MARY PORTIS v. JEFFREY STRAIN, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0911-08T30911-08T3

MARY PORTIS,

Plaintiff-Appellant,

v.

JEFFREY STRAIN, M.D., and

AARON H. CHEVINSKY, M.D.,

Defendants-Respondents,

and

KENNEDY GABREGIORISH, M.D.,

Defendant.

____________________________

 

Argued June 2, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-3313-04.

Frederick E. Gerson argued the cause for appellant (D'Alessandro, Jacovino & Gerson, attorneys; Mr. Gerson and Edward G. D'Alessandro, Jr., on the briefs).

Beth A. Hardy argued the cause for respondent, Jeffrey Strain, M.D. (Farkas & Donohue, LLC, attorneys; Ms. Hardy, on the brief).

Frank P. Leanza argued the cause for respondent, Aaron H. Chevinsky, M.D. (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Justin F. Johnson, of counsel; Eric L. Grogan, on the brief).

PER CURIAM

Plaintiff Mary Portis appeals from the May 11, 2007 order of the trial court granting summary judgment to Aaron H. Chevinsky, M.D., dismissing her complaint against him with prejudice; and from the June 26, 2007 order denying her motion for reconsideration. For the reasons that follow, we affirm.

The pertinent factual background may be summarized as follows. On December 7, 2002, plaintiff was admitted to Morristown Memorial Hospital for a total knee replacement which was performed by a surgeon, Dr. Robert Goldman, who is not a party. During the course of plaintiff's hospitalization, she developed symptoms consistent with a bowel obstruction. As a result, Dr. Gabregiorish, a surgical resident, conducted two surgical consults with Dr. Chevinsky on December 8, 2002. Hospital records indicate that the first consult took place at 7:10 p.m., and a follow-up surgical consult occurred at 11:30 p.m.

Plaintiff underwent a laparotomy performed by Dr. Chevinsky's associate, Dr. Strain, at 3:30 p.m. on December 9, 2002. Plaintiff alleged that, as a result of the delay in her undergoing the laparotomy, she suffered "significant complications resulting in excess of 277 days of hospitalization . . . ."

On December 9, 2004, plaintiff filed a medical malpractice complaint against Dr. Strain. On or about September 5, 2006, plaintiff filed an amended complaint adding Dr. Chevinsky. Plaintiff explained that the delay in naming Dr. Chevinsky as a defendant was due to the fact that she did not receive her hospital records until one month prior to the date on which the statute of limitations expired. Following receipt of those medical records, plaintiff retained Dr. William Flynn as an expert; he executed an Affidavit of Merit as to Dr. Strain on January 12, 2006. Dr. Flynn advised plaintiff at that time that based upon his review of the records, he did not find any negligence on the part of any other doctors. Plaintiff asserted in her motion papers that Dr. Flynn "advised that, in order for him to make any specific findings concerning the conduct of any other doctors, [her attorney] would need to complete the deposition of Dr. Strain."

Plaintiff took Dr. Strain's deposition on May 2, 2006; the following colloquy occurred between plaintiff's attorney and Dr. Strain:

Q. Who is Dr. Chevinsky?

A. Dr. Chevinsky was my . . . associate at Morris County Surgical.

Q. Looking at this form, can you tell if Dr. Chevinsky saw the patient?

A. I can't discern the signature on the right lower.

Q. Okay. On the right lower corner there is a D/W and then it says Dr. Chevinsky it appears.

A. Uh-huh.

Q. What . . . in your understanding, does the notation D/W in a hospital chart mean?

. . . .

A. You'd have to consult the person that actually wrote that note.

Q. Okay. Do you ever use the notation D/W in your chart notations?

A. No, I do not.

Q. Okay. Is Dr. Chevinsky your partner who requested you to see Mrs. Portis?

A. Dr. Chevinsky was my associate who requested me to see Mrs. Portis.

Q. When did Dr. Chevinsky request that you see Mrs. Portis?

A. On the afternoon of the 9th.

Q. Did you have a discussion with Dr. Chevinsky about seeing Mrs. Portis?

A. Yes.

Q. What if anything did Dr. Chevinsky say to you?

A. He asked me to take a look at Mrs. Portis with concerns of intestinal ischemia.

Q. And what is intestinal ischemia?

A. Problems of blood supply to her intestines.

Q. Did Dr. Chevinsky indicate to you that he had seen Mrs. Portis?

A. He did not indicate one way or another.

Q. Okay. Do you know whether or not Dr. Chevinsky had seen Mrs. Portis?

A. I do not know one way or another.

Q. From the hospital chart can you tell whether or not Dr. Chevinsky saw Mrs. Portis?

A. I cannot tell from this hospital chart.

Q. Okay. . . . Do you know who the attending physician for Mrs. Portis was on December 8th of 2002?

A. The attending physician of record on the top of the chart says Robert Goldman.

Q. Looking at this form, do you know if Dr. Goldman is the person who requested the consult?

A. I do not know who requested the consult.

The trial judge referred in his decision to additional pages of Dr. Strain's deposition that have not been produced for our review. We therefore quote from the trial judge's description of the testimony contained in those pages:

There's really nothing that you learn of relevance to this motion on [p]ages 22 to 25. That brings me then to the third set of minuscript pages, which is 26 to 29. And really all you learn from that is, again, he repeats, he did not know -- meaning Dr. Strain did not know if Dr. Chevinsky saw the patient and he did not recollect any discussion with Dr. Chevinsky regarding any findings or whether he made any findings. He just asked Dr. Strain to review the patient with regard to possible intestinal ischemia and that that was done on the afternoon of December 9th.

Plaintiff sent a copy of Dr. Strain's deposition transcript to Dr. Flynn on May 19, 2006. Throughout June and July of 2006, Dr. Flynn indicated to plaintiff's attorney that he required some additional time to review the matter. Plaintiff's counsel certified that on July 27, 2006, he

had the opportunity to discuss this matter at length with Dr. Flynn at which time he advised [him], that, based on his review of Dr. Strain's deposition, it appeared there was a significant issue in this case with regard to a delay in performing surgery and that as the chief consulting doctor, Dr. Chevinsky had liability. This is the first time in this case that any medical expert had raised an issue with regard to Dr. Chevinsky and with regard to the delay in treatment as a cause of [plaintiffs'] problem.

Plaintiff's counsel sent a proposed Affidavit of Merit to Dr. Flynn by overnight mail on July 28, 2006; Dr. Flynn signed the Affidavit of Merit as to Dr. Chevinsky on August 8, 2006. Plaintiff thereafter filed an amended complaint naming Dr. Chevinsky as a defendant on or about September 5, 2006.

Plaintiff conceded that "the first time [she] could have become aware that Dr. Chevinsky had, in any way been involved in her care, would have been upon receipt of medical records in late November, 2004."

On February 27, 2007, Dr. Chevinsky moved for summary judgment, claiming that "plaintiff failed to timely implead [him] as a defendant, thus violating the applicable statute of limitations." After hearing oral argument, the trial judge granted Dr. Chevinsky's motion on May 11, 2007, stating the following in support of that decision:

The question is, did it take until [Dr. Strain's] deposition for plaintiff's counsel to know the role of Dr. Chevinsky? The [c]ourt does not believe that it took until May 2006 to learn that. The record of the surgical consult was in plaintiff counsel's possession in November 2004. It identifies the surgical consult, Dr. Chevinsky. While the signature of the person who saw Mrs. Portis on two occasions is indecipherable, it indicates at the bottom of the record, discussed with Dr. Chevinsky. So, obviously, Dr. Chevinsky did not sign the surgical consult. There's no indication that Dr. Strain was involved in this surgical consult [i]n the critical period between the evening of December 8th and the next morning when the claim is made that there should have been an operation, which is the morning of December 9.

We know there was an operation in the afternoon of December 9, so we're basically dealing with a 12 to 16 hour period between 7:00 o'clock on December 8th and 7:00 a.m. on December 9th or extending out into the morning hours.

The surgical consult is Dr. Chevinsky and someone else whose name cannot be deciphered from the record.

And they had enough against Dr. Strain to result in an Affidavit of Merit by two experts in 2005 and then early 2006. But the [c]ourt is not satisfied that they were in a position to bring Dr. Chevinsky in as late as they did.

. . . .

Mrs. Portis, I'm sure, did not know the name of Dr. Chevinsky although it appears at least twice in the hospital chart with respect to his being the surgical consult. And I suspect Mrs. Portis did not timely know that he was in any way responsible for her treatment or lack thereof, because she never met him . . . .

. . . .

The plaintiff in this case did not act with due diligence. We have an Affidavit of Merit [s]tatute and you can't wait from December of '04 until Strain's deposition is taken in May of '06, . . . approximately a year and a half later to have enough information to include Dr. Chevinsky. Dr. Chevinsky was known based on the record from November of 2004. . . . He was the surgical consult. He was brought in presumably by Dr. Goldman, an orthopedic surgeon[,] to deal with the intestinal issue that an orthopedic surgeon wouldn't be qualified to deal with.

It could have easily been discovered that Strain and Chevinsky were colleagues . . . . You have to undertake adequate investigation and preparation, and if that is done, Dr. Chevinsky's involvement would have been known, if not prior to the statute expiring within a reasonable time thereof. And it cannot be said in this case that going out to May of '06 was within a reasonable time after the statute expired in December 2004. That's just too little, too late.

And frankly, the basic information that was gleaned from the Strain deposition, very basic information could have been discovered well before that.

I don't think this is just looking back in hindsight. I think the information was there. And therefore, the [m]otion for [s]ummary [j]udgment is granted.

On June 26, 2007, the trial judge entered an order denying plaintiff's motion for reconsideration, finding that the motion "fail[ed] to meet the stringent requirement(s) set forth in Cummings v. Bahr, 295 N.J. Super[.] 374, 384 (A[pp]. D[iv]. 1996). The [c]ourt carefully considered all of [plaintiff's] arguments on two occasions as two submissions were submitted on this issue at [the] [c]ourt's request."

We note initially that when reviewing an order granting summary judgment, we apply the same standards as the trial court. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Applying that standard, we are satisfied that the trial judge properly granted summary judgment to Dr. Chevinsky based upon the record.

The two-year statute of limitations set forth in N.J.S.A. 2A:14-2 applies to medical malpractice actions. McGrogan v. Till, 327 N.J. Super. 595, 603 (App. Div. 2000), aff'd, 167 N.J. 414 (2001). Pursuant to the so-called "discovery rule," however, "in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that [s]he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973).

We agree with the trial judge that this case is factually similar to Matynska v. Fried, 175 N.J. 51 (2002), upon which Dr. Chevinsky relied in his motion and which the trial judge found to be "the critical case . . . ." There, the plaintiff "suffered complications following hip replacement surgery, which she attributed to negligent post-operative medical treatment." Id. at 52. The plaintiff filed a complaint against the hospital and numerous doctors and nurses; however, she did not name as a defendant Dr. Mark Feierstein, "who for nearly three days after her surgery, 'covered' hospital rounds for his partner, [the plaintiff's] orthopedic surgeon . . . ." Ibid.

Four years after the "alleged negligence," the plaintiff filed a motion to amend her complaint to name Dr. Feierstein, claiming that

she did not timely know that he was in any way responsible for her treatment because she never met him, was not advised that he would be "covering" for [her surgeon] and because the brief and vague hospital chart references to Dr. Feierstein did not disclose his role in her care and treatment.

[Id. at 52-53.]

The Court noted that Dr. Feierstein's "name appeared twice in [the plaintiff's] hospital records," and therefore held that the plaintiff's "efforts to discover the role of all parties complicit in her injury were wholly inadequate at least insofar as Dr. Feierstein was involved." Id. at 53. The Court stated:

As the Appellate Division noted, the doctor's name appeared twice in [the plaintiff's] hospital records as a physician having participated in her care. Even a cursory look at the telephone book or a call to [her surgeon] or the hospital would have uncovered Dr. Feierstein's status as a partner of [the plaintiff's surgeon], thus alerting [the plaintiff] to his role. She had an obligation to investigate all potentially responsible parties in a timely matter but did not do so. In short, [the plaintiff] failed to cross the due diligence threshold, and thus the lower courts properly denied her the right to amend the complaint.

[Ibid.]

We are satisfied that the trial judge properly granted Dr. Chevinsky's motion for summary judgment due to plaintiff's failure to comply with the statute of limitations. Dr. Chevinsky was an associate of Dr. Strain, just as Dr. Feierstein was an associate of the plaintiff's surgeon in Matynska, supra. Also as in Matynska, Dr. Chevinsky's name appeared quite clearly twice in plaintiff's hospital records, as the doctor directly involved in the surgical consults on December 8, 2002.

In sum, we concur with the trial judge's conclusion that Dr. Strain's deposition testimony in May 2006 did not provide plaintiff with any information superior to that already available to her in November 2004 with respect to Dr. Chevinsky's participation in her care. We are satisfied that plaintiff "failed to cross the due diligence threshold," id. at 53, and, therefore, the trial judge properly granted Dr. Chevinsky's motion for summary judgment.

For the same reasons, we are satisfied that the trial judge properly denied plaintiff's motion for reconsideration pursuant to Cummings v. Bahr, supra, 295 N.J. Super. at 384. In that motion, plaintiff failed to identify any "matters or controlling decisions which counsel believe[d] the court . . . overlooked or as to which it erred." R. 4:49-2.

Affirmed.

 

Plaintiff proceeded to trial against defendant Dr. Jeffrey Strain in July 2008, which resulted in a jury finding of no cause. We have been advised that defendant Dr. Kennedy Gabregiorish was never served and the complaint against him was dismissed on March 30, 2007.

(continued)

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A-0911-08T3

August 13, 2009