JEROME LONCOSKY AND JOSEPHINE LONCOSKY, his wife v. CAPITAL HEALTH SYSTEM AT FULD

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3583-04T13538-04T1

JEROME LONCOSKY AND

JOSEPHINE LONCOSKY, his wife,

Plaintiffs-Appellants,

v.

CAPITAL HEALTH SYSTEM

AT FULD,

Defendant-Respondent.

__________________________________________

 

Argued February 1, 2006 - Decided February 23, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2022-03.

Gerald R. Stockman argued the cause for appellants (Gerald R. Stockman, attorney; Robert E. Paarz, on the brief).

Thomas M. Wall argued the cause for respondent (Parker McCay, P.A., attorneys; Stacey L. Moore, on the brief).

PER CURIAM

Plaintiff appeals a summary judgment entered in favor of defendant dismissing his personal injury complaint. We reverse.

The facts are not complex. Defendant "is a corporation engaged in the business of operating a hospital for treatment of the sick and injured . . . ." On December 10, 2001, an employee of defendant performed an aborted echocardiogram/stress test, referred to as a nuclear stress test, upon plaintiff. During the course of that test, he was injured.

Here is what happened. After being injected with nuclear medicine in the top of his left hand, a nurse instructed plaintiff to get onto a table on which the nuclear stress test machine was located. The nurse took plaintiff's left arm and put it up by the side of his head in order to keep it out of the machine's way. The record reflects nothing untoward about plaintiff's left arm at that point. The nurse then took a wide scotch tape and taped plaintiff's arm in place so that it would not fall down. His elbow was inside the iron framework on the table.

While the machine was working, plaintiff became unable to breathe and his left arm started to burn. He requested that the test be stopped, but the nurse told him it would only be five more minutes. When plaintiff made it clear that he was unable to breathe, the machine was stopped; when the nurse stepped back, the front of her blouse was covered with blood. She told plaintiff that he had cut his arm. Obviously, it was not cut before the test started.

Plaintiff never attempted to determine what caused the cut on his arm, and he never went back to inspect the table for flaws. He only knew that his arm was resting on something that cut it. He asserted in his certification in opposition to defendant's motion for summary judgment that his arm was cut by some sharp portion of the table on which he took the nuclear stress test.

Unfortunately, the cut became infected, requiring hospitalization and he sued defendant. Following discovery, defendant filed a motion for summary judgment contending that plaintiff had failed to demonstrate any negligence on defendant's part and pointing out that he had no expert report.

In granting the motion, the judge assumed that plaintiff was cut while he was undergoing the nuclear stress test. She recognized that plaintiff was relying upon res ipsa loquitur to establish a prima facie case of negligence. But, relying upon our decision in Jerista v. Murray, 367 N.J. Super. 292 (App. Div. 2004), the judge concluded that an expert was required to establish the res ipsa criteria. Thus, in denying plaintiff's motion for reconsideration, the judge said:

. . . I just think there needs to be an expert. I think that's the bottom line here. I don't have any confidence that other causes are excluded. Other causes that perhaps [plaintiff] contributed to, either - I don't know if he was trying to move his arm or if there was something. I don't know if their clothes are removed. I don't even know if he had a belt buckle on. I mean, I don't know any of these things. And without somebody coming in, in terms of an expert, to set the scene and to help us exclude possible other causes, I'm just not comfortable saying that plaintiff can go ahead. To take this to a jury would be simply too speculative as to what the mechanism of the injury was.

So, I'm going to rely again on that Jerista v. Murray which was the recent case of the Appellate Division, at 367 N.J. Super. 292. It just - res ipsa does not apply where the injured part fails to exclude other possible causes of the injury. And expert testimony is needed to exclude other possibilities of injury. And since there was none provided in the discovery of this case, I just can't accept that common knowledge is enough under the circumstances of a nuclear stress test, in a hospital. I don't know if there are any sharp edges on the machinery. I simply don't know.

Subsequent to the motion judge's decision, our decision in Jerista was overruled by the Supreme Court. Jerista v. Murray, 185 N.J. 175 (2005). As a result, we are convinced a reversal is required. The doctrine of res ipsa loquitur allows a plaintiff to make out a prima facie case through an inference of negligence. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). That is to say, res ipsa permits a factfinder to infer negligence on a defendant's part if: "'(a) the occurrence itself normally bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect.'" Jerista v. Murray, supra, 185 N.J. at 192 (quoting Buckelew v. Grossbard, supra, 87 N.J. at 525). Although res ipsa does not shift the burden of proof to defendant, it ordinarily assures the plaintiff a prima facie case sufficient to withstand a motion for summary judgment. Id. at 193.

Here the motion judge thought that plaintiff had failed to rule out any other possible causes and that such rule out required expert analysis. In doing so, she viewed the nuclear stress rest as a complex mechanism, within the meaning of our Jerista decision. Although not entirely clear, it seems she was concerned with the first and third prongs of the res ipsa test. Certainly the second is clearly met as both the table and the machine were within the exclusive control of defendant.

In Jerista, the plaintiff sustained injuries when an automatic door of a Shop Rite closed on her. We affirmed the trial court's grant of summary judgment in favor of defendant, holding that in most cases where complex instrumentalities caused the alleged harm, a plaintiff must proffer expert testimony to exclude other possible causes of injury and provide a basis for finding improper operation and proximate causation. Id. at 188. In reversing us, the Court concluded that no expert testimony was necessary to establish that an automatic door that closes onto and injures a customer is an occurrence bespeaking negligence. Id. at 195, 200.

The Court held that expert testimony is a prerequisite "[o]nly when the res ipsa claim falls outside of the common knowledge of the factfinder and depends on scientific, technical, or other specialized knowledge. . . . " Id. at 199. Once it is determined that expert testimony is not necessary, the dispositive issue is "whether based on common knowledge the balance of probabilities favors negligence, thus rendering fair the drawing of a res ipsa inference." Ibid. That is to say, where an average juror can deduce what happened without resort to scientific or technical knowledge, an expert is not needed. Correspondingly, a plaintiff need not exclude all other possible causes of an accident to invoke res ipsa, "provided that the circumstances establish 'that it is more probable than not that the defendant's negligence was a proximate cause of the mishap.'" Id. at 192 (quoting Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291-92 (1984)). In reaching this conclusion, the Court overruled Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 544 (App. Div.), certif. denied, 145 N.J. 374 (1996), in so far as it stood for the proposition that the requirement for expert testimony flows naturally from the notion that res ipsa is applicable only where the injured party excludes other possible causes of the injury. Jerista v. Murray, supra, 185 N.J. at 198.

The question here, then, is "whether based on common knowledge the balance of probabilities favors negligence, thus rendering fair the drawing of a res ipsa inference," id. at 199, viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), and drawing all legitimate inferences in his favor, id. at 538 (citing R. 4:46-2). Here, plaintiff went into the hospital with a healthy left elbow. He was instructed to lie on the nuclear stress test table and place his arm next to his head. The nurse then taped the arm to the table. After the test was aborted, and the nurse released plaintiff's arm, there was a laceration in his elbow and blood all over her blouse. A probable cause of the cut was the table that the arm was taped to most. A nuclear stress test machine is most certainly an extremely complicated piece of machinery, but most probably neither it nor the table upon which the patient is restrained to caused a laceration of a patient's elbow during an echocardiogram does not occur absent negligence on the part of the defendant. See Jerista v. Murray, supra, 185 N.J. at 197. An expert is not necessary to tell a jury what it can readily deduce on its own. Ibid. Contrast Szalontai v. Yazbo's Sport Caf , 183 N.J. 386, 401 (2005) ("the act of a hole suddenly appearing beneath plaintiff's foot as he crossed [defendant's] parking lot" without some other evidence to establish defendant's breach of its duty of care as a causal factor, cannot establish the first prong of the res ipsa test).

 
Reversed.

(continued)

(continued)

3

A-3583-04T1

February 23, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.