his son, who was with him at the hospital, Dr. Lessing initially said he would set the broken bone in a cast to prevent nerve damage and would possibly operate that night, but "his whole demeanor changed" after learning that plaintiff did not have insurance. Dr. Lessing decided to perform a closed reduction and placed plaintiff's arm in a splint. Dr. Lessing then told plaintiff the fracture would heal on its own, instructed him to contact his primary care physician, and discharged him with Percocet for pain shortly before 9:00 p.m. Plaintiff was also instructed to follow up with Dr. Lessing in three days.

Still in considerable pain, plaintiff sought additional treatment at RWJUH immediately following his discharge from JFKMC. Plaintiff informed the Emergency Department staff that he had been seen at the JFKMC Emergency Room and that he fell on his right arm getting out of the car on his way home from JFKMC. He reported increased pain in his right arm. Medical professionals at RWJUH examined plaintiff and gave him an injection of Demerol at 10:30 p.m. After the treating physician at RWJUH spoke with Dr. Lessing, he adjusted plaintiff's splint and told him to return to the Orthopedic Division for treatment in two or three weeks, or whenever the charity paperwork was approved. Plaintiff was discharged at 12:15 a.m. and was given general instructions for the care of a broken arm.

Two days later, plaintiff went to Monmouth Medical Center seeking further treatment. There, his broken bone was aligned and his arm was placed in a hard cast. After subsequent x-rays showed inadequate healing, plaintiff's fracture was surgically repaired.

On March 5, 2004, plaintiff filed a complaint against JFKMC, Dr. Lessing, and RWJUH, alleging medical malpractice, violation of the Patients Bill of Rights Act, N.J.S.A. 26:2H-12.7 to -12.11, and violation of the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA), 42 U.S.C.A. 1395dd. He subsequently amended the complaint to allege medical malpractice based on the doctrine of common knowledge. After the Hospital Patient's Bill of Rights Act claim was transferred to the Department of Health and Senior Services for investigation, defendants moved for summary judgment on the remaining claims. On March 4, 2005, the trial court granted defendants' motions for summary judgment and dismissed plaintiff's complaint. Regarding the medical malpractice claims, the judge found expert medical testimony was required to establish that the health care providers at JFKMC and RWJUH deviated from the standard of care. He reasoned that the jury would not be able to reach a conclusion based on common knowledge alone. As to plaintiff's EMTALA claim, the judge found plaintiff was given treatment and was stabilized at both JFKMC and RWJUH and that plaintiff would need an expert to opine as to the requisite standard of care in order to sustain that claim.

On appeal plaintiff raises the following points for our consideration:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DISMISSING THE FIRST AMENDED COMPLAINT.

A. The case was not at a point where it could be resolved "on the papers."

B. Plaintiff's "common knowledge" medical malpractice claim is strong enough to withstand a motion for summary judgment.

C. Plaintiff's EMTALA claim should not be dismissed short of additional fact finding and credibility determinations.

D. Mr. Garaffa's case should not be dismissed due to errors by the attorney representing him in the lower court.

In granting summary judgment to defendants on plaintiff's medical malpractice claims, the trial court explained:

As to the allegations of medical malpractice, -- here the plaintiff is relying upon the common knowledge doctrine. Sure there is a place for that, and the idea is that the jury can apply the standard based upon their own common experience, and determine that there was a standard, and this doctor or hospital or health care provider deviated from that standard.

Here, I don't know how the jury could possibly do that, especially given the subsequent events. Plaintiff believes that what they should have done was on the night in question, performed an operation, an open reduction. But yet when he went to the Monmouth Medical Center, that wasn't done then either, until some time later . . . Let's see if this will align itself without the operation.

I think the operation is no walk in the park. It involves steel rods or nails, if that is the case, and plates. And there is the possibility of infection and all kinds of things that would suggest at least to me, that if it can be resolved short of an open reduction, that is how it should be done.

. . . .

This is a case where the plaintiff would require medical testimony to establish that these health care providers deviated from the accepted standards. I am satisfied he hasn't done it. And there has been no affidavit provided. This is not a case where the common knowledge doctrine applies.

Plaintiff urges the nature of his injury was so obvious that a layperson could easily understand his fracture required more treatment than was afforded and the jury could reasonably conclude plaintiff was denied that care because he lacked health insurance.

I.

"To establish a prima facie case of negligence in a medical malpractice action, a plaintiff usually must present expert testimony to establish the relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries." Rosenberg by Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002). Consistent with this principle, the Legislature has adopted an affidavit of merit requirement in medical malpractice cases:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, 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 pursuant to this section, upon a finding of good cause.

[N.J.S.A. 2A:53A-27.]

The primary purpose of the affidavit requirement is "'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation.'" Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Cornblatt v. Barow, 153 N.J. 218, 242 (1998)). Plaintiff did not provide an affidavit of merit in connection with his claims against defendants.

The doctrine of common knowledge serves as an exception to the general rule requiring expert testimony, and thus an affidavit of merit, id. at 396-97, 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." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 470 (1999). The common knowledge doctrine is properly invoked only in the "'unusual medical malpractice case'" when the "'carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.'" Id. at 469 (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). In such cases, "'the jury itself is allowed to supply the applicable standard of care and thus . . . obviate the necessity for expert testimony relative thereto.'" Kelly v. Berlin, 300 N.J. Super. 256, 266 (App. Div. 1997) (quoting Rosenberg ex rel. Rosenberg, supra, 99 N.J. at 325 (citations omitted)).

Our courts have explained that "'the basic postulate for application of the [common knowledge] doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners.'" Estate of Chin, supra, 160 N.J. at 470 (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)); see also Kelly, supra, 300 N.J. Super. at 265. In other words, the doctrine is invoked in those rare cases where the alleged negligent conduct is so apparent that the ordinary experience of a layperson is sufficient to determine whether there was a breach of the standard of care owed to a particular patient during the course of that patient's treatment. See, e.g., Palanque v. Lambert-Woolley, 168 N.J. 398, 407 (2001) (doctrine of common knowledge applied when doctor misread numbers in lab report); Hubbard, supra, 168 N.J. at 396-97 (expert testimony on negligence not required where dentist extracted wrong tooth); Estate of Chin, supra, 160 N.J. at 470-71 (expert testimony not necessary to establish negligence when hysteroscope was incorrectly hooked up, introducing gas into patient's uterus and bloodstream); Sanzari, supra, 34 N.J. at 143-44 (doctrine of common knowledge invoked when dentist administered anesthesia to patient without inquiring into history of hypertension, resulting in death); Tramutola v. Bortone, 118 N.J. Super. 503, 512-13 (App. Div. 1972) (expert testimony on negligence not required when physician failed to inform patient that needle was left in chest after surgery), rev'd in part on other grounds, 63 N.J. 9 (1973); Jones v. Stess, 111 N.J. Super. 283, 287-90 (App. Div. 1970) (expert testimony not necessary to establish negligence when chiropodist inadvertently cut toe of diabetic patient, who then suffered infection requiring leg amputation).

Plaintiff contends defendants themselves provided the necessary "evidence of what should have been done and then proceeded to deviate from it." As evidence of the applicable standard of care established by defendants, plaintiff points to Dr. Lessing's initial statements that plaintiff might be admitted to the hospital and the after-care instructions for a broken arm provided by RWJUH, which state that, "[i]f the bone is badly broken, it may need special treatment, or even surgery." In further support of his argument that these facts are sufficient to establish the standard of care, plaintiff cites Lanzet v. Greenberg, 126 N.J. 168 (1991), for the proposition that evidence from the defendant medical professionals themselves can be relied upon to establish deviation from the standard of care. Id. at 192-93.

The Court in Lanzet recognized that proof of deviation can be established by testimony from the defendants because they were competent professionals. Ibid. Lanzet, however, is distinguishable because the applicable standard of care was established through expert testimony and was not disputed. Id. at 178. Conversely, here, the standard of care has not been established. Statements by Dr. Lessing as to the various courses of treatment he was considering and the after-care instructions on the care of a broken arm do not suffice, standing alone, to establish the standard of care applicable to plaintiff's particular arm fracture. The after-care instructions are illustrative of the weakness in plaintiff's argument:

What can be done?

The best form of treatment depends on how serious the injury is. Relatively mild breaks are usually splinted for one to three days and then put in a cast for three to six weeks. If the broken bone is bent out of shape, it may need to be put back into position before it is splinted. If the bone is badly broken, it may need special treatment, or even surgery.

The very language of that section illustrates the need for the exercise of appropriate medical judgment, presumably by an orthopedist, to determine what is the appropriate course of treatment. Whether the course of treatment selected deviated from accepted standards of care must be resolved through expert testimony. Rosenberg by Rosenberg, supra, 352 N.J. Super. at 399.

II.

In granting summary judgment in favor of defendants on plaintiff's EMTALA claims, the trial court reasoned:

As to the federal statute the plaintiff's allegations are compounded by the records which show very, very significant treatment. It may not have been the right treatment as far as the plaintiff is concerned, but there were x-rays, there was an EKG, there was medicine prescribed. There was blood taken, and IVs administered and so forth at JFK, and then at Robert Wood Johnson there were x-rays taken . . . And then the plaintiff was sent on his way.

. . . .

I think here we have a situation where the plaintiff was stabilized. He was rendered treatment. I don't think this is what the statute has in mind. And in order to make out this case, there would have to be some expert saying, this is -- they didn't do what medical standards would have required.

So therefore as to that count in the complaint, I have no hesitancy in granting summary judgment.

Plaintiff argues that his EMTALA claims were improperly dismissed because he was discharged by JFKMC and RWJUH while in severe pain with a swollen arm and before his condition was stabilized, in violation of 42 U.S.C.A. 1395dd(b)(1). Plaintiff further argues that defendants violated EMTALA because his course of treatment was limited to placing his arm in sling for two to three weeks while "charity papers" were filed and processed.

EMTALA provides that any individual who comes to a hospital emergency department and requests examination or treatment must be given "an appropriate medical screening examination within the capability of the hospital's emergency department . . . to determine whether or not an emergency medical condition . . . exists." 42 U.S.C.A. 1395dd(a). The statute also provides that if the hospital determines that an individual has an emergency medical condition, the hospital is required, under EMTALA, to provide further medical examination and treatment as required to stabilize the medical condition, or provide for transfer of the individual to another medical facility once the condition is stable. 42 U.S.C.A. 1395dd(c). A hospital may not delay providing an appropriate medical screening examination or further medical examination and treatment "in order to inquire about the individual's method of payment or insurance status." 42 U.S.C.A. 1395dd(h).

EMTALA defines "emergency medical condition" as one that "manifest[s] itself by acute symptoms of sufficient severity (including severe pain) such that the absence of medical attention could reasonably be expected to result in -- (i) placing the health of the individual . . . in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part[.]" 42 U.S.C.A. 1395dd(e)(1)(A). The term "to stabilize" means "to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility . . . ." 42 U.S.C.A. 1395dd(e)(3)(A).

Federal courts have consistently held that the limited purpose of EMTALA is to prevent "patient dumping," i.e., to ensure that all patients needing emergency treatment, regardless of insurance status, will at least receive a "first response at minimum and will not simply be turned away." Reynolds v. MaineGeneral Health, 218 F.3d 78, 83 (1st Cir. 2000); see also Harry v. Marchant, 291 F.3d 767, 768 (11th Cir. 2002); Bryan v. Rectors & Visitors of the Univ. of Va., 95 F.3d 349, 351 (4th Cir. 1996). EMTALA, however, was not intended to serve as a substitute for state law claims of medical negligence, Harry, supra, 291 F.3d at 773, or to establish a national standard of care. Bryant v. Adventist Health Sys./W., 289 F.3d 1162, 1166 (9th Cir. 2002). Thus, a plaintiff seeking relief under EMTALA may allege either (1) failure to receive appropriate medical screening or (2) improper discharge or transfer without first being stabilized. See Cleland v. Bronson Health Care Group, 917 F.2d 266, 268-69 (6th Cir. 1990); Stringfellow v. Oakwood Hosp. & Med. Ctr., 409 F. Supp. 2d 866, 870-71 (E.D. Mich. 2005).

Here, plaintiff does not allege inappropriate medical screening, but rather that he was discharged from JFKMC and RWJUH before his arm fracture was stabilized. In order to establish a violation of EMTALA's stabilization requirement, plaintiff is required to prove that (1) he had an emergency medical condition, (2) the hospital actually knew about the condition, and (3) he was not stabilized before being transferred or discharged. Mazurkiewicz v. Doylestown Hosp., 223 F. Supp. 2d 661, 665 (E.D. Pa. 2002). While EMTALA requires a hospital to stabilize a patient's emergency medical condition, it does not require that the hospital cure the condition. Green v. Touro Infirmary, 992 F.2d 537, 539 (5th Cir. 1993).

When the facts are viewed most favorably to plaintiff, he failed to raise a genuinely disputed issue of fact that his condition was not in fact stabilized. The hospital records from both JFKMC and RWJUH reveal that plaintiff's condition was stable at discharge. Additionally, the records from RWJUH state that plaintiff's condition "remained stable throughout Emergency Department evaluation." Although EMTALA does not expressly require the submission of expert reports, plaintiff's mere assertions of inadequate care and failure to stabilize are themselves insufficient to raise an issue of fact sufficient to defeat summary judgment. See Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999).

Finally, plaintiff's claim that dismissal of his complaint was improvident in light of errors committed by his attorney is without merit. Nothing in the record indicates that plaintiff was precluded from conducting discovery. Plaintiff's disagreement with the manner in which his attorney addressed discovery issues is a claim separate and distinct from plaintiff's claims against defendants and cannot defeat summary judgment. See Jerista v. Murray, 185 N.J. 175, 200-03 (2005).

Affirmed.

 

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A-4105-04T2

July 21, 2006