Smolinski v. Dickes (A-0037-1574), Decided 05/08/17

Plaintiffs appealed the grant of summary judgment in favor of defendant Dr. Richard Dickes and the no cause jury verdict in favor of defendant Marilyn Gaesser. Gaesser was a psychiatric nurse and Dr. Dickes was her collaborative physician. Plaintiff Smolinski began treatment with Gaesser, who diagnosed Amy with “major depression recurrent with anxiety”; this diagnosis did not appear in Gaesser’s note. Gaesser also monitored plaintiff for a bipolar disorder and never ruled it out. Gaesser also never consulted Dr. Dickes on Smolinski case. After plaintiff told her husband that she was feeling suicidal, he brought her to the hospital, where she was diagnosed with bipolar disorder.

At issue before the Trial Court was whether plaintiffs’ expert, Dr. Eleanor Vo, had the qualifications necessary to testify against the defendants. The Trial Court agreed with the defendant in finding that because Dr. Vo became board certified after plaintiff stopped treating with defendants, he did not possess the qualifications necessary to testify against the defendant Dickes. Additionally, upon Gaesser’s admission that she changed her notes upon transcribing them and that some of plaintiff’s notes were lost or destroyed, the Trial Court granted plaintiff’s request for special jury instructions on the issue of altered medical record, but declined to permit plaintiffs to request to amend their Complaint to add a claim for spoliation of evidence.

As to the first issue, the Court concluded that because Dr. Dickes was a board-certified psychiatrist when he worked with defendant Gaesser, plaintiffs needed to provide testimony from an expert who was a board-certified psychiatrist at the time of the treatment in question. Additionally, the Court concluded the Affidavit of Merit statue’s waiver provision did not apply because Dr. Vo lacked “sufficient experience and training to qualify.” The Court noted that Dickes became defendant’s collaborative physician in 2005, shortly before defendant Gaesser began treating plaintiff. Dr. Vo received her license to practice medicine in 2010 and became a board-certified psychiatrist after plaintiff stopped treating with defendants. The Court concluded, “[T]hat’s too late to qualify under the terms of the statute.”

On appeal, the Appellate Division affirmed the grant of summary judgment in favor of Dr. Dickes, agreeing with the Trial Court’s determination that Dr. Vo lacked specialty qualification because she became board-certified after plaintiff’s treatment, and, because she had little or no experience consulting with psychiatric nurses. However, the court rule that Dr. Vo could testify as to Gaesser’s standard of care, and accordingly reversed the judgment in her favor. The Appellate Court further held that the Trial Court erred in not allowing plaintiffs to add a spoliation claim, since Gaesser’s altered notes were relevant to her possible breach of the standard of care. The altered evidence was relevant to whether defendant breach the appropriate standard of care by failing to diagnose plaintiff’s Bipolar disorder. Thus, the Appellate panel vacated the Trial judgment in the malpractice action, and, remand for a new trial against defendant Gaesser. Upon remand, the Trial Court was instructed to grant plaintiff’s leave to file an Amended Complaint to assert a spoliation of evidence claim.

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