DAVID R. AUSTIN v. EDWIN DEITCH, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DAVID R. AUSTIN, Individually and

as Administrator ad Prosequendum

of the Estate of VICTORIA AUSTIN;

ISAIAH MILLER and MESSIAH MILLER,

Individually and through their legal

guardian and guardian ad litem,

DAVID AUSTIN,

Plaintiffs-Appellants,

v.

EDWIN DEITCH, M.D., and UNIVERSITY

OF MEDICINE AND DENTISTRY OF

NEW JERSEY,

Defendants-Respondents,

and

DAVID CHENG, M.D., SALIL SHAH, M.D.,

FRANCIS CAPUTO, M.D. and SIRIUS

CHAN, M.D.,

Defendants.

____________________________________________

July 17, 2014

Submitted June 25, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-4815-10.

Lesnevich& Marzano-Lesnevich,LLC, attorneys for appellants (Domhnall O'Cathain, on the brief).

Dughi, Hewit & Domalewski, PC, attorneys for respondents (Gary L. Riveles, on the brief).

PER CURIAM

This is a medical malpractice and wrongful death action filed by plaintiffs David Austin, the surviving spouse of Victoria Austin, and their children Isaiah and Messiah Miller. Plaintiffs appeal from the order of the trial court dismissing with prejudice their cause of action against defendants the University of Medicine and Dentistry of New Jersey (UMDNJ) and Victoria's1 physician and surgeon Dr. Edwin A. Deitch, based on plaintiffs' failure "to have a qualified expert [attest and opine] as to [the] deviation from accepted standards of care pursuant to N.J.S.A. 2A:53A-41[.]" We affirm.

Before addressing the legal issues raised by the parties, we will briefly describe the core underlying facts, as reflected in a report dated August 31, 2012, authored by plaintiffs' expert, Dr. Bruce D. Charash, a board certified internist and cardiologist. On June 14, 2008, Victoria presented herself to the emergency room of UMDNJ complaining of persistent nausea, vomiting, and abdominal pain. She was admitted to the hospital that same day. She had a distended abdomen, requiring the insertion of a tube to drain "700 cc of gastric content."

After undergoing a series of tests, she was clinically diagnosed with pneumatosis2 and bowel obstruction. Dr. Deitch performed exploratory surgery of her abdominal cavity on June 16, 2008. She did not have bowel function until four days after the surgery. Dr. Charash's report describes in detail Victoria's post-operative activities and the medical significance of what Dr. Charash characterized as "concerning indicators" that, in his opinion, made Victoria's discharge from the hospital on June 20, 2008, "problematic." Victoria was discharged from UMDNJ by Dr. Deitch on June 20, 2008. She died at approximately 3:00 a.m. the following day. Her death certificate identifies the cause of death as "cardiopulmonary arrest." She was forty-four years old at the time of her death.

Dr. Charash fixes the responsibility for Victoria's untimely death squarely on Dr. Deitch's failure to discover "multiple and quite serious unresolved medical problems" that would have alerted him of the inadvisability of discharging Victoria on June 20, 2008. In Dr. Charash's own words:

The amount of time required to read the nursing notes and physical therapy notes is quite brief, and Dr. Deitch is deviating from the acceptable standard of care on an ongoing basis if he acts as he testified [at his deposition]. If Dr. Deitch is not reading all of the relevant notes in his patients' charts, then he is recurrently deviating from the standard of care. In the case of Ms. Austin, he was apparently completely unaware of some of her major problems on the day of discharge.

Plaintiffs filed their civil complaint on June 11, 2010, and issue was joined as to defendants UMDNJ and Dr. Deitch on July 29, 2010.3 Defendants first moved to dismiss plaintiffs' complaint for failure to comply with the affidavit of merit requirements under N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41a on December 6, 2010. Plaintiffs opposed the motion and filed a cross-motion seeking a waiver of these requirements pursuant to N.J.S.A. 2A:53A-41c, which 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.

[(Emphasis added).]

Defendants' motion and plaintiffs' cross-motion were heard before a different judge than the one who decided the issues raised in this appeal. We have not been provided with a transcript of the argument that preceded this judge's decision. However, plaintiffs' counsel has included in this appellate record a certification he submitted dated October 23, 2013, in support of his request for waiver relief under N.J.S.A. 2A:53A-41c. This certification states, in relevant part, as follows:

2. On or about the spring of 2010, I consulted with Dr. David Befeler, a Board Certified Surgeon, in order to investigate whether or not Defendant Edwin Deitch, M.D. had deviated from acceptable surgical standards of care in the treatment and care of Victoria Austin.

3. I had previously worked with Dr. Befeler on other cases and relied on his experience in evaluating whether or not there was a viable action involving a surgical error. I always found Dr. Befeler's opinion to be reliable.

4. I consulted with Dr. Befeler in this matter because I understood that Defendant Edwin Deitch, M.D. was and is a Board Certified Surgeon.

5. After reviewing the medical records and the death certificate for Victoria Austin, Dr. Befeler informed me that there was no surgical error in the treatment of Victoria Austin by Defendant Edwin Deitch, M.D.

6. I did not consider it necessary to consult with another Board Certified Surgeon on whether or not there was a surgical error because the opinion of Dr. Befeler together with my review of the records based on my forty (40) years experience as a medical malpractice attorney made it clear that there was no surgical error. That decision has proven correct because at no time through the course of this lawsuit has there been a criticism of the surgical treatment of Victoria Austin by Defendant Edwin Deitch, M.D.

7. Had I engaged another Board Certified Surgeon to render an opinion for an appropriate fee, I would have wasted the resources of the Court, brought unnecessary claims against Defendant Edwin Deitch, M.D., and defeated the spirit of the Affidavit of Merit Statute.

8. Thereafter, I consulted with Bruce Charash, M.D., a Board Certified Internist and Cardiologist. As an internist, Dr. Charash was and is qualified to opine on whether or not Victoria Austin was discharged prematurely.

By order dated February 14, 2011, this motion judge granted plaintiffs' cross-motion for waiver relief under N.J.S.A. 2A:53A-41c, and denied defendants' motion to dismiss for failure to comply with the requirements of N.J.S.A. 2A:53A-41a. This same motion judge entered a second order dated February 18, 2011, once again denying defendants' motion to dismiss plaintiffs' complaint with prejudice "for failure to supply an Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27 and N.J.S.A. 2A:53A-41[.]"

The matter proceeded from this point through discovery, with neither side seeking clarification of Dr. Charash's role and legal ability to opine on Dr. Deitch's conduct based on the standard of care applicable to his specialty as a surgeon. Apparently the discovery period ended and the case was scheduled for trial on June 10, 2013. On June 5, 2013, five days before the trial date, defendants filed an in limine motion to dismiss the case with prejudice based on plaintiffs' failure to comply with the requirements of N.J.S.A. 2A:53A-41. This motion was triggered by our Supreme Court's then recent decision in Nicholas v. Mynster, 213 N.J. 463, 479 (2013), noting that in malpractice cases generally "'an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care provider, . . . .'" (quoting Assembly Health & Human Services Comm., Statement to Assembly Bill No. 50 at 20 (Mar. 4, 2004)).

After considering the arguments of counsel, the court granted defendants' motion and dismissed plaintiffs' case with prejudice. This motion judge noted that under the definition of the surgeon specialty adopted by the American Board of Medical Specialties, "a 'general surgeon has principal expertise in the diagnosis and care of patients with diseases and disorders affecting the abdomen, digestive track, endocrine system, breast, skin and blood vessels.'" The scope of care applicable to surgeons thus included not just the actual surgery, but the patient's post-operative care. Under these circumstances, the judge concluded Dr. Charash was not competent to review and opine as to Dr. Deitch's post-operative treatment decisions, including his decision to authorize Victoria's discharge from UMDNJ on June 20, 2008. Indeed, by plaintiffs' counsel's own admission in his certification to the court, the only surgeon he consulted to review Dr. Deitch's conduct opined Dr. Deitch conducted himself within the standard of care applicable to surgeons.

As the Supreme Court has recently reaffirmed: "In a medical-malpractice action, the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor, a deviation from that standard, an injury proximately caused by the deviation, and damages suffered from the defendant-doctor's negligence." Komlodi v. Picciano, 217 N.J. 387, 409 (2014). Here, plaintiffs are unable to satisfy these standards. We agree with the trial court that Dr. Charash is not competent to testify as an expert because he is not board certified in Dr. Deitch's field of expertise as a surgeon. Mynster, supra, 213 N.J. at 479.

Finally, in the interest of clarity, we note that the judge whose decision we affirm here was not bound by the earlier interlocutory decision made by a different judge granting plaintiffs' motion for waiver relief pursuant to N.J.S.A. 2A:53A-41c. As the Supreme Court has made clear, "[i]t is well established that 'the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011), (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).

Affirmed.

1 We refer to decedent by her first name in the interest of clarity. No disrespect is intended.

2 In lay terms, pneumatosis is defined as the presence of air or gas in abnormal places in the body. Pneumatosis Definition, m-w.com, http://www.merriam-webster.com/medical/pneumatosis (last visited July 7, 2014).

3 The remaining individuals named as defendants by plaintiffs did not file responsive pleadings. Plaintiffs opted not to pursue their claims against these individuals.