VERONICA CARTER v. SANJAY LALLA, M.D.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2553-16T1

VERONICA CARTER,

        Plaintiff-Appellant,

and

RONALD ARONDS,

        Plaintiff,

v.

SANJAY LALLA, M.D. and
JERSEY CITY MEDICAL CENTER,

     Defendants-Respondents.
_______________________________

              Submitted April 9, 2018 – Decided May 9, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No.
              L-2316-16.

              Veronica Carter, appellant pro se.

              Marshall Dennehey Warner Coleman & Goggin,
              attorneys for respondent Sanjay Lalla, M.D.
              (Ryan T. Gannon, on the brief).

              Ruprecht Hart Weeks & Ricciardulli, LLP,
              attorneys for respondent Jersey City Medical
          Center (Michael R. Ricciardulli, of counsel;
          Lindsay B. Beaumont, on the brief).

PER CURIAM

    Plaintiff Veronica Carter appeals from a December 16, 2016

order dismissing her complaint with prejudice for failure to

comply with the Affidavit of Merit statute, 
N.J.S.A. 2A:53A-26

to -29, in her medical malpractice action against defendants

Sanjay Lalla, M.D. and Jersey City Medical Center.   Because we

agree with the motion judge that plaintiff's expert did not

satisfy the like-qualified standard of the Patients First Act,


N.J.S.A. 2A:53A-41, we affirm.

    The essential facts are undisputed.   Plaintiff filed a

complaint against defendants on June 3, 2016, alleging that on

June 4, 2014, she was admitted to the Medical Center as an

outpatient for the purpose of "undergo[ing] various plastic

surgery procedures to be performed by the defendant, Sanjay

Lalla."   Specifically, plaintiff alleged Lalla was to perform

"liposuction on both of her thighs; fill in indentations on both

of the plaintiff's hips using the excess fat removed by the

liposuction of the plaintiff's thighs; perform surgery to narrow

her nostrils; and fill in the creases on either side of the

plaintiff Veronica Carter's nose," which she alleged he

performed negligently or not at all.   Plaintiff further alleged


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the Medical Center "[b]y failing to properly investigate and

supervise the work of defendant Sanjay Lalla, M.D.," caused her

injury.

      Defendant Lalla is a board certified plastic surgeon,

specializing in plastic surgery.     Judge Bariso noted that fact

at the September 26, 2016 Ferreira1 conference plaintiff attended

by telephone, and the "requirement that an affidavit of merit be

obtained in the same field of specialty as the defendant."     The

affidavit of merit plaintiff subsequently provided to

defendants, however, was not authored by a plastic surgeon,

board certified or otherwise.   Instead, plaintiff's expert is

board certified in general surgery and specializes in cosmetic

surgery, not plastic surgery.

      Plastic surgery is a recognized specialty by the American

Board of Medical Specialties.   The American Board does not

recognize cosmetic surgery as a specialty practice area.      See

About Board Certification, http://www.certificationmatters.org/

about-board-certified-doctors/about-board-certification.aspx

(last visited May 1, 2018).

      Upon receipt of the plaintiff's affidavit of merit two days

before the deadline, as extended by Judge Bariso, defendants



1
    Ferreira v. Rancocas Orthopedic Assocs. 
178 N.J. 144 (2003).

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noted their objections to the credentials of plaintiff's expert.

Shortly thereafter, both defendants filed motions to dismiss.

    Judge Schultz heard argument on the motions.   Although

plaintiff was at that time representing herself, the judge

permitted her husband, the lawyer who filed the complaint on her

behalf but withdrew from the representation before the Ferreira

conference, to argue her opposition to the motions.   He

contended Dr. Lalla performed cosmetic surgery, not plastic

surgery, on plaintiff, and that plaintiff's expert "is a

Diplomat in the field of cosmetic surgery" and "actually more

qualified we contend, in the field of cosmetic surgery than Dr.

Lalla."

    After hearing argument, Judge Schultz granted the motions.

In an opinion delivered from the bench, the judge explained in

accordance with 
N.J.S.A. 2A:53A-41(a) and Nicholas v. Mynster,


213 N.J. 463, 481-82 (2013), that because Dr. Lalla practices

within a specialty recognized by the American Board of Medical

Specialties, plastic surgery, plaintiff's expert must also

specialize in plastic surgery.   Because plaintiff's expert

admittedly does not specialize in plastic surgery, Judge Schultz

concluded the affidavit of merit by plaintiff's expert was

"insufficient as a matter of law," without further consideration

of whether the expert possessed the additional credentials

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mandated by 
N.J.S.A. 2A:53A-41(a)(1) or -41(a)(2), based on Dr.

Lalla being board certified.   See Nicholas, 
213 N.J. at 482

("only a specialist can testify against a specialist about the

treatment of a condition that falls within the specialty area").

Because plaintiff did not present an affidavit of merit against

the hospital, and any claim based on respondeat superior falls

with the claim against Dr. Lalla, Judge Schultz dismissed the

claims against the Medical Center as well.

    Plaintiff's argument on appeal is limited to her assertion

that "[t]he judge on this case made up his mind about how he was

going to rule before oral argument was held."   In the one page

she dedicates to the argument on appeal, she contends "[t]he

judge did not do any research on the difference between cosmetic

surgery and plastic surgery, which was the key to appellant's

argument.   He just accepted the respondent's argument without

researching the difference between the two types of surgery and

without considering appellant's oral argument."

    We disagree.   Having read the transcript and reviewed the

record, it is clear to us that the judge was well prepared for

argument and receptive to the presentations made by counsel.

The court's colloquy with counsel demonstrated the judge's

familiarity with the file and the issues raised in the briefs as

well as his knowledge of the substantive law.

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     Judge Schultz rejected plaintiff's argument that the

surgery performed on her, "abdominoplasty, liposuction, fat

grafting and resection of the nose," was not plastic surgery

performed by a board certified plastic surgeon.2   Acknowledging

plaintiff's argument about the claimed distinction between

plastic surgery and cosmetic surgery, the judge explained "[i]t

makes no difference if in fact cosmetic surgery overlaps with

the field of plastic surgery" under Nicholas.   See 
213 N.J. at
 485 (noting "the logic of [the] plaintiffs' argument would lead

back to the days before passage of the Patients First Act when,

in medical-malpractice cases, physician experts of different

medical specialties, but who treated similar maladies, could

offer testimony even though not equivalently credentialed to

defendant physicians").

     Because 
N.J.S.A. 2A:53A-41 requires "that, when a defendant

physician is subject to a medical-malpractice action for

treating a patient's condition falling within his [American

Board of Medical Specialties] specialty, a challenging



2
   The American Board of Plastic Surgery, a member board of the
American Board of Medical Specialties, which oversees
certification of plastic surgeons, states on its website that
"[c]osmetic surgery is an essential component of plastic
surgery." See ABMS Member Boards, American Board of Plastic
Surgery, http://www.certificationmatters.org/abms-member-
boards/plastic-surgery.aspx (last visited May 1, 2018).

                                6                           A-2553-16T1
plaintiff's expert, who is expounding on the standard of care,

must practice in the same specialty," Nicholas, 
213 N.J. at 486,

we agree that plaintiff's affidavit of merit was insufficient as

a matter of law and plaintiff's complaint properly dismissed

with prejudice.   Accordingly, we affirm, substantially for the

reasons expressed by Judge Schultz in the cogent opinion he

delivered from the bench on December 16, 2016.

    Affirmed.




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