PHILIP HAHN v. DONNA MARIE DeGHETTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2391-09T1

PHILIP HAHN,

Plaintiff-Appellant,

v.

DONNA MARIE DeGHETTO, D.M.D.,

Defendant-Respondent.

___________________________________

May 10, 2011

Argued February 16, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-6109-08.

Philip Hahn, appellant, argued the cause pro se.

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

PER CURIAM

Plaintiff Philip Hahn appeals from an order dismissing with prejudice his dental malpractice claim and denying his motion to amend and reinstate his complaint against defendant Dr. Donna Marie DeGhetto. We affirm.

Plaintiff filed a handwritten complaint against Dr. DeGhetto in August 2008 alleging that he suffered emotional distress in September 2006 when defendant "swung her arm in front of the plaintiff after performing a tooth extraction in an effort to cause emotional distress." Defendant filed an answer, which included a demand for an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Defendant then propounded interrogatories upon plaintiff and requested medical releases.

Plaintiff's responses to the interrogatories included the following: "The doctor removed the plaintiff's tooth and swung her arm in front of him (similarly to the way a large group of people had been doing prior to the incident)." Adding that the incident lasted "for a few seconds," plaintiff stated: "I believe that the arm swinging was part of an at least decade long plan to harass me throughout New Jersey." Plaintiff had not received any treatment for his emotional distress, and he was unemployed at the time of the incident and did not lose any income as a result. He had no documents to produce in discovery, no other person had relevant knowledge about his cause of action, and he did not intend to call any expert witness to testify on his behalf. Plaintiff described his cause of action as the tort of intentional infliction of emotional distress.

Defendant moved to dismiss the complaint because of plaintiff's failure to produce an affidavit of merit. After hearing argument in May 2009, the court denied without prejudice defendant's motion to dismiss and granted plaintiff leave to file an amended complaint. Plaintiff's amended complaint repeated the same claim of emotional distress, and it also alleged that "plaintiff's tooth was needlessly removed." In a new claim of dental malpractice for failure of the doctor to obtain plaintiff's informed consent to the procedure, the amended complaint alleged that defendant had extracted the tooth "without informing [plaintiff] of the alternative option of not extracting the tooth."

By order dated September 1, 2009, and marked "unopposed," the trial court dismissed without prejudice under Rule 4:23-5(a)(1) plaintiff's claim for emotional distress on the ground that he had failed to provide responsive answers to certain relevant interrogatories. In October 2009, plaintiff supplemented his answers to interrogatories, stating again that he had been "followed around for ten years by people waving their arm in front of me" but that he had not received any treatment for the emotional injuries.

Defendant-doctor renewed her motion to dismiss the lawsuit for failure to serve an affidavit of merit, and plaintiff filed a cross-motion to reinstate his complaint and to amend it again, adding a third claim for harassment. The court heard argument and granted defendant's motion to dismiss with prejudice, also denying plaintiff's motion. Plaintiff filed a timely notice of appeal.1

On appeal, plaintiff contends he does not need to serve an affidavit of merit because his claim is not that defendant negligently extracted his tooth. He claims an expert witness is not required to prove that the doctor was required to inform him of the option of not extracting his fractured tooth. As to his claims for infliction of emotional distress and harassment, plaintiff claims he expects Dr. DeGhetto to testify at trial that she waved her arm in front of him for the purpose of causing him emotional distress or otherwise harassing him.

We reject plaintiff's arguments for the reasons expressed in open court by the trial judge on December 18, 2009. We add the following in direct response to some of plaintiff's arguments on appeal.

The affidavit of merit statute, N.J.S.A. 2A:53A-27, provides in relevant part:

In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.

The purpose of this statute is "to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001). "It was designed as a tort reform measure and requires a plaintiff in a malpractice case to make a threshold showing that the claims asserted are meritorious." Ibid. When the statute applies, "an appropriate licensed person must submit an affidavit attesting to the suit's merit." Berlin v. Remington & Vernick Engineers, 337 N.J. Super. 590, 595 (App. Div.), certif. denied, 168 N.J. 294 (2001).

Plaintiff contends that his claims are not subject to the affidavit of merit statute because he is not challenging the manner in which the extraction itself was performed but only claiming the doctor had a duty to inform him of the option of "non-treatment." He argues that his claim that the treatment was provided without his informed consent is a matter of common knowledge, and that the dental profession "does not set the standard for disclosure" because "[u]nder the 'prudent patient standard' it is not what the doctor would have done that matters, it is what the patient (plaintiff) would have done that matters."

Plaintiff's argument is based on the holding of Largey v. Rothman, 110 N.J. 204, 213 (1988), adopting the so-called "prudent patient" standard in place of a "professional standard" to establish what "material risks" a doctor must disclose to a patient to obtain the patient's informed consent to particular treatment. In Febus v. Barot, 260 N.J. Super. 322, 327 (App. Div. 1992), however, we held that "the prudent patient standard does not always dispense entirely with the need for expert medical testimony in an informed consent case." We stated further that: "Although, under this doctrine, no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community." Ibid. Plaintiff misstates the law when he argues that the prudent patient standard means he does not need an expert to prove a claim that Dr. DeGhetto extracted his tooth without his informed consent.

The fallacy in plaintiff's argument is that he is not claiming he gave no consent to the tooth extraction; he is claiming his consent was not an informed one because he was not told of the option of foregoing the procedure entirely. Such a claim is viable only if plaintiff can prove the risks involved in the procedure and those he would have encountered if he declined the procedure, considering the condition of his tooth and other relevant circumstances. To establish those facts, plaintiff needs an expert witness. Therefore, the affidavit of merit statute applies to his claim.

As the trial judge stated, plaintiff's claim is not one where common knowledge of laypersons is sufficient and no expert testimony must be presented, such as in Hubbard v. Reed, 168 N.J. 387 (2001), where the dentist pulled the wrong tooth. The trial court correctly granted defendant's motion to dismiss the informed consent claim for failure to produce an affidavit of merit.

With respect to plaintiff's claims of infliction of emotional distress and harassment, the trial court correctly denied plaintiff's motion to reinstate and amend his complaint because the facts alleged were not sufficient to establish the essential elements of those claims. See Notte v. Merchants Mutual Ins. Co., 185 N.J. 490, 501 (2006) ("courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.") (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)). Plaintiff's arguments as to those claims do not merit further discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 Plaintiff has not provided a copy of the trial court's order of January 4, 2010, from which the appeal is taken, and defendant's appendix only contains the first page of the order.