THOMAS P. IVORY v. HACKENSACK UNIVERSITY MEDICAL CENTER, et al.

Annotate this Case


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0328-06T50328-06T5

THOMAS P. IVORY,

Plaintiff-APPELLANT,

v.

HACKENSACK UNIVERSITY MEDICAL CENTER,

MUTAHAR AHMED, M.D., SALVATORE

LOMBARDO, M.D., WAIEL ABDELWAHAB, M.D.,

PAUL WANG, M.D., JOSEPH WIEDERMAN, M.D.,

RICHARD NIERENBERG, M.D., ELIZABETH

BUENO, R.N.,

Defendants,

and

RAVISHANKAR RAMAMOORTHY, M.D.,

Defendant-Respondent.

_________________________________________


Argued January 22, 2007 - Decided February 5, 2007

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

L-7539-05.

Peter L. MacIsaac argued the cause for appellant (Chasan Leyner & Lamparello, attorneys; Joel A. Leyner and Mr. MacIsaac, of counsel and on the brief).

Leonard Rosenstein argued the cause for respondent (Vasios, Kelly & Strollo, attorneys; Mr. Rosenstein, on the brief).

PER CURIAM

On November 8, 2005, plaintiff, Thomas Ivory, filed a medical malpractice complaint against several defendants, including Dr. Ravishankar Ramamoorthy, alleging in part that Ramamoorthy failed to adequately diagnose bacterial endocarditis (an abnormal inflammation of the inner lining of the heart) while he was a patient at Hackensack University Medical Center. On December 5, 2005, plaintiff filed an affidavit of merit prepared by Dr. Angelo Scotti. In his affidavit, Scotti indicated that he was board certified in the specialties of Emergency Medicine, Infectious Disease, and Internal Medicine and had practiced in these fields for a least five years. He also averred:

My review of the facts in this matter leads me to conclude that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work by all the defendants, including but not limited to . . . RAVISHANKAR RAMAMOORTHY, M.D . . . that is the subject of the Complaint, fell outside acceptable professional or occupational standards of treatment practices.

Defendant filed his answer on December 15, 2005. On January 26, 2006, a case management order was entered permitting plaintiff to file a new affidavit of merit within 120 days "should [plaintiff] choose to do so." On May 2, 2006, defendant moved to dismiss plaintiff's complaint. On June 2, 2006, the motion judge entertained oral argument, after which he granted defendant's application. Thereafter, plaintiff's motion for reconsideration was denied on the papers. We granted plaintiff's motion for leave to appeal on September 18, 2006. We now reverse the order dismissing plaintiff's complaint against defendant.

Scotti's April 12, 2006, expert report indicated that plaintiff was admitted to the Hackensack University Medical Center on January 23, 2004, with new onset congestive heart failure. Although plaintiff's blood culture was positive for bacteremia, enterococcus faecalis, he was not treated with the appropriate antibiotic (ampicillin), but instead with antibiotics to which the bacteremia was resistant, causing the bacteremia to progress to bacterial endocarditis. Thus, Scotti opined that plaintiff was discharged with undiagnosed bacterial endocarditis, which later caused plaintiff to develop a cerebral abscess resulting in surgical intervention and other complications. Scotti also opined that the various doctors who treated plaintiff during his stay were negligent in not considering bacterial endocarditis, failing to order a transesophageal ECHO, and discharging plaintiff with bacterial endocarditis. He also opined that the combination of a previous urological procedure, bacteremia with an enterococcus, aortic insufficiency, anemia, fever, and leucocytosis, conditions which plaintiff claims were apparent in the hospital record, were "nearly classic for bacterial endocarditis." Plaintiff alleged that the various doctors, including defendant, failed to diagnose plaintiff's true condition, which was apparent from plaintiff's hospital chart.

In support of his motion to dismiss, defendant argued that he does not specialize in diagnosing and treating bacterial endocarditis. He saw plaintiff as a gastroenterologist and performed an upper GI endoscopy, which revealed esophageal ulcerations, gastric erosions, duodenitis, and hiatal hernia. Defendant asserted that he was requested to evaluate plaintiff as a gastroenterology consult, not as a physician managing plaintiff's care. He argued that "Dr. Scotti neither has the particular expertise in gastroenterology nor has he devoted his practice substantially to gastroenterology for at least five years, as required by statute."

The judge noted that "[w]hile gastroenterology may be a subspecialty of internal medicine, so too are [there] many other subspecialties which internists would not endeavor to practice." The judge also pointed out that "[s]omeone who is an internist presumably would not consider that person . . . to be sufficiently knowledgeable as to treat patients with conditions normally handled by other sub-specialists, but rather would make appropriate referrals, as indeed took place in this case." The judge found also that because defendant chose to limit his practice to gastroenterology, there was nothing to "indicate that he ha[d] sought to keep abreast of other areas of medicine . . . unrelated to that specialty." Granting defendant's motion, the judge found that plaintiff failed to show that Scotti possessed the background and qualifications in gastroenterology or that he practiced gastroenterology for five years. The judge also found that "[n]othing has been presented to show an overlap between internal medicine and gastroenterology, insofar as the diagnosis of plaintiff's condition, bacterial endocarditis . . . ."

In support of his motion for reconsideration, plaintiff submitted an affidavit from Scotti, dated June 20, 2006, asserting essentially that the standard of care for a consulting doctor, board certified in internal medicine, including one with a subspecialty in gastroenterology, when treating a patient with the symptoms and findings that plaintiff presented, was to consider that plaintiff was suffering from endocarditis. He concluded that defendant's failure to do so was a deviation from an acceptable standard.

On appeal, plaintiff asserts that the judge mistakenly believed that the general area involved in plaintiff's cause of action was gastroenterology when, in fact, it dealt with basic internal medicine, specifically, "the fundamental duty to review a patient's chart." Plaintiff contends that, because gastroenterology is a subspecialty of internal medicine and defendant was board certified as an internist, Scotti was qualified to provide the standard of care defendant was required to follow in the field of general internal medicine. Defendant counters, arguing that the judge correctly dismissed plaintiff's complaint because Scotti did not refer to defendant by name, assert any deviation by defendant as a gastroenterologist, nor provide any reference to gastroenterology in his curriculum vitae.

The Affidavit of Merit statute applicable at the time of plaintiff's cause of action stated in pertinent part:

[T]he person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years.

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

The "affidavit of merit need not be executed by an expert with the same qualifications or certifications as the defending physician; that the expert is qualified to supply the required basis for the medical malpractice complaint is sufficient." Burns v. Belafsky, 166 N.J. 466, 479 (2001) (citing Wacht v. Farooqui, 312 N.J. Super 184, 188 (App. Div. 1998) (holding an orthopedic surgeon could render an opinion against a defendant radiologist where there are overlapping areas of practice common to both)).

In Burns, Denise Burns suffered paralysis of her cranial nerves due to the defendants' tests and procedures, which included the aspiration and removal of a soft tissue mass in her neck. The Court cited, with approval, our observation concerning the obvious overlapping area of practice between the neurosurgeon providing the affidavit of merit and the defendant radiologist.

It seems unlikely that a neurosurgeon would not be qualified to discuss various radiological diagnosis techniques, given the need to locate the area and determine the type of surgical intervention needed.

[Burns v. Belafsky, 326 N.J. Super. 462, 473 (App. Div. 1999), aff'd, 166 N.J. 466 (2001).]

Here, Scotti and defendant are both board certified in internal medicine. Defendant correctly points out that Scotti does not render an opinion that defendant deviated as a gastroenterologist. However, the malpractice raised by plaintiff's affidavit of merit and subsequent expert report is not whether defendant deviated as a gastroenterologist but whether he deviated as an internist. Scotti confines his remarks and opinion to defendant's duty of care as a board certified internist who allegedly fell below an acceptable standard of care when he presumably reviewed plaintiff's chart prior to performing an upper GI endoscopy. Scotti does not contend that defendant was negligent in performing the endoscopic procedure. The judge mistakenly found that the medical malpractice alleged dealt with the subspecialty of gastroenterology, not the shared specialty of internal medicine.

Whether defendant, as an internist, had a duty to review plaintiff's chart and diagnose his alleged condition may ultimately be disputed and the subject of opposing expert medical testimony at trial. The issue here, however is whether Scotti is qualified to provide an affidavit of merit as an internist. The simple answer is yes.


Lastly, defendant asserts that we should disregard Scotti's certification filed in support of plaintiff's motion for reconsideration because it was filed subsequent to the case management order setting a 120-day deadline for submitting a supplemental affidavit of merit. Scotti's expert report, issued on April 12, 2006, provided essentially the same information as his subsequent certification and was used by plaintiff in opposition to defendant's initial motion. More importantly, the error did not involve the sufficiency of the contents of Scotti's affidavit of merit, but rather the mistaken belief that he was asserting medical malpractice in a specialty in which he was not qualified.

Reversed and remanded.

Because Dr. Ramamoorthy is the only party defendant to this appeal, we refer to him as defendant.

No certification from defendant is included in the appellate record, only the briefs submitted in support of his motion to dismiss and defendant's answers to interrogatories.

The current statute, effective July 7, 2004, provides that "the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [N.J.S.A. 2A:53A-41]."

N.J.S.A. 2A:53A-41 provides that the person providing the affidavit shall "have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty . . . as the party against whom or on whose behalf the testimony is offered . . . ."

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A-0328-06T5

February 5, 2007