SHARON ROSSI v. SCOTT E. BRADY, D.M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SHARON ROSSI and RICHARD

ROSSI, wife and husband,

Plaintiffs-Appellants,

v.

SCOTT E. BRADY, D.M.D.,

WILLIAM H. BRADY, D.M.D.,

and RIVERTON DENTAL ARTS,

Defendants-Respondents.

_____________________________

December 26, 2013

Submitted December 10, 2013 Decided

Before Judges Reisner, Alvarez and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0354-08.

Stark & Stark, attorneys for appellants (Deborah S. Dunn, on the brief).

Law Offices of Philip M. Lustbader and David Lustbader, attorneys for respondents (David Lustbader and James S. Colavito, on the brief).

PER CURIAM

Plaintiffs Sharon Rossi and her husband Richard Rossi appeal from a June 22, 2012 order memorializing a no-cause verdict returned by a jury in their dental malpractice case against defendants, Dr. Scott E. Brady, Nicole Sidell,1 and Riverton Dental Arts.2 On this appeal, plaintiffs contend that: the jury should have been charged that the standard of care applicable to defendants' conduct is "that of a reasonable and prudent person under the circumstances"; the jury should have been given a "common knowledge" charge; defense counsel confused the jury about the standard of care by "misstating the standard of care"; and the verdict sheet was confusing. Finding no merit in any of those contentions, we affirm.

I

We summarize the trial record in light of the issues raised on appeal. According to plaintiffs' evidence, on February 9, 2006, a dental hygienist employed by Dr. Brady failed to provide plaintiff with goggles or other protective eyewear during a routine cleaning of her teeth. Plaintiff testified that the hygienist removed plaintiff's eyeglasses because they were getting in the way of her work, and thereafter, some of the prophylactic paste used in the cleaning process spattered into plaintiff's eyes, causing injury and a serious infection. Through their witnesses, defendants denied that the hygienist removed plaintiff's glasses, and denied that plaintiff was injured at all during the cleaning.

The parties presented conflicting expert testimony on whether the standard of care in February 2006 required that a patient be provided with protective eyewear during dental procedures. During the testimony of plaintiffs' expert, the judge declined to permit plaintiffs' counsel to question the expert about what a reasonably prudent dentist would have done, as opposed to what the standard of care was for a dentist in 2006. Distinguishing Estate of Elkerson v. North Jersey Blood Ctr., 342 N.J. Super 219 (App. Div. 2001), the judge ruled that the issue in this case was not whether the prevailing standard of care in the dental profession was inadequate, but what that standard was and whether defendants deviated from the standard. After that ruling, the expert confirmed that "the standard of care for the treatment of dental patients by dental health care providers is to provide the patient with protective eyewear." He testified that defendants deviated from that standard.

Defendants presented two experts who testified that the standard of care did not require dentists or hygienists to give their patients protective eyewear to use during dental procedures. One of the experts explained that if a patient wears eye goggles, they can get in the dentist's way when he is performing dental procedures.

Plaintiffs' counsel requested a jury charge as to common knowledge or res ipsa loquitur, and a charge with respect to the reasonable person standard as set forth in Elkerson. Those requests were denied, and were more fully addressed on the record after the jury was sent to deliberate. Plaintiffs' attorney did not object to any alleged misstatements in defense counsel's summation.

II

On this appeal, plaintiffs repeat their argument that the trial judge should have given a jury charge consistent with Elkerson, supra, that the standard of care to which defendants should be held is that of reasonable and prudent persons under the circumstances. We disagree. In Elkerson, plaintiff produced expert testimony establishing that the entire blood bank industry was following inadequate safety standards in screening donated blood. In that context, we held that the trial court erred in limiting the jury to considering whether the defendant blood bank followed the prevailing industry practice at the time of the plaintiff's blood transfusion. "[T]he trial court's negligence charge constitutes reversible error because it did not allow the jury to reject the industry standard applied uniformly by blood banks in 1983 in favor of its own expert-informed judgment in determining whether that custom was or was not reasonable." Elkerson, supra, 342 N.J. Super. at 235.

Elkerson is not on point here, because plaintiffs did not produce an expert report opining that the existing standard of care in the dental profession was unreasonable. Rather, this was a classic individual dental malpractice case, in which plaintiffs presented expert testimony that the standard of care called for dental patients to wear protective goggles, and defendants presented expert testimony that the standard of care did not require protective eyewear. Having committed to that theory, from the wording of the complaint to the presentation of their expert report3, plaintiffs were not entitled to hedge their bets by switching theories in the middle of the trial.

Further, we cannot agree with plaintiffs that this was a "common knowledge" case.

In the ordinary dental or medical malpractice case, . . . the jury is not competent 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 judgment 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 v. Rosenfeld, 34 N.J. 128, 134-35 (1961).]

However, in "the unusual medical malpractice case" the common knowledge doctrine may apply. Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999).

In some medical malpractice cases, the jurors' common knowledge as lay persons 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. The doctrine of common knowledge is appropriately invoked where the "carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience." Thus, the doctrine of common knowledge applies to a case in which the experience possessed by lay persons, without the explanations of experts, would enable a jury to determine that a defendant acted without reasonable care. "The basic postulate for application of the doctrine therefore is that the issue of negligence is not related to technical matters peculiarly within the knowledge of medical or dental practitioners."

[Id. at 469-70 (citations omitted).]

Chin and similar cases are not on point here. The defense experts testified that dentists and hygienists wore surgical masks and goggles to prevent the spread of diseases to their patients and vice versa, which was a common risk involved in dental procedures. There was expert testimony that a patient's use of goggles might interfere with the performance of dental procedures, and the type of injury plaintiff incurred here was unusual. In fact, plaintiff herself testified that the dental hygienist removed plaintiff's glasses because they were getting in the way of the cleaning procedure and the hygienist kept bumping into them. According to the defense experts, the standard of care permitted individual dentists to decide for themselves whether to have the patients use goggles. Based on that record, we conclude that this was not a common knowledge case. Again, it appears that plaintiffs attempted to introduce a common knowledge theory after their expert proved less than stellar as a witness.

Plaintiffs' remaining contentions require little discussion. See R. 2:11-3(e)(1)(E). Plaintiffs do not explain why the jury verdict sheet, to which they raised no objection at trial, was confusing. The portion quoted in their brief accurately stated the question before the jury whether defendants "deviated from accepted standards of care for a dental practice in not providing Sharon Rossi with protective eyewear during the teeth cleaning and polishing."

Plaintiffs' criticisms of defense counsel likewise do not warrant disturbing the verdict. During defense counsel's opening statement, he used the word "mandate" in referring to the standard of care. Plaintiffs' counsel objected to that phrasing, the trial court sustained the objection, and the remark was not repeated. Defense counsel's summation was unobjectionable. In his jury charge, the judge clearly and properly instructed the jury on the applicable law, and we find no possibility on this record that defense counsel's opening statement could have produced a miscarriage of justice. See R. 2:10-2.

Affirmed.

1 The complaint named her as "Nicole Doe." William Brady was not named in the verdict sheet, for reasons not clear on this record.

2 Because Sharon Rossi was the patient who alleged she was the victim of malpractice, we will refer to her as "plaintiff." We will refer to Mr. and Mrs. Rossi collectively as
"plaintiffs."

3
Plaintiffs' expert report is included in their appendix. Nowhere in the report does the expert opine that the prevailing standard of dental care was unreasonable. Rather, he opined that the standard of care required the use of goggles. That was consistent with the complaint, which alleged a deviation from the standard of care.