Opinion
DOCKET NO. A-1257-14T3
05-09-2016
KATHY KANG, Plaintiff-Appellant, v. HEE K. YANG, Defendant-Respondent.
Adam Garcia argued the cause for appellant (Kimm Law Firm, attorneys; Michael S. Kimm and Sung H. Jang, on the brief). Robert E. Spitzer argued the cause for respondent (MacNeill, O'Neill & Riveles, LLC, attorneys; Jay Scott MacNeill, of counsel; Mr. Spitzer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Carroll, and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2546-14. Adam Garcia argued the cause for appellant (Kimm Law Firm, attorneys; Michael S. Kimm and Sung H. Jang, on the brief). Robert E. Spitzer argued the cause for respondent (MacNeill, O'Neill & Riveles, LLC, attorneys; Jay Scott MacNeill, of counsel; Mr. Spitzer, on the brief). PER CURIAM
Plaintiff Kathy Kang appeals from the October 10, 2014 order of the Law Division dismissing her medical malpractice complaint against defendant Hee K. Yang, M.D., for failure to comply with the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29. Because we agree with the motion judge that the common knowledge and waiver exceptions to the AMS do not apply, and plaintiff's expert does not specialize in defendant's field of expertise as a surgeon, we affirm.
Plaintiff filed a complaint against defendant on March 13, 2014, alleging that defendant provided substandard care in treating plaintiff for breast cancer, including a partial mastectomy defendant performed on February 8, 2012. Specifically, plaintiff alleged that defendant: was not a cancer specialist and therefore should not have provided plaintiff with cancer-related treatment advice; failed to prescribe an MRI to properly diagnose plaintiff's medical condition; did not obtain plaintiff's informed consent; and failed to properly perform the lumpectomy.
Defendant filed an answer on April 23, 2014, which included a demand that plaintiff file an affidavit of merit (AOM). The answer also included a "Statement of Medical Specialty" advising that "Defendant [] is a licensed physician practicing medicine in the specialty of General Surgery. The care and treatment rendered to [p]laintiff by [defendant] was within that specialty."
The court conducted a Ferriera conference on June 20, 2014. The judge thereafter issued an amended order on June 26, extending plaintiff's time to file an AOM until 120 days after the filing of defendant's answer.
On August 14, 2014, plaintiff filed an AOM authored by Mark Levin, M.D. In the AOM, Levin certified that he is a licensed practicing physician specializing in oncology and hematology and board certified in internal medicine and oncology. Levin averred that he reviewed plaintiff's medical records and concluded that defendant "deviated from the standard of care of informed consent commensurate in the field of general medicine and general surgery." By letter dated August 22, defense counsel objected to the sufficiency of the AOM because Levin specialized in a different field of medicine than defendant.
On August 26, defendant moved to dismiss plaintiff's complaint due to plaintiff's failure to file a sufficient AOM within the outer 120-day limit allowed by N.J.S.A. 2A:53A-27. Plaintiff opposed the motion, and filed a cross-motion seeking to declare the Levin AOM satisfactory. Alternatively, plaintiff sought a finding that the "doctrine common knowledge" applied and no AOM was necessary, and also a waiver of the same specialty requirements pursuant to N.J.S.A. 2A:53A-41c and Ryan v. Renny, 203 N.J. 37 (2010).
After hearing oral argument, the motion judge entered companion orders on October 10, 2014, dismissing plaintiff's complaint with prejudice for failure to comply with the AMS, and denying the relief sought in plaintiff's cross-motion. Relying on Nicholas v. Mynster, 213 N.J. 463, 480 (2013), the judge explained that dismissal was warranted because plaintiff failed to provide an AOM from a medical expert practicing in the same specialty as defendant. The judge rejected plaintiff's contention that the malpractice action involved common knowledge. The judge also found there was "no showing that a good faith effort" was made to obtain an AOM from a doctor specializing in general surgery.
On appeal, plaintiff renews her argument that a doctor's failure to obtain informed consent falls within the common-knowledge exception to the AMS. Alternatively, she contends the Levin AOM was sufficient, and that the court erred in not waiving the same specialty requirement.
The AMS "imposes a special requirement upon plaintiffs bringing lawsuits claiming malpractice or negligence by certain enumerated professionals." Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 2010). N.J.S.A. 2A:53A-27 specifically provides:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
The New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act), N.J.S.A. 2A:53A-37 to -42, enacted in 2004, modified the AMS. Ryan, supra, 203 N.J. at 51. As a result, in any medical malpractice action, a person shall not give expert opinion or execute an affidavit pursuant to the AMS unless he or she meets certain criteria. Id. at 52-53 (citing N.J.S.A. 2A:53A-41).
[T]he statute separates the credentials a challenging expert must have (1) if the defendant physician practices in a specialty but is not board certified and (2) if the defendant is board certified in the specialty. When a physician is a specialist and the basis of the malpractice action "involves" the physician's specialty, the
challenging expert must practice in the same specialty. A medical expert must be a specialist in the same field in which the defendant physician specializes . . . .
[Nicholas, supra, 213 N.J. at 481-82 (citations omitted).]
Initially, we consider plaintiff's argument that this was a "common knowledge" case and required no expert testimony. It is true that "[a]n [AOM] is not required in a case where the 'common knowledge' doctrine applies and obviates the need for expert testimony to establish a deviation from the professional's standard of care." Bender v. Walgreen Eastern Co., 399 N.J. Super. 584, 590 (App. Div. 2008) (citing Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 390 (2001)). "The 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 the specialized knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).
The Supreme Court has cautioned, however, that the common knowledge exception must be construed "narrowly in order to avoid non-compliance with the statute." Hubbard, supra, 168 N.J. at 397. Accordingly, the doctrine has been applied only
in circumstances involving obvious errors: a dentist's extraction of the wrong tooth, [Id.] at 396; the erroneous hookup of equipment that resulted in the pumping of gas, rather than the fluid that ought to have been used, into the patient's uterus, Chin, supra, 160 N.J. at 460, 471; and the use of caustic solution, rather than the soothing medication intended, to treat a patient's nose after surgery, Becker v. Eisenstodt, 60 N.J. Super. 240, 242-46 (App. Div. 1960).
[Bender, supra, 399 N.J. Super. at 590 (holding common knowledge exception applies to pharmacist filling prescription with a drug other than the one prescribed).]
Plaintiff asserts that her case falls within these parameters. We disagree. At issue is whether defendant properly treated plaintiff's breast cancer. All of the allegations in plaintiff's complaint relate to the patient care and medical treatment rendered by defendant, and require a finding of deviation from the acceptable standards of care. The complexity of plaintiff's condition and the surgery performed by defendant is reflected in the following passage from the report of Brian Kim, M.D., whom plaintiff consulted on August 6, 2012. Dr. Kim stated:
[Plaintiff] was seen [] in consultation by [defendant]. She desired to have breast conservation therapy and thus, a partial mastectomy under wire localization and a sentinel lymph node dissection were performed on February 8, 2012. The surgical pathologic specimen now revealed an invasive ductal carcinoma measuring 1 cm. in size,
with associated DCIS, nuclear grade 3, without identified lymphovascular or perineural invasion; and one sentinel lymph node with isolated tumor cells identified only by immunohistochemical staining (a single cluster of four cells). Receptor analysis was ER 2%, PR negative, KI-67 50%, and HER2 amplified by FISH. The margins of resection were less than 0.1 mm and less than 0.5 mm from two areas of DCIS and 1 mm for the invasive component. When seen postoperatively by [defendant], it was, therefore, recommended that she go on to have a mastectomy performed.
We do not view the informed consent component of plaintiff's malpractice claim any differently.
[T]o sustain a claim based on lack of informed consent, the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken. The information a doctor must disclose depends on what a reasonably prudent patient would deem significant in determining whether to proceed with the proposed procedure.
A plaintiff seeking to recover under a theory of lack of informed consent also must prove causation, thereby requiring a plaintiff to prove that a reasonably prudent patient in the plaintiff's position would have declined to undergo the treatment if informed of the risks that the defendant failed to disclose. If the plaintiff would have consented to the proposed treatment even with full disclosure, the burden of proving causation is not met. Accordingly,
[t]o establish a prima facie case for medical negligence premised on a theory of liability
for lack of informed consent, a plaintiff must show "(1) the physician failed to comply with the [reasonably-prudent-patient] standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of the plaintiff's injuries."
[Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 548-49 (2002) (second and third alteration in original) (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 465 (App. Div. 1995)) (citations omitted).]
Given the complexity of proving a medical malpractice case based on lack of informed consent, combined with the complex nature of plaintiff's surgery, a juror's common knowledge as a lay person would certainly not be sufficient "to determine [] defendant's negligence without the benefit of the specialized knowledge of experts." Hubbard, supra, 168 N.J. at 394. "The case law is clear. A plaintiff alleging lack of informed consent has the burden of producing expert testimony. . . ." Tyndall v. Zaboski, 306 N.J. Super. 423, 426 (1997) certif. denied, 153 N.J. 404 (1998). See also, Chamberlain v. Giampapa, 210 F. 3d 154, 161-62 (3d Cir. 2000).
Next, we reject plaintiff's contention that the Levin AOM sufficed to satisfy the AMS. As noted, in medical malpractice cases, N.J.S.A. 2A:53A-41 restricts the qualifications that a physician must have to execute an AOM on medical issues pertinent to a specialty field. Nicholas, supra, 213 N.J. at 479. Here, the facts establish that defendant is a specialist in general surgery and plaintiff does not contend otherwise. In contrast, Levin specializes in oncology and hematology.
Moreover, neither party disputes that physicians who practice in these three specialty areas may all treat cancer patients such as plaintiff. Even though these specialties may in certain respects overlap, there is no statutory exception that permits a physician specializing in oncology or hematology to author an AOM or serve as an expert witness against a physician specializing in general surgery, even if each expert was credentialed by a hospital to treat patients with the same medical condition. Id. at 484. Thus, under N.J.S.A. 2A:53A-41a, Levin was not qualified to execute the AOM because he does not share defendant's field of expertise as a surgeon.
Lastly, we reject plaintiff's argument that the trial court erred in denying her request for waiver relief 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).]
In effect, "the waiver provision opens the door for a non-equivalently-qualified expert in the same field as defendant to testify, and permits an expert in one field to opine on the performance of an expert in another related field." Ryan, supra, 203 N.J. at 53. The waiver provision provides "the judge with broad discretion to accept an expert with 'sufficient training, experience and knowledge to provide the testimony[,]' but only if plaintiff made a good faith effort to satisfy the statute." Id. at 56 (alteration in original) (quoting N.J.S.A. 2A:53A-41c).
To invoke this statutory waiver,
the moving party should make a legitimate attempt to obtain an equivalently-qualified expert and should not be relieved of that burden by desultory undertakings or half-hearted endeavors. It follows that, to prove a good faith effort, a moving party
must show what steps he undertook to obtain an expert qualified according to N.J.S.A. 2A:53A-41(a) or (b). By way of example, that would include: the number of experts in the field; the number of experts the moving party contacted; whether and where he expanded his search geographically when his efforts were stymied; the persons or organizations to whom he resorted for help in obtaining an appropriate expert; and any case-specific road-blocks . . . he encountered.
[Id. at 55.]
Here, plaintiff failed to detail with any degree of specificity the efforts she made to obtain an AOM from a physician specializing in general surgery. Accordingly, plaintiff's waiver application was properly denied.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (requiring trial judges to conduct a case management conference in all malpractice cases within ninety days of the filing of an answer to address, among other discovery issues, deficiencies in the filing of an AOM).