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Risko v. Ciocca

January 07, 2003

WASEL RISKO, ADMINISTRATOR OF THE ESTATE OF DOLORES RISKO, AND ADMINISTRATOR AD PROSEQUENDUM FOR DOLORES RISKO, DECEASED, AND NEXT OF KIN OF DOLORES RISKO, INDIVIDUALLY AND PER QUOD, PLAINTIFF-APPELLANT,
v.
ROCCO GERARD CIOCCA, M.D.; F. WEINBERG, M.D.; DR. GRAHAM, M.D.; DR. CROWLEY, M.D.; DR. NECKMAN, M.D.; UNIVERSITY OF MEDICINE AND DENTISTRY OF THE STATE OF NEW JERSEY (ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL), DEFENDANTS-RESPONDENTS, AND DOMINICK BOLI, M.D., AND TODD STEFAN, M.D., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8448-00.

Before Judges Stern, Coburn and Alley.

The opinion of the court was delivered by: Stern, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 10, 2002

Plaintiff appeals from a judgment resulting from orders of May 25, 2001 and June 22, 2001 dismissing the complaint against defendants for failure to file an affidavit of merit and an order of August 3, 2002 denying reconsideration. Plaintiff argues that the orders must be "vacated" because the principle of res ipsa loquitur and the "common knowledge" doctrine excuse the need for an affidavit, and because no affidavit "is needed in cases where the issues are intentional torts such as outrage, fraud, deceit, misrepresentation and lack of informed consent." We affirm the judgment.

The facts on which plaintiff relies includes the following. On October 12, 1998, plaintiff's wife, Dolores Risko (hereinafter "decedent") was admitted to the defendant Robert Wood Johnson University Hospital with a diagnosis of right carotid stenosis, an abnormal narrowing of the carotid artery. She was sixty-four years old and had a history of hypertension and coronary artery disease. On October 16, 1998, defendant Dr. Rocco Ciocca performed a right carotid endarterectomy with assistance from defendants Doctors Dominick Boli and Todd Stefan. Decedent was discharged on October 19, 1998. The discharge summary, dictated by Eboli, concluded:

The patient is being discharged to home today on 10/19/98 with instructions to follow-up with Dr. Ciocca in one week, and with Dr. Weinberg as well, as an outpatient. Stool guaiacs were done which revealed no evidence of blood in the stool.

Defendant Frederick Weinberg was decedent's outpatient cardiologist who referred her for the surgery, but he did not participate in performing the endarterectomy. It is alleged that Weinberg was "the attending physician for the [decedent] in the hospitalization from 10/12/98-10/19/98 where she was allowed to be discharged with a leaking endarterectomy." Plaintiff asserts that the "leaking endarterectomy" was the cause of decedent's "stroke and subsequent history" resulting in her death.

Within hours of her discharge on October 19, 1998, decedent called for an ambulance when her neck began to swell, and on the way to the hospital she went into cardiac arrest. At the hospital defendant Dr. J. Gerard Crowley reopened the site of the endarterectomy and evacuated an "expanding hematoma," which, according to the operative report, was not present at the time of her discharge.

After the procedure was completed, decedent was taken to the "surgical intensive care unit where she remained for the next month." At some time during the stay she suffered a "right hemispheric stroke." She gradually improved and was discharged "to rehab" on December 4, 1998. While she was readmitted on October 19 for "hematoma status post carotid endarterectomy," her diagnosis at the time of discharge was:

Hematoma, status post carotid endarterectomy. Leaking carotid endarterectomy. Right neck hematoma. Respiratory failure. Subendocardial infarction. Central nervous system complications. Right parieto-occipital cerebrovascular accident. Congestive heart failure. Hypertension. Temporary tracheostomy. Continuous mechanical ventilation. Percutaneous gastrostomy. Reoperation for carotid endarterectomy. Although the complaint alleged that defendants' negligence caused decedent's death, plaintiff offered no proofs about the date or circumstances of her death. In his brief on this appeal, he advises that she died on September 25, 1999.

N.J.S.A. 2A:53A-29 provides that the failure to file an affidavit of merit "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. In Hubbard v. Reed, 168 N.J. 387 (2001), the Supreme Court held that no affidavit of merit was required in a case in which a jury could use "common knowledge" to decide whether the defendant was negligent. Id. at 395-96.

The Court reasoned that the affidavit mandate was adopted to insure that a plaintiff would be able to produce expert testimony that the defendant breached a duty of care before compelling the doctor to defend. Id. at 394-95.

But when the duty of care is obvious to a layperson, there is no need for expert testimony and hence no need for an ...


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