On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Pressler, Dreier and Kleiner. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff appeals pro se from a summary judgment dismissing her medical malpractice action against defendant. The trial Judge based his decision on plaintiff's failure to secure and provide the report of an expert witness which the Judge deemed necessary to her eventual presentation of a prima facie case to the jury. In doing so, the Judge rejected plaintiff's claim that the learned treatise rule authorized her to introduce certain medical/legal treatises to supply proofs concerning the standard of medical care and the breach by defendant.
On November 13, 1989, plaintiff filed a medical malpractice complaint against defendant alleging that defendant caused nerve damage to her right arm during an operation to excise a nonmalignant lump located on the right side of her neck. Plaintiff claimed that defendant failed to disclose the pertinent risks inherent
in the operation and thus failed to obtain her informed consent to the procedure.
Plaintiff had initially consulted her family doctor in November 1987 to examine a lump on the side of her neck. A biopsy revealed that the lump was negative for cancer, and the family doctor advised plaintiff to have a surgeon look at the lump preparatory to its removal. At the suggestion of her family doctor, plaintiff consulted defendant who advised her that the surgery would be a same-day procedure and would not require her to stay overnight unless she experienced "oozing" from the wound. Plaintiff believed that such "oozing" referred to infection, and the term apparently was not further explained. Plaintiff admits to signing a consent form for the surgery which took place at Pascack Valley Hospital on November 14, 1987. Plaintiff claims, however, that defendant failed to inform her of any specific risks which could result from the procedure, or to advise plaintiff concerning any alternatives to surgery. Specifically, she states that no reference was made to the possibility that the surgery could result in nerve damage.
After the surgery, plaintiff was nauseous, felt pain in her right arm, and found that she could not raise her arm. She remained in the hospital until November 16, 1987. She later learned that there had been nerve damage during the surgery, but defendant told her that he was not aware of what happened to her arm. Defendant called in a neurologist and, although plaintiff was scheduled to be x-rayed, no x-ray was performed during her stay in the hospital. She was unable to use her arm for several months, and years later still experiences pain.
Plaintiff's complaint was filed by a law firm. A case management order required plaintiff to furnish defendant with an expert report setting forth the factual basis of her claim. Defendant moved to dismiss the complaint on August 6, 1991 when no such report was forthcoming. Simultaneously, plaintiff's attorneys filed a cross-motion requesting an order relieving them as counsel. The attorneys' motion was granted, but defendant's motion was
denied without prejudice, and plaintiff was given an additional forty-five days to procure new counsel and provide defendant with an expert report. On December 5, 1991 defendant again moved for summary judgment based upon plaintiff's failure to provide the report. Plaintiff's responding certification indicated that she was unable to secure the services of an expert witness because she was proceeding pro se. She informed the court that she intended to prove the medical aspects of her case through learned treatises. The trial Judge denied the motion to dismiss the complaint, but barred plaintiff from using expert testimony to support her claim during the trial.
On June 4, 1992, defendant again renewed his motion for summary judgment based upon plaintiff's failure to submit an expert report to support her claim. Plaintiff reiterated that she intended to rely on learned treatises, but the court granted defendant's motion by an order dated July 30, 1992.
When plaintiff's complaint was filed in 1989, learned treatises were inadmissible substantively in New Jersey, except for their use for impeachment of a witness, and then only when the witness recognized the treatise as authoritative. Ruth v. Fenchel, 21 N.J. 171, 176, 121 A.2d 373 (1956). During the pendency of this action, this rule was overturned first by the Supreme Court in Jacober v. St. Peter's Medical Center, 128 N.J. 475, 608 A.2d 304 (1992), and then by the legislative and judicial adoption of N.J.R.E. 803(c)(18), the learned treatise exception to the hearsay rule. The evidence rule had been adopted prospectively by the Supreme Court in Jacober, 128 N.J. at ...