CECIL FEARON v. CORRECTIONAL MEDICAL SERVICES INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5766-08T35766-08T3

CECIL FEARON,

Plaintiff-Appellant,

v.

CORRECTIONAL MEDICAL SERVICES,

INC. and GRACE MELENDEZ, M.D.,

Defendants,

and

PAUL TALBOT, M.D., MANAR

HANNA, M.D., ARLENE TINKER, M.D.,

AHAB GABRIEL, M.D., LAWRENCE

DONKOR, M.D. and RICHARD

HELLANDER, M.D.,

Defendants-Respondents.

__________________________________

 

Submitted June 23, 2010 - Decided

Before Judges Chambers and Kestin.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2528-07.

Feldman & Pinto, P.C., attorneys for appellant (Rosemary Pinto, on the brief).

Marks, O'Neill, O'Brien & Courtney, P.C., attorneys for respondents (Stephen D. Holtzman, of counsel; Jeffrey S. McClain, on the brief).

PER CURIAM

Plaintiff, Cecil Fearon, an inmate at the East Jersey State Prison, appeals from the dismissal of his medical malpractice case against various prison doctors. The trial court determined that plaintiff's expert reports were inadequate to support his claims and granted summary judgment to defendants. We reverse, concluding that plaintiff's claims are supported by expert reports and testimony sufficient to survive a motion for summary judgment.

I

When reviewing a decision on a motion for summary judgment, we apply the same standard as 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 will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). In this analysis, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether the evidence is "sufficient to permit a rational factfinder to 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). We need not defer to the trial court's interpretation of the law, or its determination of the legal consequences that flow from undisputed facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With this standard in mind, we discern from the record the following facts. Plaintiff, while in prison, experienced various medical problems over a number of years, and on March 8, 2004, defendant, Paul Talbot, M.D., referred plaintiff to Anthony Chiurco, M.D., a board certified neurosurgeon. Dr. Chiurco saw plaintiff on April 22, 2004, and ordered an MRI. Plaintiff saw Dr. Chiurco on June 22, 2004, after the MRI results were received. The MRI showed severe spinal cord compression at C-4 and C-5. After discussing the situation with plaintiff, Dr. Chiurco planned to proceed with surgery as soon as possible, and he wrote to the prison summarizing this fact. Dr. Chiurco did not see plaintiff again until almost a year later on April 19, 2005. At that time, plaintiff had difficulty walking. Dr. Chiurco again recommended surgery for plaintiff's severe spinal cord compression and advised the prison of the necessity for this surgery.

Plaintiff was not brought to Dr. Chiurco for the surgery until January 30, 2006, more than a year and a half after it was first recommended. At that time, Dr. Chiurco performed an "anterior diskectomy and partial vertebrectomy and foraminotonies at the C4-5 and C5-6 levels with subsequent allograft fusion." On two post-operative visits, when plaintiff saw Dr. Chiurco, the prison failed to provide Dr. Chiurco with the necessary films. In a second surgery in March 2007, Dr. Chiurco performed a laminectomy, decompressing the spinal cord from C3 to C7. Plaintiff continues to experience difficulty walking, and he maintains that the defendants' negligence increased the risk of injury to his spinal cord and caused substantial pain and suffering.

Due to these circumstances, plaintiff commenced litigation. We will not review the procedural history in this case; much of that background can be found in our earlier decision in which we reversed the trial court's decision that the claims were barred by the statute of limitations. Fearon v. Corr. Med. Servs., Inc., No. A-4686-07 (App. Div. Feb. 19, 2009).

Defendants then moved for summary judgment on the basis that there was insufficient evidence of negligence against the individual defendants; that plaintiff could not prove deviation or proximate cause with Dr. Chiurco's testimony; that plaintiff could not prove injury; and that Dr. Chiurco's opinions were inadmissible as net opinions.

The trial court granted the motion, and in a decision placed on the record, concluded that plaintiff's experts, Dr. Chiurco, and Dr. Leon H. Waller, D.O., a board certified internist, did not identify a standard of care or any deviation from a standard of care, nor could they identify any injury or harm to plaintiff caused by the delay in surgery. The trial court found that their opinions were based on speculation and were mere conclusions unsupported by factual evidence in the case. Plaintiff appeals, contending that he has come forward with expert opinion sufficient to sustain his cause of action.

II

A medical malpractice case is a negligence case against a medical professional. The claim "is based on the improper performance of a professional service that deviated from the acceptable standard of care." Zuidema v. Pedicano, 373 N.J. Super. 135, 145 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005). Generally, a plaintiff alleging medical malpractice must prove with expert testimony "(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).

An expert's opinion must be based on "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.'" Polzo v. County of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). Expert opinion not supported by factual evidence or other data is considered a "net opinion" and is inadmissible. Ibid. To avoid presenting a "net opinion," the expert must "give the why and wherefore of his or her opinion, rather than a mere conclusion." Ibid. (quoting State v. Townsend, supra, 186 N.J. at 494).

In this case, the trial court concluded that plaintiff had failed to provide expert testimony establishing the applicable standard of care, showing that defendants had deviated from that standard of care, and establishing that any deviation caused plaintiff injury. In light of our standard of review which requires us to give plaintiff the benefit of all of the favorable inferences that can be drawn from the evidence, we conclude that the medical report of Dr. Waller and the deposition testimony of Dr. Chiurco are sufficient to make out medical malpractice claims against defendants.

Dr. Waller expressly sets forth the standard of care of an internist as follows:

People with symptoms suggesting spinal cord compression require urgent, if not immediate medical attention because prompt diagnosis and treatment may reverse or lessen the loss of spinal cord function due to the compression. For patients like Mr. Fearon with symptoms suggestive of spinal cord compression, the standard of care during the relevant time period required referral to a neurosurgeon and/or orthopedic spine surgeon for diagnosis and treatment.

. . . .

Once the neurosurgeon has recommended a course of further testing and treatment, proper standard of care requires that the referring internist follow the recommendations of the neurosurgeon related to issues as to spinal cord compression. As internists, our training teaches us that time is of the essence in the treatment of cord compression and that delay when a patient's neurological function is compromised will greatly diminish the effectiveness of the surgery.

Dr. Waller further opined that the defendants deviated from that standard of care because plaintiff's surgery was delayed until nineteen months after it was recommended. Dr. Waller expressed his opinion that, for this reason, the defendants' care of plaintiff fell below the standard of care for an internist.

At his deposition, Dr. Chiurco, the neurosurgeon, expressed the opinion that "[a] delay in the recommended treatment when the spinal cord is compressed clearly increases the risk of harm to the person. . . . The longer neural elements are compressed, the longer you expose the spinal cord to progressive damage." He explained, in technical terms, the harm compression causes to the spinal cord in the following line of questioning:

Q. [C]an you just explain what damage is done to a person as a result of continued cervical spine compression, why that needs to be relieved, what occurs if it's not relieved, what the damage is?

. . . .

A. Well, it is known that with chronic compression we see changes in the white matter in the cord from chronic compression. There is what we call demyelinazation and you will see signal changes in the cord on MRI scan.

Q. Why is that of any significance?

A. It shows progressive damage to the cord. It can occur radiographically, not in everyone, meaning on MRI, you may not see it on everyone.

Q. And just for laymen, when you have that damage to the cord, how does that translate into any type of problem for a person, if it does?

A. Well, it impairs the conduction and the spinal cord, which impairs that brain's ability to know where the legs are in space, so they walk imbalanced and tend to fall over. An then with the compression of the motor fibers, the reflexes are increased and become spastic in the legs also adding to the gate impairment, so you increase the risk of harm because they are developing progressive signs and symptoms of spinal cord compression in the form of their inability to walk properly which makes them at risk for falling over.

Dr. Chiurco further expressed his opinion that the delay over eighteen months between his recommendation for surgery and plaintiff's first surgery was below the standard of care. He opined that when this type of compression of the spinal cord is seen, the standard of care is to relieve it as soon as possible. A one month delay would be considered reasonable. He also indicated that the delay between the first and second surgeries was unreasonable; a six to eight week delay would be reasonable.

Dr. Chiurco testified that the risk of harm to plaintiff increased for as long as the surgery was delayed, and he attributed plaintiff's gait problems to the spinal cord compression. He further stated that "[i]t is more likely than not in my opinion that the delay in the decompression of Mr. Fearon's spinal cord likely prevented him from improving." When asked to compare the outcome if surgery had been performed when first recommended in April 2004, as opposed to the outcome when it was performed in January 2006, Dr. Chiurco stated: "It may have afforded him a better chance to improve with earlier decompression. It is my opinion that the longer the spinal cord stays compressed, you lessen the chance of improvement with reasonable certainty."

Thus, both of plaintiff's doctors have set forth the applicable standard of care, namely, to follow the recommendations of the neurosurgeon to relieve the spinal cord compression as soon as possible, that defendants deviated from that standard of care in delaying the surgery for over eighteen months, and that the deviation impaired plaintiff's recovery and contributed to his gait problems.

We note that defendants maintain that because plaintiff's experts have not specifically discussed each defendant individually to identify the specific deviation each one committed, they are entitled to summary judgment. We disagree. The deviation for each defendant is the failure to arrange for plaintiff's surgery in a timely manner.

Dr. Talbot was the doctor who referred plaintiff to Dr. Chiurco. There is no evidence in this record that he followed up on Dr. Chiurco's recommendation. While he apparently did not see plaintiff after the referral, the record contains a formal letter written to Dr. Talbot by Dr. Chiurco dated April 19, 2005, eight months before the first surgery, stating that the surgery had been recommended almost a year earlier and was needed.

With the exception of Dr. Talbot, the remaining defendants all treated plaintiff in the time period between Dr. Chiurco's recommendation of surgery made in June 2004 and January 2006, when the first surgery was finally performed. Defendant Arlene Tinker, M.D. ordered the consultation in June 2004 with Dr. Chiurco, and the report of plaintiff's visit with her on August 4, 2004, acknowledged the need for the surgery. Defendants, Richard Hellander, M.D., and Manar Hanna, M.D., ordered and authorized the referral on April 19, 2005, to Dr. Chiurco, and they signed a medical report generated from that referral, acknowledging that plaintiff needed the surgery. In the time period between Dr. Chiurco's recommendation in June 2004 and the first surgery in January 2006, defendants Lawrence Donkor, M.D., and Ahab Gabriel, M.D., saw plaintiff for back complaints and prescribed Tylenol and braces. While the medical reports on plaintiff's visits with these two doctors do not reference the surgery, plaintiff's complaints to them appear to relate to the problems the surgery would address, and presumably, these doctors had access to plaintiff's medical records. On a motion for summary judgment, we must give plaintiff the benefit of all of the favorable inferences drawn from the evidence; hence, we let the claims against these two defendants stand as well.

For all of these reasons, summary judgment for defendants is reversed and the case is remanded for trial.

 
Reversed and remanded.

Defendant Correctional Medical Services, Inc., which had been under contract to provide medical services to New Jersey prison inmates during this time period, and defendant Grace Melendez, M.D., have been dismissed from the case and are not subject to this appeal.

(continued)

(continued)

11

A-5766-08T3

July 30, 2010