FRANK B. SOMMERER v. PARVEZ DARA, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0087-07T10087-07T1

FRANK B. SOMMERER, Individually

and as General Administrator and

Administrator ad Prosequendum of

the Estate of Dorothy R. Sommerer,

Deceased,

Plaintiff-Appellant,

v.

PARVEZ DARA, M.D.,

Defendant-Respondent,

and

DANTE B. MARTINEZ, M.D.,

Defendant-Respondent/Cross-

Appellant,

and

LAWRENCE W. SILVERS, M.D., JOEL H.

KURTZ, M.D., KARL R. BLUM, M.D.,

Individually and t/a OCEAN

ORTHOPEDIC ASSOCIATES, VINAY SIKAND,

M.D., DOUGLAS M. GIBBENS, M.D.,

LAWRENCE A. GAETANO, M.D., WIJE

RAVINDRAN, M.D., RODOLFO AMPER, M.D.,

ROBERT D. SCOTT, M.D., IAN D. SAMSON,

M.D., GREGORY NEUMANN, D.O., HAK JOO

CHA, M.D., JOHN PETRILLO, M.D.,

Individually and t/a OCEAN ORTHOPEDIC

ASSOCIATES, ARJUNA PONNAMBALAM, M.D.,

Individually and t/a OCEAN ORTHOPEDIC

ASSOCIATES, DR. RAU, D. ERIN POLASH,

R.N., M. BUCALEZ, R.N., AIDA VALERIO,

R.N., NURSE I.C., MARYLOU WALLER, R.N.,

SHARON PELL, R.N., CATHERINE JOHNSON,

R.N., CHRIS REYNOLDS, R.N., NANCY

McCLISTER, R.N., DARIA PEIFER, R.N.,

ANTOINETTE SUSSINO, R.N., LORI

BOURQUE, R.N., EMILY MACSIMMS, R.N.,

R. CHAMBERLAIN, R.N., LISA PUGLISE,

R.N., LAUREN RHATIGAN, R(D)N, ANNE

COOGAN, R.N., BARBARA KELLY, R.N.,

THERESA DANDOLPH, R.N., MARGARET

KUHLMAN, R.N., DEBBIE HOLDEN, R.N.,

MILDRED CALIGNO, R.N., ELLEN KAHN, R.N.,

TAMMY PANCOAST, R.N., CHERYL McDONALD,

CRT and COMMUNITY MEDICAL CENTER,

Defendants.

__________________________________________________

 

Submitted February 25, 2010 - Decided

Before Judges Axelrad, Fisher and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3100-02.

Fuggi Law Firm, attorneys for appellant (Robert R. Fuggi, Jr., on the brief).

Orlovsky, Moody, Schaaff & Conlon, attorneys for respondent Parvez Dara, M.D. (Jill R. O'Keeffe, on the brief).

Orlovsky, Grasso, Bolger, Mensching & Daley, attorneys for respondent/cross-appellant Dante Martinez, M.D. (Donald Grasso, of counsel; Mr. Grasso and Christopher J. Orlovsky, on the brief).

PER CURIAM

In this medical malpractice appeal, we examine, among other things, whether an alleged failure to turnover x-rays to plaintiff in discovery warrants a new trial. We find no merit in any of plaintiff's arguments and affirm.

The record reveals that, on September 13, 2000, sixty-one year old Dorothy R. Sommerer, who had a medical history that included Crohn's disease and chronic myelogenous leukemia, fell in her home and was transported by ambulance to Community Medical Center (the hospital) in Toms River. After arriving, Dorothy was diagnosed as having suffered a fractured hip.

Surgery to repair the hip was delayed because Dorothy had a low potassium level. As her potassium level was stabilized, Dorothy developed a low grade fever and distended abdomen, causing her transfer to the intensive care unit. Her condition deteriorated, and she was diagnosed with a pulmonary embolism and sepsis. Doctors performed an exploratory laparotomy and removed a bowel obstruction. However, Dorothy's condition worsened, and she died on September 22, 2000.

Plaintiff, as the personal representative of Dorothy's estate, commenced this action against defendants. Some defendants, including the hospital, settled, and the matter eventually went to trial regarding the claims asserted by plaintiff against numerous defendant-physicians, including Parvez Dara, M.D., Dorothy's oncologist, and Dante B. Martinez, M.D., her gastroenterologist. Plaintiff's claims against Drs. Dara and Martinez -- the only respondents to this appeal -- were based on the theory that they deviated from the accepted standard of care by failing to closely monitor Dorothy's potassium levels during their ongoing treatment of her prior to the hospitalization for hip surgery. In essence, plaintiff asserted that the low potassium level caused the delay in hip surgery that resulted in the complications that followed, including the bowel obstruction and pulmonary embolus, which brought about her death.

At the conclusion of a lengthy trial, the jury rendered a verdict of no cause against all the defendants, including Drs. Dara and Martinez. Plaintiff moved for a new trial. He argued, among other things, there was an improper failure to produce certain x-rays in discovery that caused prejudice during the course of the trial. That motion was denied and plaintiff appealed, presenting the following arguments for our consideration:

I. PURSUANT TO R. 4:17-7, DEFENDANTS HAVE FAILED TO COMPLY WITH THE RULES OF DISCOVERY, AND THE APPROPRIATE REMEDY FOR THE NON-DISCLOSURES AND DISCOVERY VIOLATIONS ARE GRANTING THE PLAINTIFF A NEW TRIAL IN THIS MATTER.

II. THE ADMISSION OF THE "NEWLY RESURFACED" RADIOLOGICAL FILMS SEVERELY PREJUDICED PLAINTIFF, TAINTED PLAINTIFF'S ENTIRE CASE AND ULTIMATELY PROVED TO BE ERROR.

III. THE VERDICT AS TO DOCTORS DARA AND MARTINEZ WAS A MISCARRIAGE OF JUSTICE AS IT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

IV. THE SUBSTANTIAL FACTOR CHARGE WAS APPLIED INCORRECTLY AND SIMULTANEOUSLY, THE JURY WAS NOT PERMITTED TO CONSIDER OTHER POSSIBLE CAUSES OF DEATH.

V. BASED ON THE APPLICABLE COURT RULE AND CASE LAW, PLAINTIFF'S REQUEST FOR A NEW TRIAL SHOULD BE GRANTED.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments regarding Points I and II.

Plaintiff's arguments in Points I and II are premised on the contention that the defendants remaining in the case at the time of trial had access to x-rays that were not available to plaintiff. In support of this contention, plaintiff alludes to the testimony of Dr. David Befeler, defendant Silver's expert, who made references to certain x-rays in forming his opinions. Plaintiff objected, seeking some limitation on Dr. Befeler's testimony. After an extended discussion, the judge rendered a ruling that seems to us favorable to plaintiff in that Dr. Befeler was not permitted to put the x-rays in question on the shadow box to further explain his opinions to the jury.

Plaintiff, however, presses the point further in seeking our reversal of the denial of his motion for a new trial. He argues he did not have access to certain chest x-rays taken in September 2000 and was led to believe, because of the testimony of a hospital representative at a 2003 deposition, that the hospital was not in possession of any x-rays and that plaintiff was surprised and prejudiced when defense experts made reference to hospital x-rays at the 2007 trial. He contends there was a violation of Rule 4:17-7 and the principles discussed in McKenney v. Jersey City Medical Ctr., 167 N.J. 359 (2001). We reject these arguments.

If we assume, arguendo, the hospital's representative falsely testified in a 2003 deposition about the unavailability of x-rays taken during plaintiff's hospital stay, plaintiff has not demonstrated how Drs. Dara and Martinez must bear responsibility for the hospital's impropriety when the x-rays were relied upon by another defendant's expert produced in a trial that occurred four years after the hospital deposition.

Moreover, the record reveals that the existence and availability of the x-rays utilized by defendants at trial were known to plaintiff long before trial. As demonstrated during the colloquy at trial when plaintiff first objected, Dr. Befeler, who was on the stand at the time, had referred in his May 24, 2005 written report and his July 12, 2005 supplemental report to having reviewed x-rays taken of plaintiff in the hospital. During the colloquy, counsel for defendant Silver also referred to the fact that another expert, who produced a report on June 27, 2005, also indicated he had reviewed x-rays. These representations prompted the following discussion at sidebar:

THE COURT: Well, I have an observation to make and it's not a criticism. That is when Dr. Befeler sent his subsequent report, as I read it, there's a reference to the actual x-rays[] and I'm not criticizing you . . . but it would behoove someone to say, hey, wait a minute, some -- the doctor's actually looking at x-rays. So, I --

[PLAINTIFF'S COUNSEL]: No, Judge, I don't dispute that.

There is no doubt from these comments and the entirety of the sidebar conference that despite confusion, which may have been engendered by the 2003 deposition testimony of a hospital representative concerning the absence of the x-rays, that plaintiff's counsel was aware -- by way of the 2005 reports of defense experts -- that either the x-rays had surfaced and were available or the defendants still in the case at the time of the 2007 trial had access to the same x-rays available to plaintiff.

The record became even clearer on this point when plaintiff moved for a new trial. In response, Silver's counsel filed a certification that provided greater detail regarding the availability of the x-rays. Counsel asserted that in 2003, when he first came to represent Dr. Silver, he reviewed the file forwarded by Dr. Silver's former counsel. He noted that no x-rays or other medical imaging studies had been forwarded and indicated he was

aware of the fact that the plaintiff's attorney was having some difficulty securing a copy of the films that were taken in the Emergency Room on September 13, 2000 of the plaintiff's hip, left elbow and low back. It is the films from the Emergency Room that were missing through discovery and are apparently still missing. At no time throughout discovery was there ever a suggestion by anyone that the films from September 16 and 17, 200[0] were missing. [Plaintiff's counsel's] entire argument is based upon the allegation that the films reviewed by Dr. Befeler and Dr. Ojserkis were missing and not available to [him] before Dr. Ojserkis testified at trial when it is clear that these films, the films reviewed by Dr. Befeler and Dr. Ojskerkis[,] were never missing. In fact [Plaintiff's counsel] sent the films that were reviewed by Dr. Befeler and Dr. Ojserkis at trial to me in June of 2005. To my knowledge, the missing nurse notes and the films from the Emergency Room have never been located and were never discussed by any witness or attorney during the entire trial.

Plaintiff's counsel provided his own version of what transpired. He apparently included in his motion papers copies of what were claimed to be relevant correspondence among counsel regarding the alleged missing x-rays. Unfortunately, plaintiff did not include that written submission in the appendix. However, plaintiff's counsel did set forth his version of the history of the x-rays during oral argument on the motion for a new trial. Plaintiff candidly argued that he was not entirely certain that both sides had access to the same x-rays.

In the final analysis, we find no support in the record on appeal for the argument that plaintiff was legitimately surprised by the use of x-rays by defense experts since there appears to be little doubt that plaintiff and the defendants who participated at trial had access to the same x-rays. Under the circumstances, plaintiff has not demonstrated that the hospital's alleged impropriety in failing to produce x-rays sought by plaintiff in 2003 should somehow be viewed as a discovery violation by those defendants that participated at trial four years later.

 
Affirmed.

Dr. Martinez also cross-appealed from the denial of his motion for a directed verdict. In light of our disposition of plaintiff's appeal, we need not reach this issue.

Our consideration of this issue has been hampered by the fact that plaintiff successfully moved in the trial court for an abbreviated transcript and the transcript produced at the time Dr. Befeler testified includes only the colloquy of the sidebar conference concerning x-rays. Accordingly, we are unable to assess the overall impact the judge's ruling may have had on the presentation of Dr. Befeler's testimony and the trial in general.

In his July 12, 2005 report, Dr. Befeler stated that he had reviewed "the VQ scan from September 17 as well as the portable chest x-rays from September 17, 18, 19, 20 and 21, along with an abdominal film and a CAT scan of the abdomen which addresses the bowel findings."

Indeed, there is little doubt about this. The record on appeal contains a copy of a letter from the hospital's counsel to plaintiff's counsel, dated October 19, 2004 -- more than one year after the hospital's deposition and nearly three years prior to trial -- which enclosed eleven categories of films, including those to which Dr. Befeler referred to in his July 12, 2005 supplemental report.

In response to the trial judge's question at oral argument as to whether the films that plaintiff received were also the same films to which the defense experts referred, plaintiff's counsel could only respond, "I don't know. I think -- I don't think so." Other than plaintiff's speculative contention and subjective beliefs, there is nothing in the record that convinced the trial judge, or that convinces us, that any party had an unfair advantage with regard to x-rays taken of plaintiff during her final hospital stay.

(continued)

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A-0087-07T1

April 16, 2010