FRANCES BULL v. DR. HOWARD ZEIDMAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4721-05T34721-05T3

FRANCES BULL,

Plaintiff-Appellant,

v.

DR. HOWARD ZEIDMAN, WEST JERSEY

HOSPITAL, ER GROUP OF VOORHEES,

GENESIS ELDER CARE NETWORK, UTICA

NATIONAL INSURANCE COMPANY, DEL

VAL CARE MANAGEMENT and CHARLOTTE

McCLEERY,

Defendants,

and

DR. GEORGE BECKER, III, DR. MARK TODT,

DR. ROBERT MARO, DR. YOUSSEFF WASSEF

and DR. THOMAS O'DOWD,

Defendants-Respondents.

_______________________________________________________________

 

Submitted January 31, 2007 - Decided April 5, 2007

Before Judges Parker, Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. CAM-L-5715-99.

Sal B. Daidone, attorney for appellant.

Blumberg & Lindner, attorneys for respondent George Becker, III (Michael D. Lindner, Jr., on the brief).

Buckley & Theroux, attorneys for respondents Dr. Robert Maro, Jr., and Dr. Mark Todt (Sean P. Buckley, of counsel; Joanne Gaev Campbell, on the brief).

Stahl & DeLaurentis, attorneys for respondent Dr. Yousseff Wassef (Sharon K. Galpern, on the brief).

Reynolds & Drake, attorneys for respondent Dr. Thomas O'Dowd (John J. Bannan, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff Frances Bull appeals from an order entered on May 3, 2006 dismissing her complaint because the trial court found that her expert, Dr. John W. Boor, "was not qualified to render an opinion as to [the] standard of reasonable medical care applicable to any of the defendant doctors, nor was Dr. Boor qualified to criticize any of the defendant doctors in this specific case." We reverse and remand for a new trial.

On August 6, 1999, plaintiff filed a complaint "alleging that on July 23, 1997 one or more of the defendants breached a standard of reasonable medical care and, as a proximate cause thereof, plaintiff suffered severe permanent damages." The damages alleged include "thoracic cord compression, a necrotic disc injury, permanent nerve damage to the nerves below the level of the spine," and diabetic neuropathy.

Dr. Boor, a board certified neurologist, was retained as plaintiff's medical expert on the standard of care, causation and damages for each of the defendant doctors, regardless of specialty. Dr. Boor was plaintiff's first witness at trial. He testified with respect to his education, practice and twenty-five years of experience as a neurologist who frequently consulted with doctors in the same specialties as those practiced by defendants. He further testified that he had treated patients with disorders similar to plaintiff's, involving the spinal cord, brain and peripheral nerves. In Dr. Boor's opinion, the general standard of care applicable to each defendant is "reaching a correct diagnosis as to what the problem is."

During voir dire, defendants objected to Dr. Boor's qualifications and the court heard arguments out of the jury's presence. The defendant doctors were specialists in various areas, including internal medicine, physiatry, emergency room medicine and orthopedic surgery. None of the defendants were neurologists. Defendants objected to Dr. Boor testifying as an expert because he was not certified in any of the specialties practiced by them. The trial court stated that for Dr. Boor to be qualified as an expert he must "establish the . . . predicate standard of care" for each defendant and explain how each deviated from that standard.

Plaintiff's counsel proffered that Dr. Boor would testify as to "the standard of care that any physician[,] regardless of whether [they are] a generalist or a specialist[,] is required to abide by." After hearing initial arguments, the court found that "[i]t is not unusual in a medical malpractice case that the expert doctor does not share the specialty of all the defendant doctors," and allowed Dr. Boor to continue his testimony.

In response to the question "[i]n terms of your training and experience in Riddle Memorial Hospital, what contact do you have, and have you had over the past [twenty] years with the various types of practices that the physicians bring to that hospital?" Dr. Boor responded:

Well, general practitioners, of course, internists, cardiologists, pulmonary specialists, lung specialists, physicians involved with gastroenterology, taking care of the GI tract, urinary tract problems, I mean, the whole thing. We have a big hospital. All of the . . . different subspecialties are there.

Plaintiff's counsel next asked: "And during that time, have you learned what you contend to be the standard of care that is required of all physicians regardless of their specialties when dealing with either discs or compressions or diabetic neuropathy?" Dr. Boor responded: "Well, the standard of care involves reaching a correct diagnosis as to what the problem is."

As Dr. Boor's testimony continued, there were numerous objections by defendants and lengthy sidebars to discuss whether Dr. Boor was qualified to testify with respect to each of the defendants. Dr. Boor continued to maintain that the standard of care for each doctor was a duty to properly diagnosis plaintiff.

At the close of Dr. Boor's direct testimony, defendants moved to disqualify him as an expert. The court granted the motion, stating:

[T]here are obviously facts . . . that the jury using their common knowledge can determine whether there's a deviation. On the other extreme, when we have defendants who, vis- -vis their status as experts in particular fields, to use the case an orthopedic surgeon, by way of example, if the criticism was . . . that the wrong angle of cut was used in opening up a particular body part to stabilize a bone, . . . it requires another orthopedic surgeon to be critical of the defendant orthopedic surgeon.

Then there are, in the very broad middle, cases of which even though the plaintiff's expert doesn't share the same specialty with one or more of the defendant doctors, the alleged deviation was such that any medical doctor would know that [what] the defendant doctors did or did not do, deviated from accepted standards of medical practice by virtue of the defendants being medical doctors and having really nothing to do with . . . what would turn out to the legally irrelevant fact that they were also specialists in fields of medicine.

The proffer in this case is that this case falls into that type of middle category. However, this particular expert has, in my judgment, not come close to establishing that the particular facts of this case are such that any medical doctor with 20 or 25 years of experience . . . would know that . . . with each doctor, as they took the plaintiff as she was, deviated from accepted standards of medical practice and the deviation was such that any doctor would know or could tell that it was a deviation.

. . . .

[T]here is a category of cases, which [] fall in that category, i.e. you don't have to be an orthopedic surgeon to know that . . . when an orthopedic surgeon amputates the wrong leg, you don't have to be an orthopedic surgeon to be critical of that.

. . . .

But, at [a] minimum, Dr. Boor would have to [show] that through his experience and training, not through some hypothetical neurologist, but through his experience, his training, his knowledge, he knows that all of these doctors, or at least one of them, as a medical doctor deviated, given the specific facts of this case.

. . . .

[Plaintiff] was a 56-year-old woman with a complicated medical history that went from literally . . . her lower extremities upwards. She had any number of conditions, congestive heart failure, atrial tachycardia, apparently, significant arthritis, obesity, diabetes, hypertension, and during this entire course of treatment, there were various tests done. Arguably, there were tests not done, that type of thing.

But it certainly looks like the case is a lot closer to that of which one needs to be a specialist in the field of any particular defendant doctor, but I tried to give the plaintiff the benefit of all doubts and assume that the type of deviation that occurred here is such that any doctor would pick up on and state, well, you don't have to be an ER physician or an orthopedic surgeon to know that this is what should have been done and not that.

But . . . [plaintiff's counsel] has represented he can't do any better if [the court allows] two more days of testimony, so to speak, that essentially this expert states that, A, I've been a doctor for 25 years, and B, doctors are supposed to come to the correct diagnosis.

If that's enough then it's not hyperbole to state that I could go to the yellow pages, put him or her on the stand and ask them the same question and give them the same set of facts, and they would be qualified, and that can't be the case.

[In] Rempfer versus Deerfield Packing, 4 N.J. 135, a 1950 New Jersey Supreme Court case. It is within the discretion of the trial court as to whether or not to qualify an expert. And Hake versus Manchester [Twp.], 98 N.J. 302, a 1985 New Jersey Supreme Court case. For a witness to give expert testimony, it must be shown that the witness has certain skills, knowledge or training in a technical area or one that is not common to the world.

In here, of course, it is the treatment of a certain condition, i.e. a spinal abnormality that has been classified as a cord compression, a cord abnormality in the thoracic area, of which, in my judgment, it has not been shown that this witness has the qualifications to state that all doctors when being . . . confronted with this type of medical situation, would do X and not Y, so to speak. And that, therefore, because these doctors did Y and not X, they deviated.

In this appeal, plaintiff argues (1) the fact that Dr. Boor was not a specialist in each defendant's area of practice does not render him unqualified to testify as an expert; and (2) the trial court committed reversible error in disqualifying Dr. Boor from testifying as an expert.

Trial courts have "wide discretion in passing upon the qualifications or competency of an expert witness to testify in a given situation." Savoia v. F.W. Woolworth Co., 88 N.J. Super. 153, 161-62 (App. Div. 1965). We will not disturb a trial court's ruling unless it was clearly erroneous. Id. at 163; State v. Chatman, 156 N.J. Super. 35, 40 (App. Div.), certif. denied, 79 N.J. 467 (1978). A court may admit expert testimony "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702.

Rule 702 incorporates the following criteria:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 702 (quoting State v. Kelly, 97 N.J. 178, 208 (1984)). Accord, Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002); Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004); Kuehn v. Pub Zone, 364 N.J. Super. 301, 319 (App. Div. 2003), certif. denied, 178 N.J. 454 (2004).]

In a malpractice action, a witness "is competent to testify as an expert . . . [if] he has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto." Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961) (citing Carbone v. Warburton, 11 N.J. 418, 425 (1953)). Generally, a witness presented as an expert should be licensed as a member of the defendant's profession. State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied, 127 N.J. 321 (1990). The expertise of a witness can be obtained "by occupational experience or by scientific study," which includes "'study without practice or by practice without study.'" Id. at 615 (quoting Chatman, supra, 156 N.J. Super. at 41).

Expertise can also be obtained through "observations of treatments by other practitioners." Crespo v. McCartin, 244 N.J. Super. 413, 421 (App. Div. 1990); Carbone, supra, 11 N.J. at 425 (noting that expertise "does not necessarily depend upon personal experience with like situations. It may equally be established from evidence of the witness's observations of the things done by fellow practitioners"); see also Bellardini v. Krikorian, 222 N.J. Super. 457, 462 (App. Div. 1988) (stating that expertise "can be based on what the witness has learned from personal experience or from persons with adequate training and experience").

The modern tendency is to permit expert testimony wherever it would help the jury decide the ultimate issue of the case. Of course, once the opinion testimony of an expert witness has been ruled admissible, his credibility and the weight accorded his opinion are matters resting within the province of the jury.

[Chatman, supra, 156 N.J. Super. at 41 (internal citations omitted).]

In Carbone, the Court held that a general practitioner is competent to offer an expert opinion "concerning the acts or omissions charged to [a defendant] specialist." 11 N.J. at 426. There, the plaintiff presented in the emergency room "suffering from a compound fracture of the lower leg caused by his fall from a horse." Id. at 421. The defendant, "a specialist in orthopedic and traumatic surgery" treated the plaintiff in the emergency room. Ibid. The defendant testified that he undertook a procedure known as "debridement" to clean the debris-filled wound before aligning the compound fracture. Id. at 422. Some weeks later, the plaintiff developed a tetanus infection and had to undergo further surgery. Ibid. In his medical malpractice complaint, the plaintiff alleged that the defendant failed to remove all of the infectious material and failed to administer anti-tetanus treatments. Id. at 423. At trial, the plaintiff presented a general practitioner as his expert witness. The trial court found the plaintiff's expert unqualified to testify against the defendant orthopedic surgeon. The Supreme Court reversed, noting that "[t]he fact that he is not a specialist may disparage his qualifications and thereby the weight to be given his opinion, but it does not render him incompetent to state an opinion." Id. at 426 (citing McGhee v. Raritan Copper Works, 133 N.J.L. 376 (Sup. Ct. 1945)).

Here, the trial judge distinguished Carbone from this case on the ground that the defendant orthopedic surgeon in Carbone was acting in the capacity of a general practitioner when he treated the plaintiff in the emergency room. We disagree with that distinction. The Supreme Court clearly indicated in Carbone that a general practitioner may qualify as an expert against a specialist as long as he is "versed in the subject from actual experience in his own practice or from observations of treatments by other practitioners or from reading and study." Id. at 426.

Here, Dr. Boor testified with respect to his medical education, his internship at Graduate Hospital and residency at the University of Pennsylvania. He is board certified in neurology and has practiced in that field for twenty-five years. He has worked with doctors in other specialties and, before limiting his practice to neurology, he treated patients with various disorders, including "cardiac, peripheral edema, [and] pneumonia." He worked with "internists, cardiologists, pulmonary specialists, lung specialists, physicians involved with gastroenterology, taking care of the GI tract, urinary tract problems . . . all of the different subspecialties." He has also worked with specialists involved in treating "cord compressions and herniated discs." Dr. Boor specifically testified as to how he interacted with specialties specific to the defendants' areas of practice. He acted as an emergency room physician during his internship at Graduate Hospital; he has a "close affiliation with orthopedics because a lot of times when someone gets injured, they get an orthopedic consult and a neurology consult depending on what their symptoms are;" physiatrists assist with the rehabilitative process at Riddle Memorial and have been a part of the staff for twenty years. Dr. Boor stated that the general standard of care for all doctors, regardless of their specialty is "[y]ou don't treat somebody until you have a diagnosis . . . . [Y]ou have to have a . . . correct, accurate diagnosis."

In short, we are satisfied that Dr. Boor was more than adequately qualified to testify as an expert in this case and that the trial court abused its discretion in disqualifying him. It is for the jury to weigh Dr. Boor's education and experience in determining his credibility as an expert witness. See Chatman, supra, 156 N.J. Super. at 41. We, therefore, reverse and remand the matter for a new trial.

Reversed and remanded.

 

In 2004, N.J.S.A. 2A:53A-41 was enacted, setting forth the requisite qualifications for expert witnesses in medical malpractice cases. The statute provides in paragraph (a) that "[i]f the party against whom or on whose behalf the testimony is offered is a specialist . . . and the care or treatment at issue involves that specialty," the expert witness "shall have specialized at the time of the occurrence . . . in the same specialty." The statute applies to causes of action accruing after July 7, 2004.

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A-4721-05T3

April 5, 2007