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United States District Court, D. New Jersey

January 10, 2005.

DEBRA BRYAN, Plaintiff,

The opinion of the court was delivered by: JOSEPH IRENAS, District Judge


Currently before this Court is Plaintiff's Motion for Reargument of the Court's Order dated October 12,*fn1 2004.*fn2 For the reasons set forth below, the Court will grant Plaintiff's motion, vacate the Order of October 12, 2004, and deny Defendants' motion to dismiss Plaintiff's state law claims.


  Plaintiff Debra Bryan ("Plaintiff" or "Bryan") filed a complaint (the "Complaint") against Prison Health Services ("PHS")*fn3 and Dr. Amira Shah ("Shah"),*fn4 in state court on December 18, 2003. The case was removed to federal court on February 13, 2004. Plaintiff amended her complaint (the "Amended Complaint") on September 28, 2004, to include Steinenger Behavioral Care Services ("SBCS") as an additional defendant.*fn5

  The Complaint alleges violations of both state and federal law.*fn6 On October 12, 2004, this Court issued an Opinion and Order in which we dismissed, with prejudice, Plaintiff's state law claims against Defendants Shah and PHS*fn7 for failure to provide an Affidavit of Merit in conformity with N.J.S.A. 2A:53A-27 (the "Statute"). Bryan v. Shah, No. 04-0629, 2004 WL 2326383 (D.N.J. Oct. 12, 2004).


  The Statute mandates that a plaintiff serve an Affidavit of Merit ("Affidavit") on the defendant(s) in all cases alleging medical malpractice under state law. Service must be made within a period of at most 120 days after the filing of the Answer. N.J.S.A. 2A:53A-27; see also Burns v. Belafsky, 166 N.J. 466, 473-77, 766 A.2d 1095, 1099-1101 (2001) (holding that while the Statute provides an initial 60 day window, one 60 day extension may be granted by a court for good cause shown and the plaintiff may apply for the extension even after the initial 60 days have run, but before the full 120 days has expired).

  If a plaintiff fails to file the Affidavit in the appropriate manner, the defendant may move to dismiss the cause of action. If the motion is granted, the state claims should be dismissed with prejudice. Tischler v. Watts, 177 N.J. 243, 246, 827 A.2d 1036, 1038 (2003) (reaffirming that non-compliance with the Statute shall result in a dismissal with prejudice); see also N.J.S.A. 2A:53A-29 (failure to comply with the Statute is deemed a failure to state a cause of action).


  Defendants PHS and Shah filed their Answer to the Complaint on February 26, 2004. Defendants PHS and Shah moved to dismiss the state law claims after the 120 days had run. In her Response, Plaintiff conceded that the Affidavit was filed late, but argued that her cause of action should not be dismissed with prejudice because (1) she had substantially complied with the Statute; and/or (2) some other equitable doctrine applied. This Court found that Plaintiff did not substantially comply with the Statute. Furthermore, this Court held that the doctrines of estoppel, laches and waiver did not apply. Accordingly, we dismissed the state law claims against PHS and Shah with prejudice.

  In reaching that decision, we did not consider the common knowledge exception, as it was not raised in the parties' papers. After receiving Plaintiff's Notice of Motion for Reargument and Defendants' Opposition, this Court, by letter dated November 4, 2004, requested full briefing on the applicability of the common knowledge exception. At this time, Plaintiff requests that this Court withdraw its dismissal of her state claims, because, she contends, her case falls under the common knowledge exception.


  Under the common knowledge exception, if the professional negligence would be obvious to a layperson, the Statute does not require an Affidavit. Risko v. Ciocca, 356 N.J. Super. 406, 409, 812 A.2d 1138, 1140 (App.Div. 2003). The New Jersey courts have concluded that the Legislature did not intend for the Statute to apply in cases where "jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent." Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth).

  While such an exception is viable, its application is limited as the negligence must be so apparent that "an expert will not be called to testify as to the standard of care." Id. at 390, 774 A.2d at 497. The New Jersey Supreme Court has held that "the threshold of merit should be readily apparent from a reading of the plaintiff's complaint." Id. at 395, 774 A.2d at 500.

  In Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001), decided the same day as Hubbard, the New Jersey Supreme Court reversed the lower courts' dismissal of the plaintiff's claim pursuant to the Statute, because it found that her claim fell within the common knowledge exception. In Palanque, the plaintiff claimed that the defendant-doctor failed to act with reasonable care when she misread the specimen identification numbers as plaintiff's test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy. Id. at 407, 774 A.2d at 507. The plaintiff contended that "both the deviation [from generally accepted medical standards] and causation are inferrable by a jury without expert testimony." Id. The court did not require the plaintiff to show "how she would actually present admissible evidence of malpractice or professional negligence. . . . [or] how she would survive a motion at the end of her case in the absence of such testimony." Id. It "decline[d] to anticipate" whether plaintiff could survive any dispositive motions following the presentation of her case. Id.

  Consistent with Hubbard and Palanque, the Third Circuit found that an Affidavit was not required under the common knowledge exception in Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003). Natale overturned the District Court's finding that "`[t]he acceptable professional standard for treating an insulin-dependent diabetic is not within a lay person's common knowledge such that PHS's negligence can be determined without the benefit of the specialized knowledge of experts." Id. at 580. Specifically, the Third Circuit found that a reasonable jury could determine without assistance of expert testimony whether the defendants acted negligently when "PHS personnel failed to call [plaintiff's] treating physician to determine how often he needed insulin to be administered" and when PHS personnel failed to even ask the plaintiff how often he needed his insulin. Id. The Third Circuit concluded that "[w]hile laypersons are unlikely to know how often insulin-dependent diabetics need insulin, common sense — the judgment imparted by human experience — would tell a layperson that medical personnel charged with caring for an insulin-dependent diabetic should determine how often the diabetic needs insulin." Id.

  The common knowledge exception was addressed recently in federal court in Jackson v. Fauver, 334 F. Supp. 2d 697 (D.N.J. 2004). The plaintiffs, fifteen former and current inmates in a New Jersey state prison, filed suit alleging medical malpractice under state law and violation of their Eighth Amendment rights. Id. at 703. Defendants moved for summary judgement on a variety of grounds, including failure to provide an Affidavit within the statutory time period.*fn8 Id. at 743. The court summarized the plaintiffs' surviving claims as follows: "CMS's alleged failure to provide his radiologist oncologist in a timely manner with critical test results that his specialist specifically requested. . . . failure by CMS personnel to timely provide him with diabetes medication and control his blood-sugar levels. . . . CMS's continuous failure to provide him prescribed HIV/AIDS medication. . . . CMS's failure to provide him prescribed blood pressure medication. . . . CMS's failure to provide him with support stockings prescribed for him, and about the length of time that it took CMS to approve the hernia surgery that his physician requested. . . . an allegedly inexcusable and excessive delay in providing him with a knee brace that was prescribed for him." Id. at 743. In each instance, the plaintiffs claimed that medical-related services or products, which had previously been prescribed or ordered, were not provided. The court concluded that "[a] reasonable jury would not need the assistance of an expert to conclude that CMS personnel were negligent when they allegedly failed both to provide these plaintiffs with medical care prescribed for them by their treating specialists and to follow the medical instructions of these specialists." Id.

  In contrast, the common knowledge exception was found not to apply in Risko, 356 N.J. Super. at 407-08, 812 A.2d at 1139. The plaintiff's wife in Risko underwent a specialized surgery, a right carotid endarterectomy. Within hours of being discharged from the hospital, she called for an ambulance and subsequently went into cardiac arrest. Id. at 408, 812 A.2d at 1140. She underwent another procedure upon return to the hospital — the doctor "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." She was sent to the surgical intensive care unit, where at some point she suffered a "right hemispheric stroke." Id. at 409, 812 A.2d at 1140. She was discharged to rehab after a month and a half. She died a year later. Id. The court, relying on the lower court's opinion, found that a layperson could not obtain a solid grasp of the cause and development of hematoma without the assistance of an expert. Id. at 1141, 812 A.2d at 410. The appellate court agreed with the lower court that this case dealt with complexities associated with this type of surgery, and not simple mistakes, such as pulling the wrong tooth or misreading a number. Id. at 1141, 812 A.2d at 410-11.


  On August 13, 2002, Bryan was lodged in the Camden County Correctional Facility. She advised the intake personnel during her admission of her medical condition and needs. (P. Cmpl., at p. 1; "Admission Data" and "Medical History and Physical Assessment," bates numbers 0000001-2.) Bryan was diagnosed at age 16 with bipolar disorder and was taking lithium*fn9 as part of her treatment regime. (D. Mot. For Summ. J.) While at the Camden County Correctional Facility, Bryan complained of various symptoms, including but not limited to nausea, vomiting, swollen ankles, aches and pains, confusion, pressure behind her eyes and ears, rapid and unexplained weight gain, and acute abdominal pain. Bryan was transferred by PHS to Our Lady of Lourdes Medical Center on September 28, 2002, where blood and laboratory tests determined that her lithium level was three times the accepted maximum safe level and that she was suffering from lithium toxicity. (P. Letter Brief, at p. 10.) Bryan also suffered heart failure, renal compromise and mental anguish. (P. Cmpl.) Bryan was released from the hospital before Christmas, 2002. (D. Mot. for Summ. J.)

  Plaintiff alleges that Defendant PHS was negligent when, through its employees, it "twice failed to obtain blood tests to monitor Lithium levels, which tests were twice ordered by the physician." (P. Letter Br., at p. 10.) Plaintiff provides exhibits showing that Lithium lab studies were ordered on August 16, 2002, and September 10, 2002, but were never conducted.


  Defendants oppose Plaintiff's instant motion, contending that the common knowledge exception does not apply.*fn10

  Defendants argue that Plaintiff "knew" that this case was not one that would fall within the narrow exception of common knowledge, because she "had advised both defendants and the Court that she intended to rely upon the testimony of as-yet unnamed liability experts at trial to support her claims." (D. Supp. Mem. of Law, at 7.) Defendants place weight on the fact that Plaintiff did not raise the issue of the common knowledge exception until after her state law claims were dismissed for failure to comply with the Statute and claim that raising the exception at this point "is grossly out of time." (Id. at 7-8.) While it is true that the New Jersey courts have explicitly advised plaintiffs to obtain an Affidavit as early in the litigation as possible, even in cases where the plaintiffs do not intend to rely on an expert, see, e.g., Hubbard v. Reed, 168 N.J. at 397, 774 A.2d at 501, this Court is not aware of any case, nor have Defendants cited any case, that has found that once a Plaintiff states she intends to provide an Affidavit she forecloses any potential for later requesting that the common knowledge exception apply. The common knowledge exception may be invoked not only after the 120 day window has run, but even when the plaintiff first indicates a desire to rely on expert testimony.

  Defendants argue that the instant case does not fall within the narrow boundaries of the common knowledge exception. We find, however, that it is well within the purview of the ordinary juror whether or not Defendants' failure to follow or complete the order for lab tests constituted negligence. We do not suggest that the average juror would know that an individual taking lithium needs such tests; we do find, however, that an average juror would know, as demonstrated in Jackson, whether or not an alleged failure to fulfill or complete prescriptions, orders and the like of the treating doctor deviates from the standard of care.*fn11

  We do not find it relevant that the individual ordering the tests was possibly a mental health specialist or psychiatrist, employed by Steinenger Center. (D. Supp. Mem. of Law., at p. 9-11.) As in Jackson, the key is that medical care was ordered or prescribed by "treating specialists" and then, due to alleged negligence, that care was not rendered or completed in a timely manner.*fn12

  Defendants further note that on November 19, 2002, over a month and a half after Plaintiff had been admitted to the hospital and had been diagnosed with lithium toxicity, Dr. Edward Hume noted that it was "[n]ot clear if Lithium toxicity was a cause if [sic] inmate's (IM's) problems or a result." (Id.)

  Defendants argue that "if Dr. Hume was unable to discern if Bryan's reaction to Lithium was either the cause or the result of her medical problems, it is unreasonable to expect a lay jury to supply the standard of care in this instance from its own experiences and determine the liability of the licensed individuals involved." (D. Supp. Mem. of Law., at p. 12.)

  Defendants' argument fails to distinguish between whether (i) a healthcare professional deviated from the generally accepted standard of care, and (ii) the harm alleged was caused by such deviation. As discussed above, we find that Bryan could show that there was a deviation from the standard of care without the assistance of expert testimony, because it is well within a layperson's knowledge whether following or disregarding a medical order amounts to a deviation.

  Defendants' argument regarding Plaintiff's ability to prove causation or damages is premature.*fn13 While the invocation of the common knowledge exception may preclude a plaintiff from offering expert testimony as to the standard of care,*fn14 it does not preclude all expert testimony.*fn15

  Indeed, the Statute is silent as to the use and admissibility of expert testimony at trial.*fn16 The Statute creates a minimum bar for pursuing a claim of professional malpractice. It sets the threshold for whether or not a case can go forward. See Hubbard, 168 N.J. at 394, 774 A.2d at 499. A plaintiff must demonstrate through an Affidavit of Merit that "a reasonable probability exists that the care, skill or knowledge [of the defendant] fell outside acceptable professional or occupation standards." N.J.S.A. 2A:53A-27. The Affidavit need not deal with damages or causation.

  Defendants also argue that Bryan's refusal of treatment and non-compliance with PHS staff somehow preclude a finding of medical negligence. Defendants find it "significant?" that Plaintiff refused blood work on September 5, 2002. (D. Supp. Mem. of Law., at p. 11.) At most, the September 5, 2002 refusal related to one of the two orders (i.e. the order dated August 16, 2002); it could not explain, however, why the September 10, 2002, order was not performed. Moreover, it is not for the Court at this early stage in the litigation to decide whether or why Plaintiff refused to allow the blood work.

  Defendants also point out that Plaintiff refused treatment: (1) in August, 2002, with regards to her diabetes, by not following a 2000 calorie diet and by refusing the administration of Glucophage (to control her glucose levels);*fn17 (2) on September 26, 2002, with regards to treatment for constipation; and (3) on November 19, 2002, by stopping her anti-psychotic medication Haldol. (D. Supp. Mem. of Law., at p. 11-12.)

  This Court does not see how the above refusals are related to the medical orders to perform lab work on August 16, 2002, and September 10, 2002. These alleged refusals relate to other medical conditions, and the November 19, 2002, notation was made well after Plaintiff was treated at the hospital for lithium toxicity.


  For the reasons set forth above, the Court will grant Plaintiff's motion for reargument, vacate the Order of October 12, 2004, and deny Defendants' motion to dismiss Plaintiff's state law claims. The Court will issue an appropriate Order.

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