On appeal from Superior Court of New Jersey Law Division, Hunterdon County.
Michels, Baime and Wallace. The opinion of the court was delivered by Wallace, J.s.c. (temporarily assigned).
In this medical malpractice case, plaintiff, Thomas Baldyga, appeals from orders granting summary judgment in favor of defendant Elliott Oldman, M.D., and denying his motion for reconsideration. Plaintiff's complaint alleged that defendant negligently administered the drug tetracycline to him during childhood, resulting in permanent staining and discoloration of his adult teeth.
In response to defendant's summary judgment motion, plaintiff attempted to present his expert's letter report in opposition to defendant's motion after the time expired for the completion of discovery. The trial Judge refused to consider the late submission and granted defendant's motion. We must determine whether such refusal constituted a mistaken exercise of discretion. We conclude that it does and reverse.
Plaintiff was born on August 20, 1960. His adult teeth are permanently stained and discolored allegedly as the result of the administration of the drug tetracycline during childhood. For the first three years of his life, plaintiff was under the care of Dr. Paul Coccia, who is now deceased. From birth to age three, plaintiff was hospitalized on at least three occasions by Dr. Coccia for treatment of asthmatic bronchitis, fever, wheezing, and congestion. Plaintiff's mother does not know what medications he received during these hospitalizations.
Plaintiff was under the care of defendant from August 1963 until approximately 1976 or 1978. Plaintiff's mother has check registers and canceled checks endorsed by defendant indicating some treatment at various times. Additionally, a hospital admission record of plaintiff dated November 1963 indicates that defendant was plaintiff's physician. Plaintiff's mother stated in deposition testimony that from August 1963 through 1966 or 1967, defendant treated plaintiff with antibiotics. However, she did not know whether these were tetracycline based or non-tetracycline based antibiotics. Defendant has no medical records pertaining to plaintiff, and no independent recollection of treating plaintiff.
On December 26, 1989, plaintiff filed a medical malpractice suit against Dr. Coccia and defendant. Plaintiff alleged that during the course of their care and treatment, the doctors deviated from generally accepted medical practice by prescribing tetracycline or a tetracycline derivative to plaintiff which they knew or should have known could cause discoloration and damage to his permanent teeth. The complaint also alleged gross, willful, or wanton negligence, and sought compensatory and punitive damages, counsel fees, interest and costs of suit.
Defendant filed an answer to the complaint denying liability and asserting various affirmative defenses. Plaintiff voluntarily dismissed his claim against Dr. Coccia without prejudice by stipulation of dismissal dated January 7, 1991.
Pursuant to an order of the trial Judge dated April 19, 1991, plaintiff was deemed to have admitted that he did not know what, if any, antibiotic medication was administered to him by either Coccia or defendant, and did not know whether either doctor administered tetracycline or non-tetracycline based medication to him. Shortly thereafter, defendant filed a motion for summary judgment returnable on June 14, 1991.
In response to defendant's motion, on June 14, 1991 plaintiff moved for an order extending the discovery deadline, compelling defendant to attest by certification that he had no records pertaining to plaintiff, requesting permission to photograph and physically inspect defendant's records storage area, and requesting denial of defendant's motion for summary judgment without prejudice pending further discovery. The motion was supported by the certification of plaintiff's counsel, stating that additional time was needed to locate plaintiff's medical records and/or medical personnel who were involved in his care and treatment. The trial Judge on July 26, 1991 granted the relief requested by plaintiff and extended discovery until August 31, 1991.
Prior to the discovery deadline, on August 13, 1991 defendant again moved for summary judgment based on plaintiff's failure of proof. Defendant argued in a supporting brief that plaintiff presented no evidence that he had prescribed tetracycline based antibiotics to plaintiff during his early childhood, or that his alleged tooth discoloration was due to tetracycline prescribed by defendant, as opposed to Coccia or another doctor. Defendant relied upon: 1) his own certification in which he stated that he had no records relating to the treatment of plaintiff or the administration of any medication to him; 2) the deposition testimony of plaintiff's mother stating Coccia had treated plaintiff for the first three years of his life; 3) plaintiff's ...