Annotate this Case






DOCKET NO. A-3658-05T13658-05T1

SEAN CURTIN, an infant by his g/a/l

Loren Curtin and William Curtin,











NEEDLEMAN, M.D. (first name unknown),







Argued January 16, 2007 - Decided January 30, 2007

Before Judges Lintner and C.L. Miniman.

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


Philip G. Auerbach argued the cause for appellants.

Gary L. Riveles argued the cause for respondent Kerry Weiss, M.D. (Dughi & Hewit, attorneys; Michael J. Keating, of counsel; Mr. Riveles, on the brief).

John M. Walsh argued the cause for respondents St. Peter's Medical Center, Scott Bader, M.D., and Joy Rende, R.N. (Amdur, Maggs & McGann, attorneys; Richard A. Amdur, of counsel and on the brief).


Plaintiffs, Loren and William Curtin, individually and as guardians for their son Sean, appeal from the entry of summary judgment dismissing their medical malpractice complaint. We affirm. The amended complaint named as defendants, Nurse Manager Joy Rende, St. Peter's Medical Center, and several doctors, including Dr. Kerry Weiss, Sean's attending neonatologist, and Dr. Scott Bader, a second-year resident. The amended complaint alleged that Sean "suffered additional medical complications requiring an extended hospitalization" along with "serious, permanent damages as a direct result" of defendants' negligence. Because this appeal arises from the grant of motions for summary judgment, "we must view the facts that may be inferred from the pleadings and discovery in the light most favorable to plaintiffs." Strawn v. Canuso, 140 N.J. 43, 48 (1995), superseded by statute on other grounds, New Residential Construction Off-Site Conditions Disclosure Act, N.J.S.A. 46:3C-1 to -12.

Loren gave birth to Sean and his twin sister at St. Peter's Medical Center on August 5, 1999. Sean was born prematurely with major complications requiring bowel removal surgery, which included the resection of a significant portion of his small intestine. Following surgery, Sean was placed in the neonatal intensive care unit (NICU). He was later selected to be transferred to the pediatric floor after Nurse Manager Rende advised Dr. Thomas Hegyi, the co-chief of the NICU, that the NICU was at full capacity and beds were needed for critically ill neonates. Dr. Weiss authorized Sean's transfer to the pediatric floor and Dr. Bader signed the order and noted the transfer in Sean's medical chart.

According to William Curtin, Sean was placed in a room with five other babies. Two days following Sean's transfer, he developed respiratory problems. An unidentified second-year resident noted that Sean "could have bronchiolitis," an inflammation of the respiratory tract, but he tested negative for respiratory syncytial virus (RSV). The second-year resident's notation indicated that there was a patient in the room who was RSV positive. At his deposition, Dr. Weiss contradicted the second-year resident's note that a baby in Sean's room tested positive for RSV and indicated that he checked the hospital infectious disease log and the charts of the other babies in the room.

RSV is an infection that is spread by touching and plaintiffs conceded that it is commonly contracted by newborns. Plaintiffs do not contest Dr. Weiss's deposition testimony that RSV is "usually transmitted through hands, touching, noses and respiratory secretions rather than children coughing or sneezing on each other," and is easily "transfer[red] through casual contact [by] [f]amily members . . . passing one to the other," as well as "[h]ospital staff [who] are frequent vectors in viral transmission." On November 1, 1999, Sean again tested negative for RSV. Sean was returned to the NICU on November 4, 1999, for further evaluation and monitoring. Once again, he tested negative for RSV. According to Dr. Weiss, on November 11, Sean was diagnosed with RSV and placed into isolation.

Defendants, St. Peters, Dr. Bader, and Dr. Weiss moved for summary judgment, asserting that plaintiffs' allegations of medical malpractice were unsupported by expert opinion. Plaintiffs countered, essentially arguing that the medical records, coupled with the following deposition testimony given by Dr. Weiss amounted to sufficient expert testimony to withstand defendants' motion.

Q: A baby such as Sean would be at extreme risk for the development of RSV. Is that accurate?

A: Correct.

Q: And you would not want to put Sean in an environment in which RSV might be implicated. Is that accurate?

A: That's correct.

. . . .

Q: You certainly would not have wanted Sean to be in a room with a child who was RSV positive.

A: Correct . . . .

Q: That would have been poor medicine.

A: And I think that the Curtins are well aware of that fact.

Arguing that any jury could, based upon common knowledge, find that Sean developed RSV as a result of things that happened in the pediatric ward, plaintiffs posited that Dr. Weiss's admission that it would be bad medicine to put him in a room with other children suffering from RSV was sufficient to establish a prima facie case of medical malpractice. Relying on Fosgate v. Corona, 66 N.J. 268 (1974), plaintiffs argued that the burden of proof shifted to defendants, who where in a better position to allocate damages.

Rejecting plaintiffs' arguments, the motion judge found that Fosgate did not apply and that plaintiffs had no expert witness to detail what standard of care was required to establish a deviation or a causal relationship between the alleged deviation and Sean's injury. On appeal, plaintiffs essentially repeat the same arguments, asserting that Dr. Weiss's testimony established defendants' negligence. They also assert that Dr. Weiss's admission that Sean was at extreme risk for developing RSV demonstrated that one would not want to put Sean in an environment in which RSV might be implicated, thus shifting the burden of proof respecting causal relationship to defendants. Finally, plaintiffs claim that "the action of the hospital personnel was so obviously careless that the doctrine of 'common knowledge' is implicated."

We conclude that summary judgment was correctly entered in favor of defendants because plaintiffs failed to establish that Sean's RSV was causally related to his transfer to the pediatric unit. Moreover, there is no proof presented that Sean received any other substandard care that resulted in his contraction of RSV.

The applicable principles are well settled.

To establish a prima facie case of negligence in a medical malpractice action, a plaintiff must present expert testimony to establish (1) the applicable standard of care; (2) a deviation from that standard; and (3) that the deviation proximately caused injury. Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury.

[Lanzet v. Greenberg, 126 N.J. 168, 195 (1991) (citations omitted).]

A jury may rely upon "'[p]roof of deviation elicited from the defendants themselves, because they are competent professionals.'" Hutchinson v. Atl. City Med. Ctr.-Mainland, 314 N.J. Super. 468, 478 (App. Div. 1998) (quoting Lanzet, supra, 126 N.J. at 191). The requirement that medical practitioners' standards of care and deviations therefrom must be established by expert testimony is based upon the proposition that an average juror "lacks the 'requisite special knowledge, technical training and background'" to make those determinations without an expert's assistance. Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div. 1997) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)); see also Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999).

Under the common knowledge doctrine, the absence of such testimony "is not invariably fatal" to a medical malpractice action if there is other testimony from which the factfinder can determine the applicable standard of care and whether it was violated. Jenoff v. Gleason, 215 N.J. Super. 349, 357-58 (App. Div. 1987). The common knowledge doctrine is appropriately applied only in those professional malpractice cases where the common knowledge and experience of ordinary laypersons would enable a jury to conclude, without expert testimony, that a standard of care was breached - that is, where "the mistake was obviously the result of negligence." Chin, supra, 160 N.J. at 471; see also Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961); Jenoff, supra, 215 N.J. Super. at 357-58; Kelly, supra, 300 N.J. Super. at 265-66 (citing Rosenberg, supra, 99 N.J. at 325; Klimko v. Rose, 84 N.J. 496, 503-04 (1980)).

We first address plaintiffs' claim that Dr. Weiss provided sufficient testimony to establish an applicable standard of care as well as a deviation from that standard, and their alternative argument that expert testimony was not necessary because defendants' deviation was obviously the result of negligence, thus coming within the common knowledge of the jury. The motion judge found that, without the assistance of expert testimony concerning the standard of care, a jury would be unable to determine whether there was a deviation.

Defendants argue that nowhere in Dr. Weiss's deposition testimony does he say that either he or the other defendants departed from an acceptable standard of care. They also argue that the decision to transfer Sean to a room occupied by another child with RSV was not such an obvious deviation so as to come within the common knowledge of the jury and that there was no proof to establish that defendants were aware that another infant in the pediatric room suffered from RSV. While it is true that Dr. Weiss did not expressly say that placing Sean in a room with another child suffering from RSV represented a deviation from an acceptable standard of care, we agree with plaintiffs that, when viewed in a light most favorable to them, a jury could find that Dr. Weiss arguably admitted that it was "poor medicine" to transfer Sean to a room occupied by a child suffering from RSV. Further, the hospital record, specifically the notation from an unidentified second-year resident, established a genuine issue of fact as to whether defendants should have known that the room in the pediatric unit was occupied by a child suffering from RSV. Dr. Weiss provided sufficient testimony to establish that Sean should not have knowingly been placed in a room with an RSV-positive patient. Because Dr. Weiss's testimony was sufficient to establish the alleged deviation, we need not determine whether the circumstances here also implicate the common knowledge exception.

Although the record presents evidence of a jury question, without the aid of an independent expert, that Sean's transfer to the pediatric room was a deviation from an acceptable standard of care, there was no expert proof that he contracted RSV as a result of the transfer. "[A] defendant's liability cannot be presented to the jury simply because there is some evidence of negligence." Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002). "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury, and [the resulting injury]." Germann v. Matriss, 55 N.J. 193, 205 (1970).

"[T]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant."

[Reynolds, supra, 172 N.J. at 284 (quoting W. Page Keeton et al, Prosser & Keeton on the Law of Torts, 41, at 269 (5th ed. 1984)); see also Posta v. Chung-Loy, 306 N.J. Super. 182, 204 (App. Div. 1997) ("A jury may not speculate in an area where laypersons could not be expected to have sufficient knowledge or experience."), certif. denied, 154 N.J. 609 (1998).]

"A plaintiff who charges a deviation from such standard of skill or care must assume the burden of establishing facts showing . . . that the deviation was the reasonably probable cause of the injurious condition arising thereafter." Germann, supra, 55 N.J. at 208.

Parker v. Goldstein, 78 N.J. Super. 472, 484 (App. Div.), certif. denied, 40 N.J. 225 (1963), is illustrative of the need for expert testimony to establish a causal relationship. In Parker, the plaintiff's wife insisted upon delivering her child naturally instead of having a Caesarean section, as her doctor, the defendant, advised. Id. at 477-78. When her heartbeat stopped, the doctor made a rapid incision into her uterus and delivered the baby. Id. at 479. Although the baby survived the birth, the mother did not, and died of a pulmonary embolism. Ibid. The mother's husband sued the doctor for negligence and called a general surgeon to testify as an expert. Id. at 480. The surgeon stated that, in his opinion, the doctor deviated from the normal standard of medical care because, knowing that the mother had had a prior Caesarean, he should have sent her to the hospital to have a Caesarean section performed two weeks prior to the estimated date of delivery. Id. at 481. According to the surgeon,

"from the time of her admission to the hospital until the time of her death it was the deviation of not taking care of this patient in the proper manner to do the Caesarean section at the time of her admission or soon thereafter that led eventually to the death with pulmonary embolism."

[Ibid. (emphasis omitted).]

The surgeon opined that after the mother refused to permit the surgery, the doctor should have advised her, in the presence of witnesses, that he was no longer responsible for her care and should seek another doctor. Id. at 482.

After determining that there was no causal connection between the doctor's failure to withdraw from the case and the mother's eventual death, the appellate panel noted that "[t]here was no word of testimony from the witness to explain the physiological reactions of the decedent to the alleged delay, or of the anatomical effect of the delay on the pulmonary structure of [the] decedent." Id. at 483. Because the plaintiff's expert did not explain "how, and in what manner, the supposed delay caused or contributed to the pulmonary embolism" and it "left an irreparable void in plaintiff's proof," the panel concluded that the defendant's motion for a judgment of involuntary dismissal should have been granted because "[a]cceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff's case." Id. at 484.

Similarly, here, plaintiffs' failure to provide expert medical opinion demonstrating causation defeats their attempt to set forth a prima facie case of negligence. The only evidence relied upon by plaintiffs was the notation in the hospital record that there was another child in the room with RSV. Defendants correctly note that plaintiffs "are not experts in pediatrics, virology or epidemiology." Indeed, plaintiffs concede that RSV is an infection commonly contracted by newborns and spread through indirect hand contact, and not coughing or sneezing. Moreover, the earliest Sean tested positive for RSV was a week after his return to the NICU. To allow a jury to assume that Sean contracted RSV as a result of his transfer to the pediatric room, without the assistance of any scientific testimony, would improperly encourage speculation and conjecture. See Reynolds, supra, 172 N.J. at 284. Simply stated, the motion judge correctly held that plaintiffs failed to support their allegations of negligence with expert testimony regarding the essential element of causation.

Finally, plaintiffs' argument that Fosgate, supra, 66 N.J. at 272-73, should apply to shift the burden of proving causal relationship to defendants lacks merit. The Fosgate Court stated:

[I]n a situation where the malpractice or other tortious act aggravates a preexisting disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are.

[Ibid.; see also Scafidi v. Seiler, 119 N.J. 93, 108-09 (1990) (holding that the traditional "but for" proximate cause standard should be replaced with a more flexible "increased risk-substantial factor" charge); Evers v. Dollinger, 95 N.J. 399, 417 (1984).]

Sean was born prematurely and at risk for many medical problems. However, plaintiffs' claim is not limited to an aggravation of a preexisting condition or that defendants increased Sean's risk of developing an illness. Rather, plaintiffs allege that defendants negligently transferred Sean to the pediatric floor where he was exposed to an RSV-positive patient, causing him to contract the virus. The aggravation claim, if viable, centers on the theory that the RSV he contracted exacerbated the respiratory problems he suffered from as a result of his premature birth. Our courts distinguish between cases where "'the deviation alone is the cause of harm'" and those where "'a defendant's negligence combines with a preexistent condition'" to increase the risk of injury, thus constituting a substantial factor in the ultimate harm suffered. Verdicchio v. Ricca, 179 N.J. 1, 24 (2004) (quoting Battenfeld v. Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991)). Here, plaintiffs' malpractice claim required expert testimony to establish causation, which was dependent upon first proving that defendants' negligence caused Sean to contract RSV. Under Fosgate, only then would the burden shift to defendants to allocate damages between the harm Sean suffered from his preexisting respiratory condition and that caused by RSV. The motion judge properly found that Fosgate did not obviate the need for plaintiffs to prove causation by qualified medical expert testimony.


The complaint was filed on June 6, 2002. The amended complaint, the only complaint provided in the appellate record, was filed on March 24, 2004.

Voluntary stipulations of dismissal were filed dismissing plaintiffs' complaint against the other named doctors, leaving Drs. Weiss and Bader the only doctors remaining in the case at the time summary judgment was entered.

Sean's twin sister did well at birth, and was discharged from the hospital without any significant complications.

These complications included anemia, rickets, inflammation of the liver, jaundice, and an infection.

Dr. Weiss testified that there were only two other babies in the room. William Curtin, however, testified that there were five babies in the room, while the hospital record indicated there were a total of three babies, including Sean.

St. Peter's attestation states that Sean's first positive RSV test was on November 30, 1999, twenty-six days after he was transferred back to the NICU.

Plaintiffs do not provide any specific medical testimony that Sean's respiratory condition was exacerbated or aggravated by contracting the virus.





January 30, 2007