PETER FINLEY v. DR. DAVID SHIN, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PETER FINLEY and GAYE-LYN

PELISSIER, his wife,

Plaintiffs-Appellants,

v.

DR. DAVID SHIN, M.D., UROLOGY

FACULTY PRACTICE,

Defendants-Respondents.

December 9, 2014

Submitted November 19, 2014 - Decided

Before Judges Alvarez, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4976-11.

Abdy & Kane, P.C., attorneys for appellants (George J. Abdy, on the brief).

Wahrenberger & Pietro, LLP, attorneys for respondents (Judith A. Wahrenberger, of counsel; Lindsay B. Beaumont, on the brief).

PER CURIAM

Plaintiff Peter Finley and his wife, Gaye-Lyn Pelissier,1 appeal from a May 24, 2013 final order dismissing their complaint against defendant North Jersey Primary Care Associates, P.C. (NJPC), with prejudice. The motion judge concluded that plaintiff's claim sounded in professional negligence rather than general negligence, that the common knowledge exception did not apply, and that an affidavit of merit (AOM) was required, which plaintiff failed to furnish. We agree and affirm.

On June 5, 2009, defendant David Shin, M.D., performed a routine cystoscopy on plaintiff at Dr. Shin's medical practice, NJPC. The cystoscopy proceeded uneventfully. After the procedure was completed, Dr. Shin spoke with plaintiff for approximately five minutes while plaintiff sat on the examination table. Plaintiff then asked Dr. Shin to use the restroom in the examination room to void, which plaintiff was required to do before leaving the office. Dr. Shin determined that plaintiff was stable enough to walk from the examination table to the bathroom. Dr. Shin testified at his deposition that he "allowed [plaintiff] to use the bathroom since it was my impression that he was feeling well," and "watched him enter the bathroom within the procedure room without difficulty." Dr. Shin remained in the examination room for a few minutes while reviewing plaintiff's chart, then left while plaintiff was still in the restroom voiding and changing into his clothes.

At some point after Dr. Shin left the room, plaintiff fell while alone in the restroom, sustaining head and neck injuries. Plaintiff had no recollection of the fall, including how or why he fell.

On June 3, 2011, plaintiff filed a complaint against Dr. Shin and NJPC (improperly pleaded as the Urology Faculty Practice). The complaint alleged that

defendants failed to properly supervise, watch, and instruct plaintiff as to the danger of post[-]procedure effects and using the facilities without assistance, and they were otherwise negligent in their supervisory duties, and their standard of care owed to patients in general;

the fall was due to the negligence, carelessness, and recklessness of defendants, including their deviation from the standard of care or general responsibility for providing patient safety on the premises after medical procedures are conducted;

defendants carelessly and negligently allowed dangerous conditions and procedures to exist there, and failed to properly, timely and adequately supervise and instruct patients as to post[]procedure concerns.

In an accompanying case information statement (CIS), plaintiff characterized his complaint as one for personal injury.

Dr. Shin and NJPC filed separate answers, each including a demand that plaintiff file an AOM, as required by the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. In its CIS, NJPC simultaneously designated the case type as medical malpractice.

After plaintiff failed to file an AOM, defendants moved to dismiss the complaint. On April 27, 2012, Judge Menelaos W. Toskos dismissed the case with prejudice as to Dr. Shin on this basis. On October 16, 2012, Judge Toskos likewise granted the motion as to the professional negligence claims against NJPC. The judge noted that all that remained were "the general negligence claims of a slip and fall accident, which apparently are predicated upon the failure to post somebody outside the door while [plaintiff] was urinating."

During discovery, plaintiff deposed Alan Leipsner, NJPC's administrative director. Leipsner initially stated that it was against NJPC's standard practice to not have someone outside the bathroom door during voiding after a procedure. He noted that "there's no specific policy" and "[a]s long as the patient is ambulant, they can walk to the bathroom." Further, he testified that "[s]tandard practice for us, [is] to either remain in the procedure room or the hallway, which is right there" until the patient voids.

Leipsner later amended his opinion in a certification in which he stated

5. When I was asked about policies that were in place in 2009 as they relate to post-procedure care following a cystoscopy, I testified that "There's no written post-procedure policy. We do follow the guidelines of the American Urological Association". []

6. I further testified that I understood it to be standard practice for someone to remain in the procedure room or the hallway, outside of the bathroom door, until a patient has voided following a cystoscopy. [] That understanding was based upon my observation of office staff sometimes being present in the procedure room or hallway while a patient was in the bathroom but not knowledge of any sort of requirement;

7. Since my deposition, I have reviewed the guidelines of the American Urological Association. These guidelines do not address the practices that should be implemented or followed by healthcare professionals following the performance of a cystoscopy. []

8. Additionally, [NJPC] does not have any written post-procedure guidelines in connection with a cystoscopy.

9. Also since my deposition, I have read the deposition transcripts of Dr. Shin, Nurse Gallardo and Marina Conover and I have learned that there is no standard practice for post-procedure care following a cystoscopy. Rather, the medically-trained professional uses his/her judgment to determine what post-procedure care, if any, is required following the performance of a cystoscopy, including whether it is necessary to remain outside of the bathroom following a cystoscopy until a patient has voided.

Defendant presented a cardiology expert, Dr. Edward Dwyer, who opined that there was "no basis for anticipating this event" and there were "no reasonable anticipatory post-procedure actions that Dr. Shin could have taken" to prevent plaintiff's injury. Defendant also presented Dr. Bernard Lehrhoff, a urology expert, who stated that "there is no suggestion that even had any individual been waiting outside the bathroom door, or had the bathroom door been equip[ped] with a pull string or call button, (which I maintain is not the standard of care) that any of these methods could have prevented [plaintiff's] vaso-vagal response."

Plaintiff did not produce a medical expert. Rather, he presented the expert report of architect Daniel Robison, AIA, who opined that NJPC deviated from professional standards of care that medical facilities must follow. Robison concluded that in his "professional opinion"

1. The lack of a nurse-call [push] button or pull string in the subject bathroom/changing room was dangerous in a manner that was a cause of [plaintiff's] fall and injury.

2. NJPCA[']s failure to provide a nurse-call created a dangerous patient bathroom/changing room condition that was a cause of [plaintiff's] fall and injury.

3. NJPCA[']s failure to provide a nurse-call was a violation of applicable New Jersey codes and standards and a cause of [plaintiff's] fall.

4. NJPCA violated the standard of care for providing facilities for the protection and safety for vulnerable patient populations when unattended.

Against this backdrop, NJPC moved for summary judgment dismissing plaintiff's remaining general negligence claims. After hearing oral argument, Judge Rachelle Harz granted the motion, finding that the case "sounds in . . . professional negligence," not general negligence, and thus an AOM was required. Because plaintiff failed to obtain an AOM, the judge noted that his medical negligence claims had previously been dismissed. She concluded that plaintiff's remaining general negligence claims failed because "[w]ithout knowing how the fall occurred, plaintiff will not be able to establish that [it] occurred as a result of a dangerous condition." Judge Harz further found that there was

no testimony to suggest that [plaintiff] was calling out for help or looked for a call button to contact a nurse while in the bathroom. . . . There's been no suggestion that [plaintiff] [would have] sought to use the equipment, and even if he had used the equipment, there's no evidence that anyone [could have] prevented his fall.

On appeal, plaintiff presents the following arguments

I. THE COURT BELOW ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT BECAUSE PLAINTIFFS' CLAIMS ARE BASED ON GENERAL NEGLIGENCE, NOT PROFESSIONAL NEGLIGENCE, AND THERE ARE GENUINE ISSUES OF MATERIAL FACTS AS TO WHETHER PLAINTIFF FINLEY'S INJURIES WERE CAUSED BY DEFENDANT'S GENERAL NEGLIGENCE.

II. THE COURT BELOW ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACTS EXIST CONCERNING WHETHER PLAINTIFF'S INJURIES WERE CAUSED BY DEFENDANT'S GENERAL NEGLIGENCE AND/OR FAILURE TO ACT AS A REASONABLY PRUDENT PERSON.

III. THE EXPERT REPORT OF DANIEL J. ROBISON SHOULD NOT HAVE BEEN BARRED BY THE COURT BELOW AS THE PURPOSE OF MR. ROBISON'S REPORT IS NOT TO ASSERT CLAIMS OF PROFESSIONAL NEGLIGENCE, BUT TO SUPPORT PLAINTIFFS' CLAIMS OF GENERAL NEGLIGENCE.

IV. DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACTS EXIST AS TO STATEMENTS MADE DURING THE DEPOSITION OF ALAN LEIPSNER, ADMINISTRATIVE DIRECTOR OF [DEFENDANTS] NJPC.

V. SUMMARY JUDGMENT IS PROPER ONLY WHERE THERE IS NO GENUINE ISSUE AS TO MATERIAL FACT, AND THE DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW.

VI. THE ORDER OF THE COURT BELOW GRANTING SUMMARY JUDGMENT SHOULD BE REVERSED AS IT WAS PREMATURE AND DISCOVERY HAD NOT BEEN COMPLETED.

We have considered these points in light of the record and applicable legal principles. We affirm substantially for the reasons expressed by Judge Harz in her cogent and well-reasoned oral opinion. We add only the following comments.

Whether a cause of action implicates the AOM statute is a legal conclusion, reviewed de novo. See Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 113 (App. Div. 2011) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

N.J.S.A. 2A:53A-27 requires plaintiffs to serve defendants with an AOM in all professional malpractice or negligence matters. The statute provides in pertinent part

In any action for damages for personal injuries, wrongful death or property damage 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 court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [N.J.S.A. 2A:53A-41].

[N.J.S.A. 2A:53A-27.]

In determining whether the AOM statute applies to a particular claim, courts consider three factors

(1) whether the action is for "damages for personal injuries, wrongful death or property damage" (nature of injury); (2) whether the action is for "malpractice or negligence" (cause of action); and (3) whether 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" (standard of care).

[Couri v. Gardner, 173 N.J. 328, 334 (2002) (alteration in original) (quoting N.J.S.A. 2A:53A-27).]

Plaintiff first argues that the claims set out in his complaint are for general negligence only. Judge Harz rejected this argument, concluding that, when evaluating the underlying facts, "this case sounds in one of professional negligence." The judge further reasoned that

[R]egardless of how plaintiff s counsel wishes to couch this, this case involves what is the standard of care for this doctor who just performed a cystoscopy after seeing the patient and determining that he was medically stable to allow this patient to go then into a bathroom behind closed doors, without having someone monitor that bathroom door while he was voiding and changing his clothes. That is a standard of care that is a medical negligence standard of care.

While plaintiff classifies his claim as general negligence, "[i]t is not the label placed on the action that is pivotal but the nature of the legal inquiry." Couri, supra, 173 N.J. at 340. Therefore, the court must examine the underlying factual allegations to determine whether the claim necessitates proof of a deviation from the professional standard of care applicable to that specific profession. Ibid. If proof of a deviation from a professional standard of care is necessary, an AOM is required regardless of how plaintiff framed the issue. Ibid. We agree with Judge Harz that the factual allegations underpinning plaintiff's claims implicate professional standards of care.

Subsumed within plaintiff's argument is his contention that no AOM is required as the common knowledge exception applies. Specifically, plaintiff contends that the average juror can understand, without expert testimony, the general negligence committed by NJPC in failing to follow its own standard practice of monitoring patients post-procedure. Judge Harz rejected this contention

That is a standard of care that is a medical negligence standard of care. It is not a standard of care that can be provided by deposition testimony of Mr. Leipsner who is an administrative professional at the facility to determine whether or not the employees deviated from the general standard of care.

The Supreme Court has recognized an exception to the AOM requirement in professional negligence cases in which it is not necessary for plaintiff to present an expert to establish the standard of care or a deviation from that standard. Hubbard ex rel. Hubbard v. Reed, 168 N.J.387, 390 (2001). In common knowledge cases, the alleged negligence is unrelated to technical matters peculiarly within the knowledge of practitioners within the defendant's field. Sanzari v. Rosenfeld, 34 N.J.128, 142 (1961). Common knowledge cases are thus treated as ordinary negligence actions in which the jury can supply the applicable standard of care "from its fund of common knowledge" and assess "the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff." Id. at 141-42. The common knowledge exception allows meritorious claims to go forward without forcing a plaintiff to incur the expense of hiring an expert to submit an AOM when no expert is needed at trial. Hubbard, supra, 168 N.J. at 395.

The Supreme Court has cautioned, however, that the exception must be construed "narrowly in order to avoid non-compliance with the statute." Id. at 397. Accordingly, the doctrine has been applied only

in circumstances involving obvious errors: a dentist's extraction of the wrong tooth, Hubbard, supra, 168 N.J. at 396; the erroneous hookup of equipment that resulted in the pumping of gas, rather than the fluid that ought to have been used, into the patient's uterus, [Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 460, 471 (1999)]; and the use of caustic solution, rather than the soothing medication intended, to treat a patient's nose after surgery, Becker v. Eisenstodt, 60 N.J. Super 240, 242-46 (App. Div. 1960).

[Bender v. Walgreen E. Co., 399 N.J. Super. 584, 590 (App. Div. 2008) (holding that the common knowledge exception applies to a pharmacist filling a prescription with a drug other than the one prescribed).]

We disagree with plaintiff that a jury using its common knowledge could evaluate whether NJPC should have monitored plaintiff while he was in the bathroom following a routine cystoscopy. Dr. Shin evaluated plaintiff following the procedure, observed that he "was feeling well," and watched as he entered the bathroom without any difficulty. Clearly the determination of whether and how to continue monitoring plaintiff in the bathroom is a medical decision requiring a high degree of judgment, and is not within the ken of the average juror. See Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002) (holding that cases entailing care with which licensed professionals were exercising their professional responsibility and judgment do not come within common knowledge doctrine).

Plaintiff next argues that the court erred in barring Robison's report because it was proffered to support his claims of general negligence, not professional negligence. They contend that placement of a call button and/or pull string could be utilized as an alternative means to monitor a patient voiding post-procedure. Judge Harz rejected this contention

This [c]ourt had an opportunity to review this expert report and takes issue with the fact that he is providing a standard of care for a medical facility. He does not have the qualifications based upon his CV which was provided to this [c]ourt and his professional experience to render the opinions that he does. For example, he does a website search of the Mayo Clinic, in terms of what are frequently early signs and symptoms of losing consciousness from [a] vasovagal episode, such as fuzzy thoughts, weakness, lightheadedness, et cetera. This architect cannot give such medical opinions at the time of the trial, [] by virtue of a website review from the Mayo Clinic. . . . He is totally unqualified to give this medical opinion. It is outside the scope of his knowledge and expertise and will be inadmissible at the time of the trial of this action.

We find Judge Harz's reasoning unassailable. Simply put, Robison, an architect, was not qualified to render an opinion as to whether NJPC breached its duty of care in connection with its treatment of plaintiff. Rather, any issue of NJPC's negligence would be related to "'technical matters peculiarly within the knowledge'" of practitioners in the medical field. Chin, supra, 160 N.J. at 470 (quoting Sanzari, supra, 34 N.J. at 142).

In the end, Judge Harz correctly recognized that all of plaintiff's professional negligence claims were previously dismissed. All that remained was his general negligence claim. At his deposition, plaintiff could not explain how he fell, or what caused him to fall. The mere occurrence of an incident is not alone sufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). There was no evidence upon which the trier of fact could conclude that NJPC's premises were not in a reasonably safe condition. Even if Robison's report was not barred, there is no evidence that the presence of a call button or pull string would have prevented plaintiff's fall or minimized his injuries, as the judge aptly noted.

We have carefully reviewed the record and the arguments presented and conclude that the remaining issues presented by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Gaye-Lyn Pelissier has asserted a per quod claim against defendants. Therefore, reference to plaintiff throughout this proceeding is limited to Peter Finley.