Lomando v. United States of America

MOTION for Summary Judgment

D.N.J.June 8, 2010

RONAN, TUZZIO & GIANNONE 4000 ROUTE 66 One Hovchild Plaza Tinton Falls, NJ 07753 (732) 922-3300 Attorneys for Defendant, RIVERVIEW MEDICAL CENTER Our File No. 155.8224 MANWIHPB Henry P. Butehorn - (7147 HPB) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY INES LOMANDO, as Administratrix Ad CIVIL CASE NO.: 3:08-CV-04177-FLW-TJB Prosequendum of the Estate of LAURA LOMANDO, deceased, Plaintiff(s) NOTICE OF MOTION FOR SUMMARY V5. JUDGMENT THE UNITED STATES OF AMERICA, STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE, M.D., PARKER FAMILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, MARY MOE #1 through #5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff)m, jointly, severally and in the alternative, Defendant(s) TO: Anthony A. Lenza, Jr., Esq. Amabile & Erman, P.C. 1000 South Avenue Staten Island, NY 10314-3407 Martin J. McGreevy, L.L.C. Martin J. McGreevy, Esq. P.O. Box820 Oakhurst, NJ 07755 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 1 of 51 PageID: 100 Sean Buckley, Esq. Buckley & Theroux, LLC 932 State Road Princeton, NJ 08540 James H. Moody, Esq. Orlovsky, Moody, Schaaff & Gabrysiak Monmouth Park Corporate Center 187 Highway 36 West Long Branch, NJ 07764 Kenneth M. Brown, Esq. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP 33 Washington Street Newark, NJ 07102 Karen Shelton, Esq. United States Attorney 402 East State Street, Rm 430 Trenton, NJ 08608 COUNSEL: PLEASE TAKE NOTICE that on Tuesday, July 6, 2010, at 9:00 a.m. or as soon thereafter as counsel may be heard, the undersigned attorneys for defendant, Riverview Medical Center, shall move before the United States District Court for the District of New Jersey for an Order for Summary Judgment. In support of the within application, the undersigned shall rely upon the attached Certification of Counsel, Exhibits and Brief. Oral argument is waived, unless timely opposition is filed. In the event opposition is entered to this motion, defendants request that this matter be set down for oral argument. A proposed form of Order is annexed hereto in accordance with . 1:6-2. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 2 of 51 PageID: 101 CERTIFICATION We hereby certify that the original and two copies of the within Motion and supporting papers were timely filed with the Motions Clerk of the United States District Court, District of New Jersey, Clarkson S. Fisher Federal Bldg. & U.S. Courthouse, 402 E. State Street, Room 6052, Trenton, NJ 08608 We further certify that a copy of the within Motion and supporting papers were served upon all counsel of record on the date indicated below. RONAN, TUZZIO & GIANNONE ATTORNEYS FOR DEFENDANT, RIVERVIEW MEDICAL CENTER BY _____________________________ DATED June ,2010 HENRY P BUTEHORN Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 3 of 51 PageID: 102 RONAN, TUZZIO & GIANNONE 4000 ROUTE 66 One Hovchild Plaza Tinton Falls, NJ 07753 (732) 922-3300 Attorneys for Defendant, RIVERVIEW MEDICAL CENTER Our File No. 155.8224 MANW/HPB Henry P. Butehorn - (7147 HPB) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY INES LOMANDO, as Administratrix Ad CIVIL CASE NO.: 3:08-CV-04177-FLW-TJB Prosequendum of the Estate of LAURA LOMANDO, deceased, Plaintiff(s) CERTIFICATION OF COUNSEL vs. THE UNITED STATES OF AMERICA, STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE, M.D., PARKER FAMILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, MARY MOE #1 through #5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff)m, jointly, severally and in the alternative, Defendant(s) I, TIL J. DALLAVALLE, Esq., hereby certify as follows: 1. I am Attorney at Law of the State of New Jersey and an Associate of the firm of Ronan Tuzzio & Giannone, attorneys for defendant, RIVERVIEW MEDICAL CENTER. In this capacity, I am fully familiar with the facts set forth herein. 2. I make this Certification in support of defendant, RIVERVIEW MEDICAL CENTER’S Motion for Summary Judgment. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 4 of 51 PageID: 103 3. This is a medical malpractice case arising out of the treatment provided to Laura Lomando during her three (3) admissions to Riverview Medical Center beginning on September 3, 2006. Plaintiffs allege defendants, including Riverview Medical Center, failed to diagnose and timely treat non-Hodgkins lymphoma which caused injury and the subsequent death of plaintiff, Laura Lomando. (See Complaint attached as Exhibit A). 4. Pursuant to the April 13, 2010 Case Management Order signed by Magistrate Judge Lois Goodman, plaintiff was required to serve all expert reports on or before May 31, 2010. (See Order attached as Exhibit B). 5. Plaintiff has served the Report of Mark A. Fialk, M.D., dated May 10, 2010. (See report attached as Exhibit C). 6. This report does not offer any criticisms against defendant, RIVERVIEW MEDICAL CENTER. 7. To date, plaintiff has not served a qualified expert against defendant, RIVERVIEW MEDICAL CENTER. 8. No motion to extend discovery has been filed with the Court. 9. No request for additional time to serve expert reports has been made to any of the parties. 10. Consequently, Plaintiff cannot establish a prima fade case against defendant, RIVERVIEW MEDICAL CENTER. Accordingly, summary judgment is warranted as a matter of law. 11. Based on the foregoing, summary judgment should be granted as to defendant, RIVERVIEW MEDICAL CENTER. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 5 of 51 PageID: 104 I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. RONAN, TUZZIO & GIANNONE ATTORNEYS FOR DEFENDANT, RIVERVIEW MEDICAL CENTER /7 / /- / BY / z-- DATED: June ,2010 TILJ. DALLAVALLE Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 6 of 51 PageID: 105 INES LOMANDO, as Administratrix Ad CIVIL CASE NO.: 3:08-CV-041 77-FLW-TJB Prosequendum of the Estate of LAURA I LOMANDO, deceased, Plaintiff(s) vs. THE UNITED STATES OF AMERICA, STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE, M.D., PARKER FAMILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, MARY MOE #1 through #5 (fictitious names representing unknown I physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff)m, jointly, severally and in the alternative, I Defendant(s) BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT IN FAVOR OF DEFENDANT, RIVERVIEW MEDICAL CENTER RONAN, TUZZIO & GIANNONE 4000 ROUTE 66 One Hovchild Plaza Tinton Falls, NJ 07753 (732)922-3300 Attorneys for Defendants, RIVERVIEW MEDICAL CENTER, Of Counsel: Mary Ann Nobile Wilderotter, Esq. On the Brief: Henry P. Butehorn, Esq. Til J. Dallavalle, Esq. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 7 of 51 PageID: 106 STATEMENT OF MATERIAL FACTS 1. This is a medical malpractice case arising out of the treatment provided to Laura Lomando in 2006, including her three (3) admissions to Riverview Medical Center beginning on September 3, 2006. Plaintiffs allege defendants, including Riverview Medical Center, failed to diagnose and timely treat non-Hodgkins lymphoma which caused injury and the subsequent death of plaintiff, Laura Lomando. (See Complaint attached as Exhibit A). 2. By way of background, plaintiff, Laura Lomando, came under the care of Zaven Ayanian, M.D. on August 23, 2006 for evaluation of left sided neck swelling/enlargement. (See Report of Mark A. Fialk, M.D., dated May 10, 2010, attached as Exhibit C). On August 26, 2006, Ms. Lomando presented to Diana Helmer, M.D. for evaluation and treatment of similar complaints. (Id.). 3. The differential diagnosis at that time was submental lymph adonitis versus submental salivary duct obstruction and plaintiff was given a prescription for amoxycillin. (Id.). 4. On September 3, 2006 plaintiff presented to Riverview Medical Center asserting continued complaints in the foregoing regard. (Id.). 5. She indicated her history of swollen glands and that she had seen an oral surgeon (as well as her primary physician) over that time period. (Id.). 6. The physician’s examination indicated swollen glands and recounted her history of treatment for same. (See Report of Mark A. Fialk, M.D., dated May 10, 2010, attached as Exhibit C). 7. The record goes on to indicate she was diagnosed with acute left parotiditis, given Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 8 of 51 PageID: 107 a prescription for Motrin, and was referred to follow up with an ENT. (Id.) 8. Two (2) days later plaintiff returned to the Hospital with new complaints of shortness of breath and chest pain; there was also an increase in symptoms” since her last visit. (See Report of Mark A. Fialk, M.D., dated May 10,2010, attached as Exhibit C). 9. The examination on this date revealed chest tightness, but same was associated with the institution of medication. (Id.). 10. As such, she was diagnosed with a medication reaction, told to stop the medication, and referred to her primary physician. (Id.). 11. Over the next week plaintiff followed with her primary doctor at the Parker Family Health Center. (Id.) 12. Plaintiff returned to Riverview on September 15, 2006 with a one (1) week history of malaise, body aches, and headache. (Id.). 13. An EKG on this date was normal, blood cultures were negative, and plaintiff was discharged. (See Report of Mark A. Fialk, M.D., dated May 10, 2010, attached as Exhibit C). 14. The plaintiff was eventually admitted to Riverview through the emergency department on September 20, 2006. (Id.). 15. She presented with a complaint of deterioration from her visit five (5) days prior; she was admitted to the ICU and underwent various tests and consultations. (Id.). A CT of the neck identified multiple areas of adenopathy and the primary diagnosis to be considered was noted to be lymphoma. (Id.). 16. The day after admission the plaintiff coded twice, and after approximately two (2) Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 9 of 51 PageID: 108 hours of attempted resuscitation she was pronounced by the physicians. (See Report of Mark A. Fialk, M.D., dated May 10, 2010, attached as Exhibit C). The ultimate cause of death, as identified on the post mortem, was non Hodgkin’s lymphoma. (Id.). 17. Pursuant to the April 13, 2010 Case Management Order signed by Magistrate Judge Lois Goodman, plaintiff was required to serve all expert reports on or before May 31, 2010. (See Order attached as Exhibit B). 18. Plaintiff has served the Report of Mark A. Fialk, MD., dated May 10, 2010. (See report attached as Exhibit C). 19. This report does not offer any criticisms against defendant, RIVERVIEW MEDICAL CENTER. 20. To date, plaintiff has not served a qualified expert against defendant, RIVERVIEW MEDICAL CENTER. 21. No motion to extend discovery has been filed with the Court. 22. No request for additional time to serve expert reports has been made to any of the parties. 23. Pursuant to the April 13, 2010 Case Management Order signed by Magistrate Judge Lois Goodman, the time within which plaintiff may serve an expert report has expired. (See Order attached as Exhibit B). 24. Consequently, Plaintiff cannot establish a prima facie case against defendant, RIVERVIEW MEDICAL CENTER. Accordingly, summary judgment is warranted as a matter of law. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 10 of 51 PageID: 109 LEGAL ARGUMENT POINT I INSOFAR AS PLAINTIFF HAS FAILED TO PROVIDE THE REQUISITE EXPERT TESTIMONY AS TO DEFENDANT, SUMMARY JUDGMENT IS WARRANTED AS A MATTER OF LAW It is well-established in New Jersey that the general standard of care a medical provider is required to have and exercise in the diagnosis and treatment of a patient is that degree of care, skill, and knowledge that is ordinarily possessed by an average health care facility under similar circumstances. Walck v. John’s-Manville Products Corporation, 56 N.J. 533 (1970); German v. Matriss, 55 NLL 193 (1970); Jones v. Stess, 111 N.J. Super. 283 (App. Div. 1970). Plaintiffs in a medical malpractice case, as in all other cases, bear the burden of proof by the preponderance of the evidence that the defendant hospital was negligent. Evidence of mere mistake or error does not suffice. See Walck, suDra, 56 N.J. Super. at 562. Since medical malpractice actions involve sophisticated technical issues of medical fact and opinion transcending the common knowledge of even intelligent laity, plaintiffs must produce expert testimony establishing (1) the standard of care applicable to the defendant, (2) deviation from that standard of care, and (3) that the deviation proximately caused the alleged injury. Gardner v. Pawliw, 150 fj 359, 375 (1997). This general rule is summarized well in Toy v. Rickert, 53 N.J. Super. 27 (App. Div. 1958), where the Appellate Division stated, the .failure to use the requisite degree of professional skill demanded of the physician or surgeon must ordinarily be established by the expert testimony of those qualified by their own knowledge and experience in the same profession to know and state whether in given circumstances on any particular case that the physician or surgeon had failed to exercise that Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 11 of 51 PageID: 110 degree of knowledge and skill which usually pertains to other members of his profession. Id. at 32. The policy behind the requirement of expert testimony is well-settled. If the jury were required to decide matters which transcended its knowledge and experience, its decisions inevitably would be arbitrary. To burden hospitals and doctors with arbitrary decisions regarding their liability for malpractice would be grossly unfair. Medicine is an inexact science, and doctors and hospitals must be granted a reasonable range of judgment within which there is no liability. Justice Francis summarized this point in Schueler v. Strelinger, 43 N.J. 330 (1964), when he stated: The law recognizes that medicine is not an exact science.. .a physician must be allowed a wide range and a reasonable exercise of judgment. He is not guilty of malpractice so long as he employs such judgment, and that judgment does not represent departure from the requirements of accepted medical practice, not in failure to do something excepted medical practice obligates him to do, or in the doing of something, he should not do measured by the standard above stated.. .With rare exceptions, evidence of a deviation from accepted medical standards must be provided by confident and qualified physicians. Ordinarily a jury of laymen cannot be allowed to speculate as to whether the procedure followed by a treatment physician conforms to required professional standards. Schueler, suora, 43 NSL at 344-5 (citations omitted). Moreover, the New Jersey Supreme Court, in Germann, supra, further explained that a plaintiff who charges a deviation from such standard of skill or care must assume the burden of establishing facts showing not only the deviation but also a fact equally essential to recovery of damages, i.e., that the deviation was the reasonably probable cause of the injurious condition arising thereafter. Germann, suDra, 55 at 208. In the case at bar, Plaintiffs allege defendants, including Riverview Medical Center, failed to diagnose and timely treat non-Hodgkins Iymphoma which caused injury and the Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 12 of 51 PageID: 111 subsequent death of plaintiff, Laura Lomando. Plaintiff has served the Report of Mark A. Fialk, MD., dated May 10, 2010. (See report affached as Exhibit C). This report does not offer any criticisms against defendant, Riverview Medical Center. The time in which plaintiff was afforded to serve expert reports, pursuant to the Court’s April 13, 2010 case management order, expired on May 31, 2010. (See Exhibit B). Plaintiff failed to file a motion for additional time or request additional time from counsel to serve expert reports. Therefore, plaintiff cannot serve a report necessary to establish a claim against Riverview Medical Center. Plaintiff has failed to offer any expert testimony to establish at trial, (1) how the defendant, Riverview Medical Center, allegedly deviated from the applicable standards of care and (2) that the alleged malpractice was the proximate cause of the injuries allegedly sustained. Consequently, Plaintiff cannot establish a prima fade case against said defendant. It is therefore respectfully requested that defendant, Riverview Medical Center’s Motion for Summary Judgment be granted, dismissing Plaintiff’s Complaint and all cross-claims against said Defendant, with prejudice, as a matter of law. POINT II THIS MATTER IS RIPE FOR SUMMARY JUDGMENT Pursuant to ft 4:46, if there is no issue of material fact, the moving party is entitled to Summary Judgment as a matter of law. This procedure is designed to provide a prompt, businesslike, and inexpensive method of disposing of any cause, which a discriminating search of the merits and the pleadings, depositions and admissions on file, together with the affidavit submitted on the motion, clearly show not to present any genuine issue of material fact requiring disposition at trial. Judson v. Peopl&s Bank & Trust Co. of Westfield, Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 13 of 51 PageID: 112 17 N.J. 67, 74 (1954). The standards in determining whether a summary judgment motion should be granted was set forth by Justice Brennan in Judson: The standards of decision governing the grant or denial of a summary judgment emphasize that a part opposing a motion is not being denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with a discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one. Judson, supra, 17 N.J. at 74; see also, Maher v. New Jersey Transit R.O., 125 N.J. 455 (1991), Shanlevand Fisher, P.C. v. Sisselman, 215 N.J. Super. 200,211 (App. Div. 1987). Moreover, the New Jersey Supreme Court in Brill v. The Guardian Life Insurance Co. of America, 142 520 (1995) held: UnderR4:46-2, when deciding Summary Judgment Motions, trial courts are required to engage in the same type of evaluation analysis or sifting of evidential materials as required by R. 4:37-2(b) in light of the burden of persuasion that applies if the matter goes to trial. . . . Under this new standard, a determination whether there exists ‘genuine issue’ of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact- finder to resolve the alleged disputed issue in favor of the non-moving party. Id. at 540. The jI Court also noted that “a non-moving party cannot defeat a Motion for Summary Judgment merely by pointing to any fact in dispute.” at 529. (emphasis supplied). The Court in Brill asserted that “under our holding today, the essence of the inquiry in each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that only party must prevail as a matter of law.” Id., 142 N.J. at 536, quoting, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 252 (1986). Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 14 of 51 PageID: 113 Furthermore, for purposes of 4:46-2, an alleged disputed issue of fact should be considered insufficient to constitute a “genuine” issue of material fact, if there exists a “single, unavoidable resolution” of such issue of fact. j. at 540, quoting, Liberty Lobby, fric supra., 477 U.S. at 250 (1986). The BrNl Court concerned with the efficiency of the Courts, stated that “to send a case to trial knowing that a rationale jury can reach but one conclusion, is indeed ‘worthless’ and will ‘serve no useful purpose.” 142 N.J. at 541. The New Jersey Supreme Court also emphasized in the nll decision that “the thrust of today’s decision is to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves.” Id. Insofar as plaintiff has not produced the requisite expert testimony against defendant, RIVERVIEW MEDICAL CENTER, there exists no issue of material fact, and, therefore, summary judgment is warranted as a matter of law. CONCLUSION Based on the foregoing, the Court should grant the Motion in favor of defendant, RIVERVIEW MEDICAL CENTER, and dismiss the Complaint and all cross-claims as to said defendant, with prejudice. RONAN, TUZZIO & GIANNONE ATTORNEYS FOR DEFENDANT, RIVERVIEW MEDICAL CENTER BY: - DATED: June , 2010 HENRY P. BUTEHORN Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 15 of 51 PageID: 114 EXHIBIT A Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 16 of 51 PageID: 115 Lase 88 v 8417 L W I JL$ Dec ulnur 11 F led 0’ y/200$ [tije 1 of 8 ) P H8H Ant hony I\ . Lunz, Jr . , Esq. LaW Of I i nu u I Car 1 M Fr mali, Fsq 618 Nnwai k Avenue Fi I zahct h, NJ 07fl28 aienza@amahi] e-erman. corn (U08) 202 050 At I urnyS fur 8] dl ut If UNITED STATES 1)1 STRICT COURT fur the DiSTRICT CE NEW JERSEY -- x TNES LOMANDO, s Administ rat rix Ad Prosequendum ci the Estate of CIVIL NO. LAURA LOMANDO, deceased, Plainti if, -against- THE UNITED STATES OF AMERICA. Defendant. x COMPLAINT Plaintiff, INES LOMANDO, as Administratrix Ad Prosequendum of the Estate of LAURA LOMANDO, deceased, residing at 366 Daniel Drive, Town of Ocean, City of Asbury Park, County of Monmouth, and State of New Jersey, complaining of the defendant says: FIRST COUNT 1. This action arises under the Federal Tort Claims Act, 28 U.S.C. 267l et seq., and this Court has jurisdiction under the provisions of 28 U.S.C. l346(b). 2. At all times herein mentioned, ZAVEN AYANIAN, M.D., DIANA HELMER, M.D., and other physicians whose identities are not Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 17 of 51 PageID: 116 (asc I 08:v 041 fl{I W IJB Document 1 1 led C) 012008 Pa’jv’ 2 of 8 ) I ‘iii rent. 1 y known wei e vol tint nr tree eli ni r ea,j III) pt, ii P$S i’,n.il s prartieiruj medirine at the Parkor Family )Ioa)th Gentni in Red Hank, NI. 3. At all t mii’s heiein mentioned, ZAVEN AYANIAN, M.D., bIANA HELMFR, M.D., other physicians whcse Identities are not currently known are deemed federal employees for ptrposoa of the Federal Tort claims Art. 4. On August 23, 2006, plaintiff’s decedent, LAURA LOMANLX), came under the medical care of ZAVEN AYAN1AN, M.D. at the Parker Family Ileaith Center for the evaluation and treatment of left sided neck swell i.ng/enlarqement. 5. On August 28, 2006, plaintiff’s decedent, LAURA LOMMDO, came under the medical care of DIANA HELMER, M.D. at the Parker Family llealth Center for the evaluation and treatment of left sided neck swelling/enlargement. 6. On September 9, 2006, plaintiff’s decedent, LAURA LOMANDO, came under the medical care of a volunteer free ciinic health professional and physician whose identity is currently,jC unknown at the Parker Family Health Center for the evaluation and treatment of fatigue, left sided neck swelling/enlargement, and positive right axillary ne. 7. On September •ll) 2006, plaintiff’s decedent, LAURA LOMANDO, came under the medical care of a volunteer free clinic health professional and physician whose identity is currently pc ,0 unknown at the Parker Family Health Center for the evaluation and 2 Case 3:08-cv- 4177-FLW -LHG Document 22 Filed 06/08/10 Page 18 of 51 PageID: 117 w t- ’ cc 0 % z ‘. 0 0 z 0 9 % a I-’- ‘ - ft a I- ’ E 0 F- ’ • CD F’ - t ft I- , f t F’ - CD a a CD , a • a H CD H Is .) 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Di it C)) CD Di a H H CD C) it Di CD a H 0 H Di it (C) C- ) 0 it 9) b it it H CD Co CC ) Di it Cl) DY CD H CD H - CD Di CD a H- CD C) 0 H Co 0 H Di F t CD CD Case 3: 8-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 21 of 51 PageID: 120 OS :v 04177 1 W I J[3 t)O(Uliiefll 1 F led 0S )/2OO8 Page (3 of B h ri r ( i c, and t he i e was at t 0 e I 1 mc of t he eVen I 1 a nod I , 1 n 1 o i ce a rd of oct i n t 0 e St at c of New Jo r soy, a death stat ito known and d LIned ac N.3.S.A. 2A:31-l, ot. seq., and pt a i nI iii brings the I unit 0 count of t h s act i on pursuant to the provisions thereof for the benefit of the next of kin of plaintiff s de’ttloriI and wit Ii n two (2) calendar years of the date on which the cause ot action accrued. WIINRESORE, ihe plaintiff demands judgment against the United States of America as follows: 1. Award compensatory damages on the Eirst Count in an amount to be determined at trial; 2. Award compensatory damages on the Second Count in an amount to be determined at trial; 3. Award compensatory damages on the Third Count in an amount to be determined at trial; 4. Award costs of this action to the plaintiff; 5. Such other relief as the Court may deem proper. Dated: August 15, 2008 CARL M. ERMAN, ESQ. Attorney for Plaintiff ANTHONY A. LENZA, JR. (AL2680) ALENZA@AMABILE--ERMAN. COM 6 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 22 of 51 PageID: 121 Cise 08 cv 04 1 77-FLW TJB Document 1 Filed O’1/2OO8 Page 7 of 8 JURY DEMAND P1aint.ff hereby demands trial by jury. Pa toO : August ] , 2008 CARL N. HRMAN, ESQ. Attorney for Plaintiff ANTHONY A. LENZA, JR. (AL2680) ALENZA@AMABILE-ERMAN. CON CERTIFICATION PURSUANT TO CIV. RULE 11.2 The undersigned certifies that the within matters in controversy are related to a pending matter in Superior Court of the State of New Jersey with the following caption: x INES LONANDO, as Administratrix Ad Prosequendum of the Estate of SUPERIOR COURT OF NEW JERSEY LAURA LOMANDO, deceased, LAW DIVISIONMONNOUTH COUNTY DOCKET NO. MON-L-4802-07 Plainti ff, CIVIL ACTION -against- MEDICAL MALPRACTICE STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE M.D., PARKER FAMILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, NARY MOE #1 through #5, and XYZ CORPORATION #1 through #5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff) jointly, severally and in the alternative, Defendants. x Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 23 of 51 PageID: 122 US (V 51 177-F[W I ib DocLIlllf;iil F iHI U’U/2(H)H Riqe 8 of 8 Sd st at o (‘oilrt act i cn jolt ml ly iii odeS ZAV1iN AYAN.I.AN, M. I). md 1) LANA I{EIMER, M . P. as rlamed d I end nt s until I ho unders i qned was not i Ii ed t hat said phys i c am; w re (IeeIflOd Lode ra I emp] oyes under t ho L’edor a 1 Toy t Cl a uris Act Thorns ft or, sa i ci dnfnndant phys i ci ans 1j sc’sit nud I ()m I ho peiidjiiq Now 1 rsoy Cope i or Court act i oh so I hat the i nstdl,t act i on could he sommenced . It 1 s requested hat the Now Jersey Super i or Coin t act ion be transferred and consolidated into I he nstant action. Pat or]: August 1, 2008 CARL N. ERMAN, ESQ. Attorney for Plaintiff ANTHONY A. LENZA, JR. AI2680) ALENZA@AMAB1LE-ERMAN . CON 8 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 24 of 51 PageID: 123 ‘I i I w Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 25 of 51 PageID: 124 Case3:O8cv04177FLW Document 20 Red 01/12/10 Page 1 of 2 JAN-08-2010 12:52PM FROM- t-446 P 002/003 F-T88 UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY xINES LOMANDO, as Administratrix AdProsequendum of the Estate of CIVIL NO. 3:08-CV-04177-FLW-TJB LAURA LOMANDO, deceased, Plaintiff, -against- THE UNITED STATES OF AMERICA,STEPHANIE REYNOLDS, M.D., TREVORTALERT, M.D., DAVID HYPPOLITE,M.D., PARKER FAMILY HEALTH CENTER,RIVERVIEW MEDICAL CENTER, EMERGENCYPHYSICIAN ASSOCIATES NORTH JERSEY, PC, SCEDULIUG ORDER JO!{N DOE *1 through *5, MARY MOE #1 through*5, and XYZ CORPORATION #1 through#5 (fictitious names representingunknown physicians, nurses,technicians, medical groups, medicalfacilities and/or other medicalproviders who participated in themedical care of the plaintiff) jointly,severally and in the alternative, Defendants. xThis matter having come before the Court during a telephonicconference on January 8, 2010 with all parties being present, andthe Court having considered the positions of the parties, and goodcause having been shown, It is on this’ day of January 2010r ORDERED that; 1. Fact discovery is to be completed by March 31, 2010;2. plaintiff shall serve expert reports by May 31, 2010; 3. Defendants shall serve expert reports by July 30, 2010;4. Expert depositions shall be completed by November 1, 2010; Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 26 of 51 PageID: 125 Case Document 20 Filed 01112/10 Page 2 of 2 JAN-08-2010 1253PV FROM- 1-446 P003/003 F-T86 5. A te1ephon conference will take place on April 13, 2010 at 9:30AM to schedule a ttlerrtnt conference. ISTRAT JUDGE 2 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 27 of 51 PageID: 126 Case 3:08-cv-04177-FLW-LHG Document 21 Filed 04/14/10 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CHAMBERS OF CLARKSON S. FISHER U.S. COURTHOUSE LOIS H. GOODMAN 402 EAST STATE STREET UNITED STATES MAGISTRATE JUDGE ROOM 7050 TRENTON, NJ 08608 60S989-21 14 April 13, 2010 LETTER ORDER Re: LOMANDO v. UNITED STATES, et al. Civil Action No. 08-4177 (FLW) Dear Counsel: The Court will conduct a settlement conference on September 2, 2010 at 10 a.m. Parties with full authority to settle are to be present in person. Any failure in this regard may subject the party to an imposition of sanctions. Five days before the conference, each party is to submit an ex parte statement of five pages or less, setting forth the issues relevant to settlement and the party’s position as to settlement. No less than 20 days before the settlement conference, Plaintiff is to serve a settlement demand on Defendants. In addition, any party desiring to file a dispositive motion may do so by no later than June 11, 2010, such that the motion is returnable on July 6, 2010. IT IS SO ORDERED. LOIS H. GOODMAN United States Magistrate Judge Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 28 of 51 PageID: 127 ii i I C , Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 29 of 51 PageID: 128 P-588 Anthony A. Lenza, Jr.., Esq. Law Office of Carl N. Erman, Esq 618 Newark Avenue Elizabeth, NJ 07028 alenza@amabile-erman.. corn (908) 282-0505 Attorneys for Plaintiff UNITED STATES DISTRICT COURT for the DISTRICT OF NEW JERSEY x INES LOMANDO, as Administratrix Ad Prosequendum of the Estate of CIVIL NO.. 3:08-CV-04177-FLW-TJB LAUR1 LOMANDO, deceased, Plaintiff, -against- EXPERT WITNESS DISCLOSURE FOR MARK A. FIALK, M.D. THE UNITED STATES OF AI4ERICA, STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE, M.D., PARKER FANILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, MARY MOE #1 through #5, and XYZ CORPORATION #1 through #5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff) jointly, severally and in the alternative, Defendants. x TO: Martin J. McGreevy, LLC Attn: Teresa Gierla, Esq. 1 Industrial Way West West Ridge, Building A Eatontown, NJ 07724 Attorneys for Defendant(s) DAVID HYPPOLITE, M.D. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 30 of 51 PageID: 129 Ronan, Tuzzio & Giannone Attn: Henry Butehorn, Esq. 4000 Route 66 Tinton Falls, NJ 07753-7308 Attorneys for Defendant(s) RIVERVIEW MEDICAL CENTER United States Attorney Attn: Karen Shelton, Esq. 402 East State Street, Room 430 Trenton, NJ 08608 Attorneys for Defendant(s) THE UNITED STATES OF AMERICA Orlovsky, Moody, Schaaf & Gabrysiak Attn: James Moody, Esq. 187 Highway 36 West Long Branch, NJ 07764 Attorneys for Defendant(s) PARKER FAMILY HEALTH CENTER Buckley & Theroux, LLC Attn: Brian Burlew, Esq. 932 State Road Princeton, NJ 08540 Attorneys for Defendant(s) STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., and EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC PLEASE TAKE NOTICE that plaintiff hereby provides the following information pursuant to FRCP Rule 26(a) (2) (B): 1. Mark A. Fialk, M.D. has been retained as an expert in the fields of internal medicine, hematology and onoiogy. 2. A copy of Dr. Fialk’s expert report is attached hereto. 3. A copy of Dr. Fialk’s CV which includes publications is attached hereto. 2 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 31 of 51 PageID: 130 4. A copy of Dr. Fialk’s trial testimony history is attached hereto. 5. Dr. Fialk has charged $10,110 for review and preparation of his report. He charges $350/hour. Dated: May 20, 2010 CARL M. ERMAN, ESQ. Attorney for Plaintiff ANTHONY A. LENZA, JR. (AL2680) ALENZA@AMABILE-ERMAN COM 3 Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 32 of 51 PageID: 131 Mark Fialk, M.D, PC 259 Heathcote Road Scarsdale, New Yok 10583 3 May 10, 2010 Mr. Anthony A. Lenza Amabile & Erman 1000 South Avenue Staten Island, NY 10314-3407 RE: Lomando v. USA et.al. Dear Mr. Lenza, In the above matter, you have submitted to me the following materials and I am herebysummarizing the medical course and stating my opinions as to whether standards of care weremet in the treatment rendered to Laura Lomando. 1. Medical records ofRiverview Medical Center, 913/2006. 2. Medical records ofRiverview Medical Center, 9/5/2006 3. Medical records of Riverview Medical Center, 9/1512006 4. Medical records ofRiverview Medical Center, 9/20/2006. 5. Medical records, Emergency Medical Services, Middletown Township.6. Deposition testimony Dr. Ilaig Minassian. 7. Deposition testimony Mary Nicosia. 8. Deposition testimony Dr. Timothy Sullivan. 9. Deposition testimony Dr. Helmer. 10. Deposition testimony Dr. Zaben Ayanian. 11. Deposition testimony Dr. Trevor Talbert 12. Deposition testimony Physician’s Assistant, Mr. Biedenbach. 13. Deposition testimony Dr. Stephanie Reynolds. 14. Deposition testimony Dr. David Hyppolite. 15. Deposition testimony Ines Lomando. 16. Medical records of Riverview Medical Center, Outpatient Department.17. Dental records, Dr. Peterson. 18. Medical records Lineroft Oral and Maxillofacial Surgery. 19. Medical records of The Parker Family Health Center. 20. Autopsy report, Office of the Medical Examiner, County of Monmouth.21. CAT sc images of neck and chest 9/2O/200. Laura Lomando presented herself on July 24, 2006 to the Parker Family Health Center for acomplete physical examination. Other than depression, there were no complaints. Theexamination was normal and the diagnosis was exogenous obesity and depression. Priorlaboratory records indicated that on June 6, 2003, a complete blood count, chemical profile andTSH test were normal. On July 24,2006, Dr. Roger Thompson of the Family Practice ofMiddletown filled out a form and reported to the Parker Clinic that the patient had a history ofhypothyroidism and obesity and was on Levoxyl 0.05 mcg. On August 19, 2006, laboratory data Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 33 of 51 PageID: 132 Page 2. Laura Lomando from the Riverview Medical Center revealed a normal chemical profile, normal TSH, and normallipid profile. The free T4 was slightly low at 0.73. On August 23,2006, the patient was seen by Dr. Ayanian. The chief complaint was swollenglands x 1 day, left side. Her weight was 192 Ib, temperature of 98.2, pulse 68, respiratory rate18 and blood pressure 130/69. Dr. Ayanian wrote “awakened with painful and tender leftsubmental solitary lymphadenopathy. Denies awareness of any sores in oral cavity, but does sayshe noted some sensitivity in the left lower teeth (poorly localized)”. Physical examinationrevealed, ENT - unremarkable, mouth- unremarkable, including percussion of teeth and necknegative. The impression was 1) left submental lymphadenitis vs. submental salivary ductobstruction. The treatment was Amoxicillin 500 mg t.i.d., and lemon sour balls. On August 28, 2006, the patient re-presented to the Parker Family Health Clinic with a chiefcomplaint of “swollen gland left side neck”. The patient was seen by Dr. Helmer who wrote“seen last week for same problem, not better”. Dr. Helmer noted that there was no sore throat, nodental pain, although the patient had not been seen for 6-7 years. There was tender leftsubmandibular”? node”. ENT negative, otherwise no obvious dental abscess. No cervical(anterior or posterior) adenopathy. The impression was submental node, question etiology, couldbe salivary gland stone. The recommendation was push fluids, finish Amoxicillin. Dr. Helmerrecommended a return visit in two weeks and if not resolved, consider a dentaliNT evaluation.Additionally, the patient was recommended to return sooner ifworse. It was recommended thatthe patient return on September 11,2006. At the time of the August 28, 2006 visit, the weight was198, temperature 98.3, pulse 78, respiratory rate 18 and blood pressure of 104/67. In depositiontestimony, Dr. Helmer stated that the size of the lymph node was 0.5 to 1 cm or the size ofathumb nail. He additionally stated that at the current visit he felt that the patient was not betterand not worse. On August 30, 2006, the patient was seen by Dr. Peterson for a dental evaluation. It is noted thatthe patient has had swelling left side for about one week and has been on antibiotics for 7 days(medical doctor). Glands?, swollen wisdom teeth?, salivary duct ?, hurts now when she yawnsor eats; teeth hurt now as well. On scale of 1-10, the pain is 7. Panorex x-ray was taken and thepatient was given a copy to take to Dr. Fratelleone and also a prescription for Tylenol No.3. On August 31,2006, the patient was seen at the Lincroft Oral Maxillofacial Surgery Office. It was noted that there was a two week duration to the illness. There was no dental pain or stones.The impression was probable left sialadenitis/infection, possible tumor; secondary infection. OnAugust31, 2006, Dr. Peterson’s record, it is noted that there was a phone call from Dr. Fratelleone. It is documented that Dr. Fratelleone increased the patient’s antibiotic to Augmentin for 10 days, “he wants her to get a CT scan of this area, to try to rule out a possible tumor of thesubmandibular gland. He will follow up with her in the next few days to check progress”. Underneath the note, it is printed - Diagnosis “submandibular sialadenitis”. On September 3, 2006, the patient presented to the Riverview Medical Center Emergency Room, where she was seen by physician’s assistant, Biedenbach. The chief complaint was “swollen glands”, medications were Augmentin. The history stated that this was a 25-year-old female with a chief complaint of left lymph gland swelling x 2 weeks. The patient went to PMD and was given Amoxicillin and referred to dentist, who found no dental etiology. The patient was sent to Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 34 of 51 PageID: 133 Page3. Laura Lomando “OMF” and started on Augmentin three days ago, which helped a little. No fevers. It isadditionally stated, “mother brought her to the ER because of afraid it is a ‘tumor.’”Blood pressure was 116/78, temperature 98.4, pulse 100, respiratory rate 16. On physicalexamination, lymphadenopathy was noted. Physician’s assistant, Biedenbach, noted on hisexamination “positive swelling of lymph parotid, mild tender to palpation, no erythema, noecchymosis and the TMJ’s intact bilateral”. The diagnosis of physician’s assistant Biedenbachwas acute left parotitis. The patient was prescribed Motrin 600 rug t.i.d., p.r.n., #15 tablets. Thepatient was discharged home and was instructed to “follow up with ENT 2-3 days and lemondrops.” The patient was also instructed to continue antibiotics. During that visit, the nursedocumented “swollen gland x 1 4 weeks, saw oral surgeon, put on antibiotics, no better. Left sideofjaw with swelling and tenderness”. In deposition testimony, physician’s assistant Biedenbachnotes that the patient did not have any night sweats or fever and he also noted that he asked thepatient to follow up with an ENT specialist, but PA Biedenbach did not actually call an ENTconsult during the Emergency Room visit, although a referral form was given for Dr. PhilipPassalaqua, “ENT”, Additionally, in deposition testimony, physician’s assistant, Biedenbach,felt that the “swelling” was probably less than two finger widths, but he did not record thismeasurement. Dr. Roma was the supervising Emergency Room physician. On September 5, 2006, the patient re-presented to the Emergency Room at Riverview MedicalCenter with a chief complaint of“chest pain, tightness, shortness ofbreath and an increase insymptoms today”. On triage, it was noted that the patient was not in acute distress, anxious andpain increases with inspiration. The patient was seen by Dr. Reynolds, who noted a 25-year-oldfemale with a chief complaint of chest tightness since starting Augmentin one week ago forswollen submandibular gland. The patient seen in ED and given an appointment for ENT in oneweek. She also complained of nausea and diarrhea since starting Augmentin. In the ED, thepatient had chest pain with deep inspiration/palpitations, no shortness of breath. The bloodpressure was 114/77, temperature of 98.5, pulse 90, respiratory rate 16. On examination, therewas left submandibular swelling. Electrocardiogram was done and was read as normal sinusrhythm, normal ECG. The diagnosis was medication reaction, muscle strain, swollen salivarygland. The patient was given Toradol, which helped relieve the symptoms. In deposition testimony, Dr. Reynolds stated “it was my feeling that her symptoms were a collection of problems, alleviate the Augmentin, alleviate the anxiety, and that would alleviate an on-goingproblem of muscle strain”. The discharge diagnosis was also listed as chest wall pain. Thedischarge recommendations were “the patient was asked to follow up in two days”. Additionalnotes: “sour patch candy or lemon drops for swollen duct, stop Augmentin. Take 3-4 Ibuprofenevery 8 hours after a full meal. Return to ED if swollen becomes such that you cannot swallow”. The patient was next seen at the Parker Family Health Clinic on September 9, 2006 by Dr. SalLvan. 1ie chief complaint wa swollen left glands. The patient was compiining of beingfatigued. Dr. Sullivan noted that there was a large left submandibular lymph node. The ENT - ears, nose and throat were normal. Dr. Sullivan additionally noted a 1.2 cm lymph node left andright submandibular triangle and right axilla. He noted that the patient had failed Amoxicillinand Augmentin. The impression was: 1) viral, 2) rule out lyniphoma. A CBC, monospot test and T3, T4 were ordered. An aspiration biopsy on a p.r.n. basis was recommended and the patient was treated with Motrin. The patient was next seen by Dr. Hehner on September 11, 2006, at the Parker Family Health Clinic. The vital signs revealed a weight of 194, temperature of98.3, pulse of 100, respiratory Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 35 of 51 PageID: 134 Page 4 Laura Lornando rate 22, 13P 122/69. Dr. Helmer noted that the patient’s lesion increased in size since Saturday.The patient was exhausted and febrile. Dr. Helmer estimated the lesion to be 4 cm. Onexamination, there was palpable adenopathy at right and left submental areas. Also, a rightaxillary lymph node was palpable. Additionally, Dr. Helmer wrote, “question increased liveredge”. Dr. Helmer felt that the next step was biopsy and discussed this with Dr. Sullivan and Dr.Minassian, who is a pathologist at Riverview Medical Center. Apparently, Riverview MedicalCenter was to call Mary Nicosia to confirm an appointment for a biopsy to be done. On September 9, 2006, a complete blood count revealed an anemia with a hemoglobin of 11.2and a hematocrit of 33.0. The sedimentation rate was 67 and a monospot was negative. EBVtiters revealed a normal lgG level of 0.68. The 1gM titer was elevated at 3.56. It is to be noted nthe Parker Family Health Clinic records, there is a baseline CBC performed on June 6, 2003revealing a hemoglobin of 12.5 and a hematocrit of 35.0. On September 12, 2006, Riverview Medical Center did call to confirm that the biopsy had beenscheduled for September 25, 2006. On September 15, 2006, the patient’s mother called and spoke with Ms. Nicosia. The patient wasfebrile to 104 and 103 using different thermometers. She was lethargic with a stiffneck and couldnot walk well. It was advised that she be taken to the Emergency Room. On September 15, 2006, the patient was seen in the Emergency Room of Riverview MedicalCenter and complained ofa fever to 104 degrees with diaphoresis, general body aches andnausea. A history of Epstein-Barr was noted. The nurse did note a mass in the left lowermandible. The patient was seen by Dr. Talbert, who noted a chief complaint of fever andheadache. Dr. Talbert’s history stated that the patient was a 25-year-old with malaise, body acheand headache with a temperature of 103. The patient stated that she had a positive Epstein-Barron Saturday. On examination, Dr. Talbert noted left anterior adenopathy. The vital signs weretemperature of99.3, pulse 130, respirations 16 and blood pressure was 102159. On examinationthere was left anterior adenopathy. Laboratory evaluation revealed white count of 4.1,hemoglobin of 10.6, hematocrit 30.7, platelets of 129,000. The differential revealed 79 polys, 11lymphs and 90/s monocytes. The urine was positive for bilirubin. The monospot was positive.Two blood cultures were done and eventually failed to grow bacteria. Electrocardiogram revealedsinus tachycardia with a ventricular rate of 117. On the ECG report of September 15, 2006,performed at 2001:37, it is noted that when compared to the ECO of September 5,2006, theventricular rate increased by 40 beats per minute. The sodium was 129, potassium 3.5, chloride99 and C02 was 22 (normal 24-31). The discharge diagnosis was “infectious mononucleosis”.In deposition testimony, Dr. Talbert said “after the blood work returned and it was nositive formonospot, attributed the adenopathy to mononuelcosis, which is - adenopathy being common inmononucleosis”. The patient was treated in the Emergency Room with an intravenous bolus ofone liter of normal saline, followed by 200 cc per hour of normal saline. Reglan 10 mgintravenously was given one time and I gram of Tylenol was given orally. The blood pressure at19:15 was 102/59. At 17:40, a nursing note documents on physical exam “a mass to left lowerjaw.” At 19:15, another nursing note documents “swelling left parotid gland”. The nursing planof care did indicate that the patient was anxious. It is to be noted that an Incoming Patient Report Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 36 of 51 PageID: 135 PageS. Laura Lomando was filled out, the information being obtained from Mary at Parker Family Clinic, indicating thatthe nature of the complaint was Epstein-Barr, 103 temperature x 1 days, neck pain, lymph node,left submental biopsy, suspicious for meningitis. On September 16, Mary Nicosia called the patient’s mother and stated that the patient was seen inthe Emergency Room and that blood work was drawn. The patient’s mother stated ‘Dr. Talbertsaw her and said that biopsy was not necessary.” The fever in the ER was 103 and Reglan wasgiven to the patient. On September 18, 2006, Mary Nicosia again spoke with the patient’s mother, who stated that thepatient was not eating and had abdominal pain. On September 18,2006, Dr. Helmer spoke with the patient’s mother. He noted that the fever wasdown and the lymph nodes were smaller. There was stomach upset and an overall feeling offeeling better. He recommended that the patient be reevaluated on Thursday and that labs bechecked. If better, and labs consistent with acute EBV, hold off on biopsy, if not better and labsinconsistent proceed. On September 18, 2006, an extensive note was written by Mary Nicosia documenting that shecalled the patient’s mother to check the status of the patient. The patient was very sleepy with afever of 103. There were no focal symptoms. The patient was ambulating, but was weak with nomental status changes, no seizures, no aphasia, no hemiplegia. The symptoms ofEBV wereexplained. Tylenol for fever and hydration was advised. The patient’s mother was advised that ifher symptoms worsened then she should go to the Emergency Room, On September 20, 2006, the patient’s mother called to say that the patient could not get words outand was having difficulty moving. This was discussed with Dr. Helmer who advised that thepatient needed to be assessed. Two phone calls were made to the mother, there was no answerand messages were left on the answering machine. On September 20,2006, the Middletown Township Emergency Medical Services arrived at thepatient’s home. The medical emergency was “Epstein-Barr syndrome”. The patient was foundlying in her bed. The patient complained of a general feeling ofweakness and disorientation.The patient related that when her mom talks to her, she cannot remember what was said. Therewas twitch in her left hand a hiccup that lasts “a while”. The patient was noted to have problemsfocusing on a conversation. The patient’s extremities were cold. She appeared yellow ‘jaundiced”. Her mom stated that the illness started 5 weeks ago. The blood pressure was 90/60,respiratory rate 20, pulse was 145. The patient was transported to the Emergency Department ofRiverview Medical Center. ‘L.e patient was triagea at 14:5 5, the chief complaint was tachypnea,jaundice and weak. The temperature was 103.8, pulse 145, respiratory rate 30, temperature of 97,blood pressure 60/paip. The pulse oximetry was 97. The past medical history was listed asEpstein-Barr and left gland abscess. The patient was noticed to be jaundiced and tachypneic.Dr. Reynolds saw the patient and wrote “25 year-old-female seen a few times in the past monthfor left jaw swelling and seen on 9/15/06 for fever, today fever and jaundice. Blood work from9/15 positive monospot. The patient was seen by ENT for jaw swelling, due for biopsy on 9/25/06. The patient is unable to eat or drink and has a temperature of 99 to 101. The past historywas noted to Epstein-Barr. On examination, the patient was noted to be dehydrated, jaundiced, Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 37 of 51 PageID: 136 Page 6 Laura Lornando blood pressure 60/palp with a heart rate of 140 and a temperature of 103.8. Noadenopathy wasnoted on the examination. The diagnosis was mononucleosis, hypoglycemia, abscess ofjaw, andhepatitis. CT ofthe head and neck were ordered as well as a chest x-ray. One liter of normalsaline by IV bolus was ordered. A Foley was placed. One amp of D50 was given and D5 Y2normal saline at 150 cc per hour was started. In the Emergency Room, the sodium was 120, theC02 was less than 11 and the K was 7.2, thought to be hemolyzed. The patient was admitted tothe Intensive Care Unit after report was given at 1940 with a diagnosis of sepsis and maxillarymass. The admitting physician was Dr. David Hyppolite. Antibiotics were ordered at 17:20 and19:10 including Rocephin, Zithromax, Vancomycin and Gentamicin. The Zithromax wassubsequently discontinued and Timentin was added at 19:10; Rocephin had been given at 17:45in the Emergency Room.. Sodium bicarbonate was not administered in the Emergency Room.Initial laboratory testing at 15:41 in the Emergency Room documented a white count of 18.3,hemoglobin 11.5, hematocrit 33.1, with a platelet count of 207,000. There were 45 polys, 16bands, 34% lymphocytes, 5 monocytes and 3 nucleated red cells. The urinalysis was positive formoderate bilirubin. The blood glucose was 39, BUN 34, creatinine 1.3. Sodium was 120 with apotassium of 7.2 (thought to be hemolyzed), chloride of 86, C02 less than 11. The anion gap was33. The total protein was 4.6 (normal range 6.0-8.0). The total bilirubin was 10.0. The directbilirubin was 6.2. The alkaline phosphatase was 332, GUT 580, AST 864, ALT 413. Acute phasehepatitis testing for hepatitis A, B and C was negative. Blood cultures were drawn and ultimatelyfailed to grow microorganisms. A serum lipase was normal. On September 21,2006 at 8:20 theperipheral differential revealed 2% myelocytes, 1% metamyelocytes and 6 nucleated red cells.The hemoglobin fell to 5.2, hematocrit 15.8 and the platelet count fell to 44,000. On September21 at 0:5:00 a haptoglobin was less than 6 and the magnesium level was elevated at 3.5 (normalrange 1.3-2.5). On September 25, at 05:00 a CK MB fraction was elevated at 9.4, but a troponinlevel was normal. On September 21,2006, at 10:59, a serum LDH was 12,632. On September 21,2006 at 08:20 the BUN rose to 31 and the creatinine rose to 2.0. On September 2!, 2006 at08:20 the AST was 6,760 and alkaline phosphatase 190, bilirubin 5.9, ALT 1,964, albumin 1.1.The anion gap was 29. On September 21,2006 at 10:59 the uric acid was 15.4 (normal range 4.0-8.0). On September 20,2006 at 6:33 a portable chest x-ray with an AP view of the chest revealedthe heart to be top normal in size. An AP lordotic projection was obtained and the superiormediastinal region was not well-visualized. No acute abnormality was seen. On September 20,2006, at 6:04 p.m. at CT of the brain and neck done with and without intravenous contrast andrevealed no acute intracranial hemorrhage, mass effect or midline shift; the study was negative.The CT soft tissues of the neck revealed a very large mass-like area of infiltration involving theleft submandibular gland. The gland measured up to 4.5 cm in size. There was also fullnessinvolving the right submandibular gland which is mildly enlarged. There are areas of adenopathyor mass-like infiltration involving each parotid gland. On the left, this lies in the mid-gland andmeasures approximately 1.4 cm in size, on the right this lies in the inferior margin of the parotidand measurcs 1.6 cm. There is right carotid tnangular adenopathy measuring up to 2.2 cm insize. There is evidence of right axillary adenopathy and right paratracheal adenopathy in theupper chest. The impression was multiple areas or adenopathy and infiltration of thesubmandibular and parotid glands. The primary diagnosis would be lymphoma. A handwrittenpreliminary report of the CT scan of the brain/neck also revealed mediastinal adenopathy. Thepatient was transferred to the Intensive Care Unit. Antibiotics were ordered as noted above. Wfluids, D5 Y2 normal saline at 150 cc per hour was ordered at 17:20. On September 20,2006 at9:00 p.m. the W was changed to D5 V2 normal saline at ISO cc per hour. On September 21, at08:01, four units of packed red blood cells were ordered, type and cross matched, and to betransfused over four hours because of symptomatic anemia. At 08:53 an additional order was Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 38 of 51 PageID: 137 Page 7. Laura Lomando written to transfuse two units of washed packed red cells stat because of symptomatic anemia. OnSeptember21 at 5 a.an., the hospitalist was asked to evaluate the patient for respiratory distressand noted that “upon my arrival, the patient was in respiratory distress with respiratory rate 50,pulse oximetxy 90 on oxygen.” The patient appeared obtunded and was intubated by thehospitalist. On September 21 at 6:05 a.m. the patient was hypotensive and did not respond tofluid bolus and Levophed was started. An NG tube had been passed and bright red nasogastricdrainage was noted. Dr. Raymond Flis was asked to see the patient in consultation. OnSeptember 21, at 7:00 a,m. he notes that he was in the midst of his physical examination when thepatient’s mother arrived. While he was having a discussion with the patient’s mother, the patientbecame bradycardic and developed asystole and Code Blue was called. The patient was found tohave a wide complex with tall T waves. The morning blood work was recorded in the midst ofthe cardiac resuscitation and the serum potassium was 7.8. She had already been started on treatment for hyperkalemia with IV calcium chloride, sodium bicarbonate and regular insulin. The patient was successfully resuscitated, but developed asystole for a total of four times. Cardiac resuscitation was carried out intermittently over the next two hours until the patient developed asystole and was unresponsive to all treatment. During this time, she received multiple doses of IV calcium chloride. She also received 50% dextrose and regular insulin intravenously and was treated with epinepbrine, large amounts of sodium bicarbonate and Atropine for bradycardia. On September 20, the last orders were written at 9:30 p.m. Other thanIV fluids, no orders had been written for the treatment of hyperkalemia. The treatment of the hyperkalemia began at the asystolic event. The potassium 7.2 on September20 at 15:41 was nottreated. On September 20, 18:39, the potassium was repeated and was 5.5 (normal 3.5-5.3), on September 21, 2006 at 05:00 the potassium was 7.8 and September 21, at 08:20 the potassium was 7.4. On September 21, following intubation at 5:30 a.m. on 100% oxygen the pH was 6.99, pCO2 41, p02 41 with a bicarb of 9.5. During the admission, medical care was directed by Dr. Hyppolite. Consultations had been performed by Dr. Raymond Flis, Dr. Adrian Pristas. Dr. Essinger had been called for U) consultation to manage the antibiotics. Dr. Ahmad also wrote antibiotic orders. An order had been written to consult Dr. Langhinhous relative to the lymphadenopathy. In the discharge summary, Dr. Hyppolite gives as a first diagnosis “possible tumor lysis syndrome”. The third diagnosis is “left submandibular mass”. Additional diagnoses include - “dehydration, hyperkalemia, metabolic acidosis, multiple bilateral upper respiratory lymphadenopathy, acute liver failure secondary to blood loss, hypoglycemia, jaundice, cardiac arrest and mononucleosis with possible lymphoma”. A post-mortem examination was performed by Dr. Saleem on September 21, 2006 at 10 a.m. Examination of the neck showed multiple enlarged lymph nodes in the neck, both in the anterior ani posterior neck regions measuring from I to 3.5 cm in the greatest dimensions. There is a single large submandibular nodule noted measuring 5 x 4 ic 3 cm, which appears to be in continuity with the left submandibular gland. Examination of the thoracic cavity revealed a few enlarged hilar nodes noted in close proximity to the main bronchus, as well as the carinal region measuring 2 cm in their greatest dimension. In addition to the paratracheal and perihilar lymph nodes there are large mediastinal lymph nodes noted both in the anterior mediastinal, as well as the posterior mediastinum. There are also enlarged lymph nodes in the paraaortic region. Examination of the abdominal cavity revealed the liver to be markedly enlarged weighing 3300 grains. The spleen was markedly enlarged weighing 840 gram. Both the liver and spleen were Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 39 of 51 PageID: 138 Page 8 Laura Lomando studded with nodular lesions. The stomach had 15 cc of pinkish fluid. The pleural cavities contained 200 cc of straw-colored fluid on each side. The peritoneal cavity had 200cc of straw- colored fluid. The final microscopic diagnosis was non-Hodgkin’s lymphoma involving the lymph nodes, submandibular gland, liver, spleen and small intestine. Additionally, it should be noted that on gross inspection of the thoracic cavity there was “paratracheal and perihilar lymph nodes that were enlarged, mediastinal lymph nodes noted both in the anterior mediastinum as well as the posterior mediastinum”. Additionally, I reviewed the CAT scan of the neck, there were right jugulodigastric lymph nodes, the largest being 3.5 cm. On the left there was a 4.5 cm left submandibular necrotic lymph node. A 5.5 x 4.5 mediastinal mass was seen. CONCLUSION: It is my medical opinion that Laura Lomando had an aggressive form of non- Hodgkin’s lymphoma, as indicated in the autopsy report, and expired as a direct result of a failure to make that diagnosis, which led to a spontaneous tumor lysis syndrome, that directly led to a cardiac arrest and death. The following deviations from standard medical care occurred: 1. On August 23,2006, the patient was seen by Dr. Ayanian. A tender left submental solitary lymphadenopathy was noted. A complete blood count and chemical profile should have been performed. The size ofthe lymph node should have been measured and documented. 2. On August 28,2006, Dr. Helmer noted tender left submandibular “7” node and measured this according to his deposition testimony to be 0.5 to 1 cm. No other adenopathy was noted. At this point in time, Dr. Helmer should have performed at least a complete blood count and chemical profile, which should have included liver function tests. At this point in time, he should have either made a referral to an Ear, Nose and Throat Specialist or performed a CAT scan of the neck. The recommendation to push fluids and finish the Amoxicillin was not appropriate for a tender possible lymph node that was 0.5 to 1 cm in size. 3. On August 31,2006, Dr. Fratelleone recommended a CAT scan of the area in question. This was an appropriate recommendation. 4. On September 3,2006, physician’s assistant Biedenbach saw the patient at the Riverview Medical Center Emergency Room. The patient’s mother brought her to the ER because she was afraid that it is a “tumor”. Physician’s assistant Biendenbach was aware that the patient had been seen by an “OMF”. The diagnosis ofphysician’s assistant Biedenbach was acute left parotitis. A referral was given to the patient to see an Ear, Nose and Throat specialist, Dr. Phillip Passalaqua. A CAT scan of the neck was indicated. Additionally, physician’s assistant Biedenbach should have directly schedtd an appointment with the Ear, Nose and Throat specialist to expedite an early visit. In deposition testimony, physician’s assistant Biedenbach states that he did not measure the size of the area in question, but noted that it was probably less than two finger widths. A measurement should have been taken. Laboratory tests should have been performed as well, that would include a complete blood count, chemical profile including liver function tests and serum LDR 5. On September 5, 2006, the patient re-presented to the Emergency Room at Riverview Hospital Center with chest pain. The diagnosis was medication reaction, muscle strain and swollen Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 40 of 51 PageID: 139 Page 9 Laura Lomando salivary gland. The discharge diagnosis was also listed as chest waIl pain. An electrocardiogramwas performed. A chest x-ray should have been perfonned. The laboratory tests, including acomplete blood count, chemical profile, liver function tests, and serum LDH should have beenperformed. A CAT scan of the neck and chest should have been performed. 6. The patient was next seen at the Parker Family Health Center on September 9, 2006 by Dr.Sullivan. Dr. Sullivan noted a large left submandibular lymph node. The ear, nose and throatexamination was normal, and he additionally noted a 1.2 cm lymph node in the leftsubmandibular triangle and right axilla, His impression was 1) viral disease and 2) rule outlymphoma. Laboratory tests including a CBC and monospot test were ordered. Dr. Sullivansuggested an aspiration biopsy on a p.r.n. basis. This was an appropriate recommendation. As Dr.Sullivan was considering lymphoma, he should have ordered a CAT scan ofthe chest, abdomenand pelvis. Additionally, the performance of the aspiration biopsy should have been carried outwithin 3-5 days. 7. The patient was next seen by Dr. Helmer on September 11, 2006. The patient was tachypneicwith a respiratoiy rate of 22 and tachycardic with a pulse of 100. Dr. Helmer noted that thepatient’s lesion had increased in size since Saturday. He estimated the lesion to be 4cm. Hedocumented a palpable adenopathy in the right and left submental areas and the right axillarylymph node. He also documented a”? increased liver edge”. Dr. Helmer felt that the next stepwas a biopsy. Dr. Helmer should have admitted to the patient to the hospital or have expedited anoutpatient biopsy. 8. On September 12, 2006, Riverview Medical Center did call to confirm that the biopsy hadbeen scheduled for September 25, 2006. As Dr. Helmer had documented that the lesion hadincreased in size over two days and that the lesion was 4 cm, a biopsy needed to be donesignificantly sooner than the 13 day interval that was arranged for. A biopsy could have beendone by September 14, or the patient could have been admitted to the Hospital. 9. Laboratory tests from September 9 indicated that the patient had an anemia with a hemoglobinof 11.2 and hematocrit of 33, compared to a June 6, 2003 hemoglobin of 12.5 and a hematocrit of35. Therefore, the patient had a new anemia. The sedimentation rate was elevated at 67. Amonospot was negative but the EBV 1gM titer was elevated indicating possible mononucleosis.Although the 1gM titer is consistent with mononucleosis, the presentation of asymmetriclymphadenopathy is not consistent with mononucleosis and is more consistent with lymphoma. 10. On September 15, the patient re-presented to the Emergency Room at Riverview MedicalCenter with a fever of 104 degrees, diaphoresis, body aches and nausea. The nurse did note amass in the left kwer mandible. Dr. Talbert noted left anterior adenopathy. The temperature was99.3, pulse 130 and blood pressure 102/59. The white count was 4.1, hemoglobin 10.6,hematocrit 30.7, platelet count 129,000. The urine was positive for bilirubin. The monospot waspositive. The electrocardiogram revealed a new sinus tachycardia. The sodium was 129 and theC02 was low at 22. The patient was discharged from the Emergency Room with a diagnosis ofinfectious mononucleosis after receiving fluids. Admission to the Hospital should haveoccurred. The patient had a history of a significant fever and was tachycardic. A monospot testwas positive, but the patient had bilirubin in the urine and was hyponatremic with a low C02.Dr. Talbert’s examination documented left anterior adenopathy. The hemoglobin was 10.6, thehematocrit was 30.7 and the platelet count was low at 129,000. A hemoglobin of 10.6, hematocrit Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 41 of 51 PageID: 140 Page 10 Laura Lomando of 30.7 and platelet count of 129,000, as well as hyponatremia and low. C02 all added up to apatient with a very likely underlying malignancy, despite having a positive mono test, and verypossible early sepsis syndrome. The patient should have been admitted to the Hospital forobservation and the performance of blood and urine cultures and a CAT scan ofthe body. Thepatient needed to be seen by an Ear, Nose and Throat physician, Infectious Disease specialist andOncologist. 11. On September 16 and September 18, there were phone conversations between Mary Nicosiaand Dr. Helmer. Mary Nicosia was made aware of the Emergency Room visit on September 15.The findings of that Emergency Room visit could have been investigated and a recommendationas a result of these findings for admission to the hospital should have been made. 12. On September 20, 2006, the Middletown Township Emergency Medical Services brought thepatient to the Emergency Department of Riverview Medical Center. The patient was triaged at14:55. The blood pressure was 90/60, respiratory rate 20, pulse 145, temperature of 103.8. Upontriage, the patient was noted to be tachypneic, jaundiced and weak. The temperature was 103.8,pulse 145, respiratory rate 30, pulse oximetry 97 and blood pressure 60/paip. The EmergencyRoom diagnosis was mononucleosis, hypoglycemia, abscess jaw and hepatitis. A CAT scan of thehead and neck were ordered, as well as a chest x-ray. IV fluids were given. The sodium was 120,the C02 was less than 11 and potassium was 7.2, thought to be hemolyzed. The patient wastreated with the antibiotic Rocephin in the Emergency Room, and additional antibiotics wereordered eventually, although not timely enough, and given IV fluids. Sodium bicarbonate was notadministered in the Emergency Room. The sodium was 120, the anion gap was 33, the totalbiirubin was 10. On September 21, 2006, the peripheral differential revealed 2% myelocytes,1% metamyelocytes and 6 nucleated red cells. The hemoglobin fell to 5.2 and hematocrit 15.8and platelet count fell to 44,000. A haptoglobin was less than 6 indicating a probable hemolyticanemia. serum LDH was 12,632. The scan ofthe neck revealed a very large mass-likearea of infiltration involving the left submandibular gland. The gland measured up to 4 cm in size.There was also fullness involving the right submandibular gland. There were areas of adenopathyor mass-like infiltration involving each parotid gland. The impression was Lymphoma. A uricacid level was not performed until September21 at 10:59 and was 15.4. The patient presentedwith a sepsis type syndrome, antibiotics were not started timely. The patient was hyperkalemicand this was treated initially with fluids only. The patient did have a cardiac arrest the next day.At that point in time, the hyperkalemia was aggressively treated for the first time. However, thepotassium never fell within normal limits. A uric acid level was not tested on the day ofadmission. The elevated uric acid level was never treated. Aggressive treatment with at leastallopurinol and more appropriately rasburicase should have occurred. The patient did have a dropin the hematocrit in the firce of pink material being retrieved from the NO tube indicating apossible GI bleed and in the face of low haptoglobin and high LDH indicating a possiblehemolytic anemia. Neither of these conditions were treated. The patient had an asystolic cardiacarrest as result of metabolic abnormalities induced by a spontaneous tumor lysis syndrome, thatcalled for immediate treatment on arrival to the Emergency Room. The acidosis andhyperkalemia should have been more aggressively treated. The hyperuricemia was untreated. Itwas not until the patient had a cardiac arrest that the hyperkalemia was aggressively treated forthe first time. The lack of aggressive treatment of the tumor lysis syndrome caused the cardiacarrest and death. Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 42 of 51 PageID: 141 Page 11 Laura Lomando The post-mortem examination yielded a final microscopic diagnosis of non-Hodgkin’s lymphomainvolving the lymph nodes, submandibular gland, liver, spleen and small mtestine On grossinspection of the thoracic cavity, there was “parattacheal and pèrihilariypiph nodes that wereenlarged, mediastinal lymph nodes noted both inthe anterior medjastinum as well as the posteriormediastinum”. My review of the CAT scan of the neck clearly .showd right jugulodigastriclymph nodes and a 4.5 cm left submandibularnecrotic lymph node.. There was a 5.5 x 4.5mediastinal mass. Laura Lomando died as a result of a failure to diagnose Lymphoma and as a result of failure toaggressively treat the metabolic conseqaónces of a spàntaneous tumor lysis syndrome. Therewere enough clinical signs present so that a diagnosis of lymphoma could have been made inAugust 2006, given the presentation of the left-s dad solitary lymphadenopathy. Had thisdiagnosis been made earlier, the patient could have iceived chemotherapy and would have had areasonable chance of a cure. Had the patient been admitted to Riverview Medical Center soonerthan September 20, or had the patient received immediate intensive medical treatment onSeptember20 to reverse the metabolic abnormalities of a tumor lysis syndrome on September 20,she could have been stabilized, had a biopsy, which would have led to a diagnosis and thenchemotherapy giving her an excellent chance of remission or cure. Clearly, the September 15,2006 visit to the Emergency Room had enough warnings by history, physical examination andlaboratory evaluation that should have led to an admission, diagnosis of lymphoma and institutionof therapy and prevention of the spontaneous tumor lysis syndrome that occurred on thisSeptember 20, 2006 admission. In conclusion, points one through twelve listed above all represent deviations from the standardsof care that directly caused Laura Lomando’s death and directly led to unnecessary and increasedpain and suffering. Sincerely, (L%t1 Mark A. Fialk, M.D., PC MAF:eh Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 43 of 51 PageID: 142 CURRICULUM flTAE NAME: Mark A Fialk, MD, FACP OFFICE ADDRESS: 259 Heathcote Road, Skarsdale, NY 10583 DATE OF BIRTH: June 24, 1947 EDUCATION: 1961-1965 Jersey Academy, Jersey City, NJ 1965-1969 Clark University, Worcester, MA AB in Chemistry Phi Beta Kappa Magna Cum Laude Honors in Chemistry 1969-1973 Tufts University School of Mecicine POSTGRADUATE TRAINENG: 1973-1974 INTERNSHIP Cornell-Cooperating Hospitals The New York Hospital-Cornel[ Medical Center Department of Medicine 1974-1975 RESIDENCY Junior Assistant Resident Cornell-Cooperating Hospitals The New York Hospital-Corne1IMedical Center Department of Medicine 1975-1976 Senior Assistant Resident Memorial Sloan-Kettering Cancer Center Intramural Senior Assistant Resiient Assistant Physician, Department ofMedicine The New York Hospital itew rj do:i 01 n ew Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 44 of 51 PageID: 143 Mark A. Fialk, MD, FACP -2- POSTGRADUATE TRAiNING (CONTINUED): 1976-1977 FELLOWSFITP Clinical Fellow, Hematology-OncologyThe New York Hospital-Cornell Medical CenterDivision of Hematology-Oncology R. Nachman, M.D., Chief Emergency Room Fellow The New York Hospital 1977-1978 Clinical Fellow, Hematology-OncologyThe New York Hospital-Cornell Medical Center Visiting Research Fellow Department of Developmental HematopoiesisMemorial Sloan-Kettering Cancer Center M.A.S. Moore, Ph.D., Director Emergency Room Fellow The New York Hospital 1978-1979 Clinical Fellow, Infectious Diseases Memorial Sloan-Kettering Cancer CenterDivision of Infectious Diseases D. Armstrong, M.D., Chief Clinical Fellow, Hematology-Onology The New York Hospital-Cornell vIedical CenterVisiting Research Fellow Department of Developmental HematopoiesisMemorial Sloan-Kettering Cancer Center Physician, Employee Health Service Jane W. Magill, M.D., Director TEACIUNG APPOINTMENTS: 1974-1978 Fellow in Medicine Cornell University Medical College 1978-1979 Instructor of Medicine Cornell University Medical College 1979-Present Clinical Assistant Professor of Medicine New York Medical College 99B61.L’,I8I ‘iI’dW JQ dig:i ot o Few Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 45 of 51 PageID: 144 Mark A. Fiajk, MD, FACP -3- HOSPITAL APPOINTMENTS: I 979-Present Attending Physician White Plains Hospital Center Assistant Attending Physician Westchester County Medical Center 1980-1986 Assistant Attending Physician Saint Agnes Hospital 1981 -Present Attending Hematologist White Plains Hospital Center 1990-1992 Chief of Hematology White Plains HospitaL LICENSTIRE: Current New York State #120660 CERTIFICATIONS: 1974 Diplomate, National Board of Medical Examiners 1976 Diplomate, [nternal Medicine American Board of Internal Medicine 1977 Diplomate, Medical Oncology American Board of Internal Medicine 1978 Diplomate, Hematology American Board of lrtema Medicine 2004 Diplomate, Hospice and Palliati’e Medicine American Board of Hospice and Palliative Medicine Ld 99BE2L’1GI di:i 01 O W Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 46 of 51 PageID: 145 Mark A. FlaW, MD, FACP -8- ABSTRACTS: 1. Fialk, M.A., Lerner, S.E., Stevens, RJ., Lee, H.J.r Duff, K.: Prostate Cancer Treatment: A Multidisciplinary Approach, American Society of Clinical Oncology, 40th Annual Meeting Proceedings, VoL 23, Abstract 4666: 421 (2004) 2. Lerner, E.G., Berk, R/D., Fialk, M.A., et al. A Coimnunity Hospital Enhanced Screening Program for Women at High Risk for Breast Cancer. Presented at American College of Breast Surgeons. March 2005 des:i oi o w Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 47 of 51 PageID: 146 DR. MARK FIALK TRIAL TESTIMONY HISTORY Matter/Year Venue 2010 1. Pizengoki v. Maimonides Kings County 2. Schultz v. Atalah New York County 3. Franco v Lubin Bronx County 2009 1. Young v. Gulekjian Venue Unknown 2. Scully v. Farella Rockland County 3. Crawford v. Albano Richmond County 4. Steimer v. Grace New York County 5. Castle v. Friedman Venue Unknown 6. Hansen v Forlenza Richmond County 2008 1. Earle v. S.I. Radiology Associates Richmond County 2. Smith v. Brookdale Queens County 3. Buros v. St. Vincents New York County 4. Schafter v. Batheja Westchester County 5. Fury v. Barak Bronx County 6. Vaugh v. Sirsi Venue Unknown 7. Feldman v. Rifkin Nassau County Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 48 of 51 PageID: 147 2007 1. Charles v. Tanel 2. Barcelar v. Pann 2006 Venue Unknown Venue Unknown 1. Markus v. Bosio 2. Marafino v. Southern Westchester 3. Butler v. Leahy (Lyall) 4. Cardenales v. Queens LI Medical Group 5. Difede v. Galdieri 6. Cohen v. Lofty 7. Pollard v. Garfield, Gary 2005 1. Green v. Mataratne 2, Estevez v. Coleman 3. Anato v. Ramsy 4. Sirrims v. New York State Westchester County Westchester County New York County Queens County Richmond County New York County Sullivan County/ County Court Venue Unknown New York County Venue Unknown Westchester County Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 49 of 51 PageID: 148 RONAN, TUZZIO & GIANNONE 4000 ROUTE 66 One Hovchild Plaza Tinton Falls, NJ 07753 (732) 922-3300 Attorneys for Defendant, RIVERVIEW MEDICAL CENTER Our File No. 155.8224 MANW/HPB Henry P. Butehorn - (7147 HPB) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY INES LOMANDO, as Administratrix Ad CIVIL CASE NO.: 3:08-CV-04177-FLW-TJB Prosequendum of the Estate of LAURA LOMANDO, deceased, Plaintiff(s) ORDER vs. THE UNITED STATES OF AMERICA, STEPHANIE REYNOLDS, M.D., TREVOR TALBERT, M.D., DAVID HYPPOLITE, M.D., PARKER FAMILY HEALTH CENTER, RIVERVIEW MEDICAL CENTER, EMERGENCY PHYSICIAN ASSOCIATES NORTH JERSEY, PC, JOHN DOE #1 through #5, MARY MOE #1 through #5 (fictitious names representing unknown physicians, nurses, technicians, medical groups, medical facilities and/or other medical providers who participated in the medical care of the plaintiff)m, jointly, severally and in the alternative, Defendant(s) THIS MATTER having been opened to the Court upon the application of Ronan, Tuzzio & Giannone, attorneys for Defendant, RIVERVIEW MEDICAL CENTER, and the Court having considered the moving papers and opposition papers, if any; and good cause having been shown; IT IS on this ________ _____ day of __________________________, 2010; Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 50 of 51 PageID: 149 ORDERED that Summary Judgment be and is hereby granted in favor of Defendant, RIVERVIEW MEDICAL CENTER; dismissing Plaintiff’s Complaint and any and all Crossclaims asserted against said Defendant, with prejudice; and, IT IS FURTHER ORDERED that a copy of this Order be served on all counsel within seven (7) days of the date hereof. J.S.C. Opposed _____Unopposed Case 3:08-cv-04177-FLW -LHG Document 22 Filed 06/08/10 Page 51 of 51 PageID: 150