ELVIRA DUBOIS, ETC. VS. SENIOR LIVING SOLUTIONS, LLC (L-5987-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1194-19

ELVIRA DUBOIS, as the

administratrix of the estate

of MARGARET SEBASTIAN,

Plaintiff-Appellant/

Cross-Respondent,

v.

SENIOR LIVING SOLUTIONS,

LLC d/b/a BRIDGEWAY CARE

AND REHABILIATION AT

HILLSBOROUGH,1

Defendant-Respondent/

Cross-Appellant,

and

ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL NEW

BRUNSWICK, ROBERT WOOD

JOHNSON UNIVERSITY

HOSPITAL SOMERSET,

SHEHZANA ASHRAF, M.D., and

JULIET LWANGA, M.D.,

1

Incorrectly pleaded as "Bridgeway Senior Healthcare d/b/a Bridgeway Care

and Rehabilitation Center at Hillsborough" and "Bridgeway."

Defendants-Respondents.

______________________________

Submitted March 1, 2021 – Decided August 5, 2021

Before Judges Messano, Hoffman, and Suter.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-5987-16.

Lance Brown and Associates, LLC, attorneys for

appellant/cross-respondent (Lance D. Brown, Sherry L.

Foley, and Timothy J. Foley, of counsel and on the

briefs; Sommer L. Spillane and David Schwadron, on

the briefs).

Marks, O'Neill, O'Brien, Doherty & Kelly, PC,

attorneys for respondent/cross-appellant (Frances

Wang Deveney and Shannon B. Adamson, on the

briefs).

Rosenberg Jacobs Heller & Fleming, PC, attorneys for

respondents Robert Wood Johnson University Hospital

New Brunswick and Robert Wood Johnson University

Hospital Somerset (Raymond J. Fleming, of counsel;

Christopher Klabonski, on the brief).

Farkas & Donohue, LLC, attorneys for respondents

Shehzana Ashraf, M.D., and Juliet Lwanga, M.D.

(Evelyn C. Farkas, of counsel; Christine M. Jones, on

the brief).

PER CURIAM

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Plaintiff Elvira Dubois, administratrix of the estate of Margaret Sebastian,

filed this medical malpractice action against defendants Robert Wood Johnson

University Hospital New Brunswick and Somerset (RWJ), Doctors Shehzana

Ashraf and Juliet Lwanga, and Senior Living Solutions, LLC d/b/a/ Bridgeway

Care and Rehabilitation Center at Hillsborough (SLS). The allegations in the

complaint involved the medical and nursing care defendants provided to eighty-

six-year old Sebastian following a fall in her home on November 1, 2014.

After a protracted discovery period, SLS moved for summary judgment,

and RWJ cross-moved for partial summary judgment. The essence of the

arguments was that plaintiff's expert, Dr. Perry Starer, board certified in internal

medicine and geriatrics, was unqualified to opine as to the appropriate standard

of nursing care. After considering oral argument, the judge granted SLS's

motion in part, dismissing plaintiff's claim of vicarious liability for Dr. Lwanga's

alleged negligence because she was not an employee of SLS, and plaintiff's

claim for punitive damages. The judge otherwise denied the motions without

prejudice, concluding that a N.J.R.E. 104 hearing on Dr. Starer's qualifications

was necessary at or before the time of trial, which was set for September 30,

2019. The judge's July 19, 2019 orders (the July orders) preserved SLS's and

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3

RWJ's right to file a formal motion to bar Dr. Starer as an expert on the subject

of nursing care.

Defendants subsequently filed a flurry of motions and cross-motions. Drs.

Ashraf and Lwanga challenged the adequacy of the opinions rendered by Dr.

Starer and sought to bar him from testifying on issues of causation. They also

argued that lacking adequate expert evidence on the issue of causation from Dr.

Starer and Dr. Charles E. Metzger, plaintiff's other expert who was board

certified in internal medicine, summary judgment was appropriate. SLS's cross-

motion sought summary judgment on similar grounds. RWJ's cross-motion

sought to bar the testimony of Dr. Starer "concerning nursing care ." RWJ

subsequently filed a cross-motion for summary judgment. The notice of motion

sought dismissal of all claims for medical malpractice "apart from those for

failure to properly treat and prevent pressure ulcers." SLS subsequently moved

to bar Dr. Starer's testimony regarding nursing malpractice.

The motions were to be heard on August 30, 2019. However, on the

afternoon of August 29, plaintiff apparently emailed to defendants an expert

report dated the same day by board-certified vascular surgeon Dr. Antonios P.

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4

Gasparis, who was never previously identified by plaintiff in discovery.2

Defendants immediately objected.

After hearing oral argument, the judge entered an order on September 16,

2019 (the September order), supported by a lengthy written opinion. The order

granted the motion to bar Dr. Starer's testimony and granted all defendants

summary judgment dismissing plaintiff's complaint with prejudice.

Plaintiff moved for reconsideration. Counsel certified to the following:

After [d]efendants' summary judgment motions were

filed, I retained a different vascular surgeon who

advised me on August 23, 2019 that he would not serve

as our expert. This left me with an incredibly short

period of time to attempt to find a competent expert

who could review voluminous records and potentially

write a report, which we were able to do by August 29,

2019.

Plaintiff also urged the judge to reconsider the dismissal of its "pressure ulcer"

claim against RWJ, arguing Dr. Starer was competent to provide expert opinions

on the subject and that his report and testimony was sufficient to establish a

prima facie case of medical malpractice on this discrete issue. The judge denied

the motion for reconsideration by order dated October 25, 2019 (the October

order), spreading his reasons orally on the record.

2

The appellate record includes the report and the responses from defense

counsel, but not any transmittal correspondence from plaintiff's counsel.

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5

Plaintiff appeals from the September and October orders. She contends

the judge violated her due process rights by "sua sponte" dismissing the

"pressure injury claim" without ever conducting the N.J.R.E. 104 hearing, and

even though RWJ never sought this relief. Plaintiff also contends the judge

erred by applying the "but for" standard of proximate cause instead of the

"increased risk doctrine"; according to plaintiff, the expert reports of Drs.

Metzger and Starer established a prima facie case of malpractice if the proper

standard were applied. Finally, plaintiff argues that it was error to grant

summary judgment to SLS and Drs. Ashraf and Lwanga without considering Dr.

Gasparis' late report, and, even without that report, plaintiff contends she

established a genuine issue of material fact as to whether those defendants

"contributed" to Sebastian's death.

Defendants oppose these arguments. Additionally, SLS filed a cross-

appeal from the July order. It contends the judge erred in ordering an N.J.R.E.

104 hearing on whether Dr. Starer was qualified to opine on the appropriate

standard of nursing care because he was not, and, therefore, the judge should

have granted SLS's original summary judgment motion.

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Having considered these arguments in light of the motion record and

applicable legal standards, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

I.

We limit our review to the record before the motion judge. See Ji v.

Palmer, 333 N.J. Super. 451, 463–64 (App. Div. 2000) (holding appellate review

of the grant of summary judgment is limited to the record that existed before the

motion judge (citing Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188

(1963))).

On the day following her fall, Sebastian presented at RWJ Somerset with

atrial fibrillation, two fractured ribs, and a non-ST elevation myocardial

infarction. Dr. Ashraf was her attending physician. Three days later, she

underwent cardiac catheterization, and, on November 7, Sebastian was

discharged to SLS. A nurse there noticed purple discoloration on Sebastian's

groin area near the site of the catheterization. By November 9, the staff noticed

the area had become a "large, hard, shiny hematoma" that extended "down [one-

third] of [Sebastian's] thigh." The area was "painful to minimal touch." SLS

staff call 9-1-1, and Sebastian was transported back to RWJ Somerset.

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Records demonstrated that plaintiff had suffered significant blood loss and

ultrasound examination of her groin area was read as presenting a

"pseudoaneurysm."3 Sebastian underwent surgical repair at RWJ New

Brunswick on November 9, and her wound became infected and required

debridement a few days later. Additionally, by November 14, she had developed

a Stage Two sacral pressure ulcer, which worsened during Sebastian's stay at

RWJ New Brunswick. Sebastian was transferred to the ICU after suffering

respiratory distress; she died on December 1, 2014.

Dr. Starer prepared two reports. As to Dr. Ashraf and RWJ, he opined

that they failed to properly address Sebastian's risk for bleeding following the

catheterization procedure, resulting in her loss of blood and developing anemia.

This resulted in her hospitalization, during which Sebastian "developed a

pressure ulcer, became infected, and died." According to Dr. Starer, these

3

The parties disputed whether plaintiff had a pseudoaneurysm or a hematoma.

A pseudoaneurysm is defined as "[a] cavity due to ruptured myocardial

infarction that has been contained by an intact parietal pericardium and

communicates with the left ventricle by a narrow neck." Stedman's Medical

Dictionary 1450 (26th ed. 1995). A hematoma is "[a] localized mass of

extravasated blood that is relatively or completely confined within an organ or

tissue, a space, or a potential space; the blood is usually clotted (or partially

clotted), and, depending on how long it has been there, may manifest various

degrees of organization and decolorization." Id. at 772.

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8

defendants "failed to develop and implement a comprehensive care plan to

prevent skin wounds from occurring and . . . deteriorating."

As to Dr. Lwanga and the SLS staff, Dr. Starer opined they failed to

diagnose Sebastian's loss of blood and failed "to properly develop and

implement a care plan to address [her] risk for bleeding." This led to conditions

that "contributed to [Sebastian's] death."

Dr. Metzger's report criticized Dr. Ashraf's failure to examine Sebastian's

groin area to "rule out a pseudoaneurysm," "a known potential complication of

cardiac catheterization." Had the condition been detected earlier, Dr. Metzger

concluded it would have "required only conservative treatment rather than

surgery . . . and [Sebastian] would have survived." Dr. Metzger reached the

same conclusions about Dr. Lwanga.

Defendants' motions were supported with portions of Dr. Metzger's and

Dr. Starer's deposition testimony. Dr. Metzger acknowledged being uncertain

as to what factors determine whether a patient requires surgery for a

pseudoaneurysm versus conservative treatment; he would defer to a vascular

surgeon or interventional radiologist on the issue. He would also defer to a

vascular surgeon regarding what conservative treatment options might exist and

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9

the factors to consider in deciding whether conservative treatment was

warranted.

Dr. Starer offered no opinions about the treatment options available for

Sebastian's hematoma or pseudoaneurysm, but he believed it was more likely

that a hematoma did not develop until the early morning of November 9, the day

Sebastian left SLS's care. However, he could not be sure because the SLS staff

failed to properly monitor the situation.

Dr. Gasparis is board-certified in general and vascular surgery. In his

report, Dr. Gasparis opined that the early bruising on Sebastian's groin should

have been investigated further. A physical examination and consideration of "a

significant drop in her blood count from admission and from post-catheterization

levels" should have "warrant[ed] investigation for [a pseudoaneurysm] with an

ultrasound" prior to Sebastian's discharge to SLS. According to Dr. Gasparis,

the condition could have been treated then with "a non-surgical option," such as

"compression or thrombin injection." Avoiding surgery would have avoided the

complications that subsequently occurred and led to Sebastian's death.

II.

We first address the issues raised by plaintiff's service of Dr. Gasparis'

report the afternoon before the summary judgment motions were to be heard.

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10

During oral argument on defendants' motions, the judge asked counsel, "[H]ow

is it that I should even consider that [report]?" Plaintiff's counsel contended the

late report was simply rebuttal of issues regarding causation raised by

defendants' motions, and Dr. Gasparis' report was consistent with Dr. Metzger's

opinions. Counsel alternatively orally sought to reopen discovery.

During oral argument, the judge expressed a firm belief that pursuant to

Rule 4:17-7, he should disregard Dr. Gasparis' report. In a footnote in his

written opinion, the judge explained that he did disregard the report in

considering the motions.

Before us, plaintiff reiterates the contention that the late-served report was

proper rebuttal of an argument "presented for the first time in the opposing

party's case." We disagree and conclude the report was properly disregarded by

the judge in his consideration of the pending summary judgment motions.

"An appellate court applies 'an abuse of discretion standard to decisions

made by [the] trial courts relating to matters of discovery.'" C.A. by Applegrad

v. Bentolila, 219 N.J. 449, 459 (2014) (alteration in original) (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). "It

'generally defer[s] to a trial court's disposition of discovery matters unless the

court has abused its discretion[,] or its determination is based on a mistaken

A-1194-19

11

understanding of the applicable law.'" Ibid. (first alteration in original) (quoting

Pomerantz Paper Corp., 207 N.J. at 371).

Rule 4:17-7 prohibits a party from amending interrogatory answers within

twenty days of the discovery end date unless the party

certifies . . . that the information requiring the

amendment was not reasonably available or

discoverable by the exercise of due diligence prior to

the discovery end date. . . . Amendments may be

allowed thereafter only if the party seeking to amend

certifies therein that the information requiring the

amendment was not reasonably available or

discoverable by the exercise of due diligence prior to

the discovery end date. In the absence of said

certification, the late amendment shall be disregarded

by the court and adverse parties.

Obviously, plaintiff's late service of an expert vascular surgeon's report violated

every provision of the rule. Nothing further needs to be said. R. 2:11-3(e)(1)(E).

Furthermore, arguing the report was proper rebuttal of the defendants'

motions does not compel a different conclusion. "Generally, summary judgment

is inappropriate prior to the completion of discovery[,]" Wellington v. Estate of

Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003) (citing Velantzas v.

Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)), and, absent good cause, the

motion should be made returnable no later than thirty days before trial. R. 4:46-

1. This procedural framework limits the parties' ability to continue to seek

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further discovery or serve additional discovery in response to arguments raised

by opponents shortly before trial.

The thrust of defendants' arguments was that plaintiffs' experts failed to

establish that any alleged deviation from post-catheterization standards of care

was a proximate cause of plaintiff's surgery, hospitalization and ultimate death.

Plaintiff clearly should have anticipated that proximate cause was a critical

element in establishing a prima facie case of medical negligence. Komlodi v.

Picciano, 217 N.J. 387, 409 (2014). Furthermore, generally, expert opinion is

necessary to establish causation. Gardner v. Pawliw, 150 N.J. 359, 375 (1997)

(citing Germann v. Matriss, 55 N.J. 193, 205 (1970)). Curing this deficiency in

her case was the true, indeed the only reason why plaintiff belatedly sought to

have Dr. Gasparis' report and potential testimony admitted. Counsel admitted

as much in his certification filed in support of the motion for reconsideration. 4

The judge properly refused to consider Dr. Gasparis' report.

III.

Plaintiff contends that even without Dr. Gasparis' report and testimony,

she established a prima facie case of medical negligence through the reports and

4

SLS argues that even if Dr. Gasparis' report was admitted, he never rendered

an opinion about SLS' negligence. We agree.

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testimony of Drs. Starer and Metzger pursuant to the "increased risk doctrine,"

and the judge erred by dismissing her complaint because he mistakenly utilized

the "but for" causation standard. We disagree.

In a medical malpractice action, "[a]s a general rule, it is the causation

element that is the most complex." Verdicchio v. Ricca, 179 N.J. 1, 23 (2004).

Because the traditional "but for" causation standard "has its limitations in

situations where two or more forces operate to bring about a certain result," our

courts have adopted the "substantial factor" causation standard in such

situations. Id. at 24.

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 substantial factor in

producing the ultimate harm."

[Ibid. (quoting Gardner, 150 N.J. at 376).]

Here, during oral argument, the judge asked counsel if the causation issue

implicated the Court's decision in Scafidi v. Seiler, 119 N.J. 93 (1990);5 all

5

In Scafidi, the Court held, "Evidence demonstrating within a reasonable degree

of medical probability that negligent treatment increased the risk of harm posed

by a preexistent condition raises a jury question whether the increased risk was

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answered affirmatively. It is clear the judge understood the proper causation

standard to be applied.

The judge concluded, however, that both Drs. Starer and Metzger were

unable to render anything other than net opinions about how alleged deviations

from the standard of care — defendants' failure to check plaintiff's groin area

and treat the hematoma or pseudoaneurysm sooner — were substantial factors

in the ultimate harm, i.e., plaintiff's death. As to Dr. Metzger, the judge noted

that he rendered his opinion "in the admitted absence of qualifications to testify

in the disciplines of vascular surgery and interventional radiology, which, he

readily concede[d], are specialties that could opine on what 'conservative

treatment' modalities could have been, but were not rendered[.]"

The judge reached a similar conclusion with respect to Dr. Starer.

Dr. Starer does not offer an opinion in this matter that

the decedent sustained a pseudoaneurysm. Dr. Starer

did not make a finding as to when [decedent] had acute

blood loss. Dr. Starer did not make a finding as to when

[decedent] had a hematoma. Dr. Starer has not made a

determination as to how much sooner the hematoma

could have been diagnosed.

Moreover, . . . Dr. Starer does not offer any

opinions on the type of interventions that would have

been available . . . to address the hematoma. Dr. Starer

a substantial factor in producing the ultimate result." 119 N.J. at 108 (citing

Evers v. Dollinger, 95 N.J. 399, 417 (1984)).

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could not say that the type of treatment available upon

earlier diagnosis would have been different from that

which was ultimately rendered to [decedent].

The judge did not misapply the proper causation analysis nor did he

improperly place the burden of proof upon plaintiff. In an increased risk case,

the burden remains on the plaintiff to establish in the first instance that

"defendant's negligence was a substantial contributing cause of the injury."

Koseoglu v. Wry, 431 N.J. Super. 140, 158 (App. Div. 2013) (citing Verdicchio,

179 N.J. at 25). The burden shifts to the defendant only on the issue of

"apportionment of damages between his conduct and any pre-existing

condition." Ibid. (citing Verdicchio, 179 N.J. at 37).

The judge correctly recognized the shortcomings of the experts' opinions

based upon their lack of qualifications and admitted lack of expertise. Neither

had the ability to address, except in broad generalities untethered to the facts of

the case, how a delay in the diagnosis of a hematoma or pseudoaneurysm

increased the risk of harm to plaintiff and led to her death.

With one exception, which we explain below, we affirm the grant of

summary judgment to defendants substantially for the reasons expressed by the

judge in the written decision that accompanied his September order.

IV.

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As noted, RWJ's notice of motion for summary judgment specifically

excluded plaintiff's claims regarding defendant's alleged failure to properly treat

and prevent a pressure ulcer during her hospitalization at defendant's

institutions. In its brief supporting the motion, RWJ reiterated that it was not

seeking summary judgment on this claim.

During oral argument on the motions, plaintiff understandably never

addressed the issue. RWJ's counsel did not either, except in the broadest terms,

noting the causation arguments raised by co-defendants and arguing "everything

flows from . . . the alleged negligence with regard to the pseudoaneurysm or

hematoma and . . . if causation hasn't been shown with regard to that, . . .

[plaintiff] failed to prove causation required as to all the other claims."

In a footnote in his comprehensive written decision disposing of the

motions, the judge took note of his earlier July order, in which he preserved the

right of SLS and RWJ to bar Dr. Starer as an expert on nursing care after a

N.J.R.E. 104 hearing. The judge noted defendants' earlier motion "did not raise

the causation issue." He further wrote that for the present motions, the court

assumed arguendo that Dr. Starer was "qualified to render the opinions he

proffer[ed]; however, . . . his report and opinions . . . are devoid of any valid,

substantial facts and admissible expert opinion on the critical element of

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causation." In a second footnote, the judge agreed with SLS that the previously

ordered N.J.R.E. 104 hearing "ha[d] no bearing on . . . the demonstrated lack of

expert opinion across-the-board on the critical element of causation." However,

the judge only analyzed the causation issue as it applied to the development of

the hematoma or pseudoaneurysm in plaintiff's groin and the need for surgery

versus conservative treatment of the condition.

When plaintiff moved for reconsideration, the following colloquy

occurred between plaintiff's counsel and the judge:

Counsel: Your Honor, we believe, respectfully, that

with regard to the pressure ulcer case, which was a

separate case essentially within this case against

[RWJ], that the Court may have inadvertently thrown

out the baby with the bath water. The opinion doesn’t

specifically address that aspect of the case and —

....

Judge: The pressure ulcer was the last of the continuum

of complications that arose from the outset of the . . .

treatment that was alleged to have been malpractice.

....

Counsel: We believe it's a separate action entirely

because of the fact that the case — the pressure ulcer

went from a stage 2 to an unstageable pressure ulcer

case in and of itself is a separate issue from the

hematoma.

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Judge: But there was no — there was no opinion that

that was the case.

Counsel: Dr. Starer’s opinion, Your Honor.

Judge: [B]ut fatally, Dr. Starer, even assuming he was

qualified to render an opinion about the nursing care

aspect of it, couldn't make the causal connection.

Counsel: Well, as to the — as to the pressure ulcer we

believe he did . . . . As to the hematoma and the

pseudoaneurysm, Your Honor was quite thorough in

analyzing that issue and I believe that that was the bulk

of the issues.

The judge reiterated that plaintiff failed to produce

that causal link from finding a standard of care that was

deviated from, that the deviation was a substantial

factor in producing the ultimate outcome here . . . and

. . . you never get to the question as to whether or not

the pressure ulcers as a residual manifestation of a

complication post-surgery was itself the efficient cause

of the death or contributed towards it . . . .

The judge cited a footnote in his written opinion deciding the earlier motions, in

which he outlined plaintiff's claims, including "the development of a pressure

ulcer that contributed to her death." The judge entered the October order

denying reconsideration, concluding that he had not overlooked nor failed to

appreciate probative evidence in deciding the summary judgment motions. See,

e.g., Triffin v. SHS Grp., LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)

(noting reconsideration is only appropriate when the court's decision is

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"palpably incorrect or irrational," or the court "did not consider, or f ailed to

appreciate the significance of probative, competent evidence" (quoting

Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996))).

Plaintiff raises several arguments in urging us to reverse summary

judgment in favor of RWJ on her claim of malpractice regarding the sacral

pressure ulcer that developed during Sebastian's hospitalization. 6 She contends

that the judge's sua sponte grant of summary judgment on this discrete claim

violated her due process rights, that Dr. Starer is qualified to render opinions on

the subject of nursing care, or, alternatively, the court should have conducted

the N.J.R.E. 104 previously ordered, and, ultimately, that she presented a prima

facie case that should have survived summary judgment.

RWJ contends based on all the motions filed plaintiff was on notice that

defendants were challenging every claimed injury Sebastian suffered because of

a lack of expert testimony regarding causation. It contends that Dr. Starer's

6

In relation to the pressure ulcer injury, plaintiff's brief only addresses RWJ's

alleged negligence. We deem the claim waived as to SLS or any other

defendant. See, e.g., N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super.

501, 505 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived

upon appeal." (citing Fantis Foods v. N. River Ins. Co., 332 N.J. Super. 250,

266–67 (App. Div. 2000))).

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opinions were merely net opinions, and, therefore, the previously ordered

N.J.R.E. 104 hearing was unnecessary. RWJ argues the judge correctly

determined that the pressure ulcer claim failed for lack of expert causation

evidence.

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53–54 (2015)

(alteration in original) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583

(2008)). "An expert's conclusion 'is excluded if it is based merely on unfounded

speculation and unquantified possibilities.'" Id. at 55 (quoting Grzanka v.

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)).

Dr. Starer's report described in detail the standard of care, RWJ's deviation

from that standard, and the injuries that resulted:

[T]he staff of [RWJ] failed to ensure that [decedent]

received appropriate routine medical and nursing

care . . . .

The failure of the staff of [RWJ] to comply with the

applicable standards of care caused, within a reasonable

degree of medical certainty, [decedent] to suffer a skin

wound. This injury to [decedent] could have, within a

reasonable degree of medical certainty, been prevented

or detected/addressed earlier if the standards of care

had been followed. It should have been clear to the staff

of [RWJ] that [decedent's] condition was not improving

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under the care and treatment plan and they should have

made necessary changes in [decedent's] care and

treatment . . . [and] should have ensured that

[decedent's] skin was not subjected to friction and

shearing forces and that she was turned and

repositioned frequently enough to prevent skin damage

and promote healing.

The failure of the staff of [RWJ] to meet the

standards of care for skin care resulted in the

deterioration of the integrity of [decedent's] skin,

causing pain and suffering . . . [and] resulted in a

decline in [decedent's] clinical condition. As a result of

the staff of [RWJ] not properly addressing the external

forces which can damage skin, [decedent's] skin

condition deteriorated . . . [and] caused pain, suffering,

clinical deterioration, and substantially contributed to

her death.

At his deposition, Dr. Starer testified that Sebastian had numerous

comorbidities including dementia of the Alzheimer's type, and before the

hospitalization, high blood pressure, hypolipidemia, coronary atherosclerosis,

arthritis, hypothyroidism, cervical disc disease, lower back pain, two rib

fractures, and she was diagnosed at the hospital with atrial fibrillation. Dr.

Starer testified that some pressure ulcers are unavoidable and not all are due to

failure to reposition the patient. He stated that his criticism of defendant RWJ

was strictly related to their prevention and treatment of Sebastian's sacral

pressure ulcer because Sebastian was at high risk for developing a skin ulcer.

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Dr. Starer stated that considering decedent's comorbidities and a recent

myocardial infarction, the pressure ulcer put stress on decedent's heart because

her body now had a wound that "require[d] nutrients to be brought to it and

waste materials to be taken away and protein to be brought to it, this is an

additional burden putting on an already damaged heart[.]" While Dr. Starer

acknowledged that defendants RWJ's nurses appropriately turned and

repositioned decedent every two hours as called for in the nursing treatment plan

and the doctors' orders, he also stated that "as the wound began to det eriorate,

there should have been a revision of that treatment plan."

We conclude that Dr. Starer was qualified to render these opinions based

on his years of experience and his board certification in geriatrics. With one

exception, these were not net opinions and should have vaulted plaintiff over the

summary judgment threshold on this discrete claim of injury.

However, we agree with the motion judge in one respect. Dr. Starer's

opinion that the pressure ulcer was a substantial factor contributing to

Sebastian's death is a net opinion unsupported by requisite factual

underpinnings. Dr. Starer's report contains nothing more than a conclusory

statement. His deposition testimony, quoted above, describes a "cascading"

series of events that culminated in Sebastian's death. However, Dr. Starer was

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unable to explain how given all her other ailments, a small pressure wound on

Sebastian's sacral skin area was a substantial contributing factor of her death.

See, e.g., Verdicchio, 179 N.J. at 25 ("[M]erely establishing that a defendant's

negligent conduct had some effect in producing the harm does not automatically

satisfy the burden of proving it was a substantial factor[.]") We have carefully

examined the record, and there is nothing but conclusory statements to support

the opinion that a small sacral pressure ulcer was a substantial factor in causing

Sebastian's death.

In sum, we partially reverse the September and October orders only as to

RWJ and only as to plaintiff's claim for Sebastian's pain and suffering caused

by the sacral pressure ulcer that allegedly resulted from RWJ's negligence. In

all other respects, we affirm those orders that resulted in summary judgment in

defendants' favor. We dismiss SLS's cross-appeal as moot.

Affirmed in part; reversed in part; and remanded. We do not retain

jurisdiction.

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