LEKHA TULL v. RODICA PERCIALI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2336-08T32336-08T3

LEKHA TULL,

Plaintiff-Respondent,

v.

RODICA PERCIALI,

Defendant-Appellant.

_________________________________

 

Submitted May 4, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. DC-11240-08.

Law Offices of David J. Khawam, LLC, attorneys for appellant (Mr. Khawam, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Rodica Perciali appeals from a November 17, 2008 Special Civil Part judgment, entered following a bench trial, in favor of plaintiff Lekha Tull, D.D.S. Plaintiff's complaint sought $95 for dental services rendered; defendant disputed the obligation and counterclaimed for professional negligence and insurance fraud.

The trial judge credited plaintiff's testimony, awarded judgment and dismissed defendant's counterclaim. On appeal, defendant argues she was denied an adjournment and otherwise not given an opportunity to be heard. We disagree and affirm.

These are the facts as presented at trial. On May 21, 2007, defendant contracted with plaintiff to provide dental services. As a new patient, defendant was presented with a "Consent for Treatment" agreement, which she executed, authorizing plaintiff to perform all recommended treatment and assuming financial responsibility for any dental services rendered.

Plaintiff performed an oral examination and took full-mouth x-rays. During the examination, defendant expressed interest in dental implants. Plaintiff explained that in order to diagnose the possibility and positioning of implants, she would need a panoramic x-ray accompanied by an additional cost. Defendant "threw a fit," refused the procedure, left plaintiff's office and never returned.

Plaintiff billed defendant $100 for the examination and $175 for the full-mouth x-rays. Defendant's dental insurance provided payment of $180 and plaintiff billed defendant for the $95 balance. Defendant refused payment, claiming no services were performed.

Plaintiff initiated a Small Claims action. Defendant filed a counter-claim alleging consequential damages of $15,000 for professional negligence, and insurance fraud. In her pleadings, defendant asserted plaintiff failed to thoroughly diagnose her condition and, despite defendant's request, declined to provide a written medical evaluation and a copy of the x-rays, delaying her ability to travel to Romania to obtain dental implants. The case was transferred to the Special Civil Part.

At the commencement of trial, defendant requested an adjournment, suggesting she was still "running consequential damages." The trial court declined that request and heard the testimony of the parties. No expert witnesses were presented. Plaintiff testified her records, including digital x-rays, were maintained electronically on the office computer. She introduced defendant's medical chart, which recorded the completed exam and full-mouth x-rays. Defendant denied plaintiff performed an examination, asserting she only looked at her mouth "for two seconds." Defendant acknowledged that she thought plaintiff took x-rays but, because she was not provided copies, concluded they were not taken.

The trial court entered judgment for plaintiff in the amount of $95 without costs. In dismissing defendant's counterclaim, the trial judge found no causal link between defendant's initial office visit and her claimed $15,000 loss for an alleged delay in obtaining dental implants.

On appeal, defendant asserts a denial of her procedural due process rights occurred when she was not given an adjournment or an opportunity to show plaintiff's refusal to provide a copy of the medical examination and x-ray film delayed her efforts to obtain treatment in Romania.

Our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Since the trial court hears the testimony, it has a better perspective than a reviewing court in determining the credibility of witnesses. Id. at 412. Thus, we do not disturb the "factual findings and legal conclusions of the trial judge unless . . . convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (internal quotations omitted). In contrast, a judge's conclusions of law are not entitled to any particular deference. Manalapan Realty, L.P. v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Defendant first contests the denial of her adjournment request. We conclude the court's exercised discretion was proper.

The grant of an adjournment is within the discretion of the trial court. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (citing Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952)). We will "not interfere unless it appears an injustice has been done." Allegro, supra, 9 N.J. at 161. "'Postponement requests must be considered, in part, in the light of preparation efforts. If they are not, parties will have no incentive to prepare.'" In re Segal, 130 N.J. 468, 482 (1992) (quoting State v. Perkins, 219 N.J. Super. 121, 126-27 (Law Div. 1987)).

Such is the case here. Prior to plaintiff's testimony, the court asked defendant whether she sought an adjournment. She replied, "No." Once plaintiff concluded her proofs, defendant began to rebut plaintiff's testimony and then made an adjournment request. We presume the court's denial was premised on the fact that testimony had commenced. Additionally, defendant's counterclaim sought recovery of the alleged costs she incurred for implants procured in Romania, yet there was no dispute plaintiff's services never encompassed a determination of the propriety of providing implants.

Defendant next asserts the trial court erred by failing to allow her to examine plaintiff and to introduce the evidence she submitted supporting her counterclaim. We disagree.

The record shows the judge directed the proceeding and did not formally ask defendant to "cross-examine" plaintiff. However, following plaintiff's testimony, the court requested to hear from defendant and permitted her to rebut plaintiff's assertions and to advance her claims.

We have reviewed the various written statements and accompanying documents defendant includes in her appendix on appeal. We determine, as did the trial judge, that the proofs are deficient to advance a claim for professional negligence.

Generally, in an action for professional negligence, a claimant is required, pursuant to N.J.S.A. 2A:53A-27, to provide an affidavit of an expert testifying that the duty of care exercised in the challenged treatment failed to meet acceptable professional standards, commonly called an affidavit of merit. "The primary purpose of the Affidavit of Merit Statute is to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation." Hubbard ex. rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001) (internal quotations and citations omitted).

Here, defendant alone asserted plaintiff's actions caused a delay in obtaining implants, allegedly resulting in some harm. No expert opinion, given under oath, attesting that a duty of care existed, and that plaintiff's conduct breached that duty, was provided. Defendant's assertions of negligence are not of the type falling within ordinary understanding and experience, obviating the need for expert testimony. See, e.g., id. at 390-91 (holding that because plaintiff's negligence claim for extracting the wrong tooth is based on common knowledge an affidavit of merit was not required); Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954) (holding that expert evidence is not required in malpractice case where dentist extracted wrong tooth).

Instead, her claims relate to a "technical matter[] peculiarly within the knowledge of the . . . dental practitioner[]," necessitating an expert to explain the duty, its breach and a causal link to the claimed damages. Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). The absence of the affidavit of merit warrants the claim be dismissed. Janelli v. Keeper, 317 N.J. Super. 309, 312 (Law Div. 1998) (holding that "plaintiff[s] who [do] not file an affidavit of merit and [are] not successful in persuading a court that an expert is not necessary run[] the risk of having their case dismissed for failure to state a cause of action under N.J.S.A. 2A:53A-29").

We determine the judge's factual findings, including the credibility determinations made, were amply supported by the evidence. Rova Farms, supra, 65 N.J. at 484. Defendant executed the consent to allow treatment and agreed to pay for all services. The $95 obligation related to an oral exam and x-rays that defendant admitted were performed. We have no basis to interfere with the judgment entered, which is consonant with the established law.

Finally, defendant's argument that she was denied due process because she did not have an opportunity to be heard on her defense and counterclaim lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Our review of the record reflects defendant was afforded fundamental fairness at trial. Pasqua v. Council, 186 N.J. 127, 142 (2006).

 
Affirmed.

(continued)

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A-2336-08T3

June 23, 2010