EDWARD P. ATKIN v. BRIDGEWAY, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04272-12T1

EDWARD P. ATKIN,

Plaintiff-Appellant,

v.

BRIDGEWAY, INC., JESSICA CORREA,

TRINITAS HOSPITAL, and LUIS CARVAJAL,

Defendants-Respondents.

______________________________________

August 29, 2014

Submitted May 6, 2014 - Decided

Before Judges Messano and Rothstadt.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Docket No.

L-4928-10.

Edward P. Atkin, appellant pro se.

Carroll, McNulty & Kull, LLC, attorneys for respondent Luis Carvajal (Catherine J. Flynn and Frank M. Falone, of counsel and on the brief).

PER CURIAM

Plaintiff Edward P. Atkin appeals from the Law Division's March 28, 2013 order granting summary judgment to defendant Luis Carvajal and dismissing plaintiff's complaint with prejudice.1 In his complaint, plaintiff essentially alleged that Carvajal, a licensed clinical social worker (LCSW), "misdiagnose[d]" plaintiff in connection with an evaluation Carvajal prepared "to determine if [plaintiff] was clinically appropriate for services with [a] Jail Diversion Program." In the evaluation Carvajal prepared, he diagnosed plaintiff as suffering from Asperger's Disorder,2 which he incorrectly listed as an Axis II diagnosis rather than an Axis I.3 As a result, plaintiff claims he was not admitted into the diversionary program and alleges that he suffered damages, including lost wages, because of Carvajal's mistake. Specifically, the complaint stated:

1. If Plaintiff's diagnosis was properly placed on Axis [I] and considered a serious mental illness, he could have been in and out of the Jail Diversion Program and charges resolved more than a year ago.

2. Plaintiff subsequently rejected [a] plea offer, because it required him to accept treatment and medication for a condition he does not have.

3. Plaintiff was subsequently indicted after his rejection of the plea offer.

4. Plaintiff had a job offer for employment which he could not accept with the charges still pending and is suing for misdiagnosis and lost . . . wages.

Carvajal filed a summary judgment motion seeking dismissal of the complaint because plaintiff never obtained an expert to establish Carvajal's liability, if any. As noted, the Law Division granted that motion and after our consideration of the record and the applicable law, we now affirm.

We derive the following facts from the record, construed in a light most favorable to plaintiff as the non-moving party on summary judgment. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Carvajal is a LCSW and has worked at Trinitas Hospital as a clinician for approximately seventeen years. His work included conducting psychosocial evaluations for the Jail Diversion program operated out of Trinitas. According to Carvajal, the "program is designed to help people with severe mental illness who have gotten themselves into trouble with the criminal justice system." In order to be admitted into the program, "the requirements are that the person needs to have severe mental illness [and] . . . one of many criteria that [they] use" is a diagnosis on Axis I of the evaluation.4

In 2008, plaintiff had been charged with resisting arrest and aggravated assault on a police officer.5 As noted in Carvajal's evaluation, the Union County prosecutor's office referred plaintiff to him "to determine if [plaintiff] is clinically appropriate for services with the Jail Diversion Program." Carvajal conducted his evaluation of plaintiff on February 2, 2009. After interviewing plaintiff, Carvajal concluded that plaintiff "is suffering with an Axis II psychiatric [d]isorder which does not meet the criteria for services with the Jail Diversion Program." He then listed his Axis II diagnosis of plaintiff as "Asperger's Disorder. R/O Personality Disorder NOS."

During the course of the ensuing litigation, Carvajal admitted that the diagnosis of Asperger's Disorder should have been designated on Axis I and not Axis II of the evaluation. He explained that even after he realized it was on the wrong Axis, he did not correct the evaluation but rather discussed it with the Jail Diversion Team. In addition, he also stated that he never had any training in the "diagnosis of Asperger's Disorder." Furthermore, his evaluation's reference to plaintiff taking a specific drug was also a mistake he never corrected. However, according to Carvajal, plaintiff's rejection from the program had nothing to do with these errors. Rather, they involved other unrelated factors that prevented his admission, including plaintiff's unwillingness to accept services directed toward treatment of his issues.

After considering Carvajal's motion for summary judgment on March 28, 2013, the motion judge rendered a comprehensive oral decision giving his reasons for granting the motion. In his decision, the judge reviewed the law governing summary judgment motions, and the need to produce an expert's report in cases "when the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable."6 The court concluded that, while plaintiff was not required to serve an Affidavit of Merit to maintain his action, he nonetheless needed an expert's report in this case. The court then stated:

Carvajal as a licensed social worker is in this case by virtue of plaintiff's complaint that he, in essence, formed a misdiagnosis and put that misdiagnosis on an incorrect Axis. Expert testimony is required to educate the jury about that allegation, as it is with regard to the ultimate damage, the proximate caused injuries to the plaintiff[].

Even assuming that Carvajal's . . . misdiagnosis of plaintiff and his action . . . directly resulted in plaintiff being indicted and, subsequently, losing a job offer accepting all of that as true plaintiff cannot make that a prima facie case of malpractice without expert testimony.

In his appeal from that decision, plaintiff argues that the judge was incorrect because experts generally only "work exclusively through attorneys," and not pro se litigants. As a result, he could not secure an expert. He also argues, as he did to the trial court, that the subject matter did not require expert testimony "because the alleged acts of negligence were well within the purview of a jury's common knowledge and experience." As he stated in his brief, "A jury can reasonably determine that labeling of Asperger's Disorder is not an Axis II Disorder." Our review of the applicable law leads us to a different conclusion.

In our review of the record, we apply the same standard as the trial court in reviewing summary judgment orders, viewing the evidence in a light most favorable to the non-moving party. Murray, supra, 210 N.J. at 584. We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006).

[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge 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 disputed issue in favor of the non-moving party.

[Brill, supra, 142 N.J. at 540.]

We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. "[T]he propriety of the trial court's [summary judgment] order is a legal, not a factual, question." Fernandez v. Nationwide Mut. Fire Ins. Co., 402 N.J. Super. 166, 170 (App. Div. 2008) (quoting Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2008)), aff'd o.b., 199 N.J. 591 (2009). Therefore, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. NAACP of Camden Cnty E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430-31 (App. Div. 2011), appeal dismissed, 213 N.J. 47 (2013); see also Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

We are satisfied that, contrary to plaintiff's argument, he needed an expert to prove his case because it is not apparent that Carvajal's mislabeling of the diagnosis, or even the diagnosis itself, established a breach of a standard of care owed to plaintiff. The Supreme Court has identified the specific requirement for expert testimony in most professional negligence actions:

To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.

[Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations omitted).]

Courts have long recognized that negligence claims against mental health professionals require the establishment of a standard of care through expert testimony. Expert testimony is necessary to establish the standard of care in a malpractice action for several reasons. "'Ordinarily a jury of laymen cannot be allowed to speculate as to whether the procedure followed by a treating physician conformed to the required professional standards.'" Morlino v. Med. Ctr., 152 N.J.563, 579 (1998) (quoting Schueler v. Strelinger, 43 N.J. 330, 345 (1964)). "In most cases, without expert testimony, it would expect too much of jurors to ask them to set the standard by which to measure a medical doctor's conduct." Ibid.

As the Supreme Court has explained, the "common knowledge" doctrine presents an exception to this requirement:

Under the common knowledge doctrine, however, a malpractice case against a licensed professional may present triable issues without resort to the testimony of an expert. In such a case the jury itself is allowed to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto. The trial of such a case is essentially no different from an ordinary negligence case. Nevertheless, it is the unusual professional malpractice case in which the common knowledge doctrine can be invoked.

The basic postulate for the application of the common knowledge doctrine in a malpractice action is that the issue of negligence is not related to technical matter peculiarly within the knowledge of the licensed practitioner. The most appropriate application of the common knowledge doctrine involves situations where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.

[Rosenberg v. Cahill, 99 N.J. 318, 325-26 (1985) (internal citations and quotation marks omitted).]

Expert testimony is therefore not required when the common knowledge of the jury "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." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). "The effect of applying this doctrine is to allow the jury to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto." Sanzari v. Rosenfeld, 34 N.J. 128, 141 (1961). "In other words, application of the doctrine transforms the case into an ordinary negligence case where . . . the jury, from its fund of common knowledge, assays the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff." Id. at 141-42. Application of the doctrine is limited to "'where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.'" Kelly v. Berlin, 300 N.J. Super. 256, 266 (App. Div. 1997) (quoting Rosenberg, supra, 99 N.J. at 325).

The doctrine has long been applied, for example, to cases in which a dentist has extracted the wrong tooth. See, e.g., Hubbard v. Reed, 168 N.J. 387, 396 (2001) (citing Steinke v. Bell, 32 N.J. Super, 67, 70 (App. Div. 1954)). The doctrine applied where an unconscious plaintiff was burned during surgery, Magner v. Beth Israel Hosp., 120 N.J. Super. 529, 534 (App. Div. 1972), certif. denied, 62 N.J. 1999 (1973), and where X-Rays revealed a needle in a plaintiff's chest but the defendant had failed to inform the plaintiff about the needle. Tramutola v. Bortone, 118 N.J. Super. 503, 512-13 (App. Div. 1972), rev'd in part on other grounds, 63 N.J. 9 (1973).

Following these examples, we do not believe plaintiff's claim presented a case in which Carvajal's standard of care was apparent. Without expert testimony, a reasonable juror of ordinary intelligence would not be able to know if Carvajal's error constituted a breach of a standard of care, causing the harm claimed by plaintiff, or was, as it appears, a simple mechanical, scrivener's error without any real consequence.7

As to plaintiff's remaining claim, that he was not able to secure an expert because he is self represented, we find his argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We merely note that the record contains a report from an expert which plaintiff in fact secured to provide assistance.

Affirmed.

1 The court entered an order on March 15, 2012 dismissing plaintiff's complaint against defendant Trinitas Hospital based on plaintiff's failure to serve an Affidavit of Merit. N.J.S.A. 2A:53A-27. However, the court concluded that an Affidavit of Merit was not required for plaintiff to pursue his claim against Carvajal because "licensed clinical social workers are not one of the enumerated professions listed in N.J.S.A. 2A:53A-26." The record is not clear as to the resolution of plaintiff's claims against the other two defendants.

2 According to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 75 (4th ed. 1994) [hereinafter DSM-IV-TR],

The essential features of Asperger's Disorder are severe and sustained impairment in social interaction . . . and the development of restricted, repetitive patterns of behavior, interests, and activities . . . . The disturbance must cause clinically significant impairment in social, occupational, or other important areas of functioning.

[See also T. H. v. Div. of Developmental Disabilities, 189 N.J. 478, 485-87 (2007) (diagnostic criteria for Asperger's Disorder).]

3 The DSM-IV-TR classifies psychiatric diagnoses according to a multiaxial system based on "the heterogeneity of individuals presenting with the same diagnosis." Id. at 25. Axis I includes all psychological disorders or conditions except for personality disorders and mental retardation. Ibid. Axis II is comprised of personality disorders and mental retardation. Id. at 26. Axis III contains "general medical conditions that are potentially relevant to the understanding or management of the individual mental disorder." Id. at 27. Axis IV contains psychosocial and environmental factors contributing to any disorder. Id. at 29. Axis V contains a global assessment of functioning, a numeric scale on which to rate the "psychological, social, and occupational functioning" of the subject. Id. at 30.

4 The Union County Criminal Justice Diversion Programs lists the following admission criteria: (1) Union County residency; (2) criminal charges from Union County; (3) serious mental illness with emphasis on Axis I; (4) non-violent offense, such as disorderly persons (although exceptions can be made in consultation with the prosecutor's office and diversion program administrative team); and (5) voluntary acceptance of program services.

5 Evidently, the incident arose from an officer's attempt to execute an arrest warrant at plaintiff's home. The warrant had been issued by a court in Pennsylvania relative to a 2006 traffic summons.

6 The court cited to our decision in Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002).

7 We note that the record does not contain any evidence refuting Carvajal's deposition testimony that plaintiff was not admitted to the program for reasons other than the Asperger's Disorder diagnosis or its placement on the wrong axis.