ALEXANDER JAROSZEWICZ VS. PAK-KAN ALBERT LO, M.D. (L-5482-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 18, 2019
• Docket: A-3755-18T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3755-18T2

ALEXANDER JAROSZEWICZ, a minor by his Guardian Ad Litem, ANETA CYRKLER and ARTUR JAROSZEWICZ, and ANETA CYRKLER and ARTUR JAROSZEWICZ, individually,

Plaintiffs-Respondents,

v.

PAK-KAN ALBERT LO, M.D., and HACKETTSTOWN RADIOLOGY ASSOCIATES,

Defendants,

and

CLAY ROBERT HINRICHS, M.D.,

Defendant-Appellant. _________________________________

Argued September 24, 2019 – Decided October 18, 2019

Before Judges Hoffman and Firko. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5482-15.

Nancy Crosta Landale argued the cause for appellant (Farkas & Donohue, LLC, attorneys; Evelyn Cadorin Farkas, of counsel, Nancy Crosta Landale, on the brief).

E. Drew Britcher argued the cause for respondent (Britcher Leone, LLC, attorneys; E. Drew Britcher, of counsel and on the brief; Jessica E. Choper, on the brief).

PER CURIAM

We granted defendant Dr. Clay Hinrichs leave to appeal the March 29,

2019 Law Division order denying his motion for summary judgment. We

dismiss the appeal as improvidently granted.

In January 2014, plaintiff A.J. was born with several severe congenital

anomalies. According to plaintiffs' brief, A.J. was born with "anophthalmia (no

eyes), extra digits (polydactyly) and cardiac anomalies." In August 2015, A.J.'s

parents1 filed a "wrongful life" medical malpractice complaint against defendant

1 A.J.'s parents sue individually and as guardians ad litem for A.J.

A-3755-18T2 2 radiologists,2 alleging they failed to accurately interpret prenatal ultrasounds; as

a result, A.J. "was born . . . severely and permanently impaired."

In support of their claims, plaintiffs produced reports from two medical

experts, Dr. William Matuozzi, a board certified radiologist, and Dr. Alfred

Abuhamad, an obstetrician/gynecologist and maternal-fetal medicine specialist.

Prior to Dr. Matuozzi's deposition, plaintiffs' attorney announced that Dr.

Matuozzi "will not be offering any criticism of [defendant] concerning the July

29 ultrasound scan." In response, defendant's attorney asked, "Can we agree

that Dr. Matuozzi will not be offering any standard of care opinions against

[defendant]?" Plaintiffs' attorney replied, "That is correct."

Based on this exchange, defendant's attorney did not question Dr.

Matuozzi during his deposition, and immediately filed a motion for summary

judgment. Plaintiffs opposed the motion, arguing that Dr. Matuozzi still holds

the opinion that Dr. Hinrichs deviated from accepted standards of care relative

to a November 5, 2013 ultrasound reading, and remains ready to provide his

criticisms regarding that ultrasound. Plaintiffs' attorney submitted a

certification explaining that he intended to make clear that "Dr. Matuozzi was

2 Plaintiffs' complaint names Dr. Pak-Kan Albert Lo, Dr. Hinrichs, and Hackettstown Radiology Associates as defendants. Since this appeal only concerns plaintiffs' claims against Dr. Hinrichs, we refer to him as defendant. A-3755-18T2 3 only withdrawing his criticism of the July 29, 2013 ultrasound study and not the

November 5, [2013] ultrasound study."

According to plaintiffs, Dr. Matuozzi still holds the opinion that defendant

deviated from the accepted standard of care in regard to the November 5, 2013

ultrasound, and that his report states as much. Plaintiffs point to the following

two sentences in Dr. Matuozzi's expert report, "The 11/5/13 follow up

obstetrical ultrasound is limited but shows no placenta previa, and no

marginal/low lying placenta. The far field cerebral lateral ventricle is sub-

optimally demonstrated but as visualized measures at least 10mm in diameter."

In light of the apparent miscommunication at the start of Dr. Matuozzi's

deposition, the motion judge denied summary judgment, noting that "reasonable

minds can differ." While denying the motion, the judge permitted defendant to

"retake" Dr. Matuozzi's deposition at "plaintiff[s]' counsel's cost," concluding

"that would be . . . fair under the circumstances."

Plaintiffs presented an alternative basis for opposing defendant's motion

– that Dr. Abuhamad is competent and qualified to render an expert opinion as

to the standard of care required of a radiologist in interpreting a pre-natal

ultrasound. Defendant strongly opposed this argument, asserting that the

Patients First Act (the Act), N.J.S.A. 2A:53A-37 to -42, precludes Dr.

A-3755-18T2 4 Abuhamad from serving as an expert against defendant, who is board certified

in diagnostic radiology. The Act "establishes qualifications for expert witnesses

in medical malpractice actions and provides that an expert must have the same

type of practice and possess the same credentials, as applicable, as the defendant

health care provider, unless waived by the court." Nicholas v. Mynster, 213 N.J.

463, 479 (2013) (internal quotations omitted) (quoting Assembly Health &

Human Services Committee, Statement to Assembly Bill No. 50 at 20 (Mar. 4,

2004)). Because the judge ruled that he would consider Dr. Matuozzi's opinion

as to the November 5, 2013 ultrasound, after first providing defense counsel the

opportunity to retake his deposition, the judge declined to address whether

plaintiffs could utilize Dr. Abuhamad as a standard-of-care expert against

defendant.

Considering that "[i]nterlocutory review . . . is to be exercised only

sparingly, because of the strong policy that favors an uninterrupted proceeding

at the trial level with a single and complete review," Grow Co. v. Chokshi, 403

N.J. Super. 443, 461 (App. Div. 2008) (internal quotation marks and citations

omitted); see also State v. Reldan, 100 N.J. 187, 205 (1985), we dismiss this

appeal as we conclude leave was improvidently granted. See State v.

Abeskaron, 326 N.J. Super. 110, 122 (App. Div. 1999) (citation omitted)

A-3755-18T2 5 (recognizing "[a]n appellate court may vacate an order granting leave to appeal

as improvidently granted").

We remand this matter to the Law Division for the trial judge to issue an

order compelling Dr. Matuozzi's re-deposition within thirty days, at plaintiffs'

expense, to allow defendant the opportunity to fully explore his opinions. After

the deposition, the judge shall permit defendant to refile his summary judgment

motion, wherein he may renew his challenge to the ability of Dr. Abuhamad to

provide standard of care opinions against defendant. After briefing and

argument, the judge shall then provide Rule 1:7-4 findings addressing all issues

raised, in accordance with summary judgment standards.

Dismissed and remanded. We do not retain jurisdiction.

A-3755-18T2 6