STEVEN PAUL v. KESSLER INSTITUTE OF REHABILITATION, MYLAN LAM, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3995-06T2

STEVEN PAUL,

Plaintiff-Appellant,

v.

KESSLER INSTITUTE OF

REHABILITATION, MYLAN

LAM, M.D.,

Defendants-Respondents.

_________________________________

 

Submitted March 5, 2008 - Decided

Before Judges Parker and R. B. Coleman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-3317-06.

Michael C. Kazer, P.C., attorney for appellant.

Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys for respondents (Lauren Koffler O'Neill, of counsel; Patricia M. Wason, on the brief).

PER CURIAM

Plaintiff Steven Paul appeals from a February 16, 2007 order dismissing plaintiff's complaint with prejudice pursuant to N.J.S.A. 2A:53A-29. The Law Division determined that plaintiff failed to state a cause of action because he did not file a timely affidavit of merit. We affirm.

Plaintiff is an obese quadriplegic male, who in July of 2004, sought medical care from the Kessler Institute of Rehabilitation (Kessler Institute). On July 7, 2004, Dr. Mylan Lam saw plaintiff as a patient. At that time, plaintiff was transferred onto and off of an examining table. During such transfers, plaintiff alleges that his right femur was fractured. On July 10, 2006, plaintiff filed a medical malpractice complaint against defendants Dr. Lam and the Kessler Institute asserting that defendants' negligence and failure to use approved methods of transfer proximately caused the injury to plaintiff.

On December 21, 2006, defendants filed a notice of motion to dismiss plaintiff's complaint for failure to serve an affidavit of merit. Plaintiff opposed the motion by arguing the common knowledge doctrine applied, thereby obviating the need for an affidavit of merit. Judge Shirley A. Tolentino heard oral arguments on this motion on February 16, 2007. She rendered an oral decision from the bench granting defendants' motion and issued a subsequent order dismissing plaintiff's complaint with prejudice. Plaintiff filed this appeal in which he raises one argument:

POINT I: THE ORDER DIMISSING PLAINTIFF'S COMPLAINT SHOULD BE REVERSED BECAUSE THE COURT ABUSED ITS DISCRETION IN RULING THAT THE "COMMON KNOWLEDGE" DOCTRINE WAS NOT APPLICABLE.

We reject the argument and, as noted above, we affirm the ruling of the motion judge.

The legislature passed The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, to prevent frivolous professional malpractice cases while allowing meritorious cases to go forward. Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001); Cornblatt v. Barow, 153 N.J. 218, 242 (1998). When filing a complaint for damages resulting from an act of professional malpractice, the plaintiff must file an affidavit of merit within sixty days of the filing of defendant's answer. N.J.S.A. 2A:53A-27. "If the plaintiff fails to provide an affidavit or a statement in lieu thereof, . . . it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29.

In this case, the court found plaintiff did not file a timely affidavit. Therefore, the court dismissed the complaint with prejudice. See Cornblatt, supra, 153 N.J. at 247 (noting "Absent extraordinary circumstances, a failure to comply with the statute that requires a dismissal would be with prejudice.").

Plaintiff does not dispute his failure to file an affidavit of merit; instead, he asserts that no such affidavit was required due to the common knowledge doctrine. If the common knowledge doctrine is properly invoked, the plaintiff is not required to file an affidavit of merit. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001); Hubbard v. Reed, 168 N.J. 387, 394 (2001). We are reminded, however, that

[t]he general rule in malpractice cases is that "evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians." Schueler v. Strelinger, 43 N.J. 330, 345, 204 A.2d 577 (1964). Only in the "unusual medical malpractice case" will the common knowledge doctrine be invoked. Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325, 492 A.2d 371 (1985). The doctrine of common knowledge permits exception to the general rule; when it is applied, expert testimony is not needed to establish the applicable standard of care. Schueler, supra, 43 N.J. at 345, 204 A.2d 577. "The trial of such a case is essentially no different from 'an ordinary negligence case.'" Rosenberg, supra, 99 N.J. at 325, 492 A.2d 371 (citations omitted).

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." Rosenberg, supra, 99 N.J. at 325, 492 A.2d 371 . . . . "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." Sanzari v. Rosenfeld, 34 N.J. 128, 142, 167 A.2d 625 (1961).

[Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469-70 (1999).]

Thus, we must search plaintiff's complaint to ascertain whether this claim may be brought without the assistance of an expert. We must review the complaint "'in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 ((App. Div. 1957); but cf. Cornblatt, supra, 153 N.J. at 246 (stating that a dismissal under the Affidavit of Merit statute cannot be cured by merely amending the complaint).

Plaintiff alleged that Dr. Lam

professed and held herself out to the public and to the plaintiff as being skilled, careful and diligent in the practice of her profession as physician. Specifically, defendant MYLAN LAM, M.D., assured plaintiff and convinced him over strong protestations that plaintiff didn't need a hoyer lift for defendant KESSLER INSTITUTE OF REHABILITATION'[S] staff to lift plaintiff onto and off an examining table.

5. Pursuant to defendant MYLAN LAM, M.D.'S recommendation, advice and supervision, defendants JOHN DOE and STEVE ROE, who were the rehabilitation center's assistants lifted plaintiff both onto and off an examining table.

6. In lifting plaintiff from the examining table defendants JOHN DOE and STEVE ROE fractured plaintiff's right femur.

7. Defendants, in their treatment of plaintiff, both individually and severally, by and through their agents, servants and employees, negligently failed to exercise ordinary care, and otherwise failed to exercise the degree of care commonly exercised by other medical doctors and rehabilitation staff in like cases having regard to the existing state of knowledge in medicine and paramedicine in that defendants lifted plaintiff[,] a quadriplegic and obese, rather than use a hoyer lift.

8. As a direct and proximate result of the negligence of the defendants, as aforesaid, the plaintiff(s), STEVEN PAUL, has sustained severe personal injuries, has and will be caused to sustain great pain and suffering, has been and will be caused to expend large sums of money in an effort to cure himself of his injuries, has been and will be deprived of attending to his usual occupation, to his great loss and damage.

Plaintiff asserted a nearly identical claim against defendant, Kessler Institute. Therefore, the crux of plaintiff's claim lies in defendants' failure to use a hoyer lift when transporting plaintiff to and from an examining table.

The use of the common knowledge doctrine has been sustained where the negligence is obvious to the ordinary person without the benefit of specialized knowledge of experts. It will also operate where the injury is caused by a lack of reasonable care rather than by technical matters peculiarly within the knowledge of medical practitioners. See, e.g., Estate of Chin, supra, 160 N.J. at 470 (upholding use of the doctrine when a plaintiff died due to the incorrect hook-up of hysteroscope, hinging on "'who did what with the exhaust line, rather than with regard to professional standard of care.'"); Becker v. Eisenstodt, 60 N.J. Super. 240, 246-47 (App. Div. 1960) (finding the doctrine applied where a physician applied a caustic liquid rather than an anesthetic solution to a plaintiff's nose during a rhinoplasty); Steinke v. Bell, 32 N.J. Super. 67, 69-70 (App. Div. 1954) (using the doctrine where dentist wrongfully removed an additional tooth). The instant case, however, is more analogous to Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95 (App. Div. 2001), certif. denied, 170 N.J. 205 (2001).

In Lucia, the plaintiff contended that

the 1990 misdiagnosis of her slides resulted from the hospital's failure to have a departmental policy in place requiring a second pathologist to reread the slides as a matter of course or the employment of a slide-spacing system to separate read slides from unread slides or one patient's slides from another.

[Id. at 100.]

The court held that the trial judge did not err in dismissing plaintiff's claim because without an expert opinion as to the established standard of care regarding the double checking of laboratory work, there were no remaining jury issues. Id. at 107. The case could not be properly adjudicated without testimony on the protocol typically employed while viewing slides. In other words, the negligence did not spring from the language of the complaint. "In a common knowledge case, whether a plaintiff's claim meets the threshold of merit can be determined on the face of the complaint." Palanque, supra, 168 N.J. at 406.

Without the benefit of expert testimony in this case, the jury will not be able to evaluate the proper standard of care in regard to the use of a hoyer lift. That decision is not one that can be made by a juror "of average intelligence." See Rosenberg, supra, 99 N.J. at 325. Indeed, there is no documentation in the record to explain what a hoyer lift is, how it operates, or under what conditions it should be used. This information can only be gleaned from an expert. Therefore, plaintiff should have filed an affidavit of merit. His failure to due so is dispositive of his claim.

Affirmed.

 

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A-3995-06T2

March 31, 2008