The 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NOT FOR PUBLICATION WITHOUT THE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-3593-16T4
MAURICE R. GRASSIA,
JR., Executor of the Estate
of ELIZABETH K. GRASSIA,
on behalf of All Wrongful Death
and Survival Action Claimants,
Plaintiff-Appellant,
v.
UNDERWOOD MEMORIAL
HOSPITAL, INSPIRA MEDICAL
CENTER WOODBURY, INC.,
INSPIRA HEALTH NETWORK,
INSPIRA HEALTH NETWORK,
INC., INSPIRA HEALTH
PARTNERS, LLC, INSPIRA
HEALTHCARE, LLC, INSPIRA
MEDICA CENTER WOODBURY,
INSPIRA MEDICAL CENTERS,
INC., SOUTH JERSEY HEALTH
SYSTEM SOUTH JERSEY
HEALTHCARE, UNDERWOOD
MEMORIAL HEALTH SYSTEMS
INC., UNDERWOOD MEMORIAL
HOSPITAL INC., UNDERWOOD
MEMORIAL HOSPITAL-HEART
CENTER, UNDERWOOD
MEMORIAL HEALTH SYSTEM,
UNDERWOOD MEMORIAL
HEALTH SYSTEMS, INC.,
UNDERWOOD MEMORIAL
HOSPITAL, LOURDES HEALTH
SYSTEM, LOURDES SPECIALTY
HOSPITAL OF SOUTHERN NEW
JERSEY, LLC, INSPIRA
CARDIOVASCULAR SERVICES,
OWENS, VERGARI UNWALA,
CARDIOLOGY ASSOCIATES,
WOODBURY MEDICAL
CENTER; SOUTH JERSEY
FAMILY MEDICINE; MICHAEL
A. ROGERS, M.D., P.A.,
PULMONARY AND SLEEP
ASSOCIATES OF SOUTH
JERSEY, LLC, MARTIN S.
DAWSON, M.D., MARCUS
MAGNET, M.D., KURT W.
KAULBACK, M.D., and IRA D.
HOROWITZ, M.D.,
Defendants,
and
OUR LADY OF LOURDES
MEDICAL CENTER, INC., OUR
LADY OF LOURDES HEALTH
CARE SERVICES, INC., OUR
LADY OF LOURDES HEALTH
SYSTEM, OUR LADY OF
LOURDES MEDICAL CENTER;
NICHOLAS ROY, M.D., and
KAHYUN YOON-FLANNER,
M.D.,
A-3593-16T4
2
Defendants-Respondents.
___________________________
Submitted October 23, 2018 – Decided December 4, 2018
Before Judges Hoffman and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-2024-14.
Langsam Stevens Silver & Hollaender, LLP, attorneys
for appellant (Denise A. Kuestner, on the brief).
Stahl & DeLaurentis, PC, attorneys for respondents Our
Lady of Lourdes Medical Center, Inc., Lourdes Health
System, Our Lady of Lourdes Healthcare Services, Inc.,
Our Lady of Lourdes Health System, and Our Lady of
Lourdes Medical Center (Sharon K. Galpern, on the
brief).
Marshall Dennehey Warner Coleman & Goggin,
attorney for respondents Nicholas Roy, M.D., and
Kahyun Yoon-Flannery, M.D. (Walter F. Kawalec, III,
on the brief).
PER CURIAM
In this medical malpractice action, plaintiff appeals from Law Division
orders barring his expert from testifying as to the standard of care and granting
the summary judgment dismissial of the wrongful death and survival claims
relating to the death of his wife, Elizabeth Grassia (decedent). We affirm.
A-3593-16T4
3
I
These are the most pertinent facts. From April 14 until April 20, 2012,
decedent – then sixty-five years old – received treatment at Underwood
Memorial Hospital (Inspira) for congestive heart failure and acute coronary
syndrome; her medical history included non-insulin dependent diabetes, high
blood pressure, high cholesterol, and pneumonia. After doctors diagnosed
decedent with severe right coronary artery stenosis and a non-ST-elevation
myocardial infarction, 1 she underwent coronary angiography, balloon
angioplasty, and stenting of the right coronary artery. On April 21, 2012,
decedent required resuscitation after nurses found her unresponsive and in
respiratory arrest. Decedent was revived and discharged with a diagnosis of
non-ST-elevation myocardial infarction, congestive heart failure, coronary
artery disease, high blood pressure, and chronic obstructive pulmonary disease.
Decedent returned to Inspira on May 20, 2012 with acute shortness of
breath and acute pulmonary edema, requiring a ventilator. Inspira transferred
1
A heart attack occurs when one or more coronary arteries become blocked. A
patient may have a complete blockage or partial blockage. A complete blockage
means the patient had an ST elevation myocardial infarction (STEMI). A partial
blockage means the patient had a non-ST elevation myocardial infarction
(NSTEMI). Heart attack – Symptoms & causes, MAYO CLINIC (May 30, 2018),
https://www.mayoclinic.org/diseases-conditions/heart-attack/symptoms-
causes/syc-20373106.
A-3593-16T4
4
her to defendant Our Lady of Lourdes Medical Center, Inc. (the Hospital) on
May 24, 2012, for percutaneous coronary intervention (nonsurgical treatment of
narrowing coronary arteries). She remained there until her death on May 27.
Decedent received care from various physicians in the Hospital, including
defendant Kahyun Yoon-Flannery, M.D., an intern, and Nicholas Roy, M.D., a
resident.
Plaintiff's theory in the case was that defendants administered Lopressor
to decedent despite the fact her unstable decompensated heart failure with
pulmonary edema constituted a contraindication for the drug. The Lopressor,
along with inappropriate administration of heparin, substantially contributed to
decedent's cardiac arrest on May 26, and her death the next day.
In 2014, plaintiff filed this lawsuit against a multitude of parties, including
Inspira, the Hospital, and various physicians, alleging that decedent died "from
iatrogenic causes." In support of these claims, plaintiff retained the services of
a cardiologist, Dean Kross, M.D., who provided an affidavit of merit stating that
defendants' care "fell outside professional treatment standards." In February
2016, plaintiff served two medical expert reports, one from Dr. Kross, who
provided standard of care opinions against defendants, and one from Dr. David
Vearrier, M.D., who provided an opinion on causation based on the "medical
A-3593-16T4
5
errors" and "inappropriate and inadequate medical therapy" performed on
decedent. At the time defendants provided care to decedent, Dr. Vearrier was
board certified in occupational medicine, medical toxicology, and emergency
medicine.
Prior to his deposition, Dr. Kross withdrew as plaintiff's expert. A case
management conference followed, resulting in an October 26, 2016 order giving
plaintiff until January 9, 2017, to serve all expert reports; however, plaintiff did
not serve any additional expert reports.
Instead of retaining a substitute expert for Dr. Kross, plaintiff attempted
to proceed by having Dr. Vearrier serve as an expert who would address both
causation and standard of care. Defendants previously deposed Dr. Vearrier in
September 2016.
Upon learning of plaintiff's decision to use Dr. Vearrier as plaintiff's
standard of care expert, all defendants in the case moved for summary judgment,
claiming Dr. Vearrier did not have the qualifications to testify as to the standard
of care based on the requirements under N.J.S.A. 2A:53A-41. Plaintiff only
opposed the summary judgment motion as to Dr. Roy, Dr. Yoon-Flannery, and
the Hospital. The claims against all other parties were dismissed without
opposition.
A-3593-16T4
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Following oral argument, the motion judge held Dr. Vearrier did not
qualify to testify as an expert on the standard of care. As a result, she dismissed
the case against all defendants with prejudice. This appeal followed, with
plaintiff challenging only the dismissal of his claims against the Dr. Roy, Dr.
Yoon-Flannery, and the Hospital.
II
Appellate courts "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) (citations omitted). We "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." Ibid. (citing Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c)). A trial court's determination that
a party is entitled to summary judgment as a matter of law is not entitled to any
"special deference," and is subject to de novo review. Cypress Point Condo.
Ass'n v. Adria Towers, LLC, 226 N.J. 403, 415 (2016) (citation omitted).
To prove medical malpractice, the plaintiff must have expert testimony
that establishes "(1) the applicable standard of care; (2) a deviation from that
standard of care; and (3) that the deviation proximately caused the injury."
A-3593-16T4
7
Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (internal citations omitted). For
residents and interns, the standard of care applicable is the same as that for a
general practitioner. Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super. 108, 115
(App. Div. 2006).
Dr. Yoon-Flannery and Dr. Roy were an intern and resident respectively.
Therefore, the standard of care applicable to each doctor is that of a general
practitioner. See id. at 116. N.J.S.A. 2A:53A-41 establishes the requirements
for any person giving expert testimony as to the appropriate standard of care.
When testifying against a general practitioner:
[T]he expert witness, during the year immediately
preceding the date of the occurrence that is the basis for
the claim or action, shall have devoted a majority of his
professional time to:
(1) active clinical practice as a general
practitioner; or active clinical practice that
encompasses the medical condition, or that includes
performance of the procedure, that is the basis of the
claim or action; or
(2) the instruction of students in an accredited
medical school, health professional school, or
accredited residency or clinical research program in the
same health care profession in which the party against
whom or on whose behalf the testimony is licensed; or
(3) both.
[N.J.S.A. 2A:53A-41(b) (emphasis added).]
A-3593-16T4
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Therefore, in order to serve as plaintiff's standard of care expert, Dr. Vearrier
needed to qualify under subsection one or two.
Dr. Vearrier is not a general practitioner, nor has he ever practiced as one.
Rather, at the time relevant to this case, Dr. Vearrier held certifications in
Emergency Medicine, Medical Toxicology, and Occupational Medicine.
Therefore, to qualify under subsection one, Dr. Vearrier needed to have devoted
a majority of his professional time, in the year prior to the relevant events, acting
in a clinical practice that encompasses the medical condition or procedure at
issue in the claim. N.J.S.A. 2A:53A-41(b)(1). Plaintiff failed to establish that
Dr. Vearrier satisfied this criterion.
Decedent was admitted to the Hospital for "percutaneous coronary
intervention." However, the conditions and procedures at issue involve the
administration of Lopressor following the intervention procedure, which
allegedly led to her cardiac arrest and thereby contributed to her death; the
administration and failure to discontinue a heparin infusion after her cardiac
arrest, which allegedly increased the risk of substantial hemorrhage and thereby
contributed to her death; and the failure to discontinue the administration of
Cardizem after decedent developed hypotension, which allegedly exacerbated
decedent's hypotension and thereby contributed to her death. All of these
A-3593-16T4
9
alleged deviations involve the management of a cardiac patient, post-procedure
and post-stabilization following cardiac arrest. Plaintiff failed to demonstrate
Dr. Vearrier devoted a majority of his professional time to active clinical
practice that encompasses these medical conditions or their management.
In the year immediately preceding May 27, 2012, Dr. Vearrier worked as
the Medical Toxicology Fellowship Director, the Medical Toxicology Clerkship
Director, and briefly as a Clinical Assistant Professor at the Department of
Emergency Medicine at Drexel University College of Medicine; a Medical
Toxicologist Consultant for the Poison Control Center at the Children's Hospital
of Philadelphia; and as Assistant Editor to www.ToxEd.com. During this time,
Dr. Vearrier indicated his role as Clerkship Director put him "in charge of
[medical students who take a medical toxicology clerkship's] education." Dr.
Vearrier also indicated he is "in charge of the resident education medical
toxicology. That includes the emergency medicine residents and . . . other
residents who rotate throughout [the school's] service either as part of their
training or as an elective." His role as the Fellowship Director involved
"train[ing] medical toxicology fellows. Those are physicians who have already
completed specialty training in pediatrics or emergency medicine or internal
A-3593-16T4
10
medicine, who are now seeking fellowship status and subspecialization in
medical toxicology."
In regards to his work on the emergency floor, Dr. Vearrier only began
working part-time at Roxborough Memorial Hospital in 2014. Prior to that year,
the last time he worked on the emergency floor was during his residency training
in 2008. Despite this fact, in his certification submitted in opposition to
summary judgment, Dr. Vearrier stated:
Emergency Medicine covers treating a very wide
range of diseases and trauma. I routinely in the year
before May 26, 2012 treated patients for shortness of
breath, cardiac insufficiency, cardiac arrest,
hypotension, occult hemorrhage, adverse effects of
anti-coagulants, and acutely decompensated congestive
heart failure. In short, in that year I regularly and
routinely provided treatments, administered drugs, and
taught residents and medical students about all of the
medical conditions I have addressed with respect to the
treatment, or lack thereof, provided to Elizabeth
Grassia at Lourdes after 8:00 pm on May 26, 2012 and
on May 27, 2012.
While Dr. Vearrier stated he "routinely" and "regularly" treated patients
that encompassed the medical condition at issue in the year prior to May 2012,
he did not specify in what capacity he performed these duties. His certification
appears to contradict his curriculum vitae and deposition testimony by
insinuating he spent a majority of his time practicing emergency clinical work.
A-3593-16T4
11
He did not specify where he performed this clinical work. Plaintiff did not
address this deficiency at the summary judgment hearing; instead, plaintiff
merely reiterated Dr. Vearrier's statement in his certification as evidence of Dr.
Vearrier's qualification.
Even assuming, arguendo, the accuracy of Dr. Vearrier's representation,
his certification did not state that emergency medicine encompassed the majority
of his professional time. While he may have "routinely" and "regularly"
provided treatment related to the matters at issue in this case while working in
emergency medicine, Dr. Vearrier did not state he devoted a majority of his
professional time working in emergency medicine. In 2011, Dr. Vearrier's
curriculum vitae indicated he held five different professional positions, two of
which (Medical Toxicologist Consultant for the Poison Control Center at the
Children's Hospital of Philadelphia, and Assistant Editor for www.ToxED.com)
would clearly not involve clinical work applicable to this case. Additionally,
Dr. Vearrier only held the position of Clinical Assistant Professor in the
Department of Emergency Medicine at Drexel University College of Medicine
for a brief period of time during the year before the period relevant to this case
(from April 2011 to July 2011).
A-3593-16T4
12
Therefore, this "regular" and "routine" clinical work would have to occur
either in his work as the Medical Toxicology Fellowship Director or the Medical
Toxicology Clerkship Director for the Division of Medical Toxicology in the
Department of Emergency Medicine for Drexel University College of Medicine
or both. However, there is no definitive statement as to where he performed his
emergency medicine, nor that it occupied the majority of his professional time.
As plaintiff carried the burden to show that Dr. Vearrier was qualified to testify
as to the standard of care, it was not for the court to speculate or assume how
Dr. Vearrier divided his professional time during the relevant time period.
For similar reasons, plaintiff failed to prove Dr. Vearrier qualifies under
subsection two as an expert on standard of care. Under subsection two, "during
the year immediately preceding the date of the occurrence that is the basis for
the claim or action," the individual "shall have devoted a majority of his
professional time to: the instruction of students in an accredited medical school
. . . or accredited residency or clinical research program in the same health care
profession in which the party against whom or on whose behalf the testimony is
licensed."
At his deposition, Dr. Vearrier testified that he only gives approximately
six lectures in a given year. Clearly, these lectures could not occupy the majority
A-3593-16T4
13
of his professional time; as a result, he did not satisfy the threshold requirement
that he "shall have devoted a majority of his professional time" to the instruction
of medical students. N.J.S.A. 2A:53A-41(b). While Dr. Vearrier served as both
a Clerkship Director and a Fellowship Director, these were both residencies in
medical toxicology. Therefore, this did not constitute the same health care
profession as the defendants, who were neither boarded nor practicing as
medical toxicologists. Thus, even if we were to assume that Dr. Vearrier spent
a majority of his professional time teaching in these residencies, this would not
qualify him as an expert on standard of care as it was not "in the same health
care profession" as Dr. Roy or Dr. Yoon-Flannery. N.J.S.A. 2A:53A-41(b)(2).
Therefore, Dr. Vearrier's teachings and instruction of students in the
residency programs did not qualify him to serve as a standard of care expert
against defendants as they do not share the same health care profession.
Affirmed.
A-3593-16T4
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