Opinion
DOCKET NO. A-1973-12T3
03-17-2014
RONALD BALDUCCI, Plaintiff-Appellant, v. KENNEDY SURGICAL CENTER, Defendant-Respondent.
Keith J. Gentes argued the cause for appellant (Liebling Malamut, LLC, attorneys; Mr. Gentes, on the briefs). Stacy L. Moore, Jr., argued the cause for respondent (Parker McCay, P.A., attorneys; Frank F. Calo, III, of counsel; Mr. Moore, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-245-10.
Keith J. Gentes argued the cause for appellant (Liebling Malamut, LLC, attorneys; Mr. Gentes, on the briefs).
Stacy L. Moore, Jr., argued the cause for respondent (Parker McCay, P.A., attorneys; Frank F. Calo, III, of counsel; Mr. Moore, on the brief). PER CURIAM
Plaintiff Ronald Balducci appeals from the entry of summary judgment dismissing his complaint to recover for injuries he suffered while a patient at defendant Kennedy Surgical Center. We reverse.
Plaintiff underwent an epidural injection under general anesthesia at defendant surgical center. The parties agree that plaintiff was leaving the surgical suite in a wheelchair under the control of defendant's staff, when his foot became caught under one of the wheels. Although plaintiff has no recollection of the incident, he contends that he was told by a nurse and an X-ray technician who examined his foot at defendant's facility, that he was thrown from the chair and landed on his side.
Defendant contends that he thereafter felt as if he had broken ribs and experienced back pain and difficulty breathing. He sought treatment several days later and eventually underwent decompression surgery to alleviate his symptoms.
The issue on summary judgment was whether plaintiff's surgeon at his de bene esse deposition provided the necessary causal link between the fall and plaintiff's injury. The judge focused on one passage in the surgeon's testimony in which he opined that
Defendant also contended that the surgeon's testimony should be barred because plaintiff did not identify him until after the close of discovery, and the surgeon never provided a narrative report. At oral argument before us, defendant's counsel acknowledged he had not complained about the late notice prior to placing an objection on the record at the doctor's de bene esse deposition, and that plaintiff had provided him with the doctor's treatment notes. The judge did not base his decision on these "derelictions" and neither would justify dismissal of the complaint. See Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 313-14 (1995) (allowing treating physicians to testify to cause of plaintiff's disease or injury).
it's possible that [defendant] pinched that area [of his spinal cord] because it happened immediately when he fell, the only thing I could surmise is that, he twisted or bent himself in such a way that he irritated that nerve and the nerve irritation never calmed down and it continued to be a source of pain for him.The judge concluded on the basis of this passage that the surgeon had opined only that it was possible that the wheelchair incident caused plaintiff's injury, not that it was probable. Specifically, the judge found the surgeon
expressed [his opinion as to causation] as no more than a possibility, as opposed to probability, and that is not the standard by which we would allow that testimony.
As a result of that, that particular reference, which is the reference that everybody cites to, as what it is the doctor gives to support the causation, would have to be stricken.
And when I asked, is there anybody else that you have to testify to the causative link, the answer's no. And because of that . . . there's not going to be any testimony at trial that provides a caus[a]tive link between the . . . event and the injury.
Neither counsel alerted the judge to another passage in the surgeon's testimony, on which plaintiff now relies. In response to a question of whether plaintiff's nerve injury and symptoms "made sense" in light of what he had been told about plaintiff's fall from the wheelchair, the surgeon testified as follows:
Yes. I think that this injury is a bizarre injury, in that, it's not very common. And I think that the injury and the diagnosis, was a diagnosis of exclusion. When someone twists and falls or bumps up against something, and develops pain, and directly in that area, you know, you look for a fracture and you look for a contusion, a muscle injury, bone injury and none of that became obvious, and they kind of looked further and it seemed that, however this occurred, he twisted in such a way that his pre-existing degenerative arthritis pinched the nerve and the nerve stayed irritated, regardless of the treatment, to the point where I had to go in and unroof it, to allow the nerve more room, and which diminished his symptoms by at least 50 percent. So it's a bizarre injury, but I believe, you know, to a reasonable degree of medical probability, that his injury was causally related to what I found and his treatment.
We review summary judgment using the same standard that governs the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Thus, we must determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Viewing that passage of the surgeon's testimony not brought to the trial judge's attention in the light most favorable to plaintiff, we conclude that a rational fact-finder could determine that plaintiff injured his back as a result of his fall from the wheelchair. Because plaintiff's surgeon provided the necessary causal link between the fall and plaintiff's injury, summary judgment was inappropriate.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION