JERALD D. ALBRECHT v. DENNIS M. NUGENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1679-10T3

JERALD D. ALBRECHT,

Plaintiff-Appellant,

v.

DENNIS M. NUGENT, ST. FRANCIS

MEDICAL CENTER, RAVI CHOKSHI

and NIMITT PATEL,1

Defendants-Respondents.

__________________________________

March 12, 2012

Argued October 26, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-405-10.

Roger Martindell argued the cause for appellant.

George H. Cortelyou argued the cause for respondent Dennis M. Nugent (Buckley & Theroux, L.L.C., attorneys; Mr. Cortelyou, on the brief).

Franklin L. Flacks argued the cause for respondent St. Francis Medical Center (Rottkamp & Flacks, attorneys; Mr. Flacks, on the brief).

Jacquelyn L. Poland argued the cause for respondents Ravi Chokshi and Nimitt Patel (Hoagland, Longo, Moran, Dunst, & Doukas, L.L.P., attorneys; Sharon M. Flynn, on the brief).

PER CURIAM

In this medical malpractice matter, plaintiff, Jerald D. Albrecht, appeals the dismissal of his complaint for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 (the statute). We affirm.

Plaintiff filed a complaint against defendants, Dennis M. Nugent and Saint Francis Medical Center, and later filed an amended complaint adding Ravi Chokshi and Nimitt Patel as co-defendants.2 The complaint arose from post-operative complications plaintiff sustained following a right kidney pyeloplasty,3 performed on February 15, 2008, which included insertion of a right urethral stent. A subsequent physical examination revealed a "post-op [right] [f]lank inc[i]sional hernia[,]" and following a "surgery consult[,]" plaintiff's hernia was further described as consisting of a "[w]ide defect[,] easily palpable[,] and is unlikely to obstruct and/or incarcerate."

Defendants filed answers to the complaint, which answers included a demand that plaintiff file an Affidavit of Merit (affidavit). Plaintiff failed to file the affidavit within sixty days of defendants' respective answers to the complaint, and the court granted plaintiff's motion to extend the time in which to serve the affidavit for an additional sixty days. The court conducted the requisite Ferreira4 conference, during which plaintiff's obligation to serve the affidavit was addressed. Notwithstanding the extension, plaintiff failed to serve the affidavit.

Defendants moved to dismiss plaintiff's complaint for non-compliance with the statute. In opposing the motions, plaintiff acknowledged that he failed to serve the affidavit and that expert testimony was necessary to establish the requisite standard of care. Plaintiff also agreed that in the absence of an affidavit, he could not maintain an action against defendants based upon medical malpractice, negligent supervision, negligent care, or negligent infliction of emotional distress. Nonetheless, plaintiff argued compliance with the statute was unnecessary to advance his claims that Dr. Nugent failed to: (1) diagnose the post-operative incisional hernia, (2) follow the recommendation for corrective surgery, and (3) obtain his informed consent to operate.

The motion judge granted defendants' motions, noting on each order that the motion was opposed, the "tentative decision accepted," and reasons were placed on the record.5 The ensuing appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

AN AFFIDAVIT OF MERIT IS NOT REQUIRED FOR CLAIMS INVOLVING OBVIOUS FAILURES TO DIAGNOSE OR TREAT WHERE, AS HERE, PREVIOUS PHYSICIANS HAD ALREADY DIAGNOSED APPELLANT'S POST-OPERATIVE INCISIONAL HERNIA AND WHERE THE FAILURE TO TREAT INVOLVED NOTHING MORE THAN A WILLFUL REFUSAL ON THE PART OF DR. NUGENT TO FOLLOW THE RECOMMENDATION OF THE CONSULTING SUR[GE]ON.

POINT II

NO AFFIDAVIT OF MERIT IS REQUIRED WHEN THE ISSUE OF INFORMED CONSENT IS ONE THAT CAN BE DETERMINED WITHOUT EXPERT TESTIMONY.

POINT III

APPELLANT SHOULD HAVE BEEN GRANTED LEAVE TO AMEND HIS COMPLAINT TO MORE SPECIFICALLY PLEAD HIS "COMMON KNOWLEDGE" AND "LACK OF INFORMED CONSENT" CLAIMS.

Initially, we address plaintiff's contention that in dismissing the complaint, the motion judge provided no accompanying statement of reasons. In the brief filed on behalf of Dr. Nugent, it is argued that "there should be a record. Whether the transcriptionist or court clerk is able to locate it should not be dispositive on appeal." Notably, beyond citation to the orders of dismissal, neither plaintiff nor defendants reference any statement of reasons from the motion judge. Consequently, we are inclined to conclude that contrary to the notation on the orders, no statement of reasons accompanied the orders.

We have repeatedly stressed the importance of a trial judge's predominate responsibility to provide findings of fact and conclusions of law in matters decided by the court. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Rule 1:7-4(a) requires a trial court, "by an opinion or memorandum decision, either written or oral, [to] find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" A trial court's failure to perform this duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (App. Div. 1976).

Plaintiff, however, concedes most of his complaint was properly dismissed for non-compliance with the statute and the court properly dismissed his informed consent cause of action premised upon the claim that defendants failed to discuss the medical risks and benefits. Plaintiff's only remaining claim relates to battery based upon defendants' failure to obtain his consent to permit residents to participate in his surgery. The facts upon which this claim is premised are also undisputed. Therefore, the issue under review is purely one of law. As such, we exercise original jurisdiction. R. 2:10-5; see also Vas v. Roberts, 418 N.J. Super. 509, 523-24 (App. Div. 2011) (holding exercising original jurisdiction in appellate review appropriate where issue "is purely one of law and no facts bearing on that question are in dispute").

I.

Under N.J.S.A. 2A:53A-27, a plaintiff in a professional negligence action is required to provide an affidavit from an appropriate licensed professional attesting to the merits of the claim, unless the claim falls within the common knowledge exception. Hubbard v. Reed, 168 N.J. 387, 390 (2001). N.J.S.A. 2A:53A-27 provides:

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 [sixty] days following the date of filing of the answer . . . , 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.

When reviewing a trial court's dismissal of a complaint for non-compliance with the statute, we apply a plenary standard of review. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). We owe no deference to the trial court's conclusions.

The failure to file an affidavit within the prescribed period "shall be deemed a failure to state a cause of action[,]" N.J.S.A. 2A:53A-29, and the case shall be dismissed with prejudice absent an exception. Hubbard, supra, 168 N.J. at 390. The common knowledge exception to the statute encompasses cases in which an expert does not need to be called to testify "'that the care, skill or knowledge . . . [of the defendant] fell outside acceptable professional or occupational standards or treatment practices.'" Ibid. (quoting N.J.S.A. 2A:53A-27). Where the doctor's careless acts are obvious, the plaintiff is not required to present expert testimony at trial to establish the standard of care. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001). Instead, the plaintiff may rely on jurors' "'common knowledge as lay persons [which] is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

Here, the alleged negligence involves evaluating the appropriate diagnosis and treatment of a post-operational incisional hernia. This is not a clear-cut case of pulling the wrong tooth. Id. at 396. Nor does it involve misreading a medical chart. Palanque, supra, 168 N.J. at 400. Rather, the allegations require information beyond the scope of a lay person s knowledge. Diagnosis and treatment of a hernia is not a matter of common knowledge and thus requires expert testimony to demonstrate that Dr. Nugent s actions in doing so fell outside the professional standards of care. See Posta v. Chung-Loy, 306 N.J. Super. 182, 200-01 (App. Div. 1997) (holding "lay persons do not have the knowledge or skill to analyze plaintiff's injury or [the doctor's] actions. . . . [W]ithout expert testimony[,] people of average intelligence and ordinary experience could not determine the cause of [the] plaintiff's hernia."); see also Risko v. Ciocca, 356 N.J. Super. 406, 410-11 (App. Div.) (holding that hematoma complexities and its development is not a subject of a lay jury's common knowledge), certif. denied, 176 N.J. 430 (2003).

Likewise, we find no merit to plaintiff's contentions that previous surgeons diagnosed his hernia and that Dr. Nugent refused to follow the recommendation of the consulting surgeon, even if supported by the facts. These allegations do not relieve plaintiff of the duty to file an affidavit because the underlying factual allegations of his claim remain the same. As previously discussed, negligent diagnosis and treatment of a hernia are beyond the common knowledge of a lay person and thus require proof of a deviation from the professional standard of care. Because plaintiff's cause of action does not fall within the common knowledge exception, the motion judge properly dismissed his complaint for failure to file an affidavit.

II.

In the brief submitted on behalf of plaintiff, it is conceded that a cause of action based upon the absence of informed consent due to a physician's inadequate disclosures requires expert testimony on the standard of care and therefore is subject to the statute. Febus v. Barot, 260 N.J. Super. 322, 327-28 (App. Div. 1992). Plaintiff maintains, however, that our courts have recognized two types of informed consent cases: (1) those which involve inadequate disclosure, for which an affidavit is required; and (2) those which proceed on a theory of assault and battery or "unauthorized touching or invasion of the patient's body[,]" for which no affidavit is required. Plaintiff contends his pleadings set forth a fundament of a cause of action based upon the latter theory. The basis of this claim is plaintiff's contention that residents Chokshi and Patel failed to obtain his consent before performing aspects of the surgery, "clearly" raising an issue of unauthorized touching. We disagree.

In considering a motion to dismiss under Rule 4:6 2(e), courts search the allegations of the pleading in depth and with liberality to determine "whether a cause of action is 'suggested' by the facts." Printing Mart Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas v. Colgate Palmolive Co., 109 N.J. 189, 192 (1988)). We must therefore determine "whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. (citation omitted). A pleading should be dismissed if it states no basis for relief and discovery would not provide one. Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001).

Although defendants supplemented the record with matters outside of the pleadings, thereby converting defendants' Rule 4:6-2(e) motion to a motion subject to the summary judgment standard, dismissal was nonetheless appropriate. It is undisputed that plaintiff executed consent forms in which it is clearly stated that "medical students and residents may participate in [his] care and treatment" and that his surgery would be performed by "Dr. Nugent and the surgical staff[.]" Thus, no disputed issue exists as to whether plaintiff consented to the residents' participation in his care and treatment, and the motion judge properly dismissed this claim.

Moreover, because consent was obtained, plaintiff could not maintain a battery claim against the residents since the essence of a battery, in the context of medical malpractice, is the performance of surgery without consent, rendering the surgery an unauthorized touching. Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 550 (2002). Further, there is no allegation that Dr. Nugent left the operating room or that an unauthorized surgeon performed the surgery. See Perna v. Pirozzi, 92 N.J. 446, 460-61 (1983) (finding battery occurred when authorized surgeon, who was a member of a surgical team, substituted another member of that team to operate on the patient without the patient's consent). To the extent plaintiff complains about any conduct of the residents related to his care and treatment, such allegations implicate the need for an affidavit which plaintiff admittedly failed to provide.

III.

Finally, we find no merit to plaintiff's contention that the motion judge abused her discretion in denying plaintiff's motion to amend his complaint to more specifically plead his common knowledge and lack of informed consent claims. We are satisfied this contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We, however, add the following brief comments.

Plaintiff requested leave to amend the complaint in response to Chokshi's and Patel's motions to dismiss the complaint for non-compliance with the statute. The request was unaccompanied by a copy of the proposed amended pleading, Rule 4:9-1, depriving the court of the opportunity to determine whether a fundament of a cause of action was set forth in the proposed amended pleading. See Webb v. Witt, 379 N.J. Super. 18, 28 (App. Div. 2005) (noting that a motion seeking leave to amend should be decided utilizing the same standard as a motion to dismiss for failure to state a claim). See also Grobart v Soc'y for Establishing Useful Mfrs., 2 N.J. 136, 146 (1949) ("Neither the trial court nor the opposing party can be forced to buy a pig in a poke in the shape of an undisclosed amendment.").

1 Although the "M.D." designation does not appear in the caption of the complaint or amended complaint, we note that Dennis M. Nugent, Ravi Chokshi and Nimitt Patel are medical doctors.

2 We refer to Dennis M. Nugent, St. Francis Medical Center, Ravi Chokshi and Nimitt Patel collectively as defendants.

3 "Surgical reconstruction of the renal pelvis and ureter to correct an obstruction[.]" Stedman's Medical Dictionary 1489 (27th ed. 2000).

4 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003).

5 No transcript of the proceedings was included in the record on appeal.