On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Brody and Gruccio. The opinion of the court was delivered by Brody, J.A.D.
Plaintiff appeals from a judgment of involuntary dismissal with prejudice entered after he had completed the presentation of evidence at trial. R. 4:37-2(b). He alleges that defendants, who are ophthalmologists, negligently failed to order X-rays that would have revealed the broken-off point of a ballpoint pen that had lodged in his maxillary sinus causing pain and suffering during the twelve years that it remained undetected. The dismissal was based on plaintiff's inability to present a prima facie case after the trial judge had granted defendants' motion to strike the testimony of plaintiff's only expert witness, Dr. Irving Berny. We now reverse.
Plaintiff testified that in 1971 he was a police officer stationed at a high school where there had been outbreaks of violence. While on this assignment he was assaulted by a
group of students. One of them stabbed him just below the left eye with a ballpoint pen, which was left protruding from his face. Fearing that the pen would do further harm if struck during the continuing assault, plaintiff tried to pull it out while continuing to defend himself. The pen held fast until plaintiff was finally able to pull it out with both hands. Unknown to plaintiff, the point of the pen had broken off and remained in his head.
Defendant Samuel Pole treated plaintiff soon after the incident. He sutured the wound without taking X-rays. Ten years later, after the pain and discomfort caused by the pen point had become more frequent and intense, plaintiff consulted defendant Fouad Michail, who also did not take X-rays. However, Dr. Michail referred plaintiff to the Wills Eye Hospital for an ultra-sound examination. This examination did not detect the pen point. In 1983 plaintiff was suffering from unrelated dental problems that required extensive X-rays. Those X-rays revealed the pen point. Plaintiff experienced immediate relief after the point was surgically removed.
The trial recessed for the day, after plaintiff's expert had completed his testimony. The next day, after plaintiff had rested, defendants moved to strike Dr. Berny's testimony on the ground that "[t]here was never an opinion on the issue of deviation from accepted standards of medical practice which places within the language of deviation from accepted standards of medical practice within a reasonable degree of medical certainty." The trial judge accepted defendants' argument that for plaintiff to present a prima facie case Dr. Berny must expressly testify that he held his opinion of deviation "within a reasonable degree of medical certainty." The judge permitted plaintiff to recall Dr. Berny to supply the "missing" testimony.
After Dr. Berny returned to the courtroom, he resumed the witness stand and answered the following questions put to him by plaintiff's attorney:
Q. Dr. Berny, when you were here yesterday I omitted to ask you a question which I want to put to you today.
You expressed an opinion, a number of opinions yesterday but particularly one about the failure of Doctors Pole and Michail to have X-rays done and said that that was a deviation ...