NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Plaintiffs Lisa Hunt and Russell Hunt brought this medical malpractice action on behalf of themselves and their minor child Hailey Rosina Hunt (collectively, plaintiffs), alleging that defendants were negligent during Lisa's labor and the delivery of Hailey, causing extensive, permanent neurological injuries to Hailey. Plaintiffs appeal from the dismissal of their complaint against Virtua West Jersey Hospital Voorhees (Virtua Hospital) and Virtua Health, Inc. (collectively, Virtua); and Linda Faragasso, R.N., Barbara Jones, R.N., and Christine Pease, R.N. (collectively, Nurses).
We summarize the facts pertinent to this appeal in the light most favorable to plaintiffs.
Lisa was admitted to Virtua Hospital at approximately 8:30 a.m. on September 7, 2009. Dr. Kopelove and Faragasso were assigned as the attending physician and nurse, respectively, for the labor and delivery.
The Nurses assessed Lisa and Hailey in approximately thirty-minute intervals throughout the entire day, checking— among other things— Lisa's blood pressure and Hailey's fetal heart rate (FHR), including any variability, accelerations or decelerations. Pease and Jones performed the assessments when Faragasso was unavailable. Dr. Kopelove personally assessed Lisa and Hailey approximately every two hours or as needed.
Over the next six hours, Lisa was given morphine and an epidural, and her membranes were artificially ruptured. Variable decelerations in Hailey's FHR were consistently noted beginning at 11:30 p.m.
At 2:40 p.m., Dr. Kopelove gave orders to begin inducing labor by administering Pitocin, with a beginning flow rate of one milliunit per minute (mu/min). Before Pitocin was administered, preeclampsia labs were drawn. The urinalysis revealed protein in Lisa's urine, "a sign of pregnancy induced hypertension and/or preeclampsia." As a result, Dr. Kopelove ordered that magnesium sulfate be administered.
At 3:00 p.m., Pease began administering Pitocin at the rate ordered by Dr. Kopelove. The Pitocin was increased to two mu/min at 5:30 p.m., and then, per Dr. Kopelove's order, to four mu/min. at 6:00 p.m. At 6:10 p.m., the FHR decelerated to seventy-five, which constituted fetal bradycardia. Pitocin was turned off four minutes later at 6:14 p.m. due to the persistent late decelerations.
At 6:30 p.m., "a severe bradycardia episode occurred"; Dr. Kopelove determined that an emergency cesarean section (C-section) was necessary and Lisa "was rushed to the operating room." Hailey was delivered at 6:43 p.m. She was described at birth as "lifeless," "limp, apneic, [and] pale with no heart rate." The diagnosis was severe asphyxia. Apgar scores were 0, 0 and 3 at one, five and ten minutes after birth, respectively.
Hailey suffers from permanent neurological damage including neurodevelopmental delay and cerebral palsy.
Plaintiffs filed their complaint in March 2012. The claims relevant to this appeal are: Virtua was negligent in credentialing and retaining Dr. Kopelove and the Nurses were negligent in treating Lisa and Hailey. We review each of these claims in turn.
Plaintiffs did not produce any expert report to articulate the standard of care applicable to their direct claims against Virtua. Nonetheless, they argue the trial judge erred in granting summary judgment to Virtua because expert testimony was not required. Plaintiffs also argue the trial judge abused his discretion in issuing protective orders that limited their ability to pursue their claims against Virtua. We are unpersuaded by these arguments.
Plaintiffs submit that expert testimony would only have been required if they had alleged "that Virtua `should have known' about Dr. Kopelove's patient care problems yet failed to uncover her incompetence." They contend that because "Virtua actually knew about" Dr. Kopelove's "patient care issues and problems," expert testimony was not necessary to establish their claims. No legal authority is cited to support this proposition.
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."
Plaintiffs describe the duty breached by Virtua as a duty "to select only competent physicians to appoint to its medical staff and to sufficiently oversee the physician's care within the walls of its facility." To determine the scope of such a duty without resorting to rank speculation, the jury would have to have an appreciation of what constituted a "competent" physician and what oversight was sufficient. Certainly, these are matters no less esoteric than any of the cases noted by the Supreme Court in
Virtua was entitled to judgment as a matter of law.
Plaintiffs also challenge the trial court's entry of protective orders entered in May and June 2014 that prohibited discovery on: (1) materials pertaining to Dr. Kopelove's guilty plea to a driving while intoxicated (DWI) offense in 2008
Virtua's investigation of prior incidents involving Dr. Kopelove. Plaintiffs settled their claims against Dr. Kopelove in November 2014 and argue that these orders impeded their ability to pursue their claims against Virtua. They do not, however, argue that the entry of the protective orders precluded them from obtaining an expert to establish breach of duty by Virtua, a failure that justified summary judgment in Virtua's favor. Because summary judgment was properly granted on that basis, plaintiffs' challenges to the protective orders are moot and therefore warrant only limited discussion.
We review this issue pursuant to an abuse of discretion standard.
Defendants sought a second protective order to protect documents relating to Dr. Kopelove's patient care issues, specifically Virtua's investigation of an incident in May 2009. In June 2014, following an in camera review of the withheld documents, the trial court observed that they concerned Virtua's investigation of a patient care event in May 2009 and that, pursuant to
Plaintiffs argue the trial court made the following errors in these rulings: (1) failing to make specific determinations regarding each document that was withheld as required by
In the first instance, plaintiffs' reliance on
Plaintiffs' second argument— that the trial court "misapplied"
In light of the fact that the materials continued to be protected as confidential, plaintiffs' last argument, that the materials were relevant, has no merit.
Accordingly, we discern no abuse of discretion in the issuance of the protective orders.
We next turn to the arguments presented by plaintiffs relating to their claims against the Nurses. These arguments arise from the trial court's grant of summary judgment to the Nurses based upon its determination that the plaintiffs failed to establish proximate causation. Plaintiffs initially presented an expert report by a nurse practitioner to support their argument that the
Nurses breached a duty that proximately caused Hailey's injuries. They argue the trial court erred in finding the nurse practitioner was not qualified to render an opinion on proximate cause.
To provide context for these issues, we note that the complaint was filed in March 2012. In May 2014, a trial notice set the fourth listing for trial, November 10, 2014. Plaintiffs' expert reports were due June 30, 2014. A court order was entered on August 15, 2014, requiring defendants to submit expert reports by September 12, 2014, and plaintiffs to submit rebuttal expert reports by October 20, 2014. In addition, the order explicitly provided that the October 10, 2014 discovery end date would not be extended.
Plaintiffs timely served expert reports from Dr. Bruce L. Halbridge, an obstetrics expert, and Jennifer Johnson, R.N., a registered nurse and board-certified nurse practitioner in women's health. The contents of these reports plainly reveal that Dr. Halbridge's opinion was intended to support plaintiffs' claim against Dr. Kopelove and Johnson's opinion was intended to provide the necessary expert opinion to support plaintiffs' claims against the Nurses.
Dr. Halbridge's report identified the following "[d]epartures":
In defining the damages suffered, Dr. Halbridge found Dr.
Kopelove's "failure to deliver the fetus by [1:30 p.m.] . . . was the direct and proximate cause of the avoidable and permanent neurologic damage suffered by the baby." Dr. Halbridge's report offered no opinions regarding the quality of the nursing care that was provided or that the care provided by the Nurses contributed to the injury.
Johnson's report critiqued the nursing care provided to Lisa and Hailey and opined that it "did not meet the standard required and expected for such care
Plaintiffs attempted to revive their claims against the Nurses by submitting new expert reports by Dr. Halbridge and
Johnson and filing a motion for reconsideration.
As we have noted, in his first report, Dr. Halbridge offered no opinions regarding the nurses and laid the blame for Hailey's injuries squarely and unequivocally upon Dr. Kopelove, stating her failure to deliver the fetus approximately five hours earlier "was the direct and proximate cause of" Hailey's injuries.
Dr. Halbridge prefaced his second report with: "In this report I will list additional departures from the standard of care. . . ."
The "additional departures," however, did not address Dr. Kopelove's departures from the standard of care. Instead, for the first time, he added "[t]he Labor [and] Delivery nurses" as persons who deviated from the standard of care and caused Hailey's injuries. Their alleged deviations were that, like Dr. Kopelove, they failed to recognize the presence of repetitive variable and late decelerations in the presence of significantly reduced variability that clearly indicated that the fetus was experiencing significant hypoxia and needed to be delivered promptly.
Dr. Halbridge did not opine that the Nurses had any duty to take action to override, rather than follow, the orders given by
Dr. Kopelove throughout Lisa's labor.
In her supplemental report,
These reports were submitted as rebuttal reports and as grounds for the trial court to reconsider its order granting summary judgment.
Reconsideration is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion.
Jones and Pease.
Thereafter, defendants moved to bar Dr. Halbridge's and Johnson's supplemental expert reports, arguing they did not constitute proper rebuttal. The trial court barred Dr. Halbridge's report, later clarifying that only the new opinions expressed on the standard of care and causation regarding the Nurses were barred. The trial court denied defendant's motion to bar Johnson's report, finding that her opinion as to the chain-of-command was a logical extension of her initial report.
Faragasso filed a motion for summary judgment, arguing that since Dr. Halbridge's opinion regarding the Nurses was barred, there was no admissible opinion that any alleged deviation attributed to her caused Hailey's injuries. Plaintiffs argued Johnson's opinion that the Nurse's actions increased the risk of harm to Hailey "satisfie[d] the causation requirements." The trial court agreed with Faragasso that this was a medical diagnosis
Johnson was not qualified to make; and thus, without Dr. Halbridge's rebuttal report, plaintiffs could not establish causation as to Faragasso. The trial court granted summary judgment to Faragasso, and dismissed the complaint and any cross-claims with prejudice.
We turn first to the argument that the trial court erred in concluding Johnson was not qualified to render the requisite opinion regarding causation.
"Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion."
A plaintiff in a medical malpractice action "must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury."
Usually, a witness presented as an expert "must be a licensed member of the profession whose standards he professes to know."
It is undisputed that the causation issue in this case requires sufficient knowledge, training and experience to determine the cause of a complex neurological injury in the context of labor and delivery. Plaintiffs rely on the Advanced Practice Nurse Certification Act (APNCA),
Plaintiffs argue legislative amendments clarify that the scope of an advanced practice nurse's permitted practices exceeds that of a registered nurse and encompasses the diagnosis and management of a patient's condition. Notably, however, the statute does not provide any clear authority that an advanced practice nurse may diagnose the neurological injury at issue here or, more important, how it was caused. We note further that the autonomy of an advanced practice nurse is limited.
Given the complexity of the medical causation in this case and the limits upon Johnson's scope of expertise, we cannot conclude the trial court abused its discretion in concluding she was not qualified to render the requisite opinion on causation.
There was no
Plainly, the trial judge had the authority to conduct an in limine hearing regarding Johnson's qualifications to render an opinion on causation.
Plaintiffs next contend the trial court abused its discretion by barring Dr. Halbridge's second expert report based on its finding that the report expressed "entirely new opinion[s]" rather than an appropriate rebuttal report. They argue the report was sufficiently related to Dr. Halbridge's first report because his initial opinions "applied to both Dr. Kopelove and [the Nurses]" and the alleged breaches by the Nurses arose from the same set of facts as for Dr. Kopelove. Plaintiffs also argue the additional opinions expressed by Dr. Halbridge constituted "proper rebuttal evidence . . . with respect to the causation element" because he "respond[ed] to the opinions set forth in the defense reports."
The limited purpose of rebuttal evidence is to rebut evidence presented for the first time in the opposing party's case, and should not be cumulative or repetitive.
We discern no abuse of discretion in the trial court's decision to bar the opinion in Dr. Halbridge's supplemental report that the Nurses deviated from a standard of care that proximately caused the injury here. These opinions cannot remotely be considered an amplification of the opinion he expressed in his initial report, before summary judgment was granted to the Nurses, when he unequivocally opined that Dr. Kopelove's deviation was the proximate cause for the injury suffered. Rather than a genuine rebuttal report, this report represented a transparent effort to take a second bite at the apple after expert reports had been exchanged and summary judgment had been granted to the Nurses based on the very deficiency in expert opinion that Dr. Halbridge's second report was designed to cure.
Plaintiffs urge that they should be spared the ultimate sanction of dismissal with prejudice because lesser sanctions, such as an extension of discovery or the assessment of counsel fees and costs, could suffice to serve the interests of justice.
The expert report plaintiffs seek to rely upon was not produced until October 20, 2014, approximately three weeks before the fourth listed trial date, after the October 10, 2014 discovery end date and after summary judgment had been granted to the Nurse defendants. No argument has been made that the opinion in question could not have been obtained and presented during the normal course of discovery. There are, then, no extraordinary circumstances to justify the late alteration in expert theory that was adopted to rescue plaintiffs' claims against the Nurses.
Moreover, even if Dr. Halbridge's report were accepted in full, it fails to establish a critical point necessary for the imposition of liability upon the Nurses. It is undisputed that Dr. Kopelove was the attending physician and that the Nurses followed her orders throughout labor. Dr. Halbridge opined that it was Dr. Kopelove's five-hour delay in ordering a C-section that was the proximate cause of Hailey's injuries. Nowhere in his supplemental report does Dr. Halbridge state the Nurses had grounds to attempt to override Dr. Kopelove's orders, a duty to do so and deviated from that duty. Absent that, his supplemental report fails to provide the requisite opinion regarding causation to support plaintiffs' claims against the Nurses. Affirmed.