This dependency claim comes before the Court on behalf of the widow, Petitioner herein, who asserts that her late husband died due in part because of complications related to his existing pulmonary condition.  Respondent denied liability. 

In 1991 Petitioner had been declared totally disabled in a judgment entered out of this Court[1].  That judgment was allocated 50 per cent for his pulmonary disability, being chronic obstructive pulmonary disease and pleural asbestosis, (herein collectively referred to as “pulmonary condition”, or “pulmonary disease”), 20 per cent for orthopedic impairment, and 30 per cent for unrelated pre- existing conditions for which the Second Injury Fund was declared responsible.  Petitioner died almost nine years later, in the evening of  September 17, 2000  at Brick Hospital, Brick Township, New Jersey, after being admitted mid morning on the 15^th,  two days earlier.  The death certificate signed on April 17, 2000 indicated four causes of death as follows:

  “a.    Septic Shock/Acute Renal Failure, 

b.      Abdominal aortic aneurysm,

c.        Ischemic bowel,

d.       COPD/Asbestosis.”

            The issue before the Court is whether or not the pre existing pulmonary disease constituted a material cause of the death of decedent.   To that end trial commenced on October 18, 2002, with the testimony of the widow of decedent, Mrs. Sophie Ciriello, and continued on January 31, 2003, with Dr. Frank P. Dichiera, D. O., expert for Petititioner.  Respondent presented its expert, Dr. Benjamin Safirstein, M. D..on March 14, 2003 to conclude the trial.     

            After hearing all of the testimony, and considering all of the evidence, there is no question that the immediate cause for the hospitalization were symptoms ultimately diagnosed as obstructive bowel syndrome.  Even the Respondent ultimately conceded this fact.  The night before he was hospitalized, the decedent had been nauseous, had thrown up a considerable amount of black fluid, was scared, and had labored breathing.  In the early hours of the morning prior to his admission, Petitioner, who had been sleeping on a recliner, had called to his wife for assistance because he was feeling so ill, but his wife failed to awaken.  The wife had left Petitioner a bucket since he had felt nauseous.  He filled the  whole bucket with his bile.   

            The Court believes that these symptoms were indications of the obstructive bowel syndrome.  Unfortunately, this diagnosis was not made until the 16^th, and by that time due to the bowel infarction, sepsis had already set in.  This led quickly to renal shock, renal failure, as well as respiratory failure.  The decedent went into distress and by that time there was little that could be achieved on his behalf.  His condition had by that time become too unstable to operate.  The family was advised, and was present by the time of his death at 8:30 P. M. on the 17^th. 

            There was in this Court’s opinion overwhelmingly convincing testimony by Respondent’s expert, Doctor Safirstein, that respiratory failure was not due in any appreciable part to pulmonary failure, but rather to the flow of fluid into the lungs.  Dr. Safirstein carefully and clearly explained the functioning of the lungs.  His demonstrated in a precise and convincing manner how and why the lung membrane lost integrity which caused flooding of the lungs.  In making this determination, the Court is aware that the prior pulmonary impairment was adjudicated at 50 per cent of the total person.  The Court has read the transcript of the Court’s decision made in 1991, and is aware of the findings regarding his pulmonary problems.  It is further aware of and finds credible the testimony of Mrs. Sophie Ciriello, that the condition of Petitioner degenerated so over the years that decedent  had labored breathing, and shortness of breath, making it impossible for the decedent to even accomplish minimal walking about the home.  He had been reduced to a completely sedentary lifestyle.  Notwithstanding, the Court finds by a fair preponderance of the evidence that the respiratory system failed due to the filling up of with liquid, and not due to any obstruction or existence of pleural plaque.  As simply summarized by  Dr. Shiferstein, the decedent drowned in his own fluid.

In reaching this conclusion, the Court is persuaded by the explanation by Dr. Shafirstein that the bowel infarction resulted in sepsis, the release of chemical endotoxins, (bacteria) into the blood, which proceeded to provoke the “disarray and disorder” of the entire vascular system, the kidneys as well as the lungs, consummating in what Dr;.Shafirstein termed acute respiratory distress syndrome, or ARDS.  Death in this case was due to one catastrophic event, the bowel infarction, and not due in any portion to the pre existing obstruction of the lungs.  

This explanation of events, offered by Dr. Shafirstein, makes the most sense to the Court for several reasons.  Firstly, the credentials of Dr. Shafirstein were impeccable.  His responses to questions were spontaneous and to the point.  Dr. Shafirstein responded to questions as one might expect a professor, patiently explaining to his students.  In this Court’s opinion, the doctor was thoroughly proficient in this field, as well as keenly familiar with the facts of the case at hand.   Moreover, he was able to impart this knowledge to the Court.  During cross examination, he appeared fair and impartial in admitting certain facts proposed by the attorney for the Petitioner, which indicated to the Court that the doctor was sure of his ultimate conclusions.    This command of the facts impressed the Court.  While it appeared that Dr. Dichiera needed to constantly refer to his notes, Dr. Shafirstein, on the other hand, referred to facts and conditions from memory.  Dr. Safirstein rarely had to review either his own notes nor the medical records from the hospital when testifying, and then only when requested by the Court.   More importantly, Dr. Shafirstein arrived at his conclusions based upon his independent evaluation of the various facts set forth in the record, such as blood pressure, types of drugs used, X-ray results, even lung function studies.  Dr. Dichiera, on the other hand, appeared to rely for the most part upon the opinions of other doctors with whom Dr. Dichiera alleged to have spoken, or from their written opinions as set forth in the medical records.    The easy and yet precise manner of Dr. Shifersteins’ testimony certainly impacted favorably upon the Court’s opinion of his credibility.  The quality of the doctor’s expertise was further enhanced by the awareness that Dr. Shiferstein is regularly consulted to provide opinions in similar cases whether or not to operate.   While Dr. Shafirstein was gracious in praising the work of the local medical doctors who worked on this case, there is little doubt that had he been present on those fateful days, he would have been consulted himself. 

Petitioner argues that greater weight should be given to the testimony of Dr. Dichiera, as the “treating physician”, having been the personal doctor of the decedent for the past 18 years before his death.  However, the Court  finds that under the facts of this case, any greater knowledge that Dr. Dichiera may have as a result of his personal familiarity with decedent, is outweighed by the overall knowledge, and experience of Dr. Shiferstein..  Without belaboring the point, the credentials of Dr. Dichiera, albeit the treating doctor for the decedent, failed to match the credentials of Dr. Safirstein.[2]  Dr. Dichiera is a D. O.  His certification is in family medicine.  While the testimony of Dr. Dichiera did offer some probative value, in this Court’s opinion, Dr. Dichiera clearly was out of his league in attempting to explain the series of events leading up to the death of the decedent. 

Moreover, the credibility of Dr. Dichiera was lacking.  This was especially evident in considering the primary contention raised by the Petitioner; that the life saving operation could not be undertaken due to the pre-existing pulmonary condition.  This is in fact the precise issue of this case; whether or not the decision to perform surgery was affected by the existence of the pulmonary condition.  After reviewing the entire testimony, and the evidence, the Court is of the opinion that surgery was not considered until the 16^th, a day after the decedent was hospitalized.  Surgery was not an option on the 15^th, because a proper diagnosis was not yet recognized.  By the 16^th, surgery was not an option because of the severe downturn in decedent’s condition resulting from the effects of the bowel infarction as been previously explained.    Notwithstanding, Dr. Dichiera unequivocally asserted in his report of October 4, 2000 that the decedent was unable to undergo surgery “due to the existence of asbestosis.”[3]   The doctor later recanted this testimony acknowledging that surgery was not even considered on the 15^th.   That the doctor would have written such a report in the first place, presumably for the purposes of this case, appears to this Court to have been irresponsible, or at the very least careless.   This report ignores the fact that by the time the proper diagnosis requiring surgery was made, too many other and disparate “catasphrophic events” had occurred to the system to make surgery a viable option.   Moreover, even a second report, prepared by Dr. Dichiera, dated December 24, 2001, intended presumably to mitigate the prior statement, lacked ernesty.   The second report dated  December 24, 2001, and admitted into evidence as P-5,  also consisted of only one paragraph.  In this second report, the doctor backed away from his prior unequivocal posture, however, he still  maintained in this second report  that the pulmonary condition remained a “significant factor.”  This report notably failed to consider the rapidly deteriorating condition- the renal shock, sepsis, flooding of the lungs, and consequent respiratory failure- than ensued from the bowel infarction by the 16^th.   Even if one were not fully conversant with the various organ failures which by the 16^th had occurred, in this Court’s opinion from common knowledge, both the advanced age of decedent as well as his morbid obesity were additional factors that would have been weighed should surgery have been an option.  Neither was even mentioned as factors by Dr. Dichiera. 

In the opinion of this Court, the explanation rendered by Dr. Safirstein clarified that the existence of the pulmonary condition played no part in the decision whether to operate.   Firstly, the Court feels that the appropriate diagnosis was not made until the 16^th.  By that time severe instability had set in having little, if anything to do with the prior pulmonary condition.  Respiratory failure occurred, but due to the flooding of liquid into the lungs rather than from any obstruction in the lungs.   While this Court cannot ignore that Petitioner was not a “prime candidate” in any event for surgery, due to all of the various ailments suffered by him, which included in addition to the pulmonary condition, advanced age, morbid obesity, and diabetes, the Court is convinced by a fair preponderance of the evidence that Petitioner could have tolerated surgery, all other things considered equal, on the 15^th, had the proper diagnosis been made at that time.   Put simply, the existence of the pulmonary condition, in and of itself, did not mitigate against surgery.  One cannot speculate upon whether the existence of the pulmonary conditions would have contributed to his death, had the surgery taken place on the 15^t.h.  Certainly it may have added an element of risk.  However as Dr. Safirstein testified, such operations take place routinely.  To discuss the possibility of death resulting from an operation, had one taken place on the 15^th would be to engage in conjecturing upon a conjecture.  In this Court’s opinion it is too remote from the facts to place any causal relationship to the ultimate death that occurred.  Even Doctor Dichiera candidly admitted that he could not respond with any degree of medical probability whether Petitioner could have survived an operation were one conducted on the 15^th.    Dr. Safirstein was firm that these pulmonary conditions do not in and of themselves mitigate against the performance of serious operations.  Since no operation was contemplated until sepsis shock, renal failure, and ARDS had occurred all of which made it impossible to operate, one need not speculate whether the operation would have been successful earlier.   It is simply not relevant to the facts in this case.

             Although it did not form a principal basis of the Court’s determination, the Court should note that it felt that Dr. DiChiera lost some further credibility when the doctor denied any knowledge of the basis of the law suit which had been previously filed by Petitioner against him.  Dr. Dichiera  asserted that  “It [the litigation] never went that far.”  While one might argue, as did Petitioner’s attorney, that such knowledge required “legal expertise,” the Court finds the response to be disingenuous.  The doctor was presumably served with a complaint.  He must have had at the very least a cursory knowledge of the basis of the suit in order to discuss it with his attorney in the first place.  The response by Dr. Dichiera to this inquiry was simply unsatisfactory.  

            In arriving at its conclusions, the Court finds it necessary to respond specifically to the additional argument of Petitioner’s attorney, first set forth in his letter memorandum dated April 18, 2003 that the pre existing respiratory condition logically required less [stress] in order to fail than had the system been healthy.     However, the Court agrees with the analysis of Dr. Safirstein,  that the lungs failed due to flooding arising from the penetration of fluid into the lungs.  This was due to the breakdown of the membrane in the lungs.  This membrane ordinarily separated the fluid from the oxygen.  This breakdown of the membrane was directly caused by the attack of bacteria type organisms, (endotoxins) which were released into the blood due to the bowel infarction.   This effect had absolutely nothing to due with the obstruction of the lungs caused by the pre-existing pulmonary condition.     

In conclusion therefore, pursuant to N. J. S. A. 34:15-31, the Petitioner has the burden in this particular case to prove by demonstrable objective medical evidence that the prior existing pulmonary disease materially contributed to the death of the decedent.    Section 7.1 of the statute, although referring to a heart attack claim, defines the word material as “an appreciable degree or a degree substantially greater than de minimis.  For the reasons set forth above, in this Court’s opinion, Petitioner failed to demonstrate by a fair preponderance of the evidence that the pre-existing pulmonary claim had any appreciable effect upon the failure of the lungs nor upon the ultimate death of the decedent.  The claim petition is therefore dismissed.  Respondent shall pay for the stenographic fees of $450.

            Mr. Pepe shall prepare the order dismissing the case forwarding a copy of the order to counsel for Petitioner.  If counsel for Petitioner fails to object to the form of the order within ten days of receipt, the Court shall enter the order.   The Court thanks both the attorneys involved for the professionalism shown during the trial.