CARMEN MARSILLO VS. VICTOR G. GENTILE, M.D. (L-0674-15, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0383-18T4
CARMEN MARSILLO and
IDA MARSILLO,
Plaintiffs-Appellants,
v.
VICTOR G. GENTILE, M.D.,
Defendant-Respondent.
Argued January 7, 2020 – Decided January 28, 2020
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0674-15.
William L. Gold argued the cause for appellants
(Bendit Weinstock, PA, attorneys; William L. Gold and
Eryn M. Fernandez-Ledon, on the briefs).
Mark Alan Petraske argued the cause for respondent
(Dughi Hewit Domalewski PC, attorneys; Mark Alan
Petraske and Sheila Murugan, on the brief).
PER CURIAM
Following a jury verdict of no cause of action in this medical malpractice
matter, plaintiff Carmen Marsillo 1 appeals the denial of his motions for partial
summary judgment on liability and a directed verdict on deviation from t he
accepted medical standard, and the final order entering judgment for defendant
Victor G. Gentile, M.D. Plaintiff claimed he suffered permanent injuries,
including hearing loss, headaches, and loss of balance as a result of defendant's
failure to diagnose a benign tumor known as an acoustic neuroma. Because
genuine issues of material fact precluded judgment as a matter of law, we affirm
the denial of plaintiff's motions2; because plaintiff failed to move for a new trial
before the Law Division, we decline to consider plaintiff's argument that the
verdict was against the weight of the evidence.
1
All references to plaintiff in our opinion are to Carmen Marsillo. The per
quod claim of his wife, Ida, was wholly derivative.
2
The motion judge entered an order denying summary judgment; the trial judge
issued an oral decision denying a directed verdict, but he did not enter an
accompanying order. That trial judge's decision is referenced in plaintiff's case
information statement but not in his notice of appeal, contrary to the
requirements set forth in Rule 2:5-1(e)(3)(i). We could reject plaintiff's
argument on that basis, see Sikes v. Twp. of Rockaway, 269 N.J. Super. 463,
465-66 (App. Div.) (holding issue raised in brief but not designated in notice of
appeal was not properly before court), aff'd o.b., 138 N.J. 41 (1994), but we
choose to consider the issue because of its similarity to plaintiff's summary
judgment issue. And, plaintiff's counsel candidly admitted at oral argument
before us that plaintiff's primary contention on appeal is the denial of his
summary judgment motion.
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We review a court's denial of summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Similarly, we review a trial court's decision on a motion for judgment, or
directed verdict, pursuant to Rule 4:40-1, applying the same standard of review
as the trial court. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). Both motions
require us to consider "whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
536 (1995); R. 4:46-2(c); see also R. 4:40-1. The distinction between the two
motions "is that summary judgment motions are generally decided on
documentary-evidential materials, while the directed verdicts are based on
evidence presented during a trial." Brill, 142 N.J. at 536.
We first consider the facts from the record before the motion judge in a
light most favorable to the non-moving defendant. Id. at 523. Following the
onset of headaches and hearing loss, plaintiff sought treatment from his primary
care physician, who ordered two MRIs and referred plaintiff to defendant – a
board-certified otolaryngologist, commonly known as an ear, nose, and throat
(ENT) doctor. Plaintiff consulted with defendant on one occasion. The parties'
deposition testimony diverged sharply with regard to that appointment.
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Plaintiff claimed he brought both MRI films and the accompanying
reports to the appointment; defendant – who was not trained to read MRIs –
countered plaintiff only furnished defendant with an MRI film of his internal
auditory canal, without the accompanying radiologist's report. Defendant "did
not see anything abnormal" on the MRI films plaintiff provided, and denied
plaintiff told him "he was there because there was a suspected acoustic
neuroma[.]" Defendant was not "looking for an acoustic neuroma . . . at that
visit." Instead, he considered underlying neurological, vascular, or viral causes
for plaintiff's symptoms. Accordingly, defendant recommended treatment with
Valtrex and steroids; a hearing test; and vascular studies if plaintiff's condition
did not improve. Plaintiff denied defendant advised him to return to his office
for a follow-up appointment.
Instead, within four months, plaintiff returned to his primary care
physician, complaining his symptoms had worsened. Plaintiff was referred to
another otolaryngologist, who diagnosed plaintiff with an acoustic neuroma.
Twenty-seven months after plaintiff's consultation with defendant, another
doctor removed the acoustic neuroma via radiosurgery.
Plaintiff's expert, John Biedlingmaier, M.D., acknowledged the parties
disputed whether plaintiff gave defendant both MRIs and the accompanying
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reports during his appointment with defendant. Relevant here, Dr.
Biedlingmaier postulated, "[i]f [plaintiff], in fact, brought both sets of MRI's
[sic], together with the reports, then clearly [defendant] deviated from accepted
standards of practice because both reports indicated that he had an acoustic
neuroma." (Emphasis added). According to the expert, if defendant "was
incapable of reading the MRI" he should have "contact[ed] the radiologist for
the radiologist's opinion" or referred plaintiff to a doctor who was able to read
the MRI. Dr. Biedlingmaier concluded "[w]ithin a reasonable degree of medical
probability" defendant's failure "to diagnose and recommend proper treatment
for [plaintiff]'s acoustic neuroma increased the risk that he would develop the
permanent sequela that he has and was a substantial factor in his permanent loss
of hearing, loss of balance and headaches."
Defendant's expert, Kenneth A. Remsen, M.D., rendered a competing
opinion. Recognizing plaintiff was seen by defendant "only once" and "did not
follow up with him as advised in the upcoming [three to four] weeks" for an
audiogram, Dr. Remsen opined defendant did not deviate from the standard of
care applicable to otolaryngologists, and did not cause plaintiff's condition to
worsen. In his opinion, had that follow-up occurred, "the work-up could have
been further pursued and the diagnosis . . . made in a more timely fashion ." Dr.
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Remsen agreed that, if defendant could not read the MRI, the standard of care
required him to contact the radiologist to determine what the images depicted.
But the expert added, the standard of care did not require defendant to
"necessarily" contact the radiologist at that point, but "[p]erhaps about the time
of the next office visit." Dr. Remsen further acknowledged the standard of care
required defendant to refer plaintiff to a neurotologist or neurosurgeon if he were
not going to treat the acoustic neuroma himself. The expert noted, however,
defendant "never saw the patient again."
Following the close of discovery, plaintiff moved for partial summary
judgment, claiming both experts agreed "defendant deviated from the standard
of care in a number of ways." Plaintiff also argued Dr. Remsen's opinion was
"net" because he opined when a patient presents with dizziness and hearing loss,
"it's instinctual" or "ENT 101" to consider an acoustic neuroma based on those
symptoms.
The motion judge denied plaintiff's partial summary judgment application
in a terse oral opinion, ultimately concluding the deviation issue should be
determined "upon the full body of the testimony." The judge declined to
consider plaintiff's net opinion motion, deferring resolution of that issue to the
trial judge.
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The matter proceeded to trial before another judge and a jury. We
consider the trial testimony in a light most favorable to defendant. Frugis, 177
N.J. at 269. Dr. Remsen's trial testimony was largely consistent with his
deposition testimony. Dr. Remsen testified defendant did not inform plaintiff
he needed to obtain the MRI report, which was the standard of care, but
defendant "never saw the patient again." Dr. Remsen also testified defendant
would have deviated from the standard of care had he not attempted to obtain
the radiologist report upon the patient's return for a follow-up appointment. But,
plaintiff never returned for a follow-up appointment.
At the close of the evidence, plaintiff moved for a directed verdict on
defendant's liability, renewing his claim that Dr. Remsen repeatedly testified
defendant deviated from the standard of care and therefore there was no genuine
issue of material fact for the jury. The trial judge denied the motion, finding
there was a "sufficient dispute of the facts" for the issue to be determined by the
jury.
On appeal,3 plaintiff raises the following points for our consideration:
3
In his reply brief, plaintiff raises a sub-argument to point I, contending "The
Motion Court Abused Its Discretion on Factual Determinations." An issue that
is not addressed in a party's initial merits brief is deemed to be waived . See
Drinker Biddle & Reath LLP v. N.J. Dept. of Law & Pub. Safety, 421 N.J. Super.
489, 496 n.5 (App. Div. 2011). We therefore decline to consider that argument.
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I. PARTIAL SUMMARY JUDGMENT WAS
IMPROPERLY DENIED BECAUSE THERE WAS
NO DISPUTE AS TO ANY MATERIAL FACT ON
LIABILITY.
II. PLAINTIFFS' MOTION FOR A DIRECTED
VERDICT WAS IMPROPERLY DENIED AT TRIAL.
III. THE JURY'S VERDICT THAT [DEFENDANT]
DID NOT DEVIATE FROM THE ACCEPTED
STANDARD OF CARE WAS AGAINST THE
WEIGHT OF THE EVIDENCE.
[(Not raised below)]
In determining whether defendant was entitled to judgment as a matter of
law, we first consider the elements of the claim plaintiff was required to prove.
See Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996).
Generally, "[t]o establish a prima facie case of negligence in a medical-
malpractice action, a plaintiff must present expert testimony establishing (1) the
applicable standard of care; (2) a deviation from that standard of care; and (3)
that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J.
359, 375 (1997) (internal citations omitted).
We agree with both judges that there was a jury question as to whether
defendant deviated from the accepted medical standard of care for
otolaryngologists. Plaintiff's argument that both experts agreed defendant
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deviated from that standard ignores much of the motion record and the trial
testimony that suggest otherwise.
Notably, the parties disputed whether: plaintiff brought the MRI report –
which specifically stated plaintiff's scans were suspicious for acoustic neuroma
– to his only appointment with defendant; plaintiff informed defendant his
primary care physician suspected he had a tumor; and defendant recommended
that plaintiff return for a follow-up visit. Even Dr. Biedlingmaier acknowledged
the parties' disagreement about whether defendant was furnished with the MRI
reports at the time of his consultation with plaintiff. When viewing those facts
in a light most favorable to defendant – who stated plaintiff only brought the
MRI to the appointment – reasonable minds could reach different conclusions
on whether defendant deviated from the standard of care.
To support his summary judgment point, plaintiff cherry-picks portions of
Dr. Remsen's deposition testimony based on hypothetical questions that
assumed disputed facts. For example, during Dr. Remsen's deposition,
plaintiff's counsel told the expert to assume "[t]he patient tells you that the
internist [told him] . . . to see an ENT because there may be some tumor in his
ear, and he's got partial hearing loss." In response, Dr. Remsen indicated he
would have told the patient he is "not an expert in reading MRIs" and that he
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would need a "formal reading hopefully by a neuroradiologist." Dr. Remsen
conceded defendant did not comply with that standard of care under those
assumed facts. Because the parties disputed whether plaintiff informed
defendant his primary care physician suspected plaintiff had a tumor – and
viewing those underlying facts in a light most favorable to defendant – we
conclude the motion judge properly determined genuine issues of fact precluded
summary judgement as to whether defendant deviated from the standard of care.
Turning to plaintiff's second point, plaintiff again relies upon isolated
excerpts of Dr. Remsen's testimony to support his argument that the experts
agreed defendant deviated from the standard of care. In doing so, plaintiff
ignores Dr. Remsen's trial testimony to the contrary, and fails to support his
claim that the expert back-tracked from that opinion. On direct examination the
following testimony was adduced:
PLAINTIFF'S COUNSEL: Okay. Based on a review
of the medical records, did [defendant] have an idea of
what might be going on with this particular patient or
have a pathway to follow?
DR. REMSEN: Yes.
PLAINTIFF'S COUNSEL: Did he reach a diagnosis?
DR. REMSEN: No.
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PLAINTIFF'S COUNSEL: Does it violate [the]
standard of care to not have a diagnosis on that first
visit of the acoustic neuroma?
DR. REMSEN: No.
PLAINTIFF'S COUNSEL: Why not?
DR. REMSEN: Because the diagnosis of this type of
situation requires further testing, and it's a process.
[Defendant] did not see the acoustic neuroma, as I did
not when reviewing the films, and patients come in with
the dizziness, as I mentioned when I discussed the
differential diagnosis, it could be many different things.
So it is not a deviation of [the] standard of care to not
make the diagnosis. The situation is such that you have
a dizzy patient, you're not sure what's causing it at that
particular time, and it requires further evaluation and
follow-up, which did not happen.
And, on redirect examination Dr. Remsen reiterated his opinion that defendant
did not deviate from the standard of care:
PLAINTIFF'S COUNSEL: . . . if you assume the
patient did not walk in and say I have a tumor, is virus
a reasonable option and a reasonable thing to discuss
with the patient?
DR. REMSEN: Yes, that would then be at the top of
my list.
PLAINTIFF'S COUNSEL: . . . Did [defendant] stop
there with his evaluation and say you've got a virus, go
away?
DR. REMSEN: No.
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PLAINTIFF'S COUNSEL: He had a plan to continue
looking, working him up, right?
DR. REMSEN: Yes, he did.
Importantly, plaintiff fails to offer any proof that Dr. Remsen "completely
abandoned his original opinions concerning [the] deviation from the . . .
accepted standard of care." Ritondo by Ritondo v. Pekala, 275 N.J. Super. 109,
116 (App. Div. 1994) (holding a medical expert's complete "negation of his
direct testimony was a clear and unequivocal withdrawal of his opinion").
Considering the entirety of Dr. Remsen's testimony, rather than isolated excerpts
favorable to plaintiff, we conclude the trial court properly denied plaintiff's
motion for a directed verdict.
To the extent not addressed, plaintiff's remaining arguments in points I
and II lack sufficient merit to warrant discussion in our written opinion. R. 2:11-
3(e)(1)(E).
Little needs to be said regarding plaintiff's newly-minted claim in point
III that the verdict was against the weight of the evidence. Because plaintiff
failed to move for a new trial on that basis, the issue is not cognizable on appeal.
R. 2:10-1 (providing, in pertinent part, "the issue of whether a jury verdict was
against the weight of evidence shall not be cognizable on appeal unless a motion
for a new trial on that ground was made in the trial court"); see also Ogborne v.
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Mercer Cemetery Corp., 197 N.J. 448, 462 (2009). The Rule is strictly enforced,
particularly in civil cases such as this, where there are no constitutional rights
at stake. See Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 363 n.1 (App.
Div. 1998). Nor do we perceive any interest of justice warranting a relaxation
of the Rule in this case. See R. 1:1-2(a) (recognizing "any rule may be relaxed
or dispensed with by the court . . . if adherence to it would result in an injustice").
Affirmed.
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