DAVID GREENWALD v. SRI KANTHA, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2751-09T1

DAVID GREENWALD and

HARRA GREENWALD,

Plaintiffs-Appellants,

v.

SRI KANTHA, M.D., individually

and t/a NJ INSTITUTE for

MINIMALLY INVASIVE SPINE

CARE, P.A. and PETER DIPAOLO, M.D.,

Defendants-Respondents.

____________________________________________

July 8, 2011

Argued December 8, 2010 Decided

Before Judges Axelrad, R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-882-07.

Frederick E. Popovitch argued the cause for appellants (Popovitch & Popovitch, L.L.C., attorneys; Mr. Popovitch, on the briefs).

Rachel M. Schwartz argued the cause for respondents Sri Kantha, M.D.; NJ Institute for Minimally Invasive Spine Care, P.A. (Giblin & Combs, attorneys; Ms. Schwartz, on the brief).

Donald J. Grasso argued the cause for respondent Peter DiPaolo, M.D. (Orlovsky, Grasso, Bolger, Mensching & Daley, P.A., attorneys; Charles C. Daley, Jr., on the brief).

PER CURIAM

In this medical malpractice action, plaintiffs David and Harra Greenwald appeal from various orders barring their proposed expert from testifying and dismissing their complaint against defendants Dr. Sri Kantha, a board-certified pain management specialist and the NJ Institute for Minimally Invasive Spine Care, P.A. (the Institute), and Dr. Peter DiPaolo, an orthopedic surgeon. More specifically, plaintiffs' notice of appeal lists the following five orders which they contend were entered in error: (1) a September 25, 2009 order barring the testimony of Dr. David A. Yazdan as to standards of care associated with the care rendered by Dr. Kantha and granting summary judgment in favor of Dr. Kantha; (2) a November 13, 2009 order granting the motion of Dr. DiPaolo to bar Dr. Yazdan from testifying at trial; (3) a November 13, 2009 order denying the cross-motion of plaintiffs to waive the requirement of board certification of their expert; (4) a November 13, 2009 order denying plaintiffs' motion for reconsideration and denying plaintiffs' request for a waiver pursuant to N.J.S.A. 2A:53A-4(c) to permit the testimony of Dr. Yazdan; and (5) a January 5, 2010 order dismissing plaintiffs' complaint against Dr. DiPaolo. We affirm all of the orders of the Law Division.

The relevant facts are derived from evidence submitted by the parties in support of and in opposition to defendants' summary judgment motions. We view those facts in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff David Greenwald,1 who was suffering from neck and back pain, was referred by defendant Dr. DiPaolo to Dr. Kantha whose practice is limited to anesthesiology and pain management. On February 1, 2005, Dr. Kantha performed a transforaminal epidurogram and epidural injection via the left C6-7 neuroforamen with radiological interpretation. On February 17, 2005, Dr. Kantha performed another transforaminal epidurogram and epidural injection via the left C5-6 neuroforamen with radiological interpretation. On March 15, 2005, Dr. Kantha performed a diagnostic left cervical facet joint injection at C5-6, C6-7 and C7-T1 with radiological interpretation. Dr. Kantha last treated plaintiff on March 23, 2005.

In April 2006, plaintiff came under the care and treatment of Dr. Yazdan, who operated on plaintiff, performing multiple level anterior cervical decompression. Notwithstanding the surgical procedures, plaintiff obtained no relief. He continues to suffer from multiple cervical radiculopathy and lumbar radiculopathy.

On March 2, 2007, plaintiffs filed a complaint alleging medical malpractice against defendants. Harra Greenwald, plaintiff's wife, asserted a per quod claim. Dr. Kantha and the Institute filed a joint answer, with Dr. DiPaolo filing his answer separately. On April 27, 2007, plaintiff filed a timely affidavit of merit in which Dr. Yazdan opined, based upon his review of the records of Dr. Kantha and his awareness of the treatment and surgery rendered by Dr. DiPaolo, that "there exists a reasonable probability that the case, skill and knowledge exercised by said defendants falls outside acceptable medical standards and treatment practices as engaged in by these defendants."

Emphasizing that Dr. Yazdan is a neurosurgeon and Dr. Kantha is an anesthesiologist whose practice is limited primarily to pain management, Dr. Kantha moved to dismiss plaintiffs' complaint for the failure to produce an adequate affidavit of merit. In response, plaintiffs submitted, among other opposition materials, a certification of Dr. Yazdan asserting his familiarity with the procedures used by Dr. Kantha and the standard of care required of a pain management specialist. Following oral argument, the court denied the motion to dismiss, finding neither of the parties provided information addressing the court's inquiry of whether pain management was a specialty or subspecialty recognized by the American Board of Medical Specialties.

Thereafter, the parties proceeded with discovery and Dr. Yazdan was deposed. In his deposition, he asserted that as a neurosurgeon, he was qualified to perform an epidural injection such as the procedure performed on plaintiff; however, he conceded he did not have any training in pain medicine and was not certified in pain management.2 Dr. Yazdan stated he had performed epidural steroid injections many times, but never for the purpose of pain management. He also offered his opinion that "under no circumstance is an epidural steroid injection appropriate when there is other pathology that could be corrected surgically." Thus, Dr. Yazdan considered it a deviation from the standard of care to inject a patient who, as in this case, has stenosis because it traumatizes the nerve root or the area around it. Dr. Yazdan stated his belief that Dr. Kantha should not have attempted an epidural injection in plaintiff's case. Dr. Yazdan further expressed the categorical view that if "any pain management specialist [tries to perform a] transformal epidural injection in the stenotic foramen, it's malpractice."

Dr. Kantha filed a new motion which sought to bar Dr. Yazdan from testifying at trial to the accepted standards of care. Because the court was unable to determine the dates upon which the epidural injections were performed, it denied defendant's motion without prejudice.

Dr. Kantha again refiled the motion to bar and for summary judgment. By order of September 25, 2009, the court entered summary judgment barring Dr. Yazdan from testifying as to the accepted standards of care associated with the care rendered by Dr. Kantha to plaintiff and dismissing plaintiffs' complaint against Dr. Kantha. The court denied plaintiffs' motion for reconsideration and waiver of the same specialty or board-certification requirement, pursuant to N.J.S.A. 2A:53A-41(c).

Dr. DiPaolo also moved to bar Dr. Yazdan's expert reports and testimony, and on November 13, 2009, the court signed a separate order granting Dr. DiPaolo's motion. That same date, the court also denied, by separate order, the cross-motion by plaintiffs to waive the requirements of board certification under N.J.S.A. 2A:53A-41(c). On January 5, 2010, the court dismissed with prejudice plaintiffs' complaint against Dr. DiPaolo. That order was based upon the joint representation of counsel for plaintiffs and defendant Dr. DiPaolo that plaintiffs could not proceed to trial against Dr. DiPaolo without the testimony of Dr. Yazdan. This appeal ensued.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). Of course, a trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

I.

On appeal, plaintiffs argue that Dr. Yazdan was qualified to testify about the negligence of Dr. Kantha and that Dr. Yazdan's testimony concerning the inappropriateness of an epidural injection into plaintiff's neck should be admitted despite Dr. Yazdan's lack of board certification in pain management or anesthesiology.

The New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, provides detailed standards relative to a testifying expert. The statute states in pertinent part:

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of [the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29] on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:

(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(c) both.

[N.J.S.A. 2A:53A-41(a).]

The plain language of the statute requires an expert testifying against the defendant to be (1) a specialist in the same specialty as the defendant and (2) a specialist at the time of the occurrence of the basis for the action. Ryan v. Renny, 203 N.J. 37, 57 (2010). Here, plaintiff's expert is a board-certified neurosurgeon, who does not specialize and is not certified in pain management, anesthesiology or orthopedics. Based on these undisputed facts, Dr. Yazdan is not a specialist permitted by N.J.S.A. 2A:53A-41(a) to testify against either Dr. Kantha or Dr. DiPaolo on the applicable standards of care.

Plaintiffs contend the statute was enacted to discourage so-called "hired guns," but not to prohibit physicians in more encompassing fields from testifying. We reject this contention.

When asked to interpret a statute, we look first to the statute's words and apply their plain meaning and intent. Mason v. City of Hoboken, 196 N.J. 51, 68 (2008); DeProspero v. Penn, 183 N.J. 477, 492 (2005); Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999). The court is to "effectuate the legislative intent in light of the language used and the objects sought to be achieved." N.J. Educ. Ass'n v. Bd. of Tr., Pub. Employees' Ret. Sys., 327 N.J. Super. 326, 332-33 (App. Div. 2000). We are to presume that the legislative intent is expressed by the ordinary meaning of the words used. Nat'l City Mortg. v. Smith, 324 N.J. Super. 509, 515 (Ch. Div. 1999) (citing State v. Mortimer, 135 N.J. 517, 532, cert. denied, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994)). "'Our duty is to construe and apply the statute as enacted. We are not at liberty to presume the legislature intended something other than what it expressed by its plain language. This Court will not engage in conjecture or surmise which will circumvent the plain meaning of the [A]ct.'" Lammers v. Bd. of Educ., 134 N.J. 264, 272 (1993) (quoting Spiewak v. Bd. of Educ., 90 N.J. 63, 74 (1982)).

The statutory language before us clearly precludes a person from giving expert testimony unless (1) the person is licensed as a physician or other health care professional in the United States; and (2) has specialized in the same specialty or subspecialty at the time of the occurrence that is the basis for the action. Dr. Yazdan is a board-certified neurosurgeon, however, he has never specialized or been certified in anesthesiology, pain management or orthopedics. Accordingly, we decline plaintiff's invitation to adopt an interpretation which incorporates "more encompassing fields" into the plain meaning of the statutory language requiring the expert be in the "same specialty or subspecialty." See N.J.S.A. 2A:53A-41(a) - (b).

We recognize that the court may waive the same-specialty requirement in certain situations. In that regard, N.J.S.A. 2A:53A-41(c) provides:

A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.

[N.J.S.A. 2A:53A-41(c).]

In Ryan, the Court listed steps by the moving party which may demonstrate a showing of a "good faith effort," citing as examples:

[T]he number of experts in the field; the number of experts the moving party contacted; whether and where he expanded his search geographically when his efforts were stymied; the persons or organizations to whom he resorted for help in obtaining an appropriate expert; and any case-specific roadblocks (such as the absence of local sub-specialty experts) he encountered.

[Ryan, supra, 203 N.J. at 55.]

The waiver provision under N.J.S.A. 2A:53A-41(c) is a "safety valve" providing a judge with "broad discretion to accept an expert with 'sufficient training, experience and knowledge to provide the testimony[,]' but only if plaintiff made a good faith effort to satisfy the statute." Id. at 56. "The Legislature left it to the 'satisfaction of the court' to determine whether an honest 'effort' was made to identify an expert in the same specialty or subspecialty." Ibid.

Here, the trial court was not satisfied with plaintiffs' counsel's showing of good faith effort to identify an expert in the same specialty as defendants. Counsel certified that he consulted with a colleague who specializes in medical malpractice cases. As a result of this consultation, counsel received the names of two board-certified pain management specialists. Counsel contacted those physicians "on at least two separate occasions" prior to beginning the lawsuit. Counsel was unable to get a reply from either physician after leaving detailed messages for both and could only speculate as to why they did not reply.

The motion court found plaintiff had not made a good faith effort to find an expert within the same specialty, because plaintiff's counsel search for an expert should not have been limited to two referrals from a single colleague. Thus, plaintiffs' counsel did not use many of the resources available to him to find a board-certified pain management specialist in the geographic region or in a more expanded geographic region. Therefore, we find the motion court did not err by dismissing plaintiffs' complaint or in denying plaintiffs' motion for waiver of the same expert specialty and board-certification requirements, under N.J.S.A. 2A:53A-41(c).

II.

Plaintiffs also argue the Law Division's orders should be reversed based on the equitable doctrines of estoppel, laches and waiver. Plaintiffs rely on Knorr v. Smeal, 178 N.J. 169 (2003) in support of their argument. In Knorr, the defendant allowed the deadline for receipt of an affidavit of merit to pass without moving for a dismissal. The defendant proceeded to exchange interrogatories, deposed the plaintiff, submitted to a deposition, obtained the plaintiff's expert report and had the plaintiff physically examined. Id. at 173. Fourteen months after the deadline for the affidavit of merit and after the merits of the plaintiff's claims were established; the defendant filed a motion to dismiss because of the missing affidavit. Ibid. The Supreme Court reversed the dismissal of defendant's complaint based on the equitable grounds. Id. at 182. Unlike Knorr, defendants repeatedly moved to dismiss plaintiffs' complaint and to bar plaintiffs' expert to establish a basis for the dismissal of the complaint.

Plaintiffs argue nevertheless that Dr. DiPaolo waived any rights afforded to him by N.J.S.A. 2A:53A-41 because he waited to see whether Dr. Kantha's motion to dismiss was successful before he filed his own motion. We do not perceive that to be a waiver. Waiver is "the voluntary and intentional relinquishment of a known right." Id. at 177. The waiver must be clear, unequivocal, and decisive. Ibid. Based on this definition, we do not accept plaintiffs' contention that Dr. DiPaolo waived his rights under N.J.S.A. 2A:53A-41. The adoption of a "wait-and-see" posture, pending a motion by a similarly situated co-defendant may have been conservative, but it does not signify an abandoned right. Indeed, Dr. DiPaolo's motion for dismissal filed approximately ten days after Dr. Kantha's successful motion did not constitute a waiver of his rights.

Likewise, plaintiffs do not offer any persuasive argument showing detrimental reliance on Dr. DiPaolo's failure to file his motion simultaneously with Dr. Kantha. Hence, no basis for equitable estoppel relief is apparent. Moreover, to the extent plaintiffs assert Dr. DiPaolo's failure to attempt to join Dr. Kantha's motion or his minor delay in also seeking dismissal based on Dr. Yazdan's incongruent credentials, they do not point to any undue prejudice. Once Dr. Kantha's motion for dismissal was granted, Dr. DiPaolo moved for the same relief and that motion should have been an action readily anticipated by plaintiffs. Dr. Yazdan's eligibility to testify as an expert was questioned by the defendants from the beginning of discovery until the case was in fact dismissed. Dr. DiPaolo's motion was no surprise.

III.

Plaintiffs argue the dismissal of their complaint should be reversed because it violates the law of the case. Plaintiffs contend the court ruled Dr. Yazdan was competent to testify on December 7, 2007. We disagree.

The law-of-the-case doctrine is a discretionary doctrine which prevents relitigation of a previously resolved issue. In re Estate of Stockdale, 196 N.J. 275, 311 (2008). "Under the law-of-the-case doctrine, 'where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit.'" Bahrle v. Exxon Corp., 279 N.J. Super. 5, 21 (App. Div. 1995), aff'd, 145 N.J. 144 (1996) (quoting Slowinski v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993)). However, plaintiffs concede this doctrine is not an absolute rule. "'[T]he court is never irrevocably bound by its prior interlocutory ruling . . . .'" Daniel v. State, Dep't of Transp., 239 N.J. Super. 563, 581 (App. Div.), certif. denied, 122 N.J. 325 (1990) (quoting Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988)). The doctrine is to "be applied flexibly to serve the interests of justice." State v. Reldan, 100 N.J. 187, 205 (1985).

The court's earlier denial of Dr. Kantha's motion to dismiss for failure to produce an adequate affidavit of merit was based on the parties' failure to provide the judge with any information on whether pain management fell within a recognized specialty or subspecialty. The motion court's initial decision regarding the adequacy of the affidavit of merit did not address the affidavit's compliance with N.J.S.A. 2A:53A-41. Moreover, application of the law-of-the-case doctrine, under these circumstances, would contravene N.J.S.A. 2A:53A-41. Even though Yazdan provided an affidavit of merit indicating that he was qualified to give an opinion on the standard of care, it was later determined on the merits that Dr. Yazdan's proffered expert opinion did not comply with the statutory mandates of N.J.S.A. 2A:53A-41. Notably, Dr. Yazdan was deposed on April 21, 2009 and on May 13, 2009, Dr. Kantha promptly moved to bar his testimony.

In sum, we do not find that the motion court erred by barring Dr. Yazdan's testimony and dismissing the plaintiffs' complaints against Dr. Kantha and Dr. DiPaolo.

1 When used in the singular, "plaintiff" refers to plaintiff David Greenwald.

2 Dr. Yazdan testified that he was not even aware of a pain management specialty until November 2007.