ELISANGELA SOARES AFONSO v. FADI JOSEPH BEJJANI, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELISANGELA SOARES AFONSO,

Plaintiff-Appellant,

v.

FADI JOSEPH BEJJANI, M.D.,

ADVANCED MINIMALLY INVASIVE

SURGERY, LLC A/K/A CEDARS

MINIMALLY INVASIVE SURGICAL

SUITE,

Defendants,

and

JOHN A. RICCI, M.D., ATLANTIC

MEDICINE & WELLNESS, LLC,

Defendants-Respondents.

___________________________________

November 29, 2016

Argued October 31, 2016 Decided

Before Judges Sabatino, Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5576-12.

Mark A. Clemente argued the cause for appellant (Clemente Mueller, attorneys; Mr. Clemente, on the brief).

Jessica J. Mahony argued the cause for respondents (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; David Parker Weeks, of counsel and on the briefs; Ms. Mahony, on the briefs).

Jonathan H. Lomurro argued the cause for amicus curiae New Jersey Association for Justice (Lomurro, Munson, Comer, Brown & Schottland, LLC, attorneys; Abbott S. Brown, Christina Vassiliou Harvey and Mr. Lomurro, on the brief).

PER CURIAM

This appeal in a medical malpractice case concerns the application of the New Jersey Medical Care Access and Responsibility and Patients First Act ("Patients First Act" or "the Act"), codified in part at N.J.S.A. 2A:53A-41. In particular, we consider under subsection (a) of the statute whether the defendant physician's treatment of plaintiff in performing a surgical procedure on her leg, known as a phlebectomy, "involve[d]" his claimed specialty in family medicine. N.J.S.A. 2A:53A-41(a). The trial court ruled that the vascular surgeon who plaintiff retained to opine on the standard of care for the surgery was ineligible under the Act to present expert testimony against defendant at trial because the expert was not a family medicine specialist like defendant. The trial court excluded the expert and simultaneously granted defendant summary judgment.

For the reasons that follow, we affirm the trial court's exclusion of plaintiff's proposed expert, despite deposition testimony by defendant himself that solely identified "vascular surgeons" as having the medical specialty that would encompass phlebectomies. However, in light of the confusion caused by defendant's testimony, we vacate summary judgment and remand this matter to afford plaintiff a reasonable opportunity to obtain an appropriate substitute trial expert specializing in family medicine.

We derive the following background from the record. On July 28, 2010, defendant John A. Ricci, M.D., and co-defendant Fadi Joseph Bejjani, M.D., performed a phlebectomy1 on plaintiff, Elisangela Soares Afonso. This procedure was performed after Dr. Bejjani asked Dr. Ricci to teach him how to perform the surgery, to which Dr. Ricci agreed. The two doctors performed the procedure in Dr. Bejjani's office, with Dr. Ricci operating on plaintiff's left leg and Dr. Bejjani operating on her right. Neither doctor wrote notes at the time of the surgery documenting the procedure.

Plaintiff went to an emergency room after the procedure, where she was diagnosed with multiple infected wounds. Plaintiff was then seen by Dr. Bejjani and Dr. Ricci at Dr. Bejjani's office. Dr. Ricci observed several superficial wounds, which he documented in a note. Plaintiff contends these wounds will leave her with permanent scarring and discoloration of her legs.

Plaintiff filed the present medical malpractice action in the Law Division, which, as amended, names both Dr. Ricci and Dr. Bejjani as co-defendants. Three other similar medical malpractice lawsuits were also filed by the same plaintiff's attorney against Dr. Bejjani on behalf of other patients. Those lawsuits, along with plaintiff's present action against Dr. Bejjani, were consolidated for discovery purposes. After Dr. Bejjani refused to participate in discovery, the court dismissed his answers and suppressed his defenses. Judgments of default were subsequently entered against him individually. After proof hearings were held in three of the four cases, three default judgments were entered against Dr. Bejjani for specific sums in this case and two of the related cases. Dr. Bejjani has not appealed those judgments, nor has he participated in this appeal.

In his answer to plaintiff's complaint, Dr. Ricci asserted that he is "a physician practicing in family medicine." His answer did not expressly state that the performance of phlebectomies is "involved" in his asserted specialty in family medicine. See R. 4:5-3 (requiring that "[a] physician defendant against a malpractice claim who admits to treating the plaintiff must include in his or her answer the field of medicine in which he or she specialized at the time, if any, and whether his treatment of the plaintiff involved that specialty."), see also Buck v. Henry, 207 N.J. 377, 396 (2011) (requiring the adoption of a court rule to implement these pleading requirements). Despite that omission, it is undisputed that at the ensuing Ferreira2 conference with the court, Dr. Ricci's counsel took the position that he was acting as a family medicine specialist when he operated on plaintiff's leg. Consequently, the trial court instructed plaintiff to obtain an Affidavit of Merit ("AOM") from a family medicine specialist to vouch for her allegations of medical malpractice against Dr. Ricci.

Plaintiff complied with the court's directive after the Ferreira conference, and served upon defense counsel a timely AOM from Everett W. Schlam, M.D., a licensed physician specializing in family medicine. Dr. Schlam, who has an active clinical practice in New Jersey in family medicine, attested in the AOM that "there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the practice and work of [defendants], including [Dr. Ricci], fell outside of the acceptable, applicable professional standards as they apply to the defendants." Defendant concedes that the AOM from Dr. Schlam comports with the affidavit portion of the Patients First Act.

The situation became complicated, however, by the testimony provided by Dr. Ricci at his deposition in June 2014. In responding to questions posed by plaintiff's counsel, Dr. Ricci provided responses that reasonably might be construed as stating that the singular medical specialty "involved" in conducting phlbectomies is the specialty of vascular surgery. In this regard, plaintiff highlights the following portions of Dr. Ricci's deposition answers

Q Is there a specialty in medicine that would be, that would encompass phlebectomies?

A Vascular surgeons.

Q Did you consider yourself an expert in phlebectomies in July, 2010?

A I did not.

Later on, Dr. Ricci provided the following testimony

Q If the procedures are performed by physicians other than vascular surgeons, would the physicians performing the phlebectomy be expected to conform to the same generally accepted medical standards as vascular surgeons?

A Could you ask that -- I'm not sure what you're asking.

[At the request of counsel, the question was read back to the witness.]

A I believe so.

[(Emphasis added).]

Based on this deposition testimony, plaintiff's counsel decided to retain a vascular surgeon as an expert witness to testify at trial against Dr. Ricci and address how defendant deviated from the standards of care in performing the phlebectomy in this case. Plaintiff obtained such an expert report from Carl Warren Adams, M.D., a vascular surgeon. In his three-page report dated April 10, 2014, Dr. Adams criticized in multiple ways the manner in which Dr. Ricci performed the phlebectomy on plaintiff with Dr. Bejjani. He concluded that the defendant doctors "grossly departed and deviated from the accepted standard of care one would expect from a physician treating a patient [with] superficial venous insufficiency."

Dr. Ricci moved before the trial court to bar Dr. Adams from testifying as a vascular surgeon in support of plaintiff's claims of deviation from the standard of care. His motion relied upon the following relevant portions of the Patients First Act

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit . . . 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 . . .

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

As part of his motion papers, Dr. Ricci included an expert report dated February 13, 2015, that his attorney obtained from a family medicine physician, Robert L. Perkel, M.D. Dr. Perkel opined that "it is acceptable and within the standard of care for a family medicine physician to perform this microphlebectomy procedure." Dr. Perkel did not address, however, the substance of the standard of care, and we presume that defendant has retained a different expert to address that substance.

After hearing oral argument, the trial court granted Dr. Ricci's motion to exclude Dr. Adams' expert opinion. In its oral opinion, the court agreed with defendant's argument that Dr. Ricci is a specialist in family medicine, and the surgical procedure here "involve[d]" that specialty, thus requiring plaintiff to present an expert opinion from a similarly-specialized family medicine practitioner. The trial court did not comment in its short opinion about Dr. Ricci's deposition answers. Because the discovery period had run by that point, the court granted summary judgment to Dr. Ricci.

Plaintiff now appeals, contending that the trial court misapplied the Patients First Act in an inequitable manner given the particular record in this case. The New Jersey Association of Justice ("NJAJ") has filed an amicus brief supporting plaintiff's position.3

The controlling precedent in this context is the Supreme Court's opinion in Nicholas v. Mynster, 213 N.J. 463, 484-85 (2013). In Nicholas, the plaintiff was treated for carbon monoxide poisoning. Id. at 467. The plaintiff presented expert testimony from a physician board-certified in internal and preventative medicine, which included the treatment of carbon monoxide poisoning. Ibid. Defendants, however, were board-certified specialists in emergency and family medicine. Ibid. In denying defendant's motion for summary judgment, the trial court allowed the expert's testimony, based on the notion that he was an expert in the treatment given to plaintiff. Id. at 468. The Court reversed, holding that the expert presented must specialize in the same specialty as the defendant physicians.4 Id. at 482. In so holding, the Court noted that carbon monoxide poisoning fell within both the defendants' specialties and the expert's specialties. Id. at 487-488.

Here, there is a sufficient basis in the record to support the trial court's determination that the Patients First Act requires plaintiff to present expert testimony from a family medicine doctor. The ABMS has defined "family medicine" in a broad manner sufficient to encompass a surgical procedure such as a phlebectomy. In addition, the AOM that plaintiff obtained from Dr. Schram and the expert report that defense counsel procured from Dr. Perkel also signify that a phlebectomy can be performed by a family medicine specialist as well as a vascular surgeon. The trial court did not misapply its discretion in evidence rulings, see Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), nor the governing law set forth in the statute and by the Supreme Court in Nicholas. The specialties may overlap, but in such an instance of overlap, the plaintiff's testifying expert must be of the same specialty as defendant.

That said, Dr. Ricci's deposition answers unfortunately injected confusion in this case, perhaps in part by not qualifying his responses when plaintiff's counsel posed the question about the applicable specialty with singular phrasing. Defense counsel did not follow up at the deposition with a clarifying question. Moreover, the report of Dr. Perkel was obtained only about a month before the discovery period ended. Given these circumstances, it is inequitable to not afford plaintiff an opportunity to obtain a substitute report from a family practice specialist, possibly Dr. Schram, with an appropriate opportunity for the defense to obtain a responsive report. See Hill Int'l Inc. v. Atlantic City Bd. of Educ., 438 N.J. Super. 562, 594-95 (App. Div. 2014) (affording plaintiff time to obtain a replacement AOM where the pertinent specialty was a reasonable source of confusion), appeal dismissed, 224 N.J. 523 (2016). We therefore vacate summary judgment and remand the case for that purpose. A case management conference shall be held on remand within forty-five days.

Affirmed in part, remanded in part. We do not retain jurisdiction.

1 A phlebectomy has been defined as an "[e]xcision of a segment of a vein, performed sometimes for the cure of varicose veins." Stedman's Medical Dictionary 1481 (28th ed. 2006). As described in Dr. Ricci's deposition, a phlebectomy entails the "removal of varicose veins through small puncture sites in the skin using a [surgical] hook." At times in the record, the procedure in this case is also referred to as a "microphlebectomy."

2 In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), the Court determined that "a 'case management conference [shall] be held within ninety days of the service of an answer in all malpractice actions' . . . [where] a 'defendant [is] required to advise the court whether he has any objections to the adequacy of the affidavit' that has been served on him." Buck, supra, 207 N.J. at 394 (quoting Ferreira, supra, 178 N.J. at 154-55); see also Meehan v. Antonellis, 226 N.J. 216, 221 (2016) (reinforcing the importance of such a conference).

3 We need not reach all of the arguments raised by amicus, including its assertion that the Patients First Act violates the separation-of-powers doctrine.

4 The Court very explicitly stated that "plaintiffs cannot establish the standard of care through an expert who does not practice in the same medical specialties as defendant physicians." Nicholas, supra, 213 N.J. at 468. However, the Court later noted that the requirements of the Patients First Act apply when the treatment at issue falls within the defendant physician's American Board of Medical Specialties ("ABMS") specialty. Id. at 482. The Court does not expand further on how these two requirements relate, as the treatment in that case was explicitly determined to fall within the defendants' specialties. Id. at 487.