Vizzoni v. B.M.D.

459 N.J.Super. 554

212 A.3d 962

Tracey L. VIZZONI, as Executrix for the Estate of Judith A. Schrope, Plaintiff-Appellant,

v. B.M.D., J.D., and Atlock Farm, Defendants,andStefan Lerner, Defendant-Respondent.

DOCKET NO. A-1255-18T3

Superior Court of New Jersey, Appellate Division.

Argued March 28, 2019

Decided June 24, 2019

Justin Lee Klein, Eatontown, argued the cause for appellant (Hobbie, Corrigan & DeCarlo, PC, attorneys; Jacqueline DeCarlo, of counsel; Justin Lee Klein, Eatontown, on the briefs).

Sam Rosenberg, Morris Plains, argued the cause for respondent (Rosenberg Jacobs Heller & Fleming, PC, attorneys; Sam Rosenberg, of counsel; Matthew E. Blackman, Hackensack, on the brief).

Shook, Hardy & Bacon LLP, attorneys for amici curiae American Medical Association and Medical Society of New Jersey (Philip S. Goldberg, on the brief).

Before Judges Simonelli, Whipple and Firko.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

Plaintiff Tracey L. Vizzoni, as executrix for the estate of Judith A. Schrope, appeals from a May 11, 2018 Law Division order granting summary judgment and dismissing her negligence claims against defendant Stefan Lerner, M.D.¹ Tragically, Lerner's patient, B.M.D.,² struck and killed Judith Schrope while driving. Plaintiff argues Lerner's negligent prescription of medication to B.M.D. was the proximate cause of the fatal crash. For the reasons that follow, we affirm the order of the trial court.

I.

We discern the following facts from the record and view them in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). On June 17, 2014, at around 9:45 in the morning, B.M.D., driving her SUV, struck decedent Schrope as Schrope was riding her bicycle on the right-hand side of a residential road. B.M.D. approached Schrope from behind and saw her in the distance. Visibility was clear and there were no cars approaching from the other direction. At the scene of the accident, B.M.D. gave a recorded statement to police. The officer conducting the interview asked B.M.D. if she was being treated for any medical conditions, and she responded "mild depression." She reported to the officer she had taken Paxil that day and had a glass of wine the prior evening. There is no evidence in the record that the police conducted a field sobriety check. The police did not request a blood draw or an Alcotest. A police report concluded, "[B.M.D.] made no attempt to move over to the left and safely pass Mrs. Schrope. [Even though] [t]he width of the roadway was measured [twenty] feet [nine] inches[,] which would have allowed ample space for [B.M.D.] to move over and safely pass Mrs. Schrope." Despite the fact that Schrope suffered fatal injuries, B.M.D. was only charged with and convicted of careless driving, N.J.S.A. 39:4-97, after a trial in municipal court.

On May 4, 2015, plaintiff filed a wrongful death and survivorship claim against B.M.D.³ Through discovery, plaintiff learned B.M.D. was under the care of psychiatrist Stefan Lerner, M.D, and plaintiff named him as a defendant in a first amended complaint. During B.M.D.'s deposition, she was asked about what medications she took. At the time of the crash, B.M.D. was prescribed at least six psychiatric medications, including: (1) duloxetine (Cymbalta ); (2) lamotrigine (Lamictal ); (3) lithium carbonate (Lithobid ); (4) trazadone; (5) dexmethylphenidate hydrochloride (Focalin ); and (6) methylphenidate (Concerta ). B.M.D. admitted she took duloxetine, lamotrigine and lithium carbonate on the morning of the crash. When asked if she took trazodone the night before the crash, she testified she did not know, and, when asked if it was possible, she answered "it's possible." She also consumed some wine the night before. B.M.D. also testified she did not experience side effects from her medications except for Focalin.

Focalin is a central nervous system stimulant used to treat Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD). B.M.D. admitted Focalin made her "feel a little speedy" as if she was "on speed." She initially denied taking Focalin on the day of the crash because "[i]t had such bad ramifications, I didn't want to bring it up," but later admitted it was possible she "took half of the dose I should have."

On June 8, 2014, Lerner mailed B.M.D. a prescription for Concerta without meeting with her in person. Concerta is also a central nervous system stimulant. B.M.D. testified she did not complain to Lerner of any adverse reaction to Focalin, and Lerner did not document why he wrote her a new prescription. In her deposition, B.M.D. could not recall whether she took either one, neither or both Focalin and Concerta on the morning of the crash.

Lerner began working with B.M.D. in 2001. Over the course of thirteen years, up and until the crash, he wrote her 160 initial prescriptions and over 250 refill prescriptions. Lerner diagnosed B.M.D. with Major Depressive Disorder, ADD and panic disorder but not bi-polar disorder, although he opined she exhibited bi-polar-like symptoms. During her testimony, B.M.D. exhibited limited knowledge about the purpose and effect of each drug she was prescribed and admitted she often altered dosages without consulting Lerner. She denied Lerner ever warned her against driving after ingesting her medication. However, Lerner testified he would have warned her, especially if she felt drowsy or light-headed.

B.M.D. sometimes missed her appointments with Lerner. Lerner explained this was problematic because he did not want to alter B.M.D.'s medication regimen and recognized the importance of meeting with her in person to determine how she was responding to the medication. Lerner acknowledged he sometimes mailed prescriptions to B.M.D. without meeting with her in person and admitted to mailing her a prescription for Concerta on June 8, 2014. Prior to the crash, B.M.D.'s last meeting with Lerner was April 3, 2014.

Several years before the accident, B.M.D. told Lerner she had panic attacks that either occurred while she was driving or left her feeling like she could not drive. She reported experiencing one panic attack while driving so severe that she had to pull over. Lerner was aware B.M.D. experienced panic attacks while driving but was under the impression "she has [not] had much trouble in that area" because she continued to drive without incident.

Although plaintiff's complaint names B.M.D.'s pharmacist as "John/Jane Doe Doctors/Pharmacists," the record lacks any mention of who filled B.M.D.'s prescriptions. Of particular significance is the absence of any record or testimony about whether B.M.D.'s pharmacist provided written or oral warnings of the potential side effects of the medications. No pharmacy records are included in the appellate record.

Lerner moved for summary judgment on March 27, 2018. Lerner argued he owed no duty of care to Schrope because she was not a readily identifiable victim. Lerner argued a therapist has no duty to warn unless he or she knows or should know their patient intends to harm a readily identifiable victim.

Plaintiff opposed Lerner's motion and submitted the report of two experts. Robert J. Pandina, Ph.D., opined B.M.D.'s ability to operate a motor vehicle was impaired when she struck Schrope.⁴

Pandina explained the purpose and possible side effects of each of the medications B.M.D. was prescribed as follows:

a. Duloxetine (Cymbalta ) is an anti-depression medication prescribed for major depression ; it has a half-life of [twelve] to [seventeen] hours, which is relatively long for such medications. To be effective the medication should be taken daily and requires a buildup period for efficacy. Given the long half-life the potential exists for a buildup of the drug that increases the risk of side effects hence careful monitoring of the medication is advisable as is close observation of the patient response to the medication. Side effects include: fatigue; drowsiness and sedation; double vision; crossed eyes; blurred vision; dizziness and lack of coordination; [i]nsomnia; impulsivity; anxiety; vivid dreams or nightmares; dry mouth, mouth ulcers ; memory problems; mood changes; itchiness; runny nose; cough ; and nausea. Use may also trigger panic attacks. Some patients have reported experiencing a loss of concentration, even with very small doses. Women are more likely than men to have side-effects.

b. Lamotrigine (Lamictal ) is prescribed for seizure disorders. On-set of effect ranges from 1.4 to 4.8 hours. It has a half-life of [twenty-nine] hours, which is relatively long for such medications. As is the case with [duloxetine (Cymbalta ) ] [due to] the long half-life the potential exists for a buildup of the drug that increases the risk of side effects hence careful monitoring of the medication is advisable as is close observation of the patient response to the medication. Lamotrigine is also an indicated medication option for the treatment of bipolar disorders. However, many clinicians also use it in patients with a (unipolar) depressive disorder who have not responded adequately to conventional antidepressants. Such usage would be considered "off label." Side effects are similar to those of [d]uloxetine (Cymbalta ) and include: tremors, dizziness; tired feeling; blurred vision, double vision; loss of coordination; sleep problems. Given the risk of side effects patients should be carefully monitored specifically when the medication is given along with other anti-depressants.

c. Lithium carbonate (Lithobid ) is prescribed principally for bi-polar depression. It may be used in cases where other forms of medications are not effective. In some case[s] of apparent major depression with fewer manic than depressive symptoms the drug may be used as an adjunctive therapy. Side effects include loss of balance or coordination, drowsiness or muscle weakness; hand tremors; confusion; memory problems; lack of awareness;

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