MENDOZA v. INSPIRA MEDICAL CENTER VINELAND et al

Filing 30

OPINION. Signed by Judge Noel L. Hillman on 3/30/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
GLADYS MENDOZA, personal
representative of Elias Mendoza,
Plaintiff,

Civil No. 16-1337 (NLH/KMW)

v.
OPINION
INSPIRA MEDICAL CENTER VINELAND,
et al.,
Defendants.
__________________________________

APPEARANCES:
LAW OFFICES OF JAMES R. RADMORE, P.C.
By: James R. Radmore, Esq.
Two Penn Center, Suite 520
1500 JFK Boulevard
Philadelphia, Pennsylvania 19102
Counsel for Plaintiff
GROSSMAN, HEAVEY & HALPIN, P.C.
By: Elizabeth A. Wilson, Esq.
Brick Professional Complex
1608 Highway 88 West, Suite 200
Brick, New Jersey 08724
Counsel for Defendant Inspira Medical Centers, Inc.
DRAKE LAW FIRM, P.C.
By: Steven F. Drake, Esq.
29 North Shore Road
Absecon, New Jersey 08201
Counsel for Defendant’s Naeem Amin, M.D. and Kidney
and Hypertension Specialists, P.A.
STAHL & DeLAURENTIS, P.C.
By: David P. Brigham, Esq.
10 E. Clements Bridge Road
Runnemede, New Jersey 08078
Counsel for Defendants Andrew Zinn, M.D. and
Cardiovascular Associates of Delaware Valley, P.A.
1

HILLMAN, District Judge
This is a diversity medical malpractice suit. 1

Plaintiff

asserts that her decedent, Elias Mendoza, was negligently treated
by various doctors and medical providers.

Presently before the

Court are two motions for summary judgment; one filed by Defendants
Dr. Amin and Kidney and Hypertension Specialists, P.A., and another
filed by Defendant Inspira Medical Centers, Inc. 2

Both Motions

assert that Plaintiff has failed to comply with the substantive
requirements of New Jersey’s Affidavit of Merit Statute, N.J.S.A.
2A:53A-41.

For the reasons set forth below, both motions will be

granted.
I.
The Amended Complaint alleges the following facts 3:
9. On or about March 10, 2014, decedent-plaintiff
presented himself to the Emergency Room at Inspira
Medical Center Vineland for shortness of breath and was
subsequently admitted into the Intensive Care Unit.

1

The Court exercises subject matter jurisdiction pursuant to 28
U.S.C. § 1332.
2

Andrew Zinn, M.D. and Cardiovascular Associates of Delaware
Valley, P.A. are the other Defendants to this suit. They have not
filed any motion for summary judgment. The dispositive motion
deadline has passed.
While this case comes before the Court on motions for summary
judgment, the motions do not directly implicate the substantive
factual allegations of the suit, and the record evidence is sparse
in this regard. The Court recites the allegations of the Amended
Complaint to provide a general context for the motions.
3

2

10. While plaintiff [sic] was a patient of the
defendants, Inspira Medical Center Vineland, South
Jersey Health Care and Inspira Health Network, Inc.,
decedent underwent a cardiology consultation performed
by defendant, Andrew Zinn, M.D. and a nephrology
consultation performed by defendant, Naeem M. Amin, M.D.
11. Decedent was negligently treated, resulting in brain
damage, inability to ambulate, as well as damage to his
heart, so as to cause plaintiff [sic] to suffer severe
and
debilitating
pain
and
to
further
suffer
complications, injuries and conditions which have caused
her [sic] a great deal of physical and emotional pain
which ultimately resulted in his death on February 23,
2015.
(Amend. Compl. ¶¶ 9-11)
Plaintiff’s case appears to be principally based on a note
entered in the decedent’s discharge summary (Pl’s Ex. B), which
states in relevant part, “HOSPITAL COURSE: Over the course of the
patient’s hospital stay, he tolerated BiPAP and required dialysis.
Unfortunately he was unable to tolerate full treatments and
continued to build up fluid.

The patient unfortunately had some

difficulty receiving dialysis in our intensive care unit due to
staffing limitations, which continued to exacerbate his continued
difficulties with his fluid overload state.”
Defendant Naeem Amin, M.D. is board certified in Internal
Medicine with a subspecialty in nephrology.

As to Dr. Amin and his

practice group, Defendant Kidney and Hypertension Specialists,
P.A., Plaintiff’s theory of her case appears to be that Dr. Amin’s
“failure to properly monitor [the decedent], provide the necessary

3

dialysis on a timely basis and attend to [decedent’s] hospital
course” “resulted in damage to decedent’s heart and ultimately to
his death.” (Opposition Brief, Docket #19, p. 5)
Similarly, Plaintiff asserts that Defendant Inspira Medical
Centers’ “[in]adequate staffing . . . prevented a patient in need
of dialysis from receiving needed treatment [which] is a deviation
from the standard of care.” (Opposition Brief, Docket #20, p. 2)
Plaintiff has provided one Affidavit of Merit, executed by
Bruce D. Charash, M.D. (Docket Entry #10)

His affidavit states, in

relevant part, “I am a licensed, board certified Cardiologist and
Internist, and my practice has been substantially devoted to this
specialty for greater than five years.” (Id. at ¶ 1)

Dr. Charash

opines that all of the Defendants’ “treatment” “fell outside
acceptable professional standards and treatment practices.” (Id. at
¶ 2)
II.
Summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ . . .
demonstrate the absence of a genuine issue of material fact” and
that the moving party is entitled to a judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)(citing Fed.
R. Civ. P. 56).

4

An issue is “genuine” if it is supported by evidence such that
a reasonable jury could return a verdict in the nonmoving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id.
“In considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. Celotex, 477 U.S.
at 323 (“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”); see
also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d
Cir. 2001) (“Although the initial burden is on the summary judgment
movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ --

5

that is, pointing out to the district court -- that there is an
absence of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”)(citing
Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving party
must identify, by affidavits or otherwise, specific facts showing
that there is a genuine issue for trial. Celotex, 477 U.S. at 324.
A “party opposing summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s.]’” Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For “the non-moving

party[ ] to prevail, [that party] must ‘make a showing sufficient
to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof
at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir.
2011)(citing Celotex, 477 U.S. at 322).

Thus, to withstand a

properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at
257.
III.
The Court first addresses Dr. Amin and Kidney and Hypertension
Specialists’ Motion, and then Inspira’s Motion.
A.

6

In Nicholas v. Mynster, the New Jersey Supreme Court held that
New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A:53A-41,
contained a “kind-for-kind specialty requirement”; that is, the
expert who signs the affidavit of merit must practice in the same
specialty area as the defendant physician. 213 N.J. 463, 482-84
(2013)(“[O]nly a specialist can testify against a specialist about
the treatment of a condition that falls within the specialty
area.”). The question presented here is a variation of the issue
in Nicholas.
In this case, the proffered expert physician and the defendant
are both board certified in Internal Medicine, however they have
different subspecialties.

Plaintiff’s expert subspecializes in

cardiology, whereas Defendant Dr. Amin subspecializes in
nephrology.

Thus, the issue is whether the “kind-for-kind”

requirement of N.J.S.A. 2A:53A-41 also applies to subspecialties.
The Court holds that it does.
The statute provides in relevant part,
(a) If the party against whom . . . the testimony is
offered is a specialist or subspecialist recognized by
the American Board of Medical Specialties [“ABMS”] . .
. and the care or treatment at issue involves that
specialty or subspecialty . . . the person providing the
testimony shall have specialized at the time of the
occurrence that is the basis for the action in the same
specialty or subspecialty . . . as the party against
whom . . . the testimony is offered, and if the person
against whom . . . the testimony is being offered is
board certified and the care or treatment at issue
involves that board specialty or subspecialty . . . the
7

expert witness shall be:
. . .
(2) a specialist or subspecialist recognized by
the American Board of Medical Specialties or the
American Osteopathic Association who is board certified
in the same specialty or subspecialty, recognized by the
American Board of Medical Specialties or the American
Osteopathic Association . . . .
N.J.S.A. § 2A:53A-41(a)(2).
In Nicholas, the New Jersey Supreme Court interpreted this
provision and held, “[u]nder 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.” 213 N.J. at 468.

The Defendant physicians in Nicholas

were board certified in emergency medicine and family medicine,
whereas the plaintiff’s expert physician was board certified in
internal and preventive medicine. Id. at 467.

The Court concluded

that because the plaintiff’s expert was not “equivalently
credentialed,” id. at 485, and “practice[d] in different []
specialties,” id. at 487, the statute barred the expert physician
from testifying, therefore the Supreme Court directed the trial
court to enter summary judgment in favor of the defendants.
Similarly in this case, Defendant Dr. Amin and Plaintiff’s
expert Dr. Charash are not equivalently credentialed, even though
they both share the same general board certification in Internal
Medicine.

As explained by the American Board of Medical
8

Specialties, “[t]o become certified in a particular subspecialty, a
physician must be Board Certified by the American Board of Internal
Medicine and complete additional training as specified by the
Board.” ABMS Guide to Medical Specialties, 28 (2017) available at
http://www.abmssolutions.com/media/114634/guide-tomedicalspecialties_04_2016.pdf (hereinafter “ABMS Guide”)
With respect to nephrology and cardiology, the additional
training is different.

A physician subspecializing in nephrology

is “[a]n Internist (Nephrologist) who treats disorders of the
kidney, high blood pressure, fluid and mineral balance, and
dialysis of body wastes when the kidneys do not function.” ABMS
Guide at 30.

A physician specializing in cardiology is “[a]n

Internist who specializes in diseases of the heart and blood
vessels and manages complex cardiac conditions, such as heart
attacks and life-threatening abnormal heartbeat rhythms.” ABMS
Guide at 29. 4
As explained by the New Jersey Supreme Court, the statute’s
kind-for-kind requirement was passed into law in 2004 to prevent
“physician experts of different medical specialties, but who
treated similar maladies, [from] offer[ing] testimony even though

4

Internal Medicine has a total of 20 subspecialties. In addition
to nephrology and cardiology, other subspecialties include
endocrinology, gastroenterology, and pulmonology. ABMS Guide at 2831.
9

not equivalently credentialed to defendant physicians.” Nicholas,
213 N.J. at 485.

Allowing a cardiologist to testify that delaying

or denying the decedent’s dialysis treatment departed from the
standard of care expected of nephrologists would effectively undo
the kind-for-kind requirement in contravention of the Affidavit of
Merit statute and the New Jersey Supreme Court’s interpretation of
it.
The Appellate Division’s decision in Carr v. Our Lady of
Lourdes Medical Center lends further support to this Court’s
conclusion. 2015 N.J. Super. Unpub. LEXIS 1484 (App. Div. June 19,
2015)(per curiam).

In that case, the defendant physicians were

only board certified in internal medicine, whereas the plaintiff’s
expert physician was “more specialized.” Id. at *16.

Plaintiff’s

expert was board certified in internal medicine but subspecialized
in medical oncology and was board eligible in hematology. Id. at
*7.
The Appellate Division held that the expert was not
“‘equivalently credentialed’” as required by the Affidavit of Merit
statute. 2015 N.J. Super. Unpub. LEXIS 1484 at *19.

The Court

explained,
[w]e
reject
plaintiff’s
contention
that
[the
equivalently credentialed] requirement may be satisfied
by practice in a subspecialty falling within the
penumbra of internal medicine. By definition, a
physician who is board certified in hematology or
oncology has received additional training in the
10

subspecialty. It would undermine the policy underlying
the kind-for-kind rule for a physician with such
specialized training to opine regarding the standard of
care applicable to a physician practicing in the more
generalized specialty.
Id. at *21 (citing Nicholas).
The Court holds that Dr. Charash is not equivalently
credentialed with Dr. Amin, therefore Plaintiff may not rely on Dr.
Charash’s testimony to establish Dr. Amin and Kidney and
Hypertension Specialists’ asserted deviation from the standard of
care.

Plaintiff does not dispute that absent Dr. Charash’s

testimony, summary judgment must be granted to Dr. Amin and Kidney
and Hypertension Specialists. 5

Accordingly, the Motion for Summary

Judgment will be granted.
B.
The issue raised by Inspira’s Motion for Summary Judgment is
whether the common knowledge exception to the Affidavit of Merit
requirement applies to Plaintiff’s claim against Inspira.

As

stated above, Plaintiff contends that Inspira was negligent in
failing to adequately staff its medical center.

According to

Plaintiff, such failure is “within the ‘common knowledge’ of the
jury and therefore expert testimony and an affidavit of merit is

5

In any event, in his opposition brief, counsel for Plaintiff
states that “Plaintiff does not object to the Motion being granted
in favor of Defendant Dr. Amin.” (Opposition Brief, Docket #19, p.
2)
11

unnecessary.” (Opposition Brief, Docket #20, p. 2)

This argument

fails.
The Court begins with the premise that the common knowledge
exception to the Affidavit of Merit requirement is exactly that -an exception to a statutory requirement enacted by the Legislature.
Thus, the New Jersey Supreme Court has instructed, the exception
should be construed narrowly. Hubbard v. Reed, 168 N.J. 387, 397
(2001)(“Although we hold today that there is a common knowledge
exception to the Affidavit of Merit Statute, we construe that
exception narrowly in order to avoid non-compliance with the
statute.”).

The exception applies only in cases of obvious error.

See Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001)(“In a
common knowledge case, whether a plaintiff’s claim meets the
threshold of merit can be determined on the face of the complaint.
Because defendant’s careless acts are quite obvious, a plaintiff
need not present expert testimony at trial to establish the
standard of care.”).

Moreover, Plaintiff has the burden of

demonstrating that the common knowledge exception applies. Nuveen
Mun. Trust v. Withumsmith Brown, P.C., 692 F.3d 283, 291 (3d Cir.
2012).
Plaintiff has not adequately demonstrated the obviousness of
Inspira’s asserted negligence.

Plaintiff’s claim is based on vague

assertions that Inspira’s intensive care unit -- a unit which, by

12

definition, only treats patients who need intensive attention from
medical professionals -- was “inadequately” staffed, without
explaining how that staffing was inadequate.

It is not within a

lay person’s knowledge as to what an adequately staffed intensive
care unit looks like.

As Inspira observes, decisions concerning

staffing involve specialized knowledge as to “average, expected,
and actual patient census” and “patient-to-caregiver ratios” at any
given time and the “necessary qualifications” of the staff. (Reply
Brief, p. 2)

Such issues require explanation by an expert.

Plaintiff argues that “[a]nyone of average intelligence and
ordinary experience would know that the failure, because of
staffing limitations, to give essential treatment to and individual
in intensive care is a deviation from the standard of care.”
(Opposition Brief, Docket #20)
record evidence.

This argument mischaracterizes the

Even reading the discharge note in the light most

favorable to Plaintiff, the note does not support an inference that
Inspira entirely failed to give the decedent dialysis, nor does the
note support any conclusion that the allegedly omitted treatment
was “essential.”

The discharge note specifically states that

during the decedent’s hospital stay, which lasted from March 11,
2014 to March 27, 2014, the decedent “did well with repeated
dialysis treatments,” “continued [to receive] aggressive dialysis,”
and later “continued to improve with continued Monday, Wednesday

13

and Friday dialysis after initial multiple treatment.” (Pl’s Ex. B)
The Court holds that the common knowledge exception to the
Affidavit of Merit requirement does not apply.

Plaintiff has

submitted no Affidavit of Merit pertaining to Inspira’s asserted
medical negligence.

Accordingly, Inspira’s Motion for Summary

Judgment will be granted.
IV.
For the reasons stated above, Defendants’ Motions for Summary
Judgment will be granted. 6

An appropriate order accompanies this

6

All three sets of Defendants have asserted crossclaims for
indemnification and contribution against each other. They all take
the position that pursuant to Burt v. West Jersey Health Sys., 339
N.J. Super. 296 (App. Div. 2001) their co-defendants’ asserted
negligence should be an issue determined by the jury, not so that
Plaintiff may recover from the defendants whose summary judgment
motions have been granted, but so that the jury may apportion the
appropriate liability (if any) to the remaining Defendants Andrew
Zinn, M.D. and Cardiovascular Associates of Delaware Valley, P.A.
See generally Town of Kearny v. Brandt, 214 N.J. 76, 103 (2013)(“ a
claimant’s failure to conform to a statutory requirement for
asserting claims against a given defendant does not necessarily bar
apportionment of that defendant’s fault at trial.”)(discussing Burt
with approval).
The Defendants seem to disagree, however, as to the precise
procedural implications of Burt for this case. Dr. Zinn,
Cardiovascular Associates, and Inspira take the position that their
cross-claims should remain in this suit, whereas Dr. Amin and
Kidney and Hypertension Specialists assert that the cross-claims
should be dismissed with prejudice but the Court may order that Dr.
Zinn and Cardiovascular Associates, the only remaining Defendants,
“shall be permitted to seek a credit against any judgment in
proportion to the percentage of fault proven to be attributable to
[the] dismissed [Defendants].” (Proposed Order, Docket #23)
Dismissing the cross-claims and allowing Dr. Zinn and
Cardiovascular Associates to seek a credit, if necessary, appears
to be the more appropriate disposition. See Brandt, 214 N.J. at 100
14

opinion.

Dated: March 30, 2017
At Camden, New Jersey

__s/ Noel L. Hillman ___
NOEL L. HILLMAN, U.S.D.J.

(“when a defendant ceases to participate in the case by virtue of a
settlement, a non-settling defendant . . . may obtain an allocation
of fault to the settling defendant. The settling defendant does
not pay any portion of the judgment; any percentage of fault
allocated to the settling defendant operates as a credit to the
benefit of the defendants who remain in the case.”)(internal
citations omitted); Gatesy v. Perotte, 2016 N.J. Super. Unpub.
LEXIS 762 (App. Div. Apr. 7, 2016)(“In Young, our Supreme Court
determined that a defendant may assert the liability of a settling
defendant and seek a credit against a judgment in every case,
whether or not a cross-claim for contribution has been filed.”).
15