MULHOLLAND et al v. THOMAS JEFFERSON UNIVERSITY HOSPITAL, INC. et al
Filing
30
OPINION filed. Signed by Judge Joel A. Pisano on 8/4/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_________________________________________
:
DAVID MULHOLLAND and
:
MEGAN MULHOLLAND,
:
:
Plaintiffs,
:
:
v.
:
:
THOMAS JEFFERSON UNIVERSITY
:
HOSPITALS, et al.
:
:
Defendants.
:
_________________________________________ :
Civil Action No. 09-4322 (JAP)
OPINION
PISANO, District Judge.
Presently before the Court is a motion by defendants, Thomas Jefferson University
Hospitals, Inc., Jefferson University Physicians, Cataldo Doria, M.D., Jean Novak, BSN, and
James F. Burke, Jr., M.D., to dismiss the complaint for failure to comply with New Jersey’s
Affidavit of Merit statute, N.J.S.A. 2A:53A-27. Plaintiffs David and Megan Mulholland
(“Plaintiffs”) oppose the motion as to defendants Dr. Doria, Dr. Burke and Thomas Jefferson
University Hospitals, Inc. (the “Hospital,” together with Drs. Doria and Burke,
“Defendants”). 1 The Court decides this matter without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons set forth below, the motion to dismiss is granted.
1
As discussed below, Plaintiffs have abandoned all claims except their informed consent claim against Drs.
Doria and Burke and their fraudulent misrepresentation claim against Thomas Jefferson University Hospital. Pl.
Brf. at 2.
1
I.
Background
According to the First Amended Complaint, Plaintiff David Mulholland (“Plaintiff”)
was diagnosed with polisistic kidney disease in 1987. First Am. Compl. ¶ 1. In March 2007,
a co-worker agreed to donate a kidney to Plaintiff, and the process of planning for the
transplant took place during spring and summer of that year. Id. ¶ 2-3. Blood tests were done
on Plaintiff, which showed that Plaintiff was positive for the HHV-6 virus. 2 Id. ¶ 5, 7-8.
Plaintiff alleges that none of the defendants advised him “about his HHV-6 positive status,
nor discussed or informed him about the medical implications of his positive status to the
success of the transplant.” Id. ¶ 9.
The blood work done on Plaintiff also showed that Plaintiff tested negative for the
CMV virus. 3 Id. ¶ 10. However, blood test showed that the donor was positive for the CMV
virus. Id. After the transplant surgery, Plaintiff began “suffering symptoms of CMV virus
and tested positive for the virus.” Id. ¶ 11. Plaintiff did not learn that his donor had tested
positive for CMV until sometime in or about January 2008, after undergoing surgery. Id. ¶
13. Plaintiff’s wife, co-plaintiff in this action, tested negative for the CMV virus prior to the
transplant surgery but contracted the virus from Plaintiff following the surgery. Id. ¶ 12.
According to Plaintiff, if he had been advised by defendants of the donor’s positive CMV
blood test result or his own positive HHV-6 result, he would have chosen to receive a kidney
from his wife rather than the donor. Id. ¶ 16.
Plaintiffs filed this suit in August 2009 and filed an amended complaint in August
2010. Defendants answered the amended complaint and, thereafter, filed this motion alleging
2
The Court presume Plaintiff is referring to human herpesvirus 6. See http://www.cdc.gov/
ncidod/EID/vol10no4/03-0587.htm.
3
The Court presume Plaintiff is referring to cytomegalovirus. See http://www.cdc.gov/cmv/index.html
2
that Plaintiff failed to comply with the Affidavit of Merit statute. In their brief opposing the
motion, Plaintiffs explain that after initiating this suit against the Defendants, Plaintiffs’
counsel approached various doctors in order to obtain an affidavit of merit, and at least two
doctors declined the request. As explained by Plaintiffs, counsel discussed the issue with two
licensed physicians: Dr. Phillip Paparone, an infectious disease physician, and Dr. Nasser
Youseff, the Director of Kidney Transplant at Our Lady of Lourdes Medical Center. Pl. Brf.
at 7-8. According to Plaintiffs, both physicians refused to sign an affidavit of merit because
they suggested that a donor being positive for CMV is so common that it would not cause a
specific professional obligation to inform a transplant patient about the risk of infection. Id.
Ultimately, Plaintiffs were successful in obtaining an affidavit of merit from Dr. Neal
Rehberg, a physician in West Virginia, who practices family medicine. Def. Motion to
Dismiss Exh. B. The affidavit provided by Dr. Rehberg addresses only the conduct of Dr.
Doria and another physician who is not a party to this case. According to Defendants, this
affidavit was provided on January 5, 2011.
Plaintiffs’ First Amended Complaint contains five counts: Count One – “Lack of
Informed Consent”; Count Two – “Assault and Battery”; Count Three – “Professional
Malpractice”; Count Four – “Negligence”; and Count Five – “Fraudulent Misrepresentation”.
In Plaintiffs’ opposition to Defendants’ motion, they indicate that they are abandoning all but
two counts. Id. at 2. They intend to proceed with: (1) lack of informed consent against Dr.
Doria and Dr. Burke based upon the failure to provide informed consent; and (2) fraudulent
misrepresentation against Thomas Jefferson University Hospital for their alleged participation
in the informed consent process. The Court, therefore, dismisses the abandoned claims and
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address this motion only as to the remaining informed consent and fraudulent
misrepresentation claims.
II.
Discussion
Defendants first argue that the affidavit of merit provided by Plaintiff was untimely.
Defendants’ answer was filed on August 30, 2010. Plaintiffs provided their affidavit of merit
128 days later, on January 5, 2011. Defendants also argue that the affidavit provided, which
is expressly “focused” only on Dr. Doria, is not in compliance with the Affidavit of Merit
statute because Dr. Rehberg, who is not a surgeon, is not qualified to provide an affidavit as to
the claims against Dr. Doria. In response, Plaintiff argue that an affidavit of merit is not
required for their claims and, even if one is required, their affidavit substantially complies
with the statute. As discussed below, the Court finds that an affidavit of merit is required for
each of Plaintiffs’ claims, and the affidavit of merit provided for the claims against Dr. Doria
is not in compliance with the relevant statute.
A.
Requirement of an Affidavit of Merit
Under the Affidavit of Merit Statute, when filing an “action for personal injuries …
resulting from an alleged act of malpractice or negligence by a licensed person in his
profession or occupation,” a plaintiff must provide, within 60 days of a defendant’s answer to
the complaint, an affidavit to each defendant by an “appropriate licensed person,” indicating
that there is a “reasonable probability” that the defendant’s conduct fell outside the acceptable
norms or standards of the profession. 4 N.J.S.A. 2A:53A-26 et seq. Upon a finding of good
cause, the court may grant a plaintiff one additional 60 day period. N.J.S.A. 2A:53A-27. 5
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Plaintiff may provide a sworn statement in place of an affidavit indicating: “the defendant has failed to provide
plaintiff with medical records or other records or information having a substantial bearing on preparation of the
affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of
4
An affidavit is only required if the underlying factual allegations of plaintiff’s claim
require proof of malpractice—that the defendant’s conduct deviated from a professional
standard of care for his or her profession. Couri v. Garner, 173 N.J. 328, 340-41 (2002)
(holding that the affidavit of merit statute was not applicable to plaintiff’s breach of contract
claim because the underlying facts of the case did not require a proof of a deviation from a
professional standard of care applicable to that specific profession.) “[B]y asking whether a
claim’s underlying factual allegations require proof of a deviation from professional standard
of care, courts can assure that claims against licensed professionals acting in a professional
capacity that require proof of ordinary negligence but not of a deviation from professional
standards are not encompassed by the statute.” Id. at 340-41 (emphasis in original). A
plaintiff’s failure to provide an affidavit of merit is considered a failure to state a cause of
action. N.J.S.A. 2A:53A-29.
the medical records or other records or information requested, has been made by certified mail or personal
service; and at least 45 days have elapsed since the defendant received the request.” N.J.S.A. 2A:53A-28.
Plaintiff have not provided such a statement here.
5
The statute states as follows:
In any action for damages for personal injuries, wrongful death or property
damage resulting from an alleged act of malpractice or negligence by a
licensed person in his profession or occupation, the plaintiff shall, within 60
days following the date of filing of the answer to the complaint by the
defendant, provide each defendant with an affidavit of an appropriate
licensed person that there exists a reasonable probability that the care, skill
or knowledge exercised or exhibited in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional or
occupational standards or treatment practices. The court may grant no more
than one additional period, not to exceed 60 days, to file the affidavit
pursuant to this section, upon a finding of good cause.
N.J.S.A. 2A:53A-27.
5
The statute contains specific requirements regarding who is an “appropriate licensed
person” in cases involving a medical professional who is a recognized specialist. As relevant
to this case, the statute provides that in cases of medical malpractice,
If the party against whom [the affidavit of merit] is offered is a specialist or
subspecialist recognized by the American Board of Medical Specialties … and
the care or treatment at issue involves that specialty …, the person providing
the [affidavit of merit] shall have specialized at the time of the occurrence that
is the basis for the action in the same specialty or subspecialty … .
N.J.S.A. 2A:53A-41.
B.
An Affidavit of Merit is Required for Plaintiffs’ Claims
1.
Claims against Dr. Doria and Dr. Burke
Relying on the common knowledge exception to the affidavit of merit requirement,
Plaintiffs first argue that an affidavit of merit is not required for the claims against Dr. Doria
and Dr. Burke. The Court disagrees.
Plaintiffs’ claims rest on their allegations that Defendants failed to inform Mr.
Mulholland that he tested positive for HHV-6 and that the living donor tested positive for
CMV in the blood tests done prior to the transplant surgery and, consequently, Mulholland’s
consent to the transplant surgery was not “informed.” A tort based on a lack of informed
consent recognizes a separate duty, emphasizing the physician’s obligation to inform, as well
as treat, the patient. Matthies v. Mastromonaco, 160 N.J. 26, 39, 733 A.2d 456 (1999). The
New Jersey Supreme Court has recognized that “[t]he underlying basis for the doctrine of
informed consent is a patient’s right of self-determination, the right to intelligently decide
whether to choose or decline a particular medical procedure.” Acuna v. Turkish, 192 N.J. 399,
414-415, 930 A.2d 416 (2007). The standard for informed consent focuses on what a
reasonable patient, given the risks of a medical procedure, would likely find significant to
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know in order to make an informed decision regarding the procedure. Id. at 415 (citing
Matthies v. Mastromonaco, 160 N.J. 26).
Under the common knowledge exception, an affidavit of merit is not required in a
professional negligence case if jurors can determine a defendant’s negligence without needing
an expert to demonstrate that a defendant breached a duty of care. Hubbard v. Reed, 168 N.J.
387, 394 (2001) (holding that under the common knowledge exception to the Affidavit of
Merit statute, a lay person could use their common knowledge in determining whether a
dentist was negligent in pulling the incorrect tooth of plaintiff). The common knowledge
exception applies when the “jurors’ common knowledge as lay persons is sufficient to enable
them, using ordinary understanding and experience, to determine a defendant's negligence
without the benefit of the specialized knowledge of experts.” Id. (quoting Estate of Chin v.
Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).
Plaintiffs base their argument on the holding of Largey v. Rothman, 110 N.J. 204, 213
(1988), which adopted the “prudent patient” standard in place of a “professional standard” to
establish what “material risks” a doctor must disclose to a patient to obtain the patient’s
informed consent to particular treatment. However, in Febus v. Barot, 260 N.J. Super. 322,
327 (App. Div. 1992), the court held that “the prudent patient standard does not always
dispense entirely with the need for expert medical testimony in an informed consent case.”
The Febus court also stated that while “under this doctrine, no medical expert is required to
prove that an undisclosed risk would have been material to the patient’s consent, it must first
be shown that the risk was one of which the physician should have been aware, and that it was
recognized within the medical community.” Id. Moreover, as noted recently by the New
Jersey Appellate Division, “although medical malpractice claims involving a deviation from a
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standard of care and claims alleging failure to obtain informed consent are based on ‘different
theoretical underpinnings,’ it is clear that they ‘are simply sub-groups of a broad claim of
medical negligence.’ Hahn v. Bergen Regional Medical Center, 2011 WL 2472694, *4 (N.J.
Super. App. Div. 2011) (quoting Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537,
545 (2002).
To establish their informed consent claim, Plaintiffs here must demonstrate that the
Defendants withheld medical information that a reasonably prudent person in like
circumstances would have considered to be material before consenting to a kidney transplant.
See Acuna v. Turkish, 192 N.J. 399, 415 (2007). Expert medical testimony would be required
to, for example, explain what the CMV and HHV-6 viruses are, the risks recognized by the
medical community of undergoing a kidney transplant from a donor who has tested positive
for CMV, the risks recognized by the medical community for a patient undergoing a kidney
transplant while testing positive for HHV-6, and to what extent a physician performing a
kidney transplant should be aware of any such risks. These kind of issues are not within the
common knowledge of a layperson and, therefore, the Court concludes that an affidavit of
merit is required in this case.
2.
Claim Against the Hospital
Plaintiffs contend that an affidavit of merit is not required for their fraudulent
misrepresentation claim against the Hospital because the claim is one for fraud and not
professional negligence. However, an affidavit of merit is required in any tort or contract
claim “if the claim’s underlying factual allegations require proof of a deviation from the
professional standard of care applicable to that specific profession.” Couri v. Gardner, 801
A.2d 1134, 1141. Plaintiffs allege that the Hospital intentionally withheld information
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regarding the positive CMV status of the donor because Mr. Mulholland was not adequately
educated to understand the risks of contracting an infection from the surgery. Compl. at 11, ¶
4. However, this allegation necessarily involves the issue of whether defendants acted in
accordance the applicable standard of care in providing informed consent to Mr.
Mulholland—an issue that cannot be addressed without an affidavit of merit from an
appropriately licensed physician. Consequently, because the factual underpinnings for the
claim relates to the professional judgment exercised by the defendants, the Court finds that an
affidavit of merit is required to maintain the claim.
C.
Plaintiffs Did Not Provide A Proper Affidavit of Merit
Plaintiffs next argue that under the equitable doctrine of substantial compliance their
affidavit of merit is in compliance with the relevant statute. However, the Court finds that the
doctrine of substantial compliance cannot excuse the deficiencies in Plaintiffs’ affidavit.
Even if the Court were to consider Plaintiffs’ affidavit timely, the Court does not find that
Plaintiffs’ affidavit substantially complies with the requirements of the Affidavit of Merit
statute, particularly the requirement that the affidavit be executed by an “appropriately
licensed person.” N.J.S.A. 2A:53A-27.
As an initial matter, the only defendant that the affidavit is directed to is Dr. Doria.
Therefore, Plaintiffs, having failed to provide an affidavit of merit as to the other defendants,
have failed to state a claim against those other defendants. Furthermore, Dr. Neal Rehberg, a
specialist in family medicine, is not an “appropriate licensed person” to execute an affidavit of
merit as to the claims against Dr. Doria, who is a specialist in surgery and subspecialist in
surgical critical care. Pursuant to N.J.S.A. 2A:53A-27 and -41, Plaintiffs were required to
obtain an affidavit from a licensed professional in the same specialty or sub-specialty as Dr.
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Doria. Dr. Rehberg is not a surgeon, but rather states that he has “routinely practiced in many
aspects of Family Medicine and [is] familiar with the protocol and duties relating to providing
a patent with informed consent.” Affidavit at 2. This is not sufficient.
Citing Jorden v. Glass, 2010 WL 786533, *3 (D.N.J. 2010), Plaintiff argues that Dr.
Rehberg is qualified to provide the affidavit. The decision in Jorden recognized that if the
care and treatment underlying a malpractice claim against a medical professional does not
involve the defendant’s specialty, then the statute does not require an affidavit from a
professional practicing that same specialty. See 2A:53A-41 (affiant must be specialist if “the
party against whom [the affidavit of merit] is offered is a specialist or subspecialist … and the
care or treatment at issue involves that specialty …). Here, Plaintiff asserts that the instant
case “does not involve the skill, knowledge, or competency involved in performing a kidney
transplant, but rather, the generalized function that transcends all specialists and general
practitioners alike, and that is the duty of providing informed consent to their patients.” Pl.
Brf. at 24. This assertion is nonsense. Certainly there is a difference between informed
consent for a flu shot and informed consent for a kidney transplant. Even if Dr. Rehberg has
general medical knowledge of the CMV and HHV-6 viruses, there is no evidence that he has
expertise as to how the viruses relate to the risks involved in kidney transplant surgery. His
affidavit does not, therefore, meet the statutory requirements for bringing a claim against Dr.
Doria.
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III.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss shall be granted. An
appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: August 4, 2011
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