SHAWN HINES v. STEPHANIE SILOS-BADALAMENTI

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4290-05T14290-05T1

SHAWN HINES,

Plaintiff-Respondent,

v.

STEPHANIE SILOS-BADALAMENTI, NIKKI

PATEL, CENTER FOR DERMATOLOGY OF

WEST ORANGE,

Defendants-Appellants.

____________________________________

 

Submitted October 3, 2006 - Decided

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Essex County,

L-6903-04.

Hardin, Kundla, McKeon & Poletto, attorneys for appellants (Eileen Bass Rudd, on the brief).

Shawn Hines, respondent pro se.

PER CURIAM

Plaintiff, Shawn Hines, filed a pro se medical malpractice complaint naming Dr. Stephanie Silos-Badalamenti, Nikki Patel, a registered nurse, and the Center for Dermatology of West Orange as defendants, as well as several fictitious defendants. Plaintiff alleged that Dr. Silos-Badalamenti negligently removed an excessive amount of skin from his forearm during a surgical excision and biopsy of a dermatofibroma on his forearm. He claimed that after the dermatofibroma was numbed with a local anesthetic, the area of his forearm began to swell. According to plaintiff, Dr. Silos-Badalamenti used a scalpel negligently, removing more of the surrounding skin than she should have by "cut[ting] out an area at least 2-3 times as large than [sic] was necessary." After Dr. Silos-Badalamenti cut off the excess amount of skin, plaintiff claimed that she negligently pulled off more skin when Nurse Patel, who was assisting, neglected to provide a scissors as requested by the doctor. As a result, plaintiff alleges that he was left with "[h]ighly visible and unnecessary scarring," which has caused him "severe emotional anguish and distress," adversely affected his efforts to get modeling work, and negatively affected his appearance in terms of body building.

Plaintiff filed his complaint on August 27, 2004. Defendants' answer denying negligence was filed on September 30, 2004. A telephonic case management conference was held on November 30, at which time the judge advised plaintiff that he had to file a fully compliant Affidavit of Merit, N.J.S.A. 2A:53A-27, by December 31, 2004. An order memorializing the case management conference was filed on the same day. Thereafter, the judge granted plaintiff's application to extend the time for filing an Affidavit of Merit, entering an order on December 17, 2004, requiring the Affidavit of Merit to be filed no later than January 30, 2005.

Plaintiff did not file an Affidavit of Merit within the time specified. Defendants moved to dismiss and plaintiff countered, asserting that an Affidavit of Merit was not required because the alleged malpractice fell into the common knowledge exception. See Hubbard v. Reed, 168 N.J. 387 (2001); Palanque v. Lambert-Woolley, 168 N.J. 398 (2001). On March 4, 2005, noting that "[t]he instant situation is not as clear as" Hubbard or Palanque, the judge nevertheless found that the case fell within the province of laymen without the necessity of an expert report. In reaching his finding, the judge stated:

Scissors were requested, scissors were not provided. The bump was removed with a scalpel, in part. The remainder of the bump was removed without the utilization of the scissor[s], without the utilization of the scalpel. These are the facts viewed most favorably to the non-movant in the absence of any further discovery from -- from the physician.

The -- court is of the view that this case is more akin to those cases in which an obvious mistake has been committed by the physician. For example, where a dentist drill slips when he is distracted. . . .

There is, in the [c]ourt's judgment, a question -- a reasonable question as to whether a physician in this instance under the totality of facts did, in fact, use reasonable care in the administration of treatment to the plaintiff. A question of fact, which, in the [c]ourt's judgment, falls within the province of a layman without the necessity for . . . an expert report.

The judge then clarified his ruling, indicating that it only dealt with the necessity for the filing of an Affidavit of Merit, not the need for expert reports. An order was entered memorializing the denial of defendants' motion to dismiss "pursuant to N.J.S.A. 2A:53A-27."

Following discovery, defendants filed a motion for summary judgment based upon plaintiff's failure to supply an expert medical report. Defendants' motion was denied by another judge. The order denying defendants' motion provided the following handwritten notation by the judge:

This issue was previously considered and denied [by another judge] in his Order dated 3-4-05 which denied [defendants'] motion to dismiss plaintiff's case for failure to comply with N.J.S.A. 2A:53-26 et seq. No motion for reconsideration of this Order was filed by plaintiff.

On April 27, 2006, we granted defendants' motion for leave to appeal. We now reverse both the order denying summary judgment and the order denying defendants' motion to dismiss for failure to file an Affidavit of Merit and remand for entry of judgment in favor of defendants.

Defendants provide in their reply appendix a report from Dr. Adrian L. Connolly, M.D., Board Certified by the American Board of Dermatology, dated March 14, 2006, indicating that plaintiff was left with a five by five by one millimeter hypertrophic scar, which re-grew as scar tissue to the same size as the dermatofibroma was on initial biopsy. Connolly opined that the dermatofibroma was "removed in the usual manner for a shave biopsy" and if plaintiff "had returned for his follow-up visit . . . any remedies [could have been] discussed at that time." Connolly found that there was no deviation at all from acceptable medical standards by Dr. Silos-Badalamenti, Nurse Patel, or the Center for Dermatology, and that the specimen removed was of appropriate size.

Defendants assert that plaintiff's allegations deal with the propriety of treatment by licensed medical professionals, which is not within the realm of common knowledge. They maintain that a jury cannot be expected to possess knowledge of what care was necessary or appropriate because it falls within defendants' expertise and judgment. For the same reason, defendant asserts that expert testimony is required for plaintiff to meet his burden of proof that defendants' care fell below a reasonable standard of care and proximately caused injury.

Plaintiff counters, asserting that his case falls within the common knowledge exception, not because of the surgical procedure used, but because defendant doctor caused damage to uninjured tissue. He essentially claims that he called upon defendants "to treat a bump on [his] arm, not to tear away surrounding skin off [his] arm in a bumbling act of carelessness." He argues that under the circumstances there were "no signs of spreading disease on that part of [his] arm," and "never was such a possibility ever discussed with [him]."

Ordinarily, medical practitioners' standards of care and deviations therefrom must be established by expert testimony, as average jurors lack "the 'requisite special knowledge, technical training and background'" to make those determinations without an expert's assistance. Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div. 1997) (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)); Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999). Under the common knowledge doctrine, the absence of such testimony "is not invariably fatal" to a medical malpractice action if there is other testimony from which the factfinder can determine the applicable standard of care and whether it was violated. Jenoff v. Gleason, 215 N.J. Super. 349, 357-58 (App. Div. 1987) (citing Klimko v. Rose, 84 N.J. 496, 503 (1980)). The common knowledge doctrine is appropriately applied only in those professional malpractice cases where the common knowledge and experience of ordinary lay persons would enable a jury to conclude, without expert testimony, that a standard of care applied and was breached - that is, where "the mistake was obviously the result of negligence." Chin, supra, 160 N.J. at 471; see also Kelly, supra, 300 N.J. Super. at 265-66 (citing Rosenberg, supra, 99 N.J. at 325); Klimko, supra, 84 N.J. at 503-04; Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961); Jenoff, supra, 215 N.J. Super. at 357-58. An Affidavit of Merit is not required in common knowledge cases. Hubbard, supra, 168 N.J. at 396; Palanque, supra, 168 N.J. at 406.

The common knowledge doctrine has been applied in cases involving uncommon and unexpected patient injuries caused by some application of physical force by the alleged tortfeasors. See, e.g., Chin, supra, 160 N.J. at 470 (holding that doctrine applied where patient's death was caused by incorrect hook-up of hysteroscope which introduced gas into bloodstream causing fatal embolism); Magner v. Beth Israel Hosp., 120 N.J. Super. 529, 534 (App. Div. 1972), certif. denied, 62 N.J. 199 (1973) (holding that doctrine applied where patient was burned in flash fire when spark from cauterizing tool ignited alcohol which surgeon had applied to patient's skin); Becker v. Eisenstodt, 60 N.J. Super. 240, 246-47 (App. Div. 1960) (holding that doctrine applied where rhinoplasty patient's nose and upper lip were severely burned and disfigured by nostril pledget apparently soaked in a caustic liquid rather than anesthetic solution before insertion by physician); Steinke v. Bell, 32 N.J. Super. 67, 69-70 (App. Div. 1954) (holding that doctrine applied where dentist engaged to remove patient's lower left molar also extracted or caused removal of her upper right lateral incisor). The doctrine has also been applied where the defendant has performed surgery based upon an acknowledged mistaken lab report, Palanque, supra, 168 N.J. at 407; and where a dentist extracted the wrong tooth, Hubbard, supra, 168 N.J. at 396; Steinke, supra, 32 N.J. Super. at 70.

However, claims that are based upon "the care with which licensed professionals . . . [exercise] their professional responsibility and judgment" do not come within the common knowledge exception. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002). The manner in which Dr. Silos-Badalamenti removed a lesion from plaintiff's arm for biopsy and the likelihood of the resulting scar are areas involving treatment and judgment requiring medical expertise, which is beyond the realm of common knowledge. "The practice of medicine concerns itself with a relatively inexact science." Toy v. Rickert, 53 N.J. Super. 27, 34 (App. Div. 1958). The "variables and imponderables" that might occur during a medical procedure are not properly within a layman's general knowledge. Ibid. Dr. Silos-Badalamenti's decision, under the circumstances, not to use a scissors and the results achieved by the manner in which she removed the bump and the remaining flap of skin are examples of the very types of variables that are uniquely within the expertise of a medical practitioner.

Having determined that plaintiff's case does not fall within the common knowledge exception, we must next determine the remedy for his failure to provide an Affidavit of Merit. Equitable relief should be afforded where an Affidavit of Merit, obtained within the 120-day required period, is mistakenly filed after the proscribed time but prior to the filing of a defendant's motion to dismiss, or there is substantial compliance or extraordinary circumstances for non-compliance. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151-54 (2003). In order to avoid the injustices that have resulted, trial courts are now directed to hold accelerated case management conferences "to shepherd legitimate claims expeditiously to trial." Id. at 154-55.

The purpose of the Affidavit of Merit statute is "'to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court.'" Id. at 150 (quoting Hubbard, supra, 168 N.J. at 395). It is "intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detract[] from the many legitimate claims that require the resources of our civil justice system." Id. at 154.

Here, the Law Division judge held an early case management conference and initially required plaintiff to obtain an Affidavit of Merit by a date certain, which was then extended at plaintiff's request. Plaintiff nevertheless refused to file an Affidavit of Merit, claiming, despite his belief that an expert was not needed, he "contacted several local dermatologists in an attempt to have insurance in the event [he] was unable to successfully argue that common knowledge . . . applied," and found that "a veritable Chinese wall was erected with local dermatologists either turning a cold shoulder to [his] cause or anticipating the proceeds from a legal suit, demanded fees anywhere from $700 to $1000." Under these circumstances, we see no need to fashion equitable relief to afford plaintiff additional time to file an Affidavit of Merit.

We briefly address the denial of defendants' motion for summary judgment. The second motion judge mistakenly confused the need for an Affidavit of Merit with the need for expert testimony to prove a prima facie case. As we previously indicated, generally, common knowledge is appropriate where a jury can conclude, without expert testimony, that the mistake was obviously the result of negligence. Here, the alleged mistake, i.e., the injury claimed by plaintiff, was the resulting scar that he asserted was larger than expected. Whether plaintiff's resulting scar was something more than would be anticipated from the surgical removal of a particular lesion necessarily requires expert medical testimony. Thus, even if it could be said that Nurse Patel's failure to supply scissors and the manner in which Dr. Silos-Badalamenti removed the bump was a deviation that came within the scope of common knowledge, plaintiff would nevertheless need a medical expert to establish a prima facie case of causation and injury. See Palanque, supra, 168 N.J. at 407. Plaintiff's failure to have such an expert is fatal to his case. Simply put, defendants were entitled to summary judgment notwithstanding the earlier ruling relieving plaintiff from having to file an Affidavit of Merit.

Accordingly, we reverse and remand for entry of judgment in favor of defendants.

 

The order prepared by plaintiff mistakenly states that a "certificate of merit be filed no later than January 30, 2006." However, the judge added the words "extend date to file Affidavit of Merit" in the caption following the word "ORDER."

The order does not indicate whether there was oral argument on defendants' motion, only that it was opposed. No transcript is provided.

(continued)

(continued)

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A-4290-05T1

 

October 16, 2006