Before Judges King, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
The central issue raised is whether the defense's inability to examine a plaintiff prior to the insertion of new dental implants constitutes substantial prejudice under R. 4:5-1(b)(2), so as to preclude later joinder in a malpractice action where the complete medical records are available for review. We conclude that Dr. Procini's (defendant) *fn1 ability to present a defense was not substantially prejudiced. We reverse and remand to permit the motion judge to impose appropriate sanctions. We also reverse the motion judge's grant of summary judgment entering judgment of dismissal in favor of defendant, based upon the determination that plaintiff was fully compensated for his injuries.
This appeal arises from the trial judge's denial of plaintiff's motion for reconsideration of his grant of summary judgment in favor of defendant, Dr. Charles P. Procini, dismissing plaintiff's complaint. A full discussion of the underlying facts is set forth in this court's reported opinion in Mitchell v. Charles P. Procini, D.D.S., 315 N.J. Super. 557 (App. Div. 1998). We provide a short synopsis of the facts relevant to this appeal.
On January 1, 1994, plaintiff, Anthony D. Mitchell, was injured in a bar brawl at Planet Cherry Hill. He suffered serious injuries to his mouth requiring significant dental work. Defendant examined plaintiff on January 27, 1994, and started treatment culminating in the insertion of dental implants. Shortly after defendant started his treatment, plaintiff filed an amended complaint seeking damages against Planet Cherry Hill, its owners and employees (Cherry Hill defendants), asserting that his injuries were caused by the Cherry Hill defendants' negligent failure to separate two brawling patrons. Plaintiff's final office visit with defendant was on January 3, 1995. On June 1, 1995, at plaintiff's attorney's request, defendant Procini furnished a report concerning the treatment he rendered.
Thereafter, plaintiff was examined by Dr. Thomas Westcott, another dentist, who informed plaintiff that the two dental implants inserted by defendant needed to be replaced. In July 1995, Dr. Bradford Porter removed and replaced the implants. In August 1995, soon after the removal and replacement of the implants by Dr. Porter, plaintiff attended a voluntary arbitration hearing pursuant to R. 4:21A-1 and was awarded $90,000 in total damages. The arbitration panel assessed plaintiff's contributory fault at thirty-five percent. Plaintiff rejected the arbitration award and filed a demand for jury trial de novo. R. 4:21A-6(c).
On May 22, 1996, the scheduled trial date, plaintiff settled his claims against the Cherry Hill defendants for $125,000, eventually signing a release presumably preserving his rights against other potential tortfeasor defendants. On that same day, plaintiff filed a motion to file an amended complaint, seeking to add defendant, alleging malpractice. After answering the amended complaint, defendant moved for summary judgment and, under the then-existing entire controversy rule, the motion judge dismissed the action against defendants, finding that plaintiff had failed to comply with the then-applicable entire controversy doctrine and notice requirements of R. 4:5-1(b)(2).
In a published opinion, we concluded that plaintiff's failure to provide notice of the contemplated addition of defendant to the case was inexcusable but found, based upon the record before us, that a determination could not be made that defendant's ability to present a defense had been substantially prejudiced by the delay within the meaning of R. 4:5-1(b)(2), as revised September 1, 1998. 315 N.J. Super. at 566. We remanded the case to the trial court to determine the issue of substantial prejudice. Ibid. On remand, the motion judge dismissed plaintiff's claim against defendant, finding that the defense's inability to examine plaintiff before insertion of the dental implants amounted to substantial prejudice and the prior settlement represented full compensation for plaintiff's injuries. In finding the existence of substantial prejudice, the motion judge stated:
A timely lawsuit or a timely claim would have allowed for examination of the plaintiff's mouth by in -- by experts chosen by --by Dr. Procini. It might have allowed for experts to take a look at this case on behalf of Dr. Procini before even Dr. Porter put in the two new implants in February of '96. Certainly at this late date the only possible thing that an expert could do on behalf of Dr. Procini would be to review somebody else's records.
The Court finds that there is a -- is a sufficient amount of prejudice to Dr. Procini to warrant the dismissal of this case. The -- the inability to have this gentleman's physical situation examined over this period of time is so prejudicial that it would frustrate the -- the defense that could be raised by Dr. Procini. In short the only thing that anybody could do on his behalf is take a look at his records or have Dr. Procini himself testify and say "I did nothing wrong," which is not nearly as effective as having timely examination by independent experts.
Plaintiff contends that the motion judge erred in determining that defendant's ability to present a defense was substantially prejudiced by plaintiff's failure to provide the notice required by R. 4:5-1(b)(2). We agree.
The entire controversy doctrine has continually evolved from common law. Prior to its articulation in article 6, section 3, paragraph 4 of the 1947 Constitution, it was recognized as a basic principle of common law. Cogdell v. Hospital Ctr., 116 N.J. 7, 15-16 (1989); Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 440-41 (E. & A. 1933). The Supreme Court in Cogdell, supra, recognized that the goals of the entire controversy doctrine were to foster judicial economy and efficiency by avoiding the waste and delay of piecemeal litigation and, at the same time, insure fairness to the parties. 116 N.J. at 23. In acknowledging that fairness to the parties was "critical in the application of the entire controversy doctrine," the Supreme Court said: "In this modern era of litigation, ...