JAMES P. GORDON, et al. v. MURRAY MATEZ, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0250-05T20250-05T2

JAMES P. GORDON and PHYLLIS E.

GORDON, his wife,

Plaintiffs-Appellants,

v.

MURRAY MATEZ, M.D.,

Defendant,

and

MARK L. BELAFSKY, M.D.; BELAFSKY

& BELAFSKY, M.D., P.A.; HERBERT J.

DEUTSCH, M.D.; SOUTH JERSEY EAR,

NOSE AND THROAT ASSOCIATES, P.A.;

JACOBS, SCHWALBE & PETRUZZELLI, P.C.;

MARK S. JACOBS, ESQ.; ROBERT A.

PETRUZZELLI, ESQ., individually,

jointly and severally,

Defendants-Respondents.

_____________________________________

 

Argued September 26, 2006 - Decided November 15, 2006

Before Judges R.B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-938-03.

Mark J. Molz argued the cause for appellants (Mark J. Molz, attorneys; Stephen Cristal, on the brief).

Sharon K. Galpern argued the cause for respondents Mark L. Belafsky, M.D., and Belafsky and Belafsky, M.D., P.A. (Stahl & DeLaurentis, attorneys; Ms. Galpern, on the brief).

Mark W. Catanzaro argued the cause for respondents Jacobs, Schwalbe & Petruzzelli, P.C., Mark S. Jacobs, Esq., and Robert A. Petruzzelli, Esq. (Mr. Catanzaro, of counsel and on the brief).

PER CURIAM

This is a combined legal and medical malpractice action. Plaintiffs, James P. Gordon and his wife, Phyllis E. Gordon, appeal from the Law Division's June 20, 2005 order, granting summary judgment to Mark L. Belafsky, M.D., the law firm of Jacobs, Schwalbe & Petruzzelli, P.C., and Mark S. Jacobs, Esq. and Robert A. Petruzzelli, Esq., individually, jointly and severally (defendant law firm). Plaintiff also appeals from a second order dated August 5, 2005, granting summary judgment to defendant, Belafsky & Belafsky, M.D., P.A., Dr. Belafsky's medical association (collectively, the Belafsky defendants). We affirm.

Plaintiff, James Gordon, was a carpenter employed by the State of New Jersey. Plaintiff sought treatment from Dr. Mark Belafsky on November 19, 1996, for complaints of hearing loss and tinnitus. During this one and only visit with Dr. Belafsky, an audiological test was performed, confirming that plaintiff's hearing loss was partially caused by his use of power tools at work.

Immediately following his treatment with Dr. Belafsky, plaintiff hired the defendant law firm to represent him in his workers' compensation claim. On December 23, 1996, plaintiff filed a claim petition with the Division of Workers' Compensation. On June 23, 1997, plaintiff was treated by another physician in Belafsky & Belafsky, who performed a second audiological exam. On August 1, 1997, at the State's request, plaintiff underwent a third audiological examination performed by Dr. Hebert J. Deutsch. Dr. Deutsch found that plaintiff had lost 33.8% of his hearing. On January 12, 1998, plaintiff's workers' compensation claim settled. On June 1, 1998, Dr. Belafsky retired from the practice of medicine, and Belafsky & Belafsky was dissolved soon thereafter. Plaintiff commenced treatment with another doctor on July 20, 1998, who is not a party to this action. In 1999, the defendant law firm reopened plaintiff's workers' compensation action when plaintiff indicated that his hearing had worsened. The reopened claim was settled on March 12, 2001.

Plaintiff filed his complaint on March 24, 2003, alleging that Dr. Belafsky had failed to "inform [p]laintiff of the seriousness of his hearing loss problem, . . . of the dangers of continuing to work as a carpenter around loud noises, and . . . to stop working as a carpenter to save his hearing." Plaintiff alleged that defendant law firm failed to forward medical records and other medical information to him throughout the firm's representation. He further alleged that the defendant law firm failed to inform him of employment options that would have decreased the risk of further hearing loss, including reasonable accommodations at work, social security benefits, union rights, permanent disability, disability retirement, and failed to refer him to an attorney specializing in employment law.

Upon the completion of discovery, the defendant law firm moved for summary judgment, arguing that plaintiff had failed to serve an expert report, establishing the standard of care owed to plaintiff and proximate causation. Judge White-Bell agreed and granted summary judgment.

Dr. Belafsky moved for summary judgment on the basis plaintiff's testimony at his workers' compensation hearing had established that within one month's time of plaintiff's visit with Dr. Belafsky, plaintiff began wearing protective ear muffs at work. The record before the court also established that plaintiff had been examined yearly until the time of Dr. Belafsky's retirement. The court granted summary judgment, determining that plaintiff had failed to prove that Dr. Belafsky deviated from the requisite standard of care. Belafsky & Belafsky was later dismissed on the basis that the medical association was named as a party solely under the doctrine of respondeat superior.

On appeal, plaintiff argues that the trial court erred in: 1) discounting Dr. Bogdasarian's expert opinions; and 2) ruling that an expert report was required for the legal malpractice claim.

The appellate courts "employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995).

The "essence of the inquiry" is "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-2, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). The trial court is required to consider whether the "competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party." Id. at 540. The opposing party must nevertheless offer facts which are substantial or material in opposing the motion, in order to defeat the grant of summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954).

I. The Legal Malpractice Claim

Plaintiff argues that an expert was not required because the defendant law firm's actions fell under the umbrella of the common knowledge doctrine. We conclude that this is not a common knowledge case.

In bringing a legal malpractice claim, one must prove that an attorney-client relationship existed, the relationship gives rise to a duty of care, and the breach of which proximately caused injury or damages to the plaintiff. Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001). A lawyer has an obligation to "exercise that 'degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise.'" Ibid. (quoting St. Pius X House of Retreats v. Camden Dioc., 88 N.J. 571, 588 (1982)). The plaintiff bears the burden of proving the injuries he suffered are "a proximate cause of the attorney's breach of duty." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488 (App. Div. 1994).

Generally, an expert witness is needed to explain to a jury the standard of care from which the professional's conduct has deviated. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). "[A] jury generally lacks the 'requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.'" Ibid. (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961)).

The common knowledge doctrine is an exception to the rule. "New Jersey courts have dispensed with the expert testimony requirement [only] in cases where attorneys have failed to fulfill the most basic obligations." Brach, supra, 345 N.J. Super. at 13. See Sommers v. McKinney, 287 N.J. Super. 1, 10-11 (App. Div. 1996) (lawyer failed to submit an argument in client's defense); Brizak v. Needle, 239 N.J. Super. 415, 431-32 (App. Div. 1990) (lawyer failed to file client's claim before the expiration of the statute of limitations); Stewart v. Sbarro, 142 N.J. Super. 581, 591-92, cert. denied, 72 N.J. 459 (1976) (client lost her creditor priority because her lawyer failed to ensure that a bond and mortgage were recorded properly).

Deciding whether an attorney owes a duty of care to provide a client with his own medical records requires expert testimony. The same is true regarding whether the defendant law firm failed to proffer advice regarding employment options that might have prevented further hearing loss or referral to an employment law attorney. The question of whether there is a duty to provide such advice is outside the realm of a layman's ordinary knowledge, thus requiring expert testimony. See Rosenberg, supra, 99 N.J. at 325.

Moreover, an expert was needed to establish proximate cause. It is not within "the ken of the average layman" that the defendant law firm's failure to perform the above-mentioned services proximately caused plaintiff to endure further hearing loss. State v. Kelly, 97 N.J. 178, 208 (1984). It is unclear that had the law firm furnished plaintiff with his own medical records or other advice, whether plaintiff would have been able to prevent further hearing loss by changing jobs, improving his ear protection, or exercising other employment options. We are satisfied that because there is an absence of a clear link from the defendant law firm's omissions to plaintiff's injury, proximate cause must be established by expert testimony. Brach, supra, 345 N.J. Super. at 13.

II. The Medical Malpractice Claim

We are also satisfied that the trial court properly granted summary judgment to the Belafsky defendants. An action for medical malpractice "is a kind of tort action in which the traditional negligence elements are refined to reflect the professional setting of a physician-patient relationship." Verdicchio v. Ricca, 179 N.J. 1, 23 (1985). A plaintiff claiming medical malpractice "must prove the applicable standard of care, that a deviation has occurred, and that the deviation proximately caused the injury." Ibid. (citations omitted).

To establish proximate cause, the "plaintiff must prove that the defendant's conduct constituted a cause in fact of his injuries and loss. An act or omission is not regarded as a cause of an event if the event would have occurred without it." Skripek v. Bergamo, 200 N.J. Super. 620, 634 (App. Div.), certif. denied, 102 N.J. 303 (1985). A simple "but for" test is not enough when several outside forces could have rendered the same result individually. Verdicchio, supra, 179 N.J. at 24.

Instead, the substantial factor test should be employed where "a defendant's negligence combines with a preexistent condition to cause harm - as distinguished from cases in which the deviation alone is the cause of harm." Ibid. (quoting Battenfeld v. Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991). Under the substantial factor test, the plaintiff must prove that the defendant's deviation from the standard of care "increased a patient's risk of harm ... and ... such increased risk was a substantial factor in producing the ultimate harm." Ibid. However, "...merely establishing that a defendant's negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor." Id. at 25.

Plaintiff's expert, Dr. Bogdasarian, opined that the appropriate standard of care required Dr. Belafsky to recommend plaintiff wear protective earmuffs while at work, and to warn that there was a risk of further hearing loss by continuing to work in a noisy environment. He also opined that the appropriate standard of care required the doctor to perform audiograms at least yearly. He testified at his deposition that after a patient has been told to wear ear protection, and then in the future, if "there [is] a progression of ... hearing loss that appeared to be related to the noise exposure, then it would indicate that the measures recommended were not effective and something else would have to be done to protect the patient." In such event, the doctor should suggest that plaintiff consider other employment, relocate within his employment, or improve his ear protection.

Dr. Belafsky saw the plaintiff only once, on November 19, 1996. Plaintiff testified at his first Workers' compensation settlement hearing that he began using protective ear muffs around the time that he filed his Worker's Compensation claim on December 23, 1996, about a month after his visit with Dr. Belafsky. Seven months later, on June 23, 1997, plaintiff saw another doctor in Dr. Belafsky's practice, who performed another audiological exam, the results of which were similar to the 1996 exam. Belafsky & Belafsky was dissolved when Dr. Belafsky retired on June 1, 1998, before one year had passed since plaintiff's last audiological exam. According to Dr. Bogdasarian, the Belafsky defendants performed audiological exams one year apart from each other and had encouraged plaintiff to wear protective earmuffs at work. Further, the Belafsky defendants did not need to try "something else" regarding plaintiff's hearing loss because during the years in which plaintiff was a patient, his hearing was the same except for a slight change at lower frequencies. Plaintiff's expert testified that such loss was not caused by noise levels at work.

Although it is true that "where a case may rest upon opinion or expert testimony, a court should be particularly slow in granting summary judgment," Ruvolo v. American Casualty Co., 39 N.J. 490, 500 (1963), the trial court did not err in concluding that the Belafsky defendants should be dismissed. Plaintiff's expert testified as to the standard of care the Belafsky defendants should have followed, and the record reflects that the Belafsky defendants rendered medical services in accordance with that standard. Taking into consideration the testimony of the plaintiff's expert and all other evidence submitted, we are satisfied that the grant of summary judgment was correct.

Affirmed.

 

Plaintiff Phyllis E. Gordon sued per quod. All references in this opinion to plaintiff refer only to James P. Gordon.

(continued)

(continued)

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A-0250-05T2

November 15, 2006