NOT FOR PUBLICATION WITHOUT THE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-3755-18T2
ALEXANDER JAROSZEWICZ,
a minor by his Guardian Ad Litem,
ANETA CYRKLER and ARTUR
JAROSZEWICZ, and ANETA
CYRKLER and ARTUR
JAROSZEWICZ, individually,
Plaintiffs-Respondents,
v.
PAK-KAN ALBERT LO, M.D.,
and HACKETTSTOWN RADIOLOGY
ASSOCIATES,
Defendants,
and
CLAY ROBERT HINRICHS, M.D.,
Defendant-Appellant.
_________________________________
Argued September 24, 2019 – Decided October 18, 2019
Before Judges Hoffman and Firko.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Docket No. L-5482-15.
Nancy Crosta Landale argued the cause for appellant
(Farkas & Donohue, LLC, attorneys; Evelyn Cadorin
Farkas, of counsel, Nancy Crosta Landale, on the brief).
E. Drew Britcher argued the cause for respondent
(Britcher Leone, LLC, attorneys; E. Drew Britcher, of
counsel and on the brief; Jessica E. Choper, on the
brief).
PER CURIAM
We granted defendant Dr. Clay Hinrichs leave to appeal the March 29,
2019 Law Division order denying his motion for summary judgment. We
dismiss the appeal as improvidently granted.
In January 2014, plaintiff A.J. was born with several severe congenital
anomalies. According to plaintiffs' brief, A.J. was born with "anophthalmia (no
eyes), extra digits (polydactyly) and cardiac anomalies." In August 2015, A.J.'s
parents1 filed a "wrongful life" medical malpractice complaint against defendant
1
A.J.'s parents sue individually and as guardians ad litem for A.J.
A-3755-18T2
2
radiologists,2 alleging they failed to accurately interpret prenatal ultrasounds; as
a result, A.J. "was born . . . severely and permanently impaired."
In support of their claims, plaintiffs produced reports from two medical
experts, Dr. William Matuozzi, a board certified radiologist, and Dr. Alfred
Abuhamad, an obstetrician/gynecologist and maternal-fetal medicine specialist.
Prior to Dr. Matuozzi's deposition, plaintiffs' attorney announced that Dr.
Matuozzi "will not be offering any criticism of [defendant] concerning the July
29 ultrasound scan." In response, defendant's attorney asked, "Can we agree
that Dr. Matuozzi will not be offering any standard of care opinions against
[defendant]?" Plaintiffs' attorney replied, "That is correct."
Based on this exchange, defendant's attorney did not question Dr.
Matuozzi during his deposition, and immediately filed a motion for summary
judgment. Plaintiffs opposed the motion, arguing that Dr. Matuozzi still holds
the opinion that Dr. Hinrichs deviated from accepted standards of care relative
to a November 5, 2013 ultrasound reading, and remains ready to provide his
criticisms regarding that ultrasound. Plaintiffs' attorney submitted a
certification explaining that he intended to make clear that "Dr. Matuozzi was
2
Plaintiffs' complaint names Dr. Pak-Kan Albert Lo, Dr. Hinrichs, and
Hackettstown Radiology Associates as defendants. Since this appeal only
concerns plaintiffs' claims against Dr. Hinrichs, we refer to him as defendant.
A-3755-18T2
3
only withdrawing his criticism of the July 29, 2013 ultrasound study and not the
November 5, [2013] ultrasound study."
According to plaintiffs, Dr. Matuozzi still holds the opinion that defendant
deviated from the accepted standard of care in regard to the November 5, 2013
ultrasound, and that his report states as much. Plaintiffs point to the following
two sentences in Dr. Matuozzi's expert report, "The 11/5/13 follow up
obstetrical ultrasound is limited but shows no placenta previa, and no
marginal/low lying placenta. The far field cerebral lateral ventricle is sub-
optimally demonstrated but as visualized measures at least 10mm in diameter."
In light of the apparent miscommunication at the start of Dr. Matuozzi's
deposition, the motion judge denied summary judgment, noting that "reasonable
minds can differ." While denying the motion, the judge permitted defendant to
"retake" Dr. Matuozzi's deposition at "plaintiff[s]' counsel's cost," concluding
"that would be . . . fair under the circumstances."
Plaintiffs presented an alternative basis for opposing defendant's motion
– that Dr. Abuhamad is competent and qualified to render an expert opinion as
to the standard of care required of a radiologist in interpreting a pre-natal
ultrasound. Defendant strongly opposed this argument, asserting that the
Patients First Act (the Act), N.J.S.A. 2A:53A-37 to -42, precludes Dr.
A-3755-18T2
4
Abuhamad from serving as an expert against defendant, who is board certified
in diagnostic radiology. The Act "establishes qualifications for expert witnesses
in medical malpractice actions and provides that an expert must have the same
type of practice and possess the same credentials, as applicable, as the defendant
health care provider, unless waived by the court." Nicholas v. Mynster, 213 N.J.
463, 479 (2013) (internal quotations omitted) (quoting Assembly Health &
Human Services Committee, Statement to Assembly Bill No. 50 at 20 (Mar. 4,
2004)). Because the judge ruled that he would consider Dr. Matuozzi's opinion
as to the November 5, 2013 ultrasound, after first providing defense counsel the
opportunity to retake his deposition, the judge declined to address whether
plaintiffs could utilize Dr. Abuhamad as a standard-of-care expert against
defendant.
Considering that "[i]nterlocutory review . . . is to be exercised only
sparingly, because of the strong policy that favors an uninterrupted proceeding
at the trial level with a single and complete review," Grow Co. v. Chokshi, 403
N.J. Super. 443, 461 (App. Div. 2008) (internal quotation marks and citations
omitted); see also State v. Reldan, 100 N.J. 187, 205 (1985), we dismiss this
appeal as we conclude leave was improvidently granted. See State v.
Abeskaron, 326 N.J. Super. 110, 122 (App. Div. 1999) (citation omitted)
A-3755-18T2
5
(recognizing "[a]n appellate court may vacate an order granting leave to appeal
as improvidently granted").
We remand this matter to the Law Division for the trial judge to issue an
order compelling Dr. Matuozzi's re-deposition within thirty days, at plaintiffs'
expense, to allow defendant the opportunity to fully explore his opinions. After
the deposition, the judge shall permit defendant to refile his summary judgment
motion, wherein he may renew his challenge to the ability of Dr. Abuhamad to
provide standard of care opinions against defendant. After briefing and
argument, the judge shall then provide Rule 1:7-4 findings addressing all issues
raised, in accordance with summary judgment standards.
Dismissed and remanded. We do not retain jurisdiction.
A-3755-18T2
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