MICHAEL KING v. KHOSRO DIBADJ, M.D.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5053-15T2
MICHAEL KING, an infant by his
g/a/l, CRISTAL KINDER-KING AND
WALTER A. KING, JR.,
and CRISTAL KINDER-KING AND WALTER
A. KING, JR., INDIVIDUALLY,
Plaintiffs-Appellants,
v.
KHOSRO DIBADJ, M.D., SAINT
BARNABAS MEDICAL CENTER and
NEW JERSEY ANESTHESIA
ASSOCIATES, PC,1
Defendants,
and
LEONARD BACINO,
Defendant-Respondent.
______________________________
Argued November 29, 2017 – Decided December 27, 2017
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-0142-
09.
1
Bacino is the only remaining defendant because Dr. Dibadj and
New Jersey Anesthesia Associates settled with plaintiffs. All
claims against Saint Barnabas Medical Center were dismissed.
Tyrone F. Sergio argued the cause for
appellants (Stephen S. Weinstein, PA,
attorneys; Stephen S. Weinstein and Gail S.
Boertzel, on the briefs).
Lauren M. Strollo argued the cause for
respondent (Vasios, Kelly & Strollo, PA,
attorneys; Lauren M. Strollo, of counsel;
Douglas M. Singleterry, on the brief).
PER CURIAM
Infant plaintiff Michael King (MK)2 appeals from the October
25, 2013 entry of summary judgment in favor of defendant Leonard
Bacino, as well as the March 14, 2014 order denying MK's motion
for reconsideration. MK suffers from "catastrophic neurological
injuries." At issue here is Bacino's liability as a Magnetic
Resonance Imaging (MRI) technician at Saint Barnabas Hospital,
where MK was administered an MRI that allegedly caused his
extensive disability. We affirm the grant of summary judgment to
Bacino because MK presented no expert evidence of Bacino's
negligence, which was required under these circumstances.
After suffering an accident at home, MK underwent an MRI scan
of his brain under intravenous propofol sedation on November 5,
2007. The anesthesiologist, Dr. Khosro Dibadj, administered the
propofol to MK. Two MRI technicians, Bacino and Catherine Iodice,
were present during the procedure.
2
We will refer to plaintiffs as MK because his parents' claims
are derivative.
2 A-5053-15T2
The doctor testified during his deposition that he
administered the anesthesia, placed the monitors on MK, completed
the anesthesia record based on the vital signs during the
procedure, and was at all times monitoring MK from the
supplementary monitor located in a separate room from the MRI
scanner. According to her deposition testimony, Iodice performed
the MRI scan, while Bacino was the "free technician," handling
paper work and "checking different things." Both Iodice and Bacino
have been employed at Saint Barnabas for approximately two decades.
After the scan was completed, MK was transferred to a recovery
room. Dr. Dibadj administered oxygen to MK after the infant was
removed from the scanner. He then transported MK from the MRI
suite to the post-anesthesia care unit, where MK went into cardio-
pulmonary arrest. MK was intubated and his circulation restored.
He was then transferred to the pediatric intensive care unit.
Lenora Hunter is a radiology nurse employed at Saint Barnabas
who was present in the MRI suite after MK's MRI scan. Hunter
testified that a normal oxygen saturation level is between 93
percent and 100 percent for adult patients and between 95/96
percent to 100 percent for pediatric patients.
The doctor testified that he was the only one to make entries
in the anesthesia record. Bacino testified that he believed MK's
saturation levels were inaccurately recorded in the progress
3 A-5053-15T2
notes, and the anesthesia record, because at one point during the
MRI procedure, he noticed the saturation level was below ninety.
Bacino was not sure for how long the saturation level fluctuated
under ninety, believing it could have been seconds or more. Iodice
did not observe MK's oxygen saturation falling at any point during
the MRI because she was performing the scan.
Bacino testified that the MRI staff provides the suite and
performs the scan. The MRI technicians "assist the
anesthesiologist in bringing the child into the room" and "hook
up all the monitors that are going to be used during the exam."
While the MRI technicians are scanning, in a separate room the
anesthesiologist observes the patient and monitors, taking notes.
Plaintiff's liability expert, anesthesiologist Sheldon
Deluty, opined that Bacino was liable for MK's injuries. Dr.
Deluty reviewed the deposition testimony of Iodice and Bacino and
opined that "Saint Barnabas MRI technicians had an independent
obligation to inform the attending anesthesiologist of an oxygen
saturation [] lower than 90 [percent]." Dr. Deluty concluded:
Based upon the testimony of the St. Barnabas
MRI technicians and my expertise and
experience as a board certified
anesthesiologist, it is my expert opinion with
reasonable medical probability that Mr.
Bacino, as the supervising MRI technician who
was not actually involved in performing the
MRI scan (that was the responsibility of Ms.
Iodice), had an independent obligation under
the standard of care to make Dr. Dibadj aware
4 A-5053-15T2
of the patient's compromised color and
decreased oxygen saturation at the time he
became aware of these facts. Since Mr. Bacino
clearly testified during the course of his
deposition that he did not inform Dr. Dibadj
of [MK]'s compromised oxygen saturation at the
time it occurred, it is my expert opinion with
reasonable medical probability that Mr. Bacino
departed from accepted standards of care by
his failure to inform Dr. Dibadj of the less
than 90% oxygen saturation as measured by the
pulse oximeter. . . .
The above cited departure from accepted
standards of care committed by Mr. Leonard
Bacino in his capacity as the supervising MRI
technician at St. Barnabas Hospital during
[MK]'s MRI on November 5, 2007 was a
contributing factor leading to [MK] sustaining
a cardiopulmonary arrest at St. Barnabas
Medical Center on November 5, 2007 and as a
direct result, suffering permanent and
irreversible hypoxic ischemic encephalopathic
injury.
Bacino's expert, Dennis Williaman, one of the lead MRI
technologists at Children's Hospital of Pittsburgh, opined that
Bacino's conduct conformed with the standard of care of MRI
technologists. Williaman reviewed the deposition testimony of
Bacino, Dr. Dibadj, Hunter, and MK's mother, as well as the medical
records of MK's admission to Saint Barnabas on November 1, 2007.
Williaman concluded in his report:
Assisting the [a]nesthesiologist transport
the patient in and out of the scan room,
connecting and disconnecting the patient from
physiological monitors, performing the
procedure that was ordered according to the
established departmental protocol is all a
standard of care of an MRI technologist. MRI
5 A-5053-15T2
[t]echnologist[s] do not choose nor administer
sedation medication, we do not enter patients
vital signs into the patient chart, and do not
decide whether or not a patient is healthy
enough to undergo a sedated MRI.
Williaman testified that MRI technologists have no formal training
regarding potential complications that a patient under sedation
might experience during an MRI. To maintain an MRI technologist
license with the American Registry of Radiologic Technologists,
technologists are responsible for twenty-four continuing education
credits every two years relating to changes and upgrades to the
technology of MRI machines.
Williaman stated, "As an MRI technologist, I would not find
it reasonable practice to monitor vital signs and express an
opinion . . . with no medical training or medical background to a
physician [who]’s trained in that area of care and expertise [who]
has a much greater knowledge base. . . ."
"We review that legal determination de novo, affording 'no
deference to an interpretation of law that flows from established
facts.'" Vitale v. Schering-Plough Corp., ____ N.J. ___, ___
(2017) (slip op. at 11-12) (quoting State v. Perini Corp.,
221 N.J. 412, 425 (2015)). We "must review the competent evidential
materials submitted by the parties to identify whether there are
genuine issues of material fact and, if not, whether the moving
party is entitled to summary judgment as a matter of law." Bhagat
6 A-5053-15T2
v. Bhagat,
217 N.J. 22, 38 (2014). All facts must be viewed in a
light most favorable to the non-moving party, "keeping in mind
'[a]n issue of fact is genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the
motion. . . would require submission of the issue to the trier of
fact.'" Schiavo v. Marina Dist. Dev. Co.,
442 N.J. Super. 346,
366 (App. Div. 2015) (alteration in original) (quoting R. 4:46-
2(c)), certif. denied,
224 N.J. 124 (2016).
The parties do not dispute that MRI technicians are not
licensed professionals covered by section 27 of the Affidavit of
Merit Act,
N.J.S.A. 2A:53A-26 to -29. Rather, MK contends that
expert testimony was unnecessary to show that Bacino, after
observing MK's oxygen saturation level had fallen below 90 percent,
had a duty to communicate this information to Dr. Dibadj. Bacino
argues that the common knowledge doctrine is inapplicable because
the issue is beyond the ken of the average juror.
A negligence claim in a medical malpractice action must allege
"the improper performance of a professional service that deviated
from the acceptable standard of care." Zuidema v. Pedicano,
373 N.J. Super. 135, 145 (App. Div. 2004). A plaintiff alleging
medical malpractice must prove "(1) the applicable standard of
care; (2) a deviation from that standard of care; and (3) that the
7 A-5053-15T2
deviation proximately caused the injury." Gardner v. Pawliw,
150 N.J. 359, 375 (1997).
"Absent competent expert proof of these three elements, the
case is not sufficient for determination by the jury." Lanzet v.
Greenberg,
126 N.J. 168, 195 (1991) (citations omitted). "Experts
in negligence cases must establish the actual existence of a
standard of care . . . not simply declare their personal
preferences or the conduct they wish to encourage . . . ." C.W.
v. Cooper Health Sys.,
388 N.J. Super. 42, 64 (App. Div. 2006).
Where the "common knowledge" doctrine is applicable, however,
expert testimony to establish a deviation from the standard of
care is unnecessary. Hubbard v. Reed,
168 N.J. 387, 390 (2001);
Bender v. Walgreen E. Co.,
399 N.J. Super. 584, 590 (App. Div.
2008). The common knowledge doctrine applies where jurors' common
knowledge as lay persons is sufficient to enable them, using
ordinary understanding and experience, to determine a defendant's
negligence without the benefit of an expert's specialized
knowledge. Bender,
399 N.J. Super. at 590. The carelessness of
the defendant must be readily apparent to anyone of average
intelligence and ordinary experience. Ibid.
Common knowledge cases involve obvious or extreme error. See,
e.g. Hubbard,
168 N.J. at 396 (holding defendant dentist pulling
the wrong tooth was negligent as a matter of common knowledge);
8 A-5053-15T2
Palanque v. Lambert-Woolley,
168 N.J. 398, 407-08 (2001) (finding
the common knowledge doctrine applied where defendant doctor
performed unnecessary surgery because he read the wrong patient's
lab report); Bender, 399 N.J. Super. at 590-91 (finding a
pharmacist filling a prescription with the wrong drug was subject
to the common knowledge exception); Jones v. Stess,
111 N.J. Super.
283, 289-90 (App. Div. 1970) (finding the common knowledge
exception applicable where a podiatrist dropped an instrument on
the patient's leg resulting in amputation).
We have explained that, "[d]epending upon the identity of a
defendant and established hospital protocol or a recognized
standard of care, the [common knowledge] doctrine has also been
applied where a failure to communicate a patient's known dangerous
health condition directly to the treating physician or patient
causes a delay in treatment and subsequent harm to the patient."
Lucia v. Monmouth Med. Ctr.,
341 N.J. Super. 95, 104-05 (App. Div.
2001).
We applied the common knowledge doctrine to the method a
radiologist communicated findings concerning a patient in the
hospital. Jenoff v. Gleason,
215 N.J. Super. 349, 358 (App. Div.
1987). The issue here is not the method of communication, but
whether defendant had a duty to communicate once he saw MK's oxygen
saturation level drop below 90 percent.
9 A-5053-15T2
We held the common knowledge doctrine did not apply where a
sonographer recorded a doctor's suggestion for a follow-up study.
We held that leaving the sonogram and the noted suggestion with
the unit secretary for further review by other doctors fully
complied with hospital protocol and the accepted standard of care
for sonogram technicians, who had no duty to confirm that the
doctor's suggestion was implemented. McKenney v. Jersey City
Medical Center,
300 N.J. Super. 568, 591-93 (App. Div. 2000),
rev'd on other grounds,
167 N.J. 359 (2001).
In contrast, the common knowledge doctrine did apply where a
treating physician did not inform a patient that an x-ray showed
a surgical needle had been left in her lung. Tramutola v. Bortone,
118 N.J. Super. 503, 510-14 (App. Div. 1972), rev'd in part on
other grounds,
63 N.J. 9 (1973).
This is not a case where "defendant's careless acts are quite
obvious" and "a plaintiff need not present expert testimony at
trial to establish the standard of care." Palanque,
168 N.J. at
406. Bacino's alleged duty to inform the anesthesiologist when
MK's oxygen saturation level fell below 90 percent requires expert
testimony, because the responsibilities of an MRI technician as
they relate to oxygen saturation levels is not common knowledge.
MK argues that Iodice's lay witness testimony is sufficient
to determine the standard of care of an MRI technician.
10 A-5053-15T2
Alternatively, they rely on Dr. Deluty, the anesthesiologist who
also opined on Dr. Dibadj's negligence. Dr. Deluty did not have
the expertise to opine on the standard of care of an MRI technician
because Dr. Deluty is not himself an MRI technician, does not
train MRI technicians, nor know the extent of their required
medical background. He derived his MRI technician standard of
care from his own personal opinion.
"The test of an expert witness's competency in a malpractice
action is whether he or she has sufficient knowledge of
professional standards [applicable to the situation under
investigation] to justify expression of an opinion." Carey v.
Lovett,
132 N.J. 44, 64-65 (1993). Iodice was not an expert
witness, nor did she testify unequivocally that it was Bacino's
duty as an MRI technician to alert the anesthesiologist of a dip
in oxygen saturation. When asked during her deposition why an MRI
technician would be responsible to tell the doctor if there is a
problem with the oxygen saturation level, Iodice stated "generally
we don’t because the doctor is a doctor and he's the one that's
taking care of the child. You now, it could be maybe a number of
reasons why it dropped for a minute and then went back up, you
know. Something that happens." As to her understanding of the
significance of a drop, Iodice testified, "If it drops below [90
percent] then we would say something. If we see the
11 A-5053-15T2
anesthesiologist looking and he's not really, you know, worried
about it, we kind of don’t bring it up to him."
She testified further:
Q: So if the saturation rate fell [for] two
minutes you would then bring it to the
doctor's attention?
A: I would just wait to see what the doctor
is doing. If he's comfortable with it and it
doesn’t bother him, I would be comfortable
with it. He's the expert; I'm not the expert.
He's the anesthesiologist; I'm not.
. . . .
Q: Is it the responsibility of the doctor, the
anesthesiologist in this case, to evaluate
whether or not a drop in oxygen saturations
is of any significance?
A: Yes.
Q: So then would it be fair to say that you
don’t have to, as a tech, alert the
anesthesiologist in this case because he was
already looking at both the infant and the
monitors in the [MRI] room?
A: Right.
Both parties rely on the New Jersey Department of
Environmental Protection, Radiation Protection Element, Bureau of
X-Ray Compliance's definition of the "scope of practice" of a
diagnostic radiologic technologist:
The following tasks have been identified
within the scope of practice of a licensed
diagnostic radiologic technologist:
positioning of the patient for a diagnostic
radiographic procedure, measuring the
12 A-5053-15T2
patient, aligning the x-ray tube to the image
receptor, setting tube distance and exposure
factors, exercising proper principles of
radiation protection and making the exposure.
[State of New Jersey, Department of
Environmental Protection, Radiation
Protection Element, "Diagnostic Radiologic
Technology,"
http://www.nj.gov/dep/rpp/tec/diagrt.htm
(last visited December 7, 2017).]
Not only is Iodice not an expert, but, if admitted as expert
testimony, her testimony as well as Dr. Deluty's testimony would
constitute net opinions. "[I]f an expert cannot offer objective
support for his or her opinions, but testifies only to a view
about a standard that is personal, it fails because it is a mere
net opinion." Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J.
344, 373 (2011). Our Supreme Court has stressed that because of
"the weight that a jury may accord to expert testimony, a trial
court must ensure that an expert is not permitted to express
speculative opinions or personal views that are unfounded in the
record." Townsend v. Pierre,
221 N.J. 36, 55 (2015).
Affirmed.
13 A-5053-15T2
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