SUSAN GRONOSTAJSKI, v. STEVEN L. SABIN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4291-05T14291-05T1

SUSAN GRONOSTAJSKI,

Administratrix Ad Prosequendum of

the ESTATE OF JOSEPH GRONOSTAJSKI,

deceased, and SUSAN GRONOSTAJSKI and

JOSEPH GRONOSTAJSKI, individually,

Plaintiffs-Appellants,

v.

STEVEN L. SABIN, MD,

DONNA KLITZMAN, MD,

ROGER SHELL, MD,

JEANNE L. DEMOSS, DO,

BRUCE EDELMAN, MD,

ROBERT WOOD JOHNSON UNIVERSITY

HOSPITAL, and CARDIOLOGY ASSOCIATES,

Defendants,

and

WILLIAM GRUBB, MD,

ASHRAF KORAYM, MD,

MASAKO UEDA, MD,

DAVID BONNEY, MD,

MELISSA MAGLIOCCO, MD,

DAMIAN ELDER, MD,

SOHA MOUSA, MD,

YVETTE ELLIS GOZZO, MD,

YOUSEFF GAFFAR, MD,

MICHAEL FLOOD, MD,

ALAN J. SPOTNITZ, MD,

VADIM ZELTSMAN, MD,

ENRIQUE PANTIN, MD,

YVONNE GOTTLIEB, CRNA, and

UNIVERSITY OF MEDICINE AND

DENTISTRY OF NEW JERSEY,

Defendants-Respondents.

________________________________________________________________

 

Submitted January 30, 2007 - Decided March 12, 2007

Before Judges Holston, Jr. and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1845-02.

Gerald R. Stockman argued the cause for appellants (Michelle Joy Munsat, of counsel and on the brief).

Gary L. Riveles argued the cause for respondents (Dughi & Hewit; attorneys, Mr. Riveles, on the brief).

PER CURIAM

In this medical malpractice action, we granted plaintiffs leave to appeal from the Law Division's January 20, 2006 order granting summary judgment and the March 3, 2006 order denying reconsideration. The plaintiffs are Susan Gronostajski, administratrix ad prosequendum (admin ad pros) of the estate of Joseph Gronostajski (Joseph) deceased and Susan Gronostajski and Joseph Gronostajski, Joseph's parents, individually. The individual defendants in whose favor summary judgment was granted are Yvonne Gottlieb, C.R.N.A., Ashraf Koraym, M.D., William Grubb, M.D., Soha Mousa, M.D., Youseff Gaffar, M.D., Michael Flood, M.D., Yvette Ellis Gozzo, M.D., Masako Ueda, M.D., Melissa Magliocco, M.D., Damian Elder, M.D., Enrique Pantin, M.D., David Bonney, M.D., Vadim Zeltsman, M.D., and Alan Spotnitz, M.D. We reverse.

On June 6, 2000, Joseph, a thirty year old man with obesity, asthma and mental retardation was admitted to Robert Wood Johnson University Hospital (RWJ) with shortness of breath, swelling of legs, and a recent fifty pound weight gain. On June 16, 2000, Joseph suffered respiratory arrest following a planned extubation. As a result of the failure in the effort to reintubate, an emergency tracheotomy was required. There was a hemorrhage from the tracheotomy site. While an otolaryngologist attempted to control the bleeding and an anesthesiologist was attempting to establish and maintain an airway, Joseph was "coded" and needed to be resuscitated. The named residents responded to the code and some made a number of attempts to place a TCL in both the right and left femoral vein. During the placement, one of the resident physicians or the nurse present allowed a guide wire to completely enter Joseph's vascular system.

During the procedure, Joseph was lying prone as the catheter and guide wire were inserted into his groin. The unknown physician or nurse released the guide wire and failed to alert any of Joseph's treating physicians that the guide wire was in Joseph's body. The guide wire remained in Joseph's body for fifty-two days before being removed.

The above named defendants are alleged in plaintiffs' third-amended complaint to be a nurse and resident physicians employed by the University of Medicine and Dentistry of New Jersey (UMDNJ), who on June 16, 2000 introduced into Joseph's body a fifty-two [centimeter] long guide wire for the purpose of establishing a triple lumen catheter (TLC) line in Joseph's groin. Plaintiffs allege that one or more of the defendants failed to remove the guide wire inserted during one of several attempts to place the TLC and both initially and thereafter the defendant or defendants failed to inform Joseph's treating physicians about the guide wire, so that surgery could be performed to remove the guide wire.

Plaintiffs allege that the culpable defendant or defendants deviated from accepted standards of medical care by allowing the guide wire to completely enter Joseph's vascular system causing an intravascular source of infection, which needed to be removed in order to treat the infection. They contend open-heart surgery was performed to remove Joseph's infected heart valve in an attempt to cure the infection but following surgery Joseph died on October 29, 2000. Plaintiffs claim that as a result of the defendants' medical negligence, Joseph incurred pain, suffering and disability from an infection caused by the guide wire from the date of the introduction of the guide wire until the date of his death. Plaintiffs, Joseph's parents, assert individual claims for Joseph's wrongful death, and Susan Gronostajski asserts a claim for survivorship damages as Joseph's admin ad pros.

Plaintiffs served two expert reports from Tobi B. Karchmer, MD, MS, (Dr. Karchmer). Dr. Karchmer, a board certified physician in medicine and infectious disease, based her reports on a review of Joseph's medical records. Dr. Karchmer, concluded that "the guide wire left in [Joseph's] vascular system for 52 days . . . became coated with [bacteria in his bloodstream] and served as a persistent source of [bloodstream] infection. It remained in his vascular system for 24 days after the development of his infection and ultimately led to his death." Dr. Karchmer opined that "[t]he guide wire in [Joseph's] intravascular system was a foreign body that needed to be removed to treat the infection." Further, the doctor opined that "the resident who lost the line deviated from accepted medical practice both initially and over time by not informing others so that the steps could be taken to remove the guide wire. His or her duty in this regard was continuing and the deviation was continuing until the wire was removed." Dr. Karchmer added, "the attending physicians deviated from accepted medical practice by failing to investigate the unexplained line noted chest X-ray films. Their negligence continued until the wire was removed."

The motion judge in granting summary judgment stated with respect to the individual resident physicians and nurse:

In order to establish a prima facie case of negligence against the defendant, the individual doctors, not UMDNJ, but the individual residents . . . the plaintiff must present expert medical testimony that there was breach in applicable standard of care.

. . . .

In addition . . . the plaintiff must establish through expert testimony that the defendants . . . the individual resident's negligent conduct was the proximate cause of the alleged injuries. The defendant is entitled to a summary judgment because the plaintiff has failed to support a medical malpractice claim when there is not an acceptable expert's report.

I have asked a question about the individual physicians, if they have been deposed. I've heard over and over again on the record that these people walked - - that someone, one person walked away leaving this guide wire in it. Yet, let the record reflects there's been no inquiry of the individual doctors, the individual physicians in the matter.

And so, therefore, I'm left with the matter for summary judgment. Discovery as I understand it has been completed on this issue and, with that, I don't see that the Court has any alternative but to grant this motion as to the employee, the individual employee defendants.

At oral argument on plaintiffs' motion for reconsideration, plaintiffs argued that the judge failed to apply Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975) when she granted summary judgment. The trial judge rejected their argument:

In this matter while certainly the involvement of the residents is undisputed in this matter, the issue of whether or not the residents, . . . which residents were actually involved in the placing of that guide wire and the failure to remove the guide wire remains a mystery.

. . . I don't' believe my decision to grant summary judgment in favor of the defendant was, in fact, improper. I don't see any new law, any new fact in reference to this. . . . [T]herefore, the motion is denied.

Plaintiffs present the following arguments for our consideration:

POINT I.

THE REPORTS OF PLAINTIFFS' MEDICAL EXPERT WERE SUFFICIENT AS A MATTER OF LAW.

POINT II.

THE MOTION JUDGE ERRED AS A MATTER OF LAW IN GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO DR. FLOOD.

POINT III.

DEFENDANTS, NOT PLAINTIFFS, HAVE THE BURDEN OF PROOF AS TO LIABILITY IN THIS MATTER; THE MOTION JUDGE THUS ERRING AS A MATTER OF LAW IN GRANTING THE MOTION FOR SUMMARY JUDGMENT.

I.

A moving party is entitled to summary judgment if there is no genuine issue as to any material fact challenged and the moving party is entitled to judgment as a matter of law. R. 4:46-2. "[A] determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the allege disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal this court uses the same standard as the trial court in reviewing summary judgment orders. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

Plaintiffs assert that their expert witness reports fully establish that one of the named defendants deviated from accepted medical standards, that Dr. Flood, the only resident who was deposed, identified himself as a party with clear possible liability, and that the trial judge erred by placing the burden of proof on plaintiffs because the governing law places the burden of proof on defendants to come forward to remove themselves from liability.

As a general rule, "a plaintiff in a medical malpractice action must prove the applicable standard of care, that a deviation has occurred and that the deviation proximately caused the injury." Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (internal citations omitted). In very limited circumstances, the plaintiff's burden of identification will be shifted to the defendants. Anderson, supra, 67 N.J. at 298-301. In Anderson, the plaintiff was undergoing a laminectomy that was being performed by defendant, Dr. Somberg. Id. at 294.

During the course of the procedure, the tip or cup of an angulated pituitary rongeur, a forceps-like instrument, broke off while the tool was being manipulated in [the] plaintiff's spinal canal. The surgeon attempted to retrieve the metal but was unable to do so and after repeated failure in that attempt, he terminated the operation. The imbedded fragment caused medical complications and further surgical interventions were required. Ibid. Plaintiff suffered significant and permanent physical injury proximately caused by the rongeur fragment which lodged in his spine.

[Id. at 294-95.]

Dr. Somberg testified that he did not inspect the rongeur prior to using it. Id. at 295. "When all the evidence had been presented, no theory for the cause of the rongeur's breaking was within reasonable contemplation except for the possible negligence of Dr. Somberg in using the instrument or the possibility that Dr. Somberg had been given a defective instrument, which defect would be attributable to a dereliction of duty by the remaining defendants, the manufacturer, the distributor, the hospital or all of them." Id. at 296.

The Supreme Court established a bright line rule that,

where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery (such as cases where foreign objects are left in the body of the patient), those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered."

[Id. at 298. (emphasis added).]

The Court held, "a mere shift in the burden of going forward . . . is insufficient . . . not only the burden of going forward shift[s] to defendants, but the actual burden of proof as well." Id. at 300.

Defendants contend that Anderson is inapplicable because it only applies to "exceptional" special cases. Id. at 302. However, in Estate of Chin by Chin v. St. Barnabas Medical Center, 160 N.J. 454, 464-65 (1998), the Supreme Court reiterated that Anderson will apply when:

First, the plaintiff must [himself] be entirely blameless. The fact pattern to which the principles of Anderson most readily apply is where a plaintiff was "clearly helpless or anesthetized" when [his] injury occurred. Second, the injury must be one that bespeaks negligence on the part of one or more of the defendants. Third, all the potential defendants must be before the court. That is, all those defendants who participated in the chain of events causing plaintiff's injury must be represented.

[(citation omitted).]

Defendants contend that the facts in Anderson apply only to a case where there is a well controlled atmosphere, and where all participants in the surgery were identified, and their respective roles clearly delineated. Defendants assert that Anderson does not apply because this incident took place during a "code," when multiple physicians and nurses were attempting to establish an airway, resuscitate Joseph, and control the hemorrhaging in his neck, and Joseph was moved from one location to another because of his complications before a TLC was completed.

Defendants' claim of circumstances excusing neglect at the time the guide wire was inserted does not preclude the application of Anderson. Joseph was unconscious and helpless when the guide wire, a foreign object, was left in his groin. Further, all of the doctors who participated in the procedure are listed as defendants. Anderson specifically identified foreign object cases as the type of case to which its holding applies. Anderson, supra, 67 N.J. at 298. Further, plaintiffs' expert testified that the physicians or nurse who lost the guide wire "deviated from accepted medical practice both initially and over time by not informing others, so steps could be taken to remove the wire."

Defendants claim that this case is governed by the principle established in Wagner v. Deborah Heart & Lung Center, 247 N.J. Super. 72 (App. Div. 1991) and not by Anderson. In Wagner, this court affirmed summary judgment in favor of the defendant surgeon who intentionally left a small piece of a stainless steel needle inside a patient. The plaintiff failed to provide any expert testimony to show that the surgeon deviated from accepted medical practice, and the defendant's expert testified that the surgeon complied with the acceptable standard of care because "the risks associated with removal of the broken needle tip far outweighed the risks associated with leaving it imbedded inside the sternum." Id. at 76. As a result, we determined that the plaintiff failed "to establish prima facie that the defendant physician deviated from the accepted standard of care." Id. at 77.

Wagner has no relevance here. First, there has been no testimony that the defendants intentionally left the guide wire inside the decedent as a result of sound medical discretion. Second, plaintiffs have established a prima facie case of medical negligence through their expert, Dr. Karchmer. See Wagner, supra, 274 N.J. Super. at 77. Dr. Karchmer testified that "the resident who lost the line deviated from accepted medical practice both initially and over time by not informing others so that the steps could be taken to remove the wire."

Defendant further relies on our decision in Blitz v. Hutchinson, 252 N.J. Super. 580 (App. Div. 1991). In Blitz, we determined, in a case where a physician lacerated the plaintiff's liver during a coronary bypass surgery, that the Anderson burden shifting rule was not implicated. We stated: "In Anderson, unlike the present case, it was inescapable that there was at least one defendant whose breach of a direct duty owing to plaintiff resulted in plaintiff's injury. Here, however, there was evidence presented by defendant's expert . . . that the laceration of plaintiff's liver was a reasonably foreseeable risk of his operation." Id. at 589.

We are convinced that Blitz is not applicable to the facts here. In this case, similar to Anderson and unlike Blitz, it is "inescapable that there was at least one defendant whose breach of a direct duty owing to plaintiff resulted in plaintiff's injury." Ibid. Further, there is no evidence that the leaving of the guide wire was a reasonably foreseeable risk of the medical procedure to establish a TLC. Rather, as Dr. Karchmer testified, leaving the fifty-two centimeter guide wire in Joseph's groin was a breach of the standard of care. We are satisfied, therefore, that this case bespeaks negligence by one of the defendants. Further, Dr. Karchmer stated that the guide wire left in Joseph's body was the proximate cause of Joseph's infection and death.

We are satisfied, that granting plaintiffs every reasonable inference and viewing the evidence in the light most favorable to them, the motion for summary judgment should have been denied. R. 4:46-2(c); Brill, supra, 142 N.J. at 540. We disagree with the motion judge that plaintiffs were required to have deposed all of the resident doctors and nurses in order to resist summary judgment. Because we are convinced Anderson applies, the resident doctors and nurse have a duty to exculpate themselves and they have not done so.

II.

Plaintiffs contend that the court erred as a matter of law by dismissing Dr. Michael Flood from the case. Plaintiffs contend that whether or not Dr. Flood left the guide wire inside Joseph was a question of fact that the jury should have decided.

Dr. Flood testified in deposition:

Q. You're sure that on June 16, 2000, the wire the lead wire that you inserted into Joseph's groin, was removed before he was taken up to the intensive care unit?

A. Yes. By custom and practice as you push this catheter through you pull the wire out.

The only evidence regarding Dr. Flood's culpability is his own testimony, which is equivocal, stating that he is sure he took the piece of guide wire out of Joseph because that was his custom and practice. However, plaintiffs' expert opined that the deviation in the standard of care was more than the leaving of the guide wire in Joseph, but continued thereafter until the object was removed. Thus, we are convinced that there is a genuine issue of material fact as to whether Dr. Flood conformed with his custom and practice on this occasion, and whether he knew that another of the several residents who had attempted but failed to place a TLC in Joseph's right or left femoral vein, as reflected in the medical report of defense expert, Dr. David Befeler, had left the guide wire in Joseph. Plaintiffs' medical expert opined that there was a continuing duty to inform others treating Joseph of the existence of the guide wire in Joseph's body.

Just as it was impossible for plaintiffs to identify exactly which defendant or defendants left the guide wire in Joseph, it was impossible for Dr. Karchmer to do so. Only defendants have the ability to identify which of them left the guide wire and then failed to notify others of that fact.

Defendants' expert opines that because Joseph began to hemorrhage during an emergency procedure, was "coded" and then "rushed to an operating room," the failure to remove the guide wire constituted "excusable neglect." There is no judicial authority creating an exception to the Anderson burden shifting rule based on that concept. The medical emergency which presented itself involving a "code" and a "rush" to an operating room all occurred in a major teaching hospital in the presence of numerous physicians and trained medical personnel.

We are satisfied that Anderson applies to the facts presented here and that summary judgment should not have been granted to defendants. Accordingly, we reverse the grant of summary judgment and remand to the trial court for further proceedings. We do not retain jurisdiction.

Reversed and remanded.

 

Code is a form of coded message used to indicate a particular type of emergency to an emergency care team. Taber's Cyclopedic Medical Dictionary, 409 (17th ed 1989).

UMDNJ admitted in its August 9, 2004, response to plaintiff's request for admissions that "a triple lumen catheter guide wire was not recovered by one of its residents on June 16, 2000 during a code when the patient went into respiratory arrest."

(continued)

(continued)

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A-4291-05T1

March 12, 2007