                                NOT FOR PUBLICATION WITHOUT THE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-0516-18T1

ARLENE L. SUMNER, as
Administratrix ad Prosequendum
of the ESTATE OF EDWINA
TIMBERLAKE, Deceased,
and on her own behalf,

          Plaintiff-Appellant,

v.

RIVERVIEW MEDICAL CENTER,
MERIDIAN HEALTH, INC.,
MERIDIAN HEALTH SYSTEM,
INC., and STEPHEN JUREWICZ,
M.D.,

          Defendants-Respondents,

and

MERIDIAN NURSING & REHAB
AT SHREWSBURY and PHILLIPA
G. WOODRIFFE, M.D.,

     Defendants.
______________________________

                   Argued October 24, 2019 – Decided June 2, 2020
            Before Judges Alvarez, Suter and DeAlmeida.

            On appeal from the Superior Court of New Jersey, Law
            Division, Monmouth County, Docket No. L-0037-15.

            Randy Perry Davenport argued the cause for appellant.

            Anthony William Liberatore argued the cause for
            respondents Riverview Medical Center, Meridian
            Health, Inc., and Meridian Health System, Inc.
            (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak
            attorneys; Thomas Conlon and Anthony William
            Liberatore, on the brief).

            Michael E. Mc Gann argued the cause for respondent
            Stephen Zurewicz, M.D. (Orlovsky Moody Schaaff
            Conlon & Gabrysiak, attorneys; Michael E. Mc Gann,
            on the brief).

PER CURIAM

      Plaintiff Arlene Sumner as Administratrix Ad Prosequendum of the Estate

of Edwina Timberlake appeals the August 20, 2018 summary judgment orders

that dismissed her complaint against defendants Riverview Medical Center,

Meridian Health, Inc., and Stephen Jurewicz, M.D. 1 The complaint alleged

medical malpractice and fraud, claiming Dr. Jurewicz entered a "fraudulent . . .

do not resuscitate order" on Edwina Timberlake's hospital chart, and that no

action was taken to resuscitate her when she suffered a cardiac arrest.


1
  The complaint against defendants Meridian Nursing & Rehab at Shrewsbury
and Phillipa G. Woodriffe, M.D. was dismissed, and has not been appealed.
                                                                        A-0516-18T1
                                       2
Defendants' motions for summary judgment were granted because plaintiff did

not provide an expert report to support her claims. We affirm the trial court 's

orders because this was not a common knowledge case and expert testimony was

required.

                                         I.

      In 2012, Timberlake was eighty-two years old and a resident of defendant

Meridian Nursing & Rehab at Shrewsbury. She suffered a severe stroke in 1986

and could not speak, using "body language, facial expressions and hand-

gestures" to communicate. Plaintiff was attorney-in-fact for Timberlake. Dr.

Jurewicz was Timberlake's primary physician.

      In November 2012, Timberlake was admitted to Riverview Medical. She

had abdominal surgery and suffered from other medical problems. She was

discharged to the nursing home forty-five days later in stable condition. Plaintiff

alleges that during the November 2012 admission she refused to authorize a

"[d]o-not-resuscitate" (DNR) order for her mother. Dr. Jurewicz "responded" to

her decision "with obvious hostility . . . ."

      Timberlake was taken to the emergency department at Riverview Medical

on December 29, 2012, where she was examined by Dr. Khaldoon Qumei.

Timberlake presented with "decreased mental status, trouble concentrating." Dr.


                                                                           A-0516-18T1
                                          3
Qumei's differential diagnosis included "[stroke], electrolyte abnormality,

hypoglycemia, intracranial bleed, sepsis and [urinary tract infection]." The

hospital records state that Dr. Qumei "had a detailed discussion with the patient

and/or guardian" and noted "daughter requesting DNR." Dr. Qumei testified in

his deposition that he physically typed that note and would not have done s o

unless it had been requested. Dr. Qumei's handwritten notes also stated "DNR."

      Timberlake was admitted to Riverview Medical from its emergency

department early the next day under the care of Dr. Jurewicz. His report about

her admission reviewed Timberlake's chief complaint, medical history and listed

his impressions. The medical plan was to "give general supportive care with IV

antibiotics, respiratory treatments, blood sugar monitoring with insulin

coverage." He stated in the report, "I discussed with the daughter who does not

want to subject her to any life-sustaining or heroic interventions."

      On January 2, 2013, a doctor at Riverview Medical inserted a "central

line" in Timberlake's neck. She was found an hour and a half later not breathing

and with no pulse or vital signs. Resuscitative efforts were not undertaken

because, according to her medical chart, Timberlake was "DNR as per Dr.

[T]halasilla." Within five minutes, the attending doctor pronounced her death.




                                                                         A-0516-18T1
                                        4
        An autopsy report concluded Timberlake's cause of death was

cardiovascular disease with "recent coronary artery thrombus and marked

myocardial infarction." She had a large clot ("marked, occlusive thrombus") in

the left anterior descending artery of her heart. Her other medical conditions

included congestive heart failure, residual-bilateral pneumonia and a kidney

infection with abscesses.

        Plaintiff filed a nine-count civil complaint against defendants in

December 2014. Counts one through four alleged medical malpractice relating

to Timberlake's November 2012 admission. 2 Counts five though nine alleged

medical malpractice and fraud related to the DNR order, including a count for

punitive damages.

        Plaintiff served an Affidavit of Merit by a medical doctor who alleged "a

reasonable probability" that defendants' "care, skill and knowledge . . . fell

below accepted standards of medical care and outside of acceptable professional

standards." Plaintiff was then required to serve an expert report by March 15,

2018, but did not do so.

        Dr. Jurewicz served a report by Gary R. Weine, M.D., who opined that

Dr. Jurewicz "did not deviate from the standard of care in his treatment of Ms.


2
    Plaintiff does not raise any issues related to the November 2012 admission.
                                                                         A-0516-18T1
                                        5
Timberlake." He concluded "it is unlikely that Ms. Timberlake would have

survived a cardiac arrest" and "it is unlikely that Ms. Timberlake would have

survived this hospital admission." Given her medical conditions as presented

from the records, Dr. Weine concluded they "would make the likelihood of

successful resuscitation and survival to discharge highly unlikely."

      Defendants filed motions for summary judgment, alleging plaintiff could

not prove her claims without a medical expert because this was not a "common

knowledge" case. Defendants contended plaintiff authorized the DNR order,

which was consistent with emergency room records.

      Plaintiff opposed the motions, contending she repeatedly told Dr.

Jurewicz she did not want a DNR order for her mother, and he entered it anyway.

Plaintiff claimed that "executives [of Riverview] admitted that there was no

valid DNR order."

      The trial court granted defendants' motions for summary judgment on

August 20, 2018, and dismissed the complaint. In its written statement of

reasons, it concluded that the common knowledge doctrine did not apply.

Without an expert, plaintiff did not show how Dr. Jurewicz's "actions fell below

the standard of care surrounding the entering of a DNR order . . . ." The trial

court also found plaintiff did not make a showing of causation because she did


                                                                        A-0516-18T1
                                       6
not rebut the opinion by Dr. Weine that Timberlake would not have survived the

cardiac arrest because of her medical conditions, even if there were not a DNR

order.     The trial court dismissed the Riverview defendants, finding that

respondeat superior did not apply once Dr. Jurewicz was dismissed.

         On appeal, plaintiff argues:

               POINT I.

               THE    MOTION     COURT    ERRONEOUSLY
               CONCLUDED THAT EXPERT TESTIMONY IS
               NECESSARY      TO    PROVE     MEDICAL
               MALPRACTICE IN THIS MATTER BECAUSE THE
               ASSERTED NEGLIGENCE OF ENTERING A
               FRAUDULENT     DNR   IS   CONDUCT   SO
               OBVIOUSLY WANTING IN REASONABLE
               MEDICAL SKILL AND PRUDENCE THAT IT MAY
               BE SO ADJUDGED EVEN BY A LAYMAN.

               POINT II.

               THE    MOTION     COURT   ERRONEOUSLY
               CONCLUDED THAT EXPERT TESTIMONY IS
               REQUIRED AS TO THE ISSUE OF WHETHER
               PLAINTIFF HAS SUSTAINED DAMAGES CAUSED
               BY    DEFENDANT-APPELLEE     JUREWICZ'S
               COUDUCT [sic].

                                        II.

         We review a court's grant of summary judgment de novo, applying the

same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).

Summary judgment must be granted if "the pleadings, depositions, answers to

                                                                       A-0516-18T1
                                              7
interrogatories and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of law." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)).

      In a medical malpractice action, a plaintiff must present expert testimony

from a "competent and qualified" physician to establish (1) "the applicable

standard of care"; (2) a "deviation from that standard"; and (3) that the

"deviation proximately caused injury . . . ." Lanzet v. Greenberg, 126 N.J. 168,

194-95 (1991) (Pollock, J., dissenting). The only exception involves cases of

"common knowledge." Id. at 196.

      Common knowledge cases are "exceptionally rare cases in which . . . an

expert is not needed to demonstrate that a defendant professional breached some

duty of care 'where the carelessness of the defendant is readily apparent to

anyone of average intelligence.'" Cowley v. Virtua Health Sys., __ N.J. __, __

(2020) (slip op. at 15) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)).

In a common knowledge case, "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


                                                                          A-0516-18T1
                                        8
knowledge of experts.'" Ibid. (quoting Hubbard ex. rel. Hubbard v. Reed, 168

N.J. 387, 394 (2001)). The common knowledge exception applies where "the

issue of negligence is not related to technical matters peculiarly within the

knowledge of . . . [the licensed] practitioner[ ]." Sanzari v. Rosenfeld, 34 N.J.

128, 142 (1961). It "allows jurors to 'supply the applicable standard of care . . .

to obviate the necessity for expert testimony relative thereto.'" Cowley, __ N.J.

at __ (slip op. at 19) (alteration in original) (quoting Sanzari, 34 N.J. at 141).

      This is not a common knowledge case. Although plaintiff alleges the

DNR order was "fraudulent" because it was entered by Dr. Jurewicz against her

wishes, she assumes the standard of care for the entry of the DNR order in this

context had to equate with her wishes. We simply do not know that. In this

case, Dr. Qumei, who is not a defendant, testified in his deposition that he had

a conversation with plaintiff, who expressed to him she wanted a DNR for her

mother. The emergency room records reflected this. Timberlake was admitted

to the hospital that night. Dr. Jurewicz claims he had a conversation with

plaintiff in which she wanted a DNR order for her mother. In this case where

the unchallenged emergency room records reflect a DNR order, we do not know

what protocols were or should have been involved in establishing the DNR

order, what procedures should have been followed for the DNR order upon


                                                                            A-0516-18T1
                                         9
admission from the emergency department, what processes should have been

followed, how Timberlake's health conditions and comorbidities did or did not

factor into this decision, and how Dr. Jurewicz deviated from these standards.

Plaintiff provided us with no supporting information or authority for her

argument that a jury would know the standards to apply, without an expert to

inform them, or how the doctor and hospital deviated from these standards.

      Bender v. Walgreen Eastern Company, 399 N.J. Super. 584 (App. Div.

2008), cited by plaintiff, is not controlling. That case involved a prescription

that was filled with the wrong drug. Those are not the facts here.

      Other common knowledge cases are factually dissimilar from this case.

See Estate of Chin ex rel. Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 470-71

(1999) (patient died from air embolism after incorrect hook-up of hysteroscope);

Klimko v. Rose, 84 N.J. 496, 505 (1980) (providing "common knowledge could

allow a jury to find that a reasonably prudent chiropractor should have known

that there was a risk involved in repeating the further neck adjustment"); Jones

v. Stess, 111 N.J. Super. 283, 289–90 (App. Div. 1970) (chiropodist accidentally

cut skin of a diabetic's toe resulting infection and amputation); Steinke v. Bell,

32 N.J. Super. 67, 70 (App. Div. 1954) (dentist extracted wrong tooth).




                                                                          A-0516-18T1
                                       10
      Here, plaintiff also needed expert testimony to prove causation and

damages. See Germann v. Matriss, 55 N.J. 193, 208 (1970) (providing a plaintiff

who proves common knowledge still must prove "that the deviation was the

reasonably probable cause of the injurious condition").

      Timberlake had multiple co-morbidities according to Dr. Weine, which

"included Stage III renal insufficiency, bilateral bronchopneumonia, [congestive

heart failure], severe anemia, malnutrition with low serum albumen, upper tract

urinary infection caused by a multidrug resistant bacteria with multiple renal

abscesses and structural abnormality (renal stones) and pulmonary insufficiency

. . . ." She died of a cardiac arrest. Dr. Weine concluded Timberlake's medical

conditions "would make the likelihood of successful resuscitation and survival

to discharge highly unlikely." There is nothing in the record to rebut this. It

was not within the jury's common knowledge whether decedent would survive

if resuscitate efforts were undertaken, whether the DNR order increased the risk

of harm to her or whether this was a substantial factor in her death. See Hake

v. Manchester Twp., 98 N.J. 302, 311 (1985) ("Our concepts of causation for

failure to act are generally expressed in terms of whether the conduct may be

viewed as a 'substantial factor contributing to the loss.'") (quoting Francis v.

United Jersey Bank, 87 N.J. 15, 44 (1981)). Without a countervailing expert


                                                                        A-0516-18T1
                                      11
report that the DNR order caused damages, plaintiff cannot prove malpractice

against defendants.

      Plaintiff relies on Payne v. Marion General Hospital, 549 N.E.2d 1043

(Ind. Ct. App. 1990). In Payne, the Indiana court concluded it was an issue of

fact for the jury to determine whether plaintiff was damaged by the doctor 's

entry of a no-code order without plaintiff's informed consent. 549 N.E.2d at

1050. This case is not like Payne; it does not involve informed consent. The

jury in Payne could have determined that decedent was not terminally ill and

sustained some damage from the lack of informed consent. Here, there was no

testimony or evidence provided by plaintiff that resuscitation efforts would have

been successful, and plaintiff did not rebut Weine's testimony.

      The claims against Riverview Medical were based on respondeat superior.

However, there was no information that Dr. Jurewicz was an employee of

Riverview Medical. Even if respondeat superior applied, Riverview Medical is

not negligent if the malpractice case against Dr. Jurewicz cannot be sustained.

See Carter v. Reynolds, 345 N.J. Super. 67, 71 (App. Div. 2001) (providing that

"under the doctrine of respondeat superior, an employer is vicariously liable for




                                                                         A-0516-18T1
                                      12
the torts of an employee only if the employee was acting within the scope of his

or her employment at the time the tort was committed"). 3

      Affirmed.




3
  To the extent plaintiff's complaint may raise other legal issues, these were not
argued in the appeal and are waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8
(2014); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div.
of Law, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (noting that claims not
addressed in merits brief are deemed abandoned); see Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).


                                                                          A-0516-18T1
                                       13
