Nicholas v. Mynster

64 A.3d 536, 213 N.J. 463, 2013 WL 1760434, 2013 N.J. LEXIS 359
CourtSupreme Court of New Jersey
DecidedApril 25, 2013
StatusPublished
Cited by354 cases

This text of 64 A.3d 536 (Nicholas v. Mynster) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicholas v. Mynster, 64 A.3d 536, 213 N.J. 463, 2013 WL 1760434, 2013 N.J. LEXIS 359 (N.J. 2013).

Opinion

Justice ALBIN

delivered the opinion of the Court.

In this medical-malpractice case, we must determine whether, under the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act or Act), L. 2004, c. 17, codified in part at N.J.S.A. 2A:53A-41, plaintiffs’ medical expert possesses the statutory credentials necessary to testify against defendant physicians. In both Ryan v. Renny, 203 N.J. 37, 999 A.2d 427 (2010), and Buck v. Henry, 207 N.J. 377, 25 A.3d 240 (2011), we held that, generally, a plaintiff’s medical expert testifying to the standard of care allegedly breached by a defendant physician must be equivalently credentialed in the same specialty or subspecialty as the defendant physician. Here, the two defendant physicians who treated plaintiff Edward Nicholas for carbon monoxide poisoning were board certified in emergency medicine and family medicine. Plaintiffs’ expert physician was board certified in internal and preventive medicine and specialized in hyperbaric medicine, including the use of hyperbaric oxygen in the treatment of carbon monoxide poisoning.

[468]*468Defendants moved to bar the testimony of plaintiffs’ expert and for summary judgment. Defendants claimed that plaintiffs’ expert could not testify to the standard of care because he did not practice in the same medical specialty as defendants. The court denied the motion to bar plaintiffs’ expert from testifying. The court ruled that expertise in the treatment of the condition was sufficient even if the expert did not share the same medical specialty as the defendant physicians. The court implicitly denied the summary judgment motion as well. The Appellate Division denied defendants’ motion for leave to appeal.

We now reverse. N.J.S.A. 2A:53A-41 of the Patients First Act requires that plaintiffs’ medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians. The trial court failed to apply the equivalency requirements of the Patients First Act.

We reject plaintiffs’ argument that, under N.J.S.A. 2A:53A-41(a)(1), their medical expert, who did not specialize in either emergency or family medicine, was statutorily authorized to testify because he was “credentialed by a hospital to treat patients for [carbon monoxide poisoning].” Under a plain textual reading of the Act, plaintiffs cannot establish the standard of care through an expert who does not practice in the same medical specialties as defendant physicians. For that reason, plaintiffs’ medical expert is barred from testifying to the standard of care governing defendants. Because plaintiffs cannot establish the applicable standard of care, summary judgment must be granted in favor of defendants.

I.

A.

Plaintiff Edward Nicholas is in the business of home construction and remodeling. On April 8, 2005, while operating a gas-powered saw in a homeowner’s enclosed basement, Nicholas was [469]*469exposed to noxious fumes and became ill. At about 3:00 p.m. that day, Nicholas arrived at the emergency room of South Jersey Healthcare (SJH) Regional Medical Center in Vineland suffering from shortness of breath, respiratory distress, muscle cramps, nausea, and hyperventilation. Dr. Christopher Mynster, a physician board certified in emergency medicine, saw Nicholas on his arrival and directed that a nurse give him 100% oxygen through a face mask.1 Carbon monoxide poisoning was the suspected cause of Nicholas’s condition. After blood gas tests revealed that Nicholas was suffering from “acute carbon monoxide poisoning,” Dr. Mynster administered Ativan to Nicholas to deal with his agitation and muscle cramps. Dr. Mynster also called Dr. Rekha Sehgal, the “attending physician,” to have Nicholas admitted to the hospital. Dr. Sehgal was board certified in the practice of family medicine.2

[470]*470Dr. Sehgal consulted with Dr. Mynster and transferred Nicholas to the Intensive Care Unit. There, Dr. Sehgal continued Nicholas on a regimen of 100% oxygen and Ativan. In addition, she prescribed the drug Zofran3 and directed that Nicholas’s carbon monoxide levels be monitored. By 4:00 p.m., Dr. Sehgal turned Nicholas’s care over to Dr. Timothy Rhymes, Nicholas’s primary care physician.4

Ultimately, Nicholas suffered brain damage, including a seizure disorder, and other bodily injuries as a result of carbon monoxide poisoning.

B.

On March 29, 2007, plaintiffs Nicholas and his wife, Tracy, filed a medical-malpractice action in the Superior Court, Law Division against Dr. Mynster and Dr. Sehgal and five other named defendants.5 The complaint alleged that, in treating Nicholas for carbon monoxide poisoning, Drs. Mynster and Sehgal “fail[ed] to provide medical care in conformance with the requisite standards of medical care.” The complaint specified that Drs. Mynster and Sehgal failed to order proper diagnostic testing, to administer adequate amounts of oxygen to Nicholas, and to refer Nicholas to specialists and a facility with a hyperbaric chamber that could “appropriately treat carbon monoxide poisoning.” Nicholas’s wife filed a loss-of-consortium claim. Plaintiffs alleged that the negligence of the two doctors caused Nicholas to suffer injuries that “may be permanent, irreparable and severe.”

[471]*471In their answers, Drs. Sehgal and Mynster denied that they acted negligently and demanded that plaintiffs file an affidavit of merit to support their lawsuit, as required by N.J.S.A. 2A:53A-27.

C.

Plaintiffs filed affidavits of merit signed by Dr. Lindell K. Weaver, a physician “Board Certified in the medical specialty of Internal Medicine, Pulmonary Diseases, Critical Care, and Undersea & Hyperbaric Medicine,” and Dr. James Doghramji, a physician also board certified in Internal Medicine.6 In both affidavits, Drs. Weaver and Doghramji expressed their opinions that a “reasonable probability” exists that the care exercised by Drs. Mynster and Sehgal in the case of Nicholas “fell outside acceptable professional standards or treatment practices.” 7

Defendant Mynster moved for summary judgment based on plaintiffs’ failure to file an affidavit of merit from a specialist in emergency medicine.8 Defendant Mynster withdrew the motion after plaintiffs submitted Dr. Doghramji’s curriculum vitae, which indicated that Doghramji was on the staff of the Department of Emergency Medicine at Chestnut Hill Hospital in Philadelphia, Pennsylvania.

[472]*472D.

In advance of trial, plaintiffs presented an expert report only from Dr. Weaver. In his report, Dr. Weaver maintained that he was licensed to practice medicine in Utah and Arizona, board certified in internal medicine with subspecialty certifications in critical care medicine and pulmonary disease, and board certified in preventive medicine with subspecialty certifications in undersea and hyperbaric medicine.9 Dr.

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Bluebook (online)
64 A.3d 536, 213 N.J. 463, 2013 WL 1760434, 2013 N.J. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-v-mynster-nj-2013.