Lisa R. Worthy v. Kennedy Health System

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2698-14T1

LISA R. WORTHY,

Plaintiff-Appellant, APPROVED FOR PUBLICATION

v. June 22, 2016

APPELLATE DIVISION

KENNEDY HEALTH SYSTEM; KENNEDY

MEMORIAL HOSPITAL-CHERRY HILL;

UNIVERSITY HEADACHE CENTER;

MILLICENT KING-CHANNELL, D.O.;

ROBERT F. HAHN, D.O.; COURTNEY

BAKER, D.O.; SEAN HUBBARD, D.O.;

ANTHONY BABE, D.O.; STEPHANIE

MARANO, R.N.; KRISTINE M. BROWN,

R.N., and JOAN MAZZARELLA, R.N.,

Defendants,

and

JOSEPH P. CURRERI,1 D.O. and

THOMAS WETJEN, D.O.,

Defendants-Respondents.

_______________________________

Submitted March 14, 2016 - Decided June 22, 2016

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-4906-08.

1

The caption mistakenly listed defendant's surname as

Currieri, which we have corrected in our opinion.

Messa & Associates, P.C., attorneys for

appellant (Joseph L. Messa, Jr., and A.

Christine Giordano, on the briefs).

Ronan, Tuzzio & Giannone, P.C., attorneys

for respondent Joseph P. Curreri, D.O.

(James M. Ronan, Jr., of counsel and on the

briefs; Anthony M. Tracy, on the briefs).

Blumberg & Wolk, LLC, attorneys for

respondent Thomas Wetjen, D.O. (Christopher

M. Wolk and Jeffrey P. Catalano, on the

brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

Plaintiff Lisa R. Worthy filed this medical negligence

matter, alleging various defendants failed to properly diagnose

and treat her medical condition. On appeal, we examine whether

plaintiff met the requirements of Rule 4:26-4, the fictitious

name rule, to save her claims against one defendant, which the

trial judge dismissed as out of time. We also review proof

supporting causation regarding another defendant, who

successfully secured dismissal, arguing despite his alleged

failure to diagnose and treat plaintiff's condition she would

not have experienced a better outcome.

More specifically, plaintiff appeals from two orders

granting summary judgment dismissal in favor of two physician-

defendants. The first is a June 2, 2011 order in favor of

defendant Thomas Wetjen, D.O., finding all claims barred by the

2 A-2698-14T1

statute of limitations. The second is an April 11, 2014 order,

concluding plaintiff failed to present evidence supporting

proximate cause regarding the conduct of defendant Joseph P.

Curreri, D.O. On the date set to commence trial against the

remaining defendants, the parties resolved all claims.

Plaintiff also appeals from the separate motions denying

reconsideration of the summary judgment orders. Following our

review of the parties' arguments, in light of the record and

applicable law, we reverse.

I.

This matter arises from medical treatment and care

plaintiff received in October 2006. We limit our recitation of

facts and procedural history to the relevant issues presented on

appeal.

Plaintiff, who had a history of migraine headaches and

cervical disc disease, sought treatment from Robert Hahn, D.O.

and defendant Millicent King-Channell, D.O. from September 17 to

October 6, 2006. Despite various treatments, her ailments

persisted. On the morning of October 6, 2006, plaintiff

initially was treated by Dr. King-Channell, as a follow-up to

her September 29 appointment and then referred to defendant

Robert F. Hahn, D.O. for pain management and neck manipulation.

3 A-2698-14T1

The same day plaintiff saw Dr. Hahn, who administered an

injection and performed cervical spine manipulation therapy.

Following treatment, plaintiff took Xanax and Flexeril,

which had been previously prescribed for her headaches, and went

to work. After work, plaintiff and friends went to dinner,

during which she consumed two beers and two glasses of wine. In

the restaurant, plaintiff suffered "a syncopal episode," became

semi-conscious, developed slurred speech, an abnormal gait and

bilateral weakness. Emergency Medical Services were called and

at 8:40 p.m., plaintiff was taken to Kennedy Memorial Hospital.

Upon arrival, an intake nurse performed an assessment and

recorded plaintiff's report of a stabbing headache with nausea

and vomiting. Plaintiff was coherent when answering questions,

her eyes were open, and she obeyed commands; however, the nurse

recorded symptoms of generalized weaknesses throughout her body,

which she attributed to the use of alcohol and Xanax.

At 9:16 p.m., plaintiff was evaluated by an emergency

medicine physician. The physician was ultimately identified in

2010, more than two years after he provided treatment, as

defendant Dr. Wetjen.

Dr. Wetjen's notes stated plaintiff arrived at the hospital

by emergency medical services and was experiencing dizziness,

nausea, and vomiting after consuming two glasses of wine, two

4 A-2698-14T1

beers, and taking Xanax and Flexeril. Dr. Wetjen observed

plaintiff's pupils were sluggish as she followed commands and

answered questions, but he concluded plaintiff's neurological

examination was otherwise unremarkable. Dr. Wetjen opined

plaintiff suffered an accidental polydrug overdose.

At 12:40 a.m., on October 7, 2006, plaintiff was

administered anti-nausea medication and a CT scan was performed,

which proved negative. At 6:30 a.m., the intake nurse noted

plaintiff had an unstable gait and was having difficulty

walking. At 11:00 a.m., plaintiff was transferred to the

telemetry unit. Upon arrival, Courtney Baker, D.O., a first-

year Kennedy staff resident, conducted a physical examination

and prepared a treatment plan for plaintiff, who was awake but

"nonresponsive." Dr. Baker relied on the emergency room records

and family members' statements to formulate plaintiff's medical

history. She diagnosed plaintiff with accidental polysubstance

overdose.

Dr. Curreri first became involved when contacted by Dr.

Baker, more than fifteen hours after plaintiff arrived at the

emergency room. After Dr. Baker discussed plaintiff's

condition, Dr. Curreri accepted plaintiff as his patient. He

assumed responsibility for her at "around" noon on October 7,

2006. He assumed Dr. Baker obtained and reviewed the emergency

5 A-2698-14T1

room chart, which he did not review until noon on October 8,

2006. Dr. Curreri concluded plaintiff's condition was

consistent with polysubstance overdose. He also ordered a

neurological consultation, which was not directed to be

performed immediately, and prescribed aspirin.

Twenty-four hours later, Dr. Curreri examined plaintiff.

At that time, his diagnosis included: aspirational bronchitis,

hypophosphatemia, hypokalemia and a polysubstance overdose. He

noted plaintiff's speech was incoherent, she was letheragic, and

her mental status remained unchanged. Dr. Curreri asked the

neurologist to examine plaintiff that day, which occurred.

Following a neurological consultation by defendant Sean

Hubbard, D.O., plaintiff was transferred to Hahnemann University

Hospital, where an MRA and MRI revealed a narrowing of the right

vertebral artery, bilateral subacute thalamic infarcts, and left

cerebellar subacute infarct of the vertebral artery. In short,

plaintiff suffered a stroke. A cerebral angiography revealed a

non-occlusive dissection of the right vertebral artery at C1-C2,

secondary to mild irregularity. After receiving treatment at

various facilities, plaintiff was discharged home on November 4,

2006.

On September 26, 2008, plaintiff filed a complaint

asserting medical negligence, alleging the negligent

6 A-2698-14T1

manipulation of her neck caused vertebral artery dissection, a

tear in an artery in the neck that supplies blood to the brain,

which led to a stroke that was improperly diagnosed and treated.

She named as defendants not only Drs. Hahn and King-Channell,

but also Kennedy Health System (Kennedy), Kennedy Memorial

Hospital – Cherry Hill, Joseph P. Curreri, D.O., along with

several other doctors and nurses involved with plaintiff's care

whose specific identities were not determined because plaintiff

was unable to decipher their signatures on certain medical

reports.

The complaint, in place of a typed name, placed these

defendants' signatures in the caption along with a fictitious

party reference. As to each unknown professional, his or her

scanned undecipherable signature along with the identification

of his or her title, i.e., doctor or nurse. Further, throughout

the body of the complaint the signature is included when

reciting factual underpinnings of alleged negligence for which

plaintiff asserted his or her liability.

Kennedy accepted service on behalf of Kennedy Health

System, Kennedy Memorial Hospital, and Stephanie Marano, RN, but

declined to accepted service on behalf of the remaining nine

defendants. Returning the remaining summonses, Kennedy advised

the named physicians must be served through their offices.

7 A-2698-14T1

Specifically as to the unidentified defendants, Kennedy

identified one intern and stated "[t]he remaining names and

signatures were unidentifiable." Plaintiff's counsel requested

Kennedy's legal liaison identify "the individuals who authored

the medical records contained in [plaintiff's] chart." However,

she was unable to do so.

On November 18, 2008, plaintiff wrote to Kennedy's legal

liaison, stating:

You have refused to accept service of the

[c]omplaints for several of the defendants.

These defendants are identified with

particularity in the [c]omplaint and are

clearly agents, servants and/or employees of

Kennedy Health System. The identity of

these individuals is information that is in

the sole possession, custody and control of

Kennedy Health System. Therefore, any

attempts by you to avoid service on these

individuals is improper. As such, kindly

accept service on behalf of your agents,

servants, employees and identify the

individuals who authored the medical records

contained in [plaintiff]'s chart.

On November 16, 2009, plaintiff served twelve supplemental

interrogatories directing Kennedy and the other defendants to

provide the identity and job title of each of the six defendants

designated by their signature in the complaint, which again was

reproduced in the discovery request. When no response was

forthcoming by January 19, 2010, additional correspondence

renewed the request and sought voluntary compliance in an effort

8 A-2698-14T1

to avoid motion practice. Kennedy "informal[ly]" responded on

February 17, 2010, stating "despite good faith efforts" it could

not identify three of the treatment providers, but noted their

job titles. Two signatures were identified and no information

was provided regarding the remaining signature. Plaintiff moved

to strike Kennedy's answer and defenses for failure to provide

discovery, returnable on March 5, 2010.

On March 3, 2010, Kennedy sent a second "informal response"

to plaintiff's supplemental interrogatories. It addressed the

one signature not mentioned in its prior response, stating the

document on which the signature appeared was not generated by

Kennedy, but was believed to be from a provider rendering

treatment prior to plaintiff's admission to Kennedy. Kennedy

provided the identifications of Dr. Wetjen, a resident physician

and three nurses. Within a week, plaintiff sought leave to

amend the complaint, specifically substituting the names and

titles for the scanned signatures of defendants as revealed by

Kennedy, which was granted. Plaintiff also moved to restore the

now identified defendants to the active trial status, which was

also granted.2

2

The record also references plaintiff "had to seek court

intervention so that a witness could be produced [by Kennedy] to

identify signatures of the remaining defendants in the case."

(continued)

9 A-2698-14T1

Dr. Wetjen answered the complaint on November 24, 2010,

and, thereafter, moved for summary judgment, arguing plaintiff's

claim was barred by the statute of limitations and the improper

use of the fictitious party pleading rule did not save her

complaint from being untimely filed. After oral argument, the

trial judge granted Dr. Wetjen's motion on June 2, 2011.

Focusing on the absence of efforts to identify the

defendants prior to October 6, 2008, the trial judge rejected

plaintiff's contention the inclusion of defendants' signatures

sufficiently preserved her claims, making them timely. Although

finding no prejudice to Dr. Wetjen, the judge noted plaintiff

exercised no due diligence to ascertain Dr. Wetjen's identity

prior to initiating her legal action and, therefore, he rejected

reliance on the fictitious name procedure. Finally, the judge

was unpersuaded by plaintiff's alternative argument to apply the

discovery rule, delaying commencement of the statute of

limitations to August 6, 2008, the date plaintiff first

consulted counsel, finding the assertion unsupported.

(continued)

The designated witness, deposed on May 14, 2010, identified Dr.

Wetjen's signature. These pleadings are not in the record.

10 A-2698-14T1

The June 2, 2011 order dismissed the complaint as to Dr.

Wetjen, with prejudice. Reconsideration was denied.3

On March 13, 2014, Dr. Curreri moved for summary judgment.

He argued plaintiff failed to establish his conduct was a

proximate cause of or a substantial contributing factor to

plaintiff's injuries. Dr. Curreri maintained "plaintiff had not

submitted sufficient expert proofs to establish that there was

treatment available as of . . . noon on October 7, 2006, (the

time when Dr. Curreri first became involved in the care of

plaintiff), that could have improved or otherwise changed the

ultimate outcome in some material respect." Because plaintiff's

expert identified noon on October 7, 2006 as a critical time

period for necessary treatment to be administered, and Dr.

Curreri actually saw plaintiff after that time on October 7,

2006, he argued had he administered any treatments as asserted

by plaintiff, the final outcome would not have changed.

3

The orders entered on July 22, 2011 cause some confusion.

First, a July 22 order dismissed the complaint against Dr.

Wetjen with prejudice. A second order denied plaintiff's motion

for reconsideration of the summary judgment dismissal. A July

28, 2011 order prepared by the court simply states, "The [o]rder

signed on July 22, 2011 in regard [to] the above captioned

matter referencing Thomas Wetjen, DO is hereby vacated."

Finally an order, which has an illegible date and no file stamp,

presumably entered on August 5, 2011, denied reconsideration of

the summary judgment dismissal of Dr. Wetjen. Notwithstanding

the confusion created by these orders, plaintiff does not

dispute summary judgment was granted in favor of Dr. Wetjen, who

was dismissed from the case.

11 A-2698-14T1

In response, plaintiff refuted the factual assertions,

noting testimony from Dr. Baker stated she called Dr. Curreri

after plaintiff's admission on the evening of October 6, 2006 to

discuss a treatment plan, which he approved. Dr. Baker again

consulted with Dr. Curreri by telephone when she resumed her

shift at 7 a.m. on October 7, 2006. Dr. Curreri suggests the

call was not made until noon on that date.

The trial judge concluded Dr. Curreri had no contact with

plaintiff until sometime after noon on October 7, 2006, stating:

I don't see facts in dispute on that

point, and that point being when Dr. Curreri

came into contact with the patient. I find

based on what is . . . in the evidence from

the testimony of the parties, [Dr. Baker],

as well as Dr. Curreri and the notes, his

contact and his laying out a plan for the

care of . . . [plaintiff] . . . that all

attaches at . . . noon . . . timeframe on

the 7th.

And it's clear that the testimony from

[plaintiff's expert] is that the potential

options with respect to a patient of this

nature at that point in time would have been

the heparin treatment. . . . And he cannot

give an opinion that there would have been a

better outcome had[,] at that point in

time[,] Dr. Curreri ordered heparin

treatment. And without that in the record,

I can't hold the doctor in. So I'm going to

grant summary judgment as to Dr. Curreri.

Reconsideration was denied.

Plaintiff appealed from the June 2 and August 5, 2011

orders dismissing all claims against Dr. Wetjen. She

12 A-2698-14T1

subsequently amended the notice of appeal to include the April

11 and May 23, 2014 orders dismissing all claims against Dr.

Curreri.

II.

We "review[] an order granting summary judgment in

accordance with the same standard as the motion judge." Bhagat

v. Bhagat, 217 N.J. 22, 38 (2014). See also Townsend v. Pierre,

221 N.J. 36, 59 (2015). We "must review the competent

evidential materials submitted by the parties to identify

whether there are genuine issues of material fact and, if not,

whether the moving party is entitled to summary judgment as a

matter of law." Bhagat, supra, 217 N.J. at 38. See Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R.

4:46-2(c).

Further, all facts are viewed in a light most favorable to

the non-moving party, "keeping in mind '[a]n issue of fact is

genuine only if, considering the burden of persuasion at trial,

the evidence submitted by the parties on the motion . . . would

require submission of the issue to the trier of fact.'" Schiavo

v. Marina Dist. Dev. Co., 442 N.J. Super. 346, 366 (App. Div.

2015) (alteration in original) (quoting R. 4:46-2(c)), certif.

denied, 224 N.J. 124 (2016).

13 A-2698-14T1

A motion for summary judgment will not be defeated by bare

conclusions lacking factual support, Petersen v. Twp. of

Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011), self-serving

statements, Heyert v. Taddese, 431 N.J. Super. 388, 413-14 (App.

Div. 2013), or disputed facts "of an insubstantial nature."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.

4:46-2 (2016). "It is evidence that must be relied upon to

establish a genuine issue of fact. 'Competent opposition

requires competent evidential material beyond mere speculation

and fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super.

589, 605 (App. Div. 2014) (quoting Hoffman v. Asseenontv.Com,

Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)), certif.

denied, 220 N.J. 269 (2015).

"The practical effect of this rule is that neither the

motion court nor an appellate court can ignore the elements of

the cause of action or the evidential standard governing the

cause of action." Bhagat, supra, 217 N.J. at 38. It is only

"when the evidence 'is so one-sided that one party must prevail

as a matter of law,' the trial court should not hesitate to

grant summary judgment." Brill, supra, 142 N.J. at 540

(citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214

(1986)).

14 A-2698-14T1

Once we agree no genuinely disputed fact exists, we "then

decide whether the trial court's ruling on the law was correct."

W.J.A. v. D.A., 210 N.J. 229, 238 (2012) (quoting Henry v. N.J.

Dept. of Human Servs., 204 N.J. 320, 330 (2010)). Such a

determination is "not entitled to any special deference," and is

subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

III.

We separately review plaintiff's challenge to the two

summary judgment orders.

A.

As to Dr. Wetjen, plaintiff initially argues her complaint

was timely filed under the discovery rule. She maintains a

material factual dispute exists whether the two-year statute of

limitations for medical negligence cases, N.J.S.A. 2A:14-2(a),

was tolled because she did not discover the right to legal

recourse until she spoke to counsel on August 6, 2008. We

disagree.

"Under special circumstances and in the interest of

justice, [New Jersey has] adopted the discovery rule to postpone

the accrual of a cause of action when a plaintiff does not and

cannot know the facts that constitute an actionable claim."

Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993); see also Baird

15 A-2698-14T1

v. Am. Med. Optics, 155 N.J. 54, 65 (1998) ("The discovery rule

delays the accrual of a cause of action until 'the injured party

discovers, or by an exercise of reasonable diligence and

intelligence should have discovered that he may have a basis for

an actionable claim.'" (quoting Lopez v. Swyer, 62 N.J. 267, 272

(1973))).

"The discovery rule is a rule of equity that ameliorates

'the often harsh and unjust results [that] flow from a rigid and

automatic adherence to a strict rule of law.'" Grunwald, supra,

131 N.J. at 492 (alteration in original) (quoting Lopez, supra,

62 N.J. at 273-74). "The question is whether the facts

presented would alert a reasonable person exercising ordinary

diligence that he or she was injured due to the fault of

another." Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J.

45, 52 (2000). A plaintiff bears the burden of proving he or

she was aware of an injury and "that the injury [was]

attributable to the fault of another." Id. at 53. However, a

plaintiff who merely lacks "knowledge of a specific basis for

legal liability or a provable cause of action" may not receive

the benefit of the discovery rule. Id. at 52.

Certainly plaintiff knew she suffered a stroke in October

2006. Nothing suggests she was misled regarding her diagnosis

or the nature of her care. Lynch v. Rubacky, 85 N.J. 65, 67-69,

16 A-2698-14T1

77 (1981). In fact, her certification only reflects she

discovered she could pursue legal redress after she met with her

attorney, not that she was unaware of her injury. Szczuvelek v.

Harborside Healthcare Woods Edge, 182 N.J. 275, 280, 283 (2005).

"To accept the premise that the statute did not begin to run

until she was advised by her attorney . . . would be to

disregard the basic policy of repose, which underlies the

statute of limitations, thus extending the threat of litigation

indefinitely." Rankin v. Sowinski, 119 N.J. Super. 393, 401

(App. Div. 1972). As a result, we conclude the discovery rule

does not apply.

However, we find compelling plaintiff's argument she

properly complied with the fictitious pleading rule, allowing

the cause of action against Dr. Wetjen to relate back to the

date her complaint was filed, which was within two years of her

injury.

Pursuant to Rule 4:26-4, "if the defendant's true name is

unknown to the plaintiff, process may issue against the

defendant under a fictitious name, stating it to be fictitious

and adding an appropriate description sufficient for

identification." "The fictitious defendant rule was promulgated

to address the situation in which a plaintiff is aware of a

cause of action against a defendant but does not know that

17 A-2698-14T1

defendant's identity." Gallagher v. Burdette-Tomlin Med. Hosp.,

318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163 N.J. 38

(2000). The rule's effect is to "render timely the complaint

filed by a diligent plaintiff, who is aware of a cause of action

against an identified defendant but does not know the

defendant's name." Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11

(2005). When the plaintiff discovers the party's name,

"amendment of the complaint may relate back [to] allow an action

otherwise time-barred." Brown v. Kennedy Mem'l Hosp.-Univ. Med.

Ctr., 312 N.J. Super. 579, 587 (App. Div.), certif. denied, 156

N.J. 426 (1998). Accordingly, if a defendant is properly

identified by a fictitious name before expiration of the

applicable limitations period, an amended complaint substituting

a fictitiously named defendant's true name will relate back to

the date of filing of the original complaint. Viviano v. CBS,

Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of

Chemetron Corp., 62 N.J. 111, 120-23 (1973); see also R. 4:9-3

(allowing an amended complaint to relate back to the initial

complaint).

The trial judge heavily relied on the principle that "[t]he

identification of a defendant by a fictitious name . . . may be

used only if a defendant's true name cannot be ascertained by

the exercise of due diligence prior to filing the complaint."

18 A-2698-14T1

Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App.

Div. 2003) (citing Mears v. Sandoz Pharms. Inc., 300 N.J. Super.

622, 631-33 (App. Div. 1997)). This requires a plaintiff to

proceed with due diligence in ascertaining the fictitiously

identified defendant's true name. Farrell, supra, 62 N.J. at

120; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super.

203, 208 (App. Div. 1999).

Here, the judge had difficulty accepting the use of

signatures to identify the unknown professionals. He correctly

noted no specific authority allowed a party to paste a signature

in lieu of naming a party in the caption. Had plaintiff done

nothing more, we might easily reject such a practice. However,

fundamental fairness demands consideration of the totality of

the facts and circumstances before the ultimate sanction of

dismissal with prejudice issues. Following such a review, we

conclude these facts support counsel undertook the required

diligent inquiry.

The complaint did much more than simply include the pasted

signatures in the caption. Plaintiff utilized the information

available from Kennedy's records and identified not only the

professional's title, but also recited the factual basis for

liability. She further included the more traditionally found

John and Jane Doe references and a separate count for those

19 A-2698-14T1

defendants. These efforts were designed to relate as much known

information as possible to specify the unidentified

professionals.

Regarding diligence, while Dr. Wetjen was not identified

before the complaint was filed, this was not because counsel was

dilatory. The facts show plaintiff first understood she had a

right to file an action when she met with counsel on August 6,

2008, very near the expiration of the statute of limitations.

Counsel proceeded to gather Kennedy's records, obtain an

affidavit of merit and file a complaint in less than two months.

From that point, Kennedy was repeatedly asked formally and

informally to identify the "agents, servants, [or] employees"

who signed its charts. Letters, discovery requests and motions

to produce a witness to identify the signatures were issued.

For the most part, Kennedy ignored the requests, despite the

fact it exclusively controlled the pertinent information, at all

times. Kennedy did not release identification information until

the return date of plaintiff's motion to strike Kennedy's answer

and defenses approached. Only then did Kennedy issue an

"informal response" to plaintiff's supplemental interrogatories.

Had Kennedy responded when plaintiff first asked, Dr. Wetjen

would have been identified and served within a week of the

original filing.

20 A-2698-14T1

Unlike the authority relied upon by Dr. Wetjen, see

Johnston, 326 N.J. Super. at 205 (describing how the plaintiff

did not seek to add the newly identified party after waiting

almost a year once identified), here, plaintiff moved to amend

her complaint within days of learning Dr. Wetjen's identity.

Nor can we conclude plaintiff failed to investigate

potential claims against a physician whose name appeared

multiple times in her medical chart. See Matynska v. Fried, 175

N.J. 51, 54 (2002) (denying application of equitable tolling

principles when information was readily available). In this

matter, the names were not easily obtained from the medical

records and Kennedy was not forthcoming in providing actual

identifications.

Perhaps most importantly, Dr. Wetjen was not prejudiced by

the delay in formal identification as a potentially liable party

and the ultimate service of an amended complaint. Farrell,

supra, 62 N.J. at 122-23. Nothing impaired his ability to

defend the action. Mears, supra, 300 N.J. Super. at 631.

"Justice impels strongly towards affording the plaintiff[]

[her] day in court on the merits" of her claims. Farrell,

supra, 62 N.J. at 122; see also Fede v. Clara Maass Hosp., 221

N.J. Super. 329, 339 (Law Div. 1987) (stating a motion to

dismiss on statute-of-limitations grounds in the context of

21 A-2698-14T1

fictitious party practice is governed by "the interests of

justice.").

Following our review, we conclude plaintiff engaged in

diligent efforts, which were continually thwarted by Kennedy.

For more than fifteen months, Kennedy declined to provide the

requested identification of the doctors and nurses who attended

to plaintiff in its facility, as confirmed by their signatures

on charts, records and reports. The delay here falls squarely

on Kennedy's gradual response, which fairness dictates shall not

be shouldered by plaintiff. The motion judge's findings to the

contrary are not supported. The decision to dismiss Dr. Wetjen

is reversed and the June 2 and August 5, 2011 orders are

vacated.

B.

We turn to the order granting summary judgment to Dr.

Curreri. Among the claims stated in her complaint, plaintiff

alleges Dr. Curreri failed to diagnose, order diagnostic testing

and treat her stroke, misdiagnosed her condition, and failed to

alter treatment despite her failure to improve for more than

seventeen hours. The motion judge found plaintiff's expert

"c[ould] not give an opinion that there would have been a better

outcome had at that point in time Dr. Curreri ordered heparin

treatment." Plaintiff argues this was an abuse of discretion

22 A-2698-14T1

because materially disputed facts were presented to support

causation that would defeat summary judgment.

"A medical malpractice case is a kind of tort action in

which the traditional negligence elements are refined to reflect

the professional setting of a physician-patient relationship."

Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). To establish a

prima facie case for medical negligence, "a plaintiff must

present expert testimony establishing (1) the applicable

standard of care; (2) a deviation from that standard of care;

and (3) that the deviation proximately caused the injury[.]"

Koseoglu v. Wry, 431 N.J. Super. 140, 156 (App. Div. 2013)

(alteration in original) (quoting Gardner v. Pawliw, 150 N.J.

359, 375 (1997)), certif. denied, 216 N.J. 4 (2013).

Under certain circumstances, a plaintiff "must prove that,

as a result of a defendant's negligence, she experienced an

increased risk of harm from that condition, and that the

increased risk of harm was a substantial factor in causing the

injury ultimately sustained." Gardner, supra, 150 N.J. at 375

(citing Anderson v. Picciotti, 144 N.J. 195, 210 (1996)).

The substantial factor test allows the

plaintiff to submit to the jury not whether

"but for" defendant's negligence the injury

would not have occurred[,] but "whether the

defendant's deviation from standard medical

practice increased a patient's risk of harm

or diminished a patient's chance of survival

and whether such increased risk was a

23 A-2698-14T1

substantial factor in producing the ultimate

harm." [Gardner, supra, 150 N.J. at 376].

Once the plaintiff demonstrates that the

defendant's negligence actually increased

the risk of an injury that later occurs,

that conduct is deemed to be a cause "in

fact" of the injury and the jury must then

determine the proximate cause question:

whether the increased risk was a substantial

factor in bringing about the harm that

occurred.

[Verdicchio, supra, 179 N.J. at 24.]

Plaintiff maintains her symptoms evident upon admission,

including her eyes gazing to the right, suggested a need for a

neurological consultation. However, Dr. Curreri did not examine

plaintiff for twenty-four hours after she was admitted to his

service, and the neurological exam, although ordered, was not

deemed urgent and was further delayed.

Plaintiff's expert Louis R. Caplan, M.D. stated there was a

need to consider a differentiated diagnosis before concluding

plaintiff suffered a polysubstance overdose. In his report, he

opined treating physicians ignored plaintiff's symptoms as

suggesting the more serious condition, stating:

If Dr. Hubbard and the other healthcare

providers at Kennedy Memorial Hospital

involved in [plaintiff]'s care and treatment

had identified that this was a neurologic

emergency then [plaintiff] would have been

considered for thrombolytic and or

anticoagulant treatment. As a result of the

negligence of the defendants, [plaintiff]

has permanent neurological injuries[,] which

24 A-2698-14T1

could have been prevented had the defendants

acted within the standard of care.

In his deposition testimony, Dr. Caplan reiterated that no

tests to determine whether plaintiff suffered a neurological

event were performed. Consequently, because "no adequate

investigation [and] no adequate differential diagnosis" was

performed, no treatment was administered. He also identified

other investigative procedures aiding a differentiated

neurological diagnosis, such as an MRI or MRA, would lead to a

course of treatment. Moreover, if the attending physician was

not trained in the area at issue, he or she was obligated to

call a trained and experienced neurologist to assist in the

diagnosis.

Both the trial judge and Dr. Curreri rely on this colloquy

as demonstrating lack of causation:

[DR. CURRERI'S COUNSEL]: If Heparin had

been administered to this patient by 12:00

noon on October 7, can you state an opinion

that this patient's outcome probably would

have been better.

[DR. CAPLAN]: No.

However, important to any analysis is the remainder of Dr.

Caplan's testimony, as follows:

Q. If heparin had been administered

by 12:00 noon on October 7, am I correct

that you cannot, therefore, state that the

failure to give heparin by 12:00 noon on

October 7, was a substantial factor in

25 A-2698-14T1

increasing the risk and harm to this

patient?

. . . .

A. No, I don’t think that necessarily

follows. You asked me if she'd been given

it at 12:00 noon. I can't say that would

have . . . made a difference. It depends on

when it was given whether it was more likely

than not that it would have been helpful.

But that would cover the time period between

when she came into the hospital and 12:00

noon the next day. That's the point at

issue.

. . . .

Q. If heparin had been given at any

point between 11:00 p.m. on the 6th and

12:00 noon on October 7, can you state the

opinion that the patient's outcome probably

would have been better?

A. The difficulty in answering the

question – I'd say this: I can't answer yes

or no. The reason I can't is we have

inadequate information. So it would depend

on what the findings were. As I said, we

don't have really a good detailed

neurological full examination early. We

don't have one really later. So I'm saying

that I think she got worse, but that's a

little hard to be absolutely certain. We

don’t have an imaging test. So we don’t

know if the imaging changed. And we don't

know when it would have been given.

So the answer is it would have given

her more chance depending on what the

findings were. Now, we don't know the

findings. So I can't really answer the

question. I can't answer yes or no. I

think it might have given her more of a

chance if it was given at the appropriate

26 A-2698-14T1

time after the appropriate imaging was done

depending on what the findings were.

When asked whether a decision to administer heparin at noon

on October 7 would have complied with the standard of care, Dr.

Caplan stated it would have made a difference and would have

complied with the standard of care.

Other facts also impact this issue. Dr. Baker, a Kennedy

staff intern who treated plaintiff following her admission to

the hospital, contacted Dr. Curreri to accept plaintiff as his

patient. Dr. Baker's memory of events is poor, but her hospital

notes record certain symptoms that prompted a neurological

consultation. Yet, Dr. Curreri did not order an expedited

consultation, causing its performance to be delayed for more

than twenty-four hours. Dr. Curreri accepted Dr. Baker's

diagnosis. However, he agreed if any evaluation does not

consider a diagnosis, tests would not be initially ordered. Dr.

Curreri acknowledged he did not consider an alternate

neurological diagnosis and, therefore, did not order additional

testing.

Viewing this record, in a light most favorable to plaintiff

as we must, we conclude the facts, including the expert opinion,

could support a finding Dr. Curreri deviated from the accepted

standard of care in failing to develop a differentiated

neurological diagnosis and, therefore, pursue an alternative

27 A-2698-14T1

course of medical treatment, which was a substantial factor in

contributing to the injuries plaintiff sustained. Gardner,

supra, 150 N.J. at 375.

The trial judge concluded Dr. Caplan did not assert "there

would have been a better outcome had[,] at that point in time[,]

Dr. Curreri ordered heparin treatment." (Emphasis added).

However, this is not the legal standard. "The substantial

factor test of causation requires the jury to determine whether

the deviation, in the context of the patient's preexistent

condition, was sufficiently significant in relation to the

eventual harm to satisfy the requirement of proximate cause."

Roses v. Feldman, 257 N.J. Super. 214, 218 (App. Div. 1992)

(quoting Battenfeld v. Gregory, 247 N.J. Super. 538, 546-47

(App. Div. 1991)). It then "becomes a jury question whether or

not that increased risk constituted a substantial factor in

producing the injury." Id. at 217 (quoting Battenfeld, supra,

247 N.J. Super. at 546-47).

The motion judge's conclusion considered only a portion of

Dr. Caplan's factual testimony. The expert opined had Dr.

Curreri acted when first advised of plaintiff's condition,

although he could "not be certain" because no testing was

performed, he believed "it would have given her more of a chance

. . . depending on what the findings were." Accordingly, the

28 A-2698-14T1

jury must determine whether Dr. Curreri's conduct was a

substantial factor in causing plaintiff's damages. Put another

way, "plaintiff's claim . . . from delayed diagnosis and

treatment will not be diminished or defeated by a demonstration

that delay itself was not the cause of her ultimate physical

injury." Evers v. Dollinger, 95 N.J. 399, 411 (1984). The

judge's erroneous analysis must be reversed and summary judgment

dismissal vacated.

IV.

In conclusion, we affirm the rejection of the discovery

rule as applicable here, but reverse the summary judgment

dismissal of claims against Dr. Wetjen, finding plaintiff's

timely complaint properly utilized the fictitious party

procedure. Plaintiff diligently pursued the identity of Dr.

Wetjen and promptly amended her pleadings when Kennedy finally

complied with discovery requests. Further, the judge improperly

granted summary judgment, dismissing Dr. Curreri. Not only did

the judge overlook evidence of causation provided by plaintiff's

expert, he employed the incorrect legal standard when assessing

the facts.

Accordingly, we reverse the June 2, 2011 and April 11, 2014

summary judgment orders, as well as the orders denying

29 A-2698-14T1

reconsideration. The matter is remanded for further

proceedings.

Reversed and remanded.

30 A-2698-14T1