PAMELA LIPIRA v. ANDREW MARON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2383-07T32383-07T3

PAMELA LIPIRA,

Plaintiff-Appellant,

v.

ANDREW MARON,

Defendant-Respondent.

_______________________________

 

Argued: October 2, 2008 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1124-06.

Ronald Aronds argued the cause for appellant (Law Office of Ronald Aronds, LLC, attorneys; Mr. Aronds, on the brief).

Stephen H. Schechner argued the cause for respondent (Law Offices of Stephen H. Schechner, attorneys; Mr. Schechner, of counsel; Christine M. Gefaell, on the brief).

PER CURIAM

Plaintiff Pamela LiPira appeals from the December 13, 2007, denial of her motion for reconsideration of an order entered on November 2, 2007. The earlier order granted summary judgment to defendant Andrew Maron, dismissing plaintiff's dental malpractice claims against him because plaintiff had produced no expert report opining that defendant had deviated from any applicable standard of care. We affirm.

Plaintiff contends that she developed a bone infection in her jaw secondary to dental implant procedures performed by defendant on February 14 and November 1, 2004. As a result of the infection, plaintiff underwent additional surgeries to remove two teeth and a portion of her infected jaw that required a reconstructive plate. Although plaintiff produced an affida vit of merit, she did not serve an expert report opining on the issue of deviation prior to the grant of summary judgment or prior to the denial of her motion for reconsideration.

At the motion for reconsideration, plaintiff argued that de fendant failed to secure an informed written consent to the implant procedures and, in any event, the doctrine of res ipsa loquitur precluded summary judgment, especially where the defen dant impliedly admitted negligence by offering to pay for plain tiff's subsequent treatment. The judge determined that, unlike a hospital procedure, no writing is required to secure an informed consent to a dental procedure. He also held that the doctrine of res ipsa loquitur did not apply to the facts before him because infection can result from a dental procedure in the absence of negligence. Thus, he reaffirmed his earlier ruling that an expert report was required to proceed with the claim and denied plaintiff's motion for reconsideration. This appeal followed.

Plaintiff raises three issues on appeal. First, she con tends for the first time on appeal that her subsequent treating dentist should have been permitted to testify to a deviation at the time of trial even in the absence of a written report opin ing on that issue, citing Bird v. Somerset Hills Country Club, 309 N.J. Super. 517 (App. Div.), certif. denied, 154 N.J. 609 (1998). Second, she asserts, also for the first time on appeal, that dismissal of her complaint was an improper sanction under Rule 4:23-5(b), which only per mits exclusion of expert testimony at trial; instead, she con tends that she should have been given an opportunity to serve a late expert report, citing Rush v. Kuhn, Smith & Harris, Inc., 193 N.J. Super. 389 (App. Div.), certif. denied, 99 N.J. 142, 143 (1984). Third, she argues that the judge should have reconsidered the summary judgment because plain tiff's "extreme injuries . . . were presumptive evidence of neg ligence," which defendant tacitly acknowledged by offering to pay for plaintiff's subsequent treatment.

Regarding issues raised for the first time on appeal here arguments advanced under Bird, Rule 4:23-5(b), and Rush our Supreme Court has observed:

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

Here, these new issues do not affect the trial court's jurisdic tion, nor are they a matter of great public concern. As a con sequence, we will not consider them for the first time on appeal.

With respect to the third issue, "'[r]econsideration is a matter within the sound discretion of the [c]ourt, to be exer cised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). We will not inter fere with such an exercise of discretion unless "'the trial judge pursues a manifestly unjust course.'" Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quot ing Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996); see also Union County Improvement Auth. v. Artaki, 392 N.J. Super. 141, 149 (App. Div. 2007). To the extent that the motion for reconsid eration presents a question of law, our review of that question is plenary because "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The essence of the first branch of plaintiff's third argument is that the judge should have reconsidered the summary judgment because her injuries would not have occurred in the absence of neg ligence. In most negligence cases, "[i]t is sufficient for plaintiff to show what the defendant did and what the circum stances were." Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961). The jury then determines what precautions a reasonably prudent person in defendant's position would have taken to avoid the harm. Ibid. However, professional negligence cases are governed by different rules:

In the ordinary dental or medical malprac tice case, however, the jury is not compe tent to supply the standard by which to measure the defendant's conduct. Since it has not the technical training necessary to determine the applicable standard of care, it cannot, without more, form a valid judg ment as to whether the defendant's conduct was unreasonable under the circumstances. Therefore, ordinarily when a physician or dentist is charged with negligence in the treatment of a patient, the standard of practice to which he failed to adhere must be established by expert testimony.

[Sanzari, supra, 34 N.J. at 134-35.]

See also Roper v. Blumenfeld, 309 N.J. Super. 219, 229 (App. Div.) (holding that "[o]rdinarily a medical malpractice claim requires" expert testimony to establish the standard of care), certif. denied, 156 N.J. 379 (1998); Renrick v. City of Newark, 74 N.J. Super. 200, 208 (App. Div.) (holding that "[a]bsent expert testimony, there was no proof that the extent or quality of care given plaintiff . . . was inadequate"), certif. denied, 38 N.J. 309 (1962).

There are, however, two exceptions to the requirement for expert malpractice testimony the doctrines of res ipsa loquitur and common knowledge. Sanzari, supra, 34 N.J. at 140-42. The former doctrine "applies when it is reasonable to say that, under the circumstances, the injury to the plaintiff would not have occurred in the absence of the defendant's negligence." Id. at 140 (citations omitted). This doctrine permits an infer ence of negligence "'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there [was] no indication in the circumstances that the injury was the result of plain tiff's own voluntary act or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525, 527 (1981) (finding in that case that expert testimony was required to establish that the injury ordinarily would not occur in the absence of negligence); see also Jerista v. Murray, 185 N.J. 175, 192 (2005). The "plaintiff need only prove his injury, and need not prove a standard of care or a specific act or omission." Sanzari, supra, 34 N.J. at 141.

Plaintiffs have been permitted to rely on the doctrine of res ipsa loquitur where, for example, the defendant's car abruptly departed from the roadway without explanation, Eaton v. Eaton, 119 N.J. 628, 639 (1990); the common bile duct was sev ered during gall bladder surgery and not repaired, Yerzy v. Levine, 108 N.J. Super. 222, 229 (App. Div.), aff'd, 57 N.J. 234 (1970); a small infant in the care of defendant hospital crawled out of a crib, sustaining a skull fracture, Tierney v. St. Michael's Medical Center, 214 N.J. Super. 27, 30 (App. Div. 1986), certif. denied, 107 N.J. 114 (1987); and a failure to detect car diac arrest in the recovery room resulted in brain damage and death, Pearson v. St. Paul, 220 N.J. Super. 110, 116-17 (App. Div. 1987).

However, reliance on the doctrine of res ipsa loquitur has been rejected where, for example, a plaintiff claimed nerve dam age from an injection of penicillin, Toy v. Rickert, 53 N.J. Super. 27, 34 (App. Div. 1958); a plaintiff suffered severe burning and scarring of both forearms as a result of the admini stration of a drug that saved the plaintiff's life, Renrick, supra, 74 N.J. Super. at 207; a plaintiff suffered damage to the seventh and eighth facial nerves as a result of cranial surgery, Gould v. Winokur, 104 N.J. Super. 329, 332 (App. Div.), certif. denied, 53 N.J. 582 (1969); and a plaintiff sustained sciatic nerve injury during hip replacement surgery and no expert opined that such injury bespeaks negli gence, Smallwood v. Mitchell, 264 N.J. Super. 295, 298 (App. Div.), certif. denied, 134 N.J. 481 (1993).

It is clear on the facts before us that plaintiff cannot rely on the doctrine of res ipsa loquitur in lieu of an expert opinion to establish a deviation from the accepted standard of care because the mere fact of an infection following a dental surgi cal procedure, without more, does not bespeak negligence. Buckelew, supra, 87 N.J. at 525, 527. A surgical procedure gen erally presents a risk of infection, even in the absence of neg ligence. As a result, plaintiff could only rely on res ipsa loquitur to prove a deviation if she produced an expert report opining that an infection such as occurred here would not have occurred in the absence of negligence. Smallwood, supra, 264 N.J. Super. at 298.

Plaintiff's reliance on the doctrine of common knowledge is also misplaced.

[T]he common knowledge doctrine is applied in a malpractice case after the plaintiff proves his injury and a causally related act or omission by the defendant. The effect of applying this doctrine is to allow the jury to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto. In other words, application of the doctrine transforms the case into an ordinary negligence case where, as mentioned above, the jury, from its fund of common knowledge, assays the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff. The basic postulate for applica tion of the doctrine therefore is that the issue of negligence is not related to techni cal matters peculiarly within the knowledge of medical or dental practitioners.

[Sanzari, supra, 34 N.J. at 141-42 (emphasis added).]

Common knowledge may supply the standard of care where, for exam ple, a hospital staff incorrectly connected a hysteroscope and introduced gas into the patient's uterus and bloodstream, causing a fatal air embolism, Chin v. St. Barnabas Medical Cen ter, 160 N.J. 454, 471 (1999); foreign objects have been left in the body after sur gery, Martin v. Perth Amboy General Hospital, 104 N.J. Super. 335, 340-41 (App. Div. 1969); a dentist extracted the wrong tooth, Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954); and a caustic, rather than an anesthetic, agent was used, Becker v. Eisenstodt, 60 N.J. Super. 240, 246 (App. Div. 1960).

The facts of this case simply do not fall within the common-knowledge doctrine. In the cases discussed above, the plaintiffs charged the defendants with some readily identifiable negligent act or omission that caused the injury the surgeon left a foreign object in the body, the dentist extracted the wrong tooth, the plastic surgeon used a caustic agent. The severity of plaintiff's jaw infection following her dental implants is simply a surgical complication that can occur in the absence of negligence. Plaintiff has not identified some act or omission of defendant that caused the infection. In the absence of such evidence, a jury may not rely on its common knowledge to supply the standard of care. San zari, supra, 34 N.J. at 141-42. The judge did not err in deny ing plaintiff's motion for reconsideration based on the two rec ognized exceptions to the requirement for expert opinion on a deviation from the standard of care.

In the second branch of plaintiff's third argument, she claims that defendant tacitly acknowledged that he deviated from the accepted standard of care when he agreed in writing to pay for plaintiff's subsequent treatment. Defendant, however, testified that plaintiff was resistant to treatment by Dr. Ziccardi because he was not in her insurance network. Because defendant wanted her to have the best treat ment available, he agreed in writing to reimburse her for any expense not covered by her insurance. Plaintiff did not raise a genuine dispute of fact regarding this explanation.

This argument, like the first two issues raised on appeal, was not presented to the judge as a basis for reconsideration. We decline to consider it for the first time on appeal. Nieder, supra, 62 N.J. at 234. Even had this argument been made before the trial court, we would find no abuse of discretion in the rejection of this evidence as proof sufficient to make out a prima facie case of malpractice, thus relieving plaintiff from the burden to prove a deviation from an accepted standard of care through expert testimony. Woody v. Keller, 106 N.J.L. 176, 177-78 (E. & A. 1930) (holding that admission of mistake or error is insufficient evidence of a deviation from the standard of care); see also Roper, supra, 309 N.J. Super. at 229 (holding that ordinarily the standard of care must be established through expert testimony).

Affirmed.

 

Plaintiff did not include the November 2, 2007, motion for summary judgment in her Notice of Appeal nor did she file the transcript of those proceedings. Where a judgment or order is not designated in the notice of appeal, we have no jurisdiction to review it. 1266 Apt. Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Compagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994). As a result, we may only review the December 13, 2007, order denying her motion for reconsideration. W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008).

Even if we were to consider these new issues on appeal, they are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). Bird offers plaintiff no comfort because she failed to supply a written report from her subsequent treating dentist opining on a deviation from the standard of care. The dismissal was not a sanction under Rule 4:23-5(b) for failure to provide discovery. Rather, it was a substantive determination that plaintiff could not prove a deviation. Finally, Rush is inapplicable because plaintiff had no report to serve late, not even at the time of the reconsideration motion.

(continued)

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A-2383-07T3

January 12, 2009