JOSHUA PIPERATO VS. ALLISON LAM, M.D. (L-2081-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3569-17T1

JOSHUA PIPERATO, by his Parents
and Natural Guardians, CHRISTOPHER
PIPERATO and ANA PIPERATO, and
CHRISTOPHER PIPERATO, and ANA
PIPERATO, Individually,

Plaintiffs-Appellants,

v.

ALLISON LAM, M.D., JONATHAN
GAMSS, M.D., STEPHANIE FOLTZER,
PA-C, ALEKSEY IKHELSON, PA-C,
and EMERGENCY MEDICAL
ASSOCIATES,

Defendants,

and

ALDRIN GUERRERO, RN, JAMIE
NIGRO, RN, JOYCE IANNUZZI, RN,
NADIA PORCARO, RN, and CLARA
MAASS MEDICAL CENTER,

Defendants-Respondents.
__________________________________

Submitted January 30, 2019 - Decided August 23, 2019
 Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-2081-15.

Gair Gair Conason Rubinowitz Bloom Hershenhorn
Steigman & MacKauf, attorneys for appellants
(Christopher J. Donadio, on the briefs).

De Cotiis Fitzpatrick Cole & Giblin LLP, attorneys for
respondents (Catherine Joan Flynn, of counsel and on
the brief; Stefanie L. Rokosz, on the brief).

PER CURIAM

Plaintiffs Christopher and Ana Piperato on behalf of themselves and

their minor son Joshua, appeal from the entry of summary judgment dismissing

their medical malpractice complaint against defendant registered nurses Aldrin

Guerrero, Jamie Nigro, Joyce Iannuzzi, and Nadia Porcaro and their employer

Clara Maass Medical Center and the denial of their motion for

reconsideration.1 Because we conclude plaintiffs established a prima facie

case of professional negligence on the summary judgment motion, we reverse.

Although defendants failed to file a statement of material facts in

accordance with Rule 4:46-2(a), the following essential facts appear

1
Plaintiffs settled their claims against defendant doctors and physician
assistants and their employer Emergency Medical Associates and those parties
are not participants in this appeal.
A-3569-17T1
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undisputed. When Joshua was seven years old, he caught his foot in a

trampoline. His father took him to an urgent care center the next day. The

doctor there diagnosed Joshua with a sprained ankle.

When Joshua's pain persisted, his mother the following day took him to

the emergency department at Clara Maass for treatment. Although Nurse

Nadia Porcaro testified at deposition that Joshua should have received a

focused assessment, she was on duty that day and did not perform one. She

could not explain why. She did not examine Joshua's foot or test pulses or

sensations in his foot or leg. Joshua was evaluated by a physician assistant,

who ordered an x-ray that showed no fracture or dislocation. Joshua was

diagnosed with a foot sprain and discharged.

As Joshua's pain persisted over the next two days, his parents took him

back to the emergency department at Clara Maass two more times. When his

father took him three days after his injury, the day after their first visit, he

reported that Joshua had been restless and in pain the night before and had run

a fever. Nurse Joyce Iannuzzi, the triage nurse, although noting Joshua

presented with "foot pain — swelling," failed to assess his foot. She did not

take Joshua's blood pressure, although she noted his heart rate of 160 beats a

A-3569-17T1
3
minute was elevated. According to one of plaintiffs' experts, the normal heart

rate for a seven-year-old is between 80 and 120 beats a minute.

Nurse Porcaro saw Joshua again during that visit, and again failed to

examine his foot or ankle, check pulses or sensations in his leg or foot, or

assess his skin temperature or color. Joshua was again evaluated by the same

physician assistant, who applied a splint to Joshua's leg and provided him with

crutches. Joshua was again discharged with a diagnosis of foot sprain.

That night, Joshua's mother testified Joshua was awake the entire night,

crying and in a great deal of pain, not allayed by pain medication. At 3 a.m.,

Joshua's father took him back to the emergency department at Clara Maass.

Nurse Jamie Nigro was the triage nurse on duty. Nurse Nigro took some of

Joshua's vital signs but did not examine his foot, check pulses in his foot or

leg, or assess his pain level. Nurse Aldrin Guerrero also examined Joshua that

morning. Nurse Guerrero completed a pain assessment, recording Joshua's

pain level at six on a scale of ten. Despite performing gastrointestinal,

genitourinary, integumentary, neurological, and respiratory assessments, Nurse

Guerrero could not recall performing, and there are no notes in the medical

records indicating, a skin or sensation assessment or a pulse check of Joshua's

lower leg.

A-3569-17T1
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 A different physician assistant examined Joshua on that visit.

Performing a physical exam, she noted tenderness to the left foot, mild

swelling, and ecchymosis (bruising) of the lateral and medial aspects of the left

foot. The physician assistant reapplied the splint and a prescription was

written for Motrin for pain as needed. Joshua was discharged around 6 a.m.

with a diagnosis of foot sprain.

That morning, Joshua's mother took him with her to work. When he

went to use the bathroom, she saw his leg was purple and he stopped

responding to her. She called Joshua's pediatrician, who told her to take

Joshua immediately to Hackensack Medical Center. On arrival at 12:30 p.m.,

Joshua was noted to be pale, fussy and uncomfortable. His left leg was

cyanotic and cold to touch. A Doppler signal showed no pulses in his lower

left extremity and an ultrasound revealed deep vein thrombosis.

Joshua was diagnosed with severe compartment syndrome and taken into

surgery for a fasciotomy. Following surgery, Joshua developed septic shock

and went into respiratory failure requiring ventilator support. That led to a

lifesaving, below-knee amputation. When a free flap repair was unsuccessful,

Joshua's leg was amputated above his knee.

A-3569-17T1
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 Plaintiffs served several expert reports in the course of discovery

directed to the substandard care Joshua received from the nurses, physician

assistants and doctors at Clara Maass responsible for his treatment. Among

those reports was one rendered by a registered nurse, Jamie Byerly, that

defendant nurses deviated from the accepted standards of emergency nursing

practice by failing to properly assess and document findings of Joshua's

complaint of lower extremity pain and swelling and failing to communicate the

findings of that assessment to the physician or physician assistant.

In order to meet their burden of demonstrating those deviations harmed

Joshua and contributed to the resulting amputation of his leg, plaintiffs served

the report of an expert in emergency medicine, Diane Sixsmith, M.D., board

certified in internal medicine and emergency medicine, who opined that "[t]he

nursing assessments performed by Nurse Iannuzzi, Nurse Nigro, Nurse

Porcaro, and Nurse Guerrero were deficient and incomplete and were a

contributing factor to the misdiagnosis of Joshua Piperato."

In addition to providing a causation opinion with regard to the nurses,

Dr. Sixsmith also rendered an opinion that defendant physician assistants

deviated from the standard of care, as did defendant emergency room

physicians who supervised them and co-signed their records. Dr. Sixsmith

A-3569-17T1
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further opined that defendant Emergency Medical Associates, which employed

both the physicians and the physician assistants, deviated from accepted

standards by failing to ensure the proficiency of one of the physician

assistants.

Plaintiffs served a report by a second expert in emergency medicine, Jill

M. Baren, M.D., who concluded the physician assistants deviated significantly

from the standard of care by, among other things, failing to ensure that the

nursing assessments were adequately performed. Dr. Baren opined that the

failure of the physician assistants and supervising physicians to ensure that

each and every necessary nursing assessment was adequately completed

contributed to the patient's ultimate outcome.

Plaintiffs served several other reports, directed to both deviation and

causation, focused on the actions of the physician assistants and their

supervising doctors. The number of reports was made necessary by what

followed from Joshua's injury. As Dr. Alik Farber, plaintiff's expert vascular

surgeon, explained:

It is likely that Joshua Piperato suffered a left
leg injury that likely had a crush component and
developed a compartment syndrome that was not
tested for and diagnosed in a timely fashion at the
[Clara Maass emergency department] on multiple
occasions. Additionally he likely developed an

A-3569-17T1
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 infection of his compromised muscle with Group A
Strep that led to further and progressive tissue injury,
septic shock and systemic inflammatory response
syndrome. Deep venous thrombosis (DVT) likely
occurred in a secondary fashion

Dr. Farber opined that had Joshua been tested "for compartment

syndrome and/or infection, muscle enzymes etc., such tests would have been

abnormal prompting further diagnostic workup and medical specialty

consultation." In his opinion, had the appropriate testing been done, Joshua

would have been correctly diagnosed on his second visit to the emergency

department at Clara Maass at "a point in time where there was much less tissue

affected by the compartment syndrome and/or infection."

In Dr. Farber's view, had Joshua been correctly diagnosed on that second

visit, the deep vein thrombosis likely would not have occurred and amputation

would have been avoided. Noting the dramatic change in Joshua's leg in the

hours between his leaving Clara Maass the last time and his appearance at

Hackensack Medical Center, Dr. Farber further opined that a correct diagnosis,

even as late as Joshua's last visit to Clara Maass, would have likely saved his

leg.

To specifically address the contribution of the infection Joshua suffered

to the loss of his leg, plaintiffs served an expert report by an internist and

A-3569-17T1
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specialist in infectious diseases, Angelo Scotti, M.D., who opined that had

Joshua's compartment syndrome been diagnosed and treated in a timely

fashion, the deep vein thrombosis and secondary infection that led to the

amputation would have been avoided. He further opined that even without a

compartment syndrome diagnosis, it is likely appropriate laboratory testing

would have yielded abnormal results demonstrating early systemic infection.

Dr. Scotti opined that had Clara Maass initiated anti-microbial therapy on

Joshua's second or even third visit, when he "had a much lighter bacterial

burden," the infection would likely have been successfully treated and

amputation avoided.

After the close of discovery, the settlement of plaintiffs' claims against

the doctors, the physician assistants and their employer, and an eleventh hour

adjournment of the fourth — and agreed upon — trial date by defendant nurses

and Clara Maass, they moved for summary judgment asserting plaintiffs failed

to present any evidence that the negligent care and treatment allegedly

provided by defendant nurses was a proximate cause of Joshua's injuries.

Plaintiffs opposed the motion, relying on Dr. Sixsmith's report that

assessments of Joshua by defendant nurses "were deficient and incomplete and

were a contributing factor of the misdiagnosis of Joshua Piperato."

A-3569-17T1
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 Plaintiffs also submitted an affidavit from Dr. Sixsmith in opposition to

the motion, stating that she agreed with Nurse Byerly's assessment that

defendant nurses deviated from the standard of care. As she is not a nurse,

however, Dr. Sixsmith explained she would not typically testify at trial to

those deviations. Dr. Sixsmith stated her testimony at trial would focus on the

"medical significance [of those deviations] based on [her] more than 40 years

of experience as an emergency room physician."

Focusing on the role of nursing assessments in patient care, Dr. Sixsmith

opined that such assessments not only provide important information to

physicians handling the immediate care of the patient, but also to those

reviewing the records of that care. She explained that assessments of an

injured limb are critical to diagnosing compartment syndrome and deep vein

thrombosis, including skin assessments, sensation assessments, capillary refill

assessments, pulse assessments and pain assessments. "Compartment

syndrome and [deep vein thrombosis] can cause changes in all of these

assessments, that is why nursing assessments over time in the emergency can

play a significant role in such a diagnosis." Dr. Sixsmith averred that

"[c]ertainly, here the failure of the nurses to properly assess played a

substantial role in the failure to diagnose."

A-3569-17T1
10
 Dr. Sixsmith noted the undisputed fact that Joshua "was never seen by a

physician" at Clara Maass, nor was one consulted. She opined:

Incredibly, this was true even though this child
presented to the ER on three consecutive days with
worsening complaints as reported by the family,
including things like unrelenting pain, fever, and
crying all night. A child with a sprain should be
getting better, not worse.

....

The nurses at issue failed to assess pain. These
failures . . . again caused harm to the patient. In
compartment syndrome cases, pain assessments are
very important, as typically, the first sign of
compartment syndrome is pain out of proportion to the
injury.

Dr. Sixsmith opined that had a physician been consulted on this case, the

correct diagnosis would have been made. She opined that the nurses' failure to

have a physician see Joshua was a "substantial cause of the misdiagnosis."

Plaintiffs' theory as to the nurses was clear; had they performed proper

assessments and documented the pain and swelling in Joshua's leg, the

physician assistants and their physician supervisors would have been alerted to

undertake further inquiry to determine the cause of the boy's pain. Plaintiffs

contended their failure to do so contributed to the amputation of Joshua's leg.

To that end, they relied on the deposition testimony of one of the defendant

A-3569-17T1
11
doctors responsible for reviewing and signing off on Joshua's chart, Dr.

Jonathan Gamss. He testified that had there been documentation "in the chart

that supported pain out of proportion to exam, so then there probably would

have been a more involved workup that would be taking place of the patient,"

including "[h]aving an orthopedist involved, doing some other assessments of

the neurovascular supply."

Plaintiffs argued that their expert on the nursing standard of care, Nurse

Byerly, opined that defendant nurses failed to properly assess and document

Joshua's complaint "of lower extremity pain and swelling" meaning "they

could not communicate their assessment findings to the physician or

[physician assistant]." In addition to their reliance on Dr. Sixsmith's opinion,

plaintiffs also relied on Dr. Baren's opinion that the failure of the physician

assistants and supervising doctors to ensure the necessary nursing assessments

were adequately completed contributed to the resulting amputation of Joshua's

leg. Finally, plaintiffs also submitted and relied on the reports of Drs. Farber

and Scotti to the effect that had appropriate tests been done timely, a correct

diagnosis and treatment would have followed and amputation would have been

avoided.

A-3569-17T1
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 Defendants objected to plaintiffs' submission of Dr. Sixsmith's affidavit

on the motion. They contended it was at odds with her deposition testimony

and served after the close of discovery. Specifically, they relied on the

following excerpt from Dr. Sixsmith's deposition:

Q: And you're not offering any opinions as to
causation in this case, are you?

A: No.

Q: I'm right, you're not—

A: I'm not.

Defendants contended Dr. Sixsmith's was a sham affidavit offered to counter

plaintiffs' failure to offer expert opinion that the negligent care allegedly

provided by defendant nurses was a proximate cause of Joshua's injuries. See

R. 4:46-5(b).

The trial court judge granted the motion. The judge found plaintiffs'

"main report" from Dr. Byerly "had several pages with regard to the standard

of care for each one of the nurses who had seen Joshua at the hospital." But

"[w]hat this report did not do is give any opinion with regard to causation of

the ultimate injury or damage" Joshua suffered. The judge refused to consider

Dr. Sixsmith's affidavit because it was supplied months after the discovery end

date and "was in contradiction not only to her report, but specific testimony in

A-3569-17T1
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her deposition where . . . she indicated that she was not providing an opinion

on causation."

The judge found Dr. Farber's opinion "does not begin to address . . . the

alleged negligence of the nurses. It doesn't make reference to their actions, it

doesn't give us an indication as to why the things he did suggest would have

prevented this ultimate amputation." The judge found Dr. Farber "just

provides that in broad strokes and clearly is . . . talking about either the

[physician assistants] or the doctors who would be ordering that type of

diagnostic work-up."

Although satisfied plaintiffs established on the motion that defendant

nurses deviated from the standard of care, the judge noted plaintiffs needed to

have an expert "opine that the actions of these nurses resulted in the ultimate

damage and/or injury" Joshua sustained. The judge concluded "after

reviewing all of the reports and going through Dr. Farber's deposition

testimony trying to essentially bridge, for lack of terms, his opinion to Ms.

Byerly's" she could not find plaintiffs had offered an opinion on causation .

Plaintiffs moved for reconsideration arguing three points. First, as to the

nurses, plaintiffs argued Dr. Sixsmith offered a causation opinion as to the

nurses in her report and reiterated it at her deposition, and that defendants'

A-3569-17T1
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argument to the contrary relied on taking a snippet of the deposition out of

context. Second, plaintiffs argued they established causation even without Dr.

Sixsmith's opinion because the nurses failed to appreciate or document that

Joshua was experiencing pain out of proportion to injury. Dr. Gamss testified

that had pain out of proportion to injury been documented, there likely would

have been "a more involved workup," which Drs. Farber and Scotti opined

would have led to Joshua being properly diagnosed and treated, thus saving his

leg.

Third, as to the hospital, plaintiffs argued it was not entitled to summary

judgment even if the complaint against the nurses was dismissed. They

claimed the judge overlooked an existing order entered by another judge

dismissing plaintiffs' direct claims against Clara Maass, but specifically

preserving "[t]he claims asserted against Clara Maass Medical Center under

apparent authority" for the negligence of the settling defendant physicians and

physician assistants. Specifically, plaintiffs contended Clara Maass was

vicariously liable for the negligence of the physicians and physician assistants

because plaintiffs accepted care for Joshua in the reasonable belief that those

defendants were rendering treatment on behalf of Clara Maass even though

they were actually employed by Emergency Medical Associates. See Estate of

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Cordero, ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 310 (App. Div.

2008).

Defendants opposed the motion. Regarding the nurses, they argued

plaintiffs were only rehashing the arguments they made in opposition to

summary judgment. Regarding the hospital, defendants argued first that the

prior order was not addressed to its vicarious liability for the settling defendant

doctors and physician assistants, but only to its nurse employees.

Alternatively, and although not having addressed the issue on their motion,

defendants argued that plaintiffs executed a "General Consent: Inpatient,

Outpatient & Emergency Department," putting them on notice that the

physician and physician's assistants were not employees of the hospital, and

thus that all of plaintiffs' claims against the hospital, including those based on

apparent authority, were properly dismissed.

The judge denied the motion for reconsideration. In a written opinion,

the judge ruled that plaintiffs had "failed to present evidence" relative to their

apparent authority claim. Specifically, the judge found that although plaintiffs

on reconsideration asserted "there was an 'abundance of testimony'" from

Joshua's parents and grandmother that they believed the health care providers

they encountered at Clara Maass were employees of the hospital, they merely

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16
appended the deposition transcripts of those witnesses without specific citation

to the portions supporting their contention.

The judge further noted that counsel offered nothing more at oral

argument as to how plaintiffs "were led to believe that the treating nurses,

physician assistants or doctors were Clara Maass employees." The judge

wrote, "[t]o the contrary, evidence was presented that the plaintiff's mother had

executed a document clearly outlining that the treating physicians were not

employees of Clara Maass," and "that the treating physicians wore clothing

that would identify the doctors as [Emergency Medical Associates]

employees." The judge concluded that for those reasons "and arguments in

defendant's brief," the claim of apparent authority fails. 2

As to the nurses, the judge wrote "it was necessary for an expert to opine

not only [on] the deviation of the nurses but also provide an opinion relating

their alleged deviation to amputation of [Joshua's] leg." The judge declined

2
As we observed in Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603,
612 (App. Div. 1984), while it is not always fatal for a judge to rely on the
reasons advanced by a party in deciding a motion, it is, of course "preferable
that . . . a judge states his or her reasons with particularity." Rule 1:7-4
requires the court to "find the facts and state its conclusions of law . . . on
every motion decided by a written order that is appealable as of right."
Reviewing courts "should not be forced to examine the moving papers and
attempt to glean the judge's reasons," Vartenissian, 193 N.J. Super. at 612, for
orders terminating litigation in light of the requirements of Rule 1:7-4.
A-3569-17T1
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plaintiffs' suggestion "that the court should chain link the various opinions into

a complete opinion that the nurses were negligent and a proximate cause of the

ultimate injury," as plaintiff did not "provide any legal authority in this

regard." The court concluded "[a]s no expert opined directly to the relation of

the nursing deviations and the proximate cause of the amputation, the

plaintiff's claims against the nursing defendants could not be proven." This

appeal followed.

We review summary judgment using the same standard that governs the

trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). As

the parties essentially agreed on the material facts for purposes of the motion,

our task is limited to determining whether the trial court's ruling on the law

was correct. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Because a trial court does not enjoy the advantage

in discerning the law that it does in discerning the facts, a reviewing court

owes no special deference to the "trial court's interpretation of the law and the

legal consequences that flow from established facts." Manalapan Realty, L.P.

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

Our function, like that of the trial judge, is not "to weigh the evidence

and determine the truth of the matter but to determine whether there is a

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genuine issue for trial." Petro-Lubricant Testing Labs., Inc. v. Adelman, 233

N.J. 236, 256 (2018) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995)). Only "when the evidence 'is so one-sided that one party

must prevail as a matter of law'" should a court enter an order for summary

judgment. Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

Having reviewed the evidence on the motion, we are satisfied summary

judgment should not have been granted on this record. To the extent the trial

court's opinions can be read to suggest plaintiffs needed to present a single

report as to the alleged negligence of the nurses addressing both deviation and

causation, we disagree.

As was pointed out by plaintiffs' counsel on the motion, as is typical in

nursing malpractice claims, their nursing expert, Byerly, a registered nurse,

although well-qualified to render an opinion on the nursing standard of care,

was not qualified to render a medical opinion that the deviations she identified

contributed to the amputation of Joshua's leg. See Sanzari v. Rosenfeld, 34

N.J. 128, 136 (1961). For expert opinion on causation, plaintiffs relied on Dr.

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Sixsmith, a physician board certified in both emergency medicine and internal

medicine.3

Contrary to the judge's finding on summary judgment that Dr. Sixsmith

"in neither her written report or in her deposition . . . address[ed] proximate

cause or causation between the nurse's treatment and the ultimate injury that

Joshua sustained," Dr. Sixsmith actually did both. In her report, Sixsmith

plainly stated, "[t]he nursing assessments performed by Nurse Iannuzzi, Nurse

Nigro, Nurse Porcaro, and Nurse Guerrero were deficient and incomplete and

were a contributing factor to the misdiagnosis of Joshua Piperato."

At Sixsmith's deposition, counsel for defendant nurses queried Dr.

Sixsmith specifically about that opinion. After confirming with the doctor that

she was not offering any opinion on standard of care but would instead defer to

the "nursing expert in this case that plaintiff has retained with respect to

standards of care applicable to nurses," counsel asked Sixsmith about the

causation opinion she was offering as to the nurses.

3
Because we conclude the court erred in excluding Dr. Sixsmith's affidavit on
the motion, we need not consider whether Dr. Gamss's testimony in
conjunction with plaintiffs' other experts was sufficient to get plaintiffs to a
jury on causation. We certainly see no impediment to plaintiffs pursuing those
proofs in addition to presenting Dr. Sixsmith's testimony as to causation at
trial.
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 Specifically, defense counsel asked: "And Doctor, is it correct that in

reviewing your report dated November 17, 2016, on the fourth page of that

report is the only one sentence [quoted above] that you offer by way of

commentary on Nurse Iannuzzi, Nurse Nigro, Nurse Porcaro, and Nurse

[G]uerrero?" When Sixsmith agreed, defense counsel pressed further:

Q: There's no other opinion that you have in this
matter other than what's contained on page 4 in
that one sentence?

A: Correct.

Q: I have nothing further.

As we earlier noted, in addition to providing plaintiffs a causation

opinion relative to the nurses, Dr. Sixsmith also rendered an opinion that

defendant physician assistants deviated from the standard of care, as did

defendant emergency room physicians who supervised them and co-signed

their records. At the end of Sixsmith's deposition, at which she was also

questioned by two different lawyers representing defendant physicians and

physician assistants as well as counsel for their employer, Emergency Medical

Associates, counsel for one of the physicians and physician assistants engaged

the doctor in the following exchange:

Q: And you're not offering any opinions as to
causation in this case, are you?

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A: No.

Q: I'm right, you're not —

A: I'm not.

Q: That was a poorly worded question. And there's
nothing in the chart or any of the deposition
testimony to support that there was any visual
abnormality of the left calf on [Joshua's second
visit to Clara Maass] correct?

A: Correct.

Q: And am I correct that you are not offering any
opinion that there was a deviation from the
standard of care on [Joshua's first visit]?

A: Correct.

Q: Would you agree that an ankle sprain in a 7-
year-old is not a particularly unusual
occurrence?

A: Very common.

Q: And that following a sprained ankle in a 7-year-
old, that child can experience pain for several
days; is that right?

A: Yes.

Q: The pain isn't expected to go away within 48
hours, is it?

A: No.

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 Q: And are you offering an opinion — you talked
earlier about getting a CT or an MRI or
ultrasound on [Joshua's second visit]. Are you
offering any opinions as to what those studies
would have shown had they been done?

A: No.

Q: Okay. That's all I have. Thank you.

At oral argument on the summary judgment motion, counsel for

defendant nurses and Clara Maass quoted only that portion of the exchange in

which Dr. Sixsmith said she was not offering any opinions as to causation in

the case, omitting that the question was asked of the doctor by a lawyer

representing different parties, and likewise omitting her own exchange with

the doctor in which Sixsmith confirmed the causation opinion she was offering

as to defendant nurses. 4 We have no need to explore whether candor required

4
When plaintiffs' argued on the summary judgment motion that counsel for
defendant nurses had the opportunity to ask Dr. Sixsmith at deposition the
basis for her opinion, the judge observed, "I assume she strategically avoided
that . . . given the doctor's report." We have no comment on counsel's strategy.
We note only that having chosen not to query the doctor about the basis for her
opinion when provided the opportunity, we see no grounds for objecting to an
affidavit conveying the information the doctor would have supplied at
deposition had counsel asked. See McCalla v. Harnischfeger Corp., 215 N.J.
Super. 160, 172 (App. Div. 1987) (holding a party has "no right to eschew
discovery and then object to the admission of the materials that were fairly
obtainable through interrogatories or depositions, and which logically flowed
from the expert report already provided").
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more. We note only that the representations led the trial court judge to

conclude, erroneously, that the affidavit from Dr. Sixsmith submitted on the

motion contradicted "specific testimony in her deposition where she indicated

. . . that she was not providing an opinion on causation."

As Dr. Sixsmith's affidavit plaintiffs submitted in opposition to summary

judgment was not at odds with either her report or her deposition testimony, it

was a mistaken application of discretion for the judge to refuse to consider it.

See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002) (holding "[c]ourts

should not reject alleged sham affidavits . . . where confusion or lack of clarity

existed at the time of the deposition questioning and the affidavit reasonably

clarifies the affiant's earlier statement"). If counsel for defendants was

genuinely confused by Dr. Sixsmith's deposition testimony, a request for an

N.J.R.E. 104 hearing may have been in order before arguing to the motion

judge that plaintiffs had submitted a sham affidavit in order to defeat summary

judgment.

As plaintiffs established a prima facie case of negligence against the

nurses sufficient to defeat summary judgment based on the expert opinions of

Nurse Byerly and Dr. Sixsmith, summary judgment was also improperly

entered in favor of defendant Clara Maass, as the hospital is subject to liability

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based on a theory of respondeat superior. See Arthur v. St. Peters Hosp., 169

N.J. Super. 575, 579-80 (Law Div. 1979). We are also convinced that

summary judgment was likewise improperly entered in favor of the hospital on

plaintiffs' theory of apparent authority.

The record is clear that Clara Maass never moved for summary judgment

on plaintiffs' apparent authority claim, which was clearly preserved by prior

order in the case. 5 Thus it was completely improper for the hospital to address

the claim on plaintiffs' motion for reconsideration. "The first prerequisite . . .

of due process is fair notice, so that a response can be prepared and the

respondent fairly heard." Nicoletta v. N. Jersey Dist. Water Supply Co., 77

N.J. 145, 162 (1978) (citing Avant v. Clifford, 67 N.J. 496, 525 (1975)). As

the hospital never sought judgment on the apparent authority claim, it was

error for the judge to decide on reconsideration that summary judgment was

5
Defendants' argument on the reconsideration motion that the order preserved
only plaintiffs' claims against the hospital based on its vicarious liability for
defendant nurses was plainly wrong. Defendant nurse employees possessed
actual authority to act on behalf of the hospital. See Arthur, 169 N.J. Super. at
579-80 (explaining doctrine of respondeat superior in hospital context). The
apparent authority claims obviously related only to those physician and
physician assistant employees of defendant Emergency Medical Associates,
who were without actual authority to act on behalf of the hospital. See Basil v.
Wolf, 193 N.J. 38, 67 (2007) (citation omitted) (explaining apparent authority
in hospital context).
A-3569-17T1
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proper as plaintiffs "failed to present evidence relative to this claim."

Plaintiffs had no obligation to respond to a motion for judgment the hospital

never made.

"[Summary judgment] is designed to provide a prompt, businesslike and

inexpensive method of disposing of any cause which a discriminating search of

the merits in the pleadings, depositions and admissions on file, together with

the affidavits submitted on the motion clearly shows not to present any

genuine issue of material fact requiring disposition at trial," Brill, 142 N.J. at

530 (quoting Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 641-42

(1995)), not "shut a deserving litigant from his [or her] trial," id. at 540

(quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 77 (1954)). As we are

satisfied plaintiffs have demonstrated bona fide causes of action entitling them

to fully expose their case to a jury, we reverse and remand the matter for trial.

See id. at 541.

Reversed and remanded. We do not retain jurisdiction.

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