Before Judges Petrella, Conley and Braithwaite.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Camden County.
The opinion of the court was delivered by
In this dental malpractice appeal, we must determine whether an affidavit of merit, N.J.S.A. 2A:53A-27, must be filed in a malpractice action in which plaintiff intends to rely on either common knowledge and experience or res ipsa loquitor to establish her claim and therefore not present expert testimony. See Klimko v. Rose, 84 N.J. 496, 503 (1980). Plaintiff Nina Hubbard filed suit against defendants, asserting that defendant Joseph Reed, D.D.S., extracted the wrong tooth from the minor plaintiff, Nia Hubbard. Plaintiff contends that because the negligence of defendants is so clear, no expert testimony is required to establish liability.
After defendants filed an answer, they moved for summary judgment because plaintiff had not filed an affidavit of merit "within 60 days following the date of filing" of defendants' answer. N.J.S.A. 2A:53A-27. Plaintiff opposed the motion on the ground that since no expert was required to establish liability, an affidavit of merit was not required. Plaintiff relied on Janelli v. Keeper, 317 N.J. Super. 309 (Law Div. 1998), to support her position. In Janelli, the Law Division determined that an affidavit of merit was not required in a res ipsa loquitor or common knowledge case. 317 N.J. Super. at 313. Here, the motion judge concluded that an affidavit of merit was required in such a case and therefore granted defendants' motion. Plaintiff appeals. We hold that an affidavit of merit is required in a common knowledge or res ipsa loquitor case and now affirm. *fn1 In so doing, we overrule the holding in Janelli v. Keeper.
Because this is an appeal from the award of summary judgment to defendants, we present the facts in the light most favorable to plaintiff. See Strawn v. Canuso, 140 N.J. 43, 48 (1995). We also accept, without deciding, that this is a case in which plaintiff can establish her claim by common knowledge. Nia Hubbard was referred by her orthodontist to defendant Robert Kardon, D.D.S., for the extraction of the manibular left lateral incisor. Dr. Kardon did not remove the tooth; rather, he referred plaintiff to his associate, Joseph Reed, D.D.S. Instead of extracting the incisor, as directed by the orthodontist, Dr. Reed extracted the manibular left second bicuspid.
Following the extraction of the wrong tooth, Nia Hubbard, through her mother Nina Hubbard, as guardian ad litem, commenced this litigation for dental malpractice against Drs. Reed and Kardon. Ultimately, as noted, supra, defendants moved for and were granted summary judgment because plaintiff failed to file an affidavit of merit.
In granting defendants' motion for summary judgment, the motion judge concluded that in enacting the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29, the Legislature did not exempt common knowledge malpractice cases from the ambit of the statute. The judge noted that the purpose of requiring the affidavit is to eliminate frivolous suits, which is a separate and preliminary step to presenting the proofs of the case at trial. Thus, the affidavit of merit does not serve the same purpose as expert testimony that would be presented as proof of plaintiff's claim. The judge determined that without the expert affidavit, plaintiff's lawyer would assess the merits of the claim and that such a result frustrates the objective of the statute, which is to dispose of frivolous lawsuits early in the litigation. We agree with the motion judge's analysis.
The common knowledge doctrine applies to professional malpractice actions in which defendant's negligence is not related to a matter outside the scope of knowledge of the average person. Rosenberg v. Cahill, 99 N.J. 318, 324 (1985). Thus, at trial, the jury must determine, through "its common knowledge and experience, the standard of care by which to judge defendant's conduct." Model Jury Charge, Medical Malpractice § 5.36. This differs from the typical malpractice case, in which the standard of care is furnished by expert "testimony of persons who are qualified by their training, study and experience to give their opinions on subjects not generally understood by persons . . . who lack such special training or experience." Ibid. Regardless of the manner in which the standard of care is established, the ultimate issue is one of professional malpractice, and the jury must determine that a medical professional has deviated from the ordinary standard of care. See Chin v. St. Barnabas Medical Center, 160 N.J. 454, 469-70 (1999).
It is undisputed that the affidavit of merit statute applies to malpractice actions against dentists. N.J.S.A. 2A:53A-26(d). Three sections of the statute inform our judgment that it applies to common knowledge cases. The first provides:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licenced person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to ...