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Paul v. Kessler Institute of Rehabilitation

March 31, 2008

STEVEN PAUL, PLAINTIFF-APPELLANT,
v.
KESSLER INSTITUTE OF REHABILITATION, MYLAN LAM, M.D., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-3317-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Parker and R. B. Coleman.

Plaintiff Steven Paul appeals from a February 16, 2007 order dismissing plaintiff's complaint with prejudice pursuant to N.J.S.A. 2A:53A-29. The Law Division determined that plaintiff failed to state a cause of action because he did not file a timely affidavit of merit. We affirm.

Plaintiff is an obese quadriplegic male, who in July of 2004, sought medical care from the Kessler Institute of Rehabilitation (Kessler Institute). On July 7, 2004, Dr. Mylan Lam saw plaintiff as a patient. At that time, plaintiff was transferred onto and off of an examining table. During such transfers, plaintiff alleges that his right femur was fractured. On July 10, 2006, plaintiff filed a medical malpractice complaint against defendants Dr. Lam and the Kessler Institute asserting that defendants' negligence and failure to use approved methods of transfer proximately caused the injury to plaintiff.

On December 21, 2006, defendants filed a notice of motion to dismiss plaintiff's complaint for failure to serve an affidavit of merit. Plaintiff opposed the motion by arguing the common knowledge doctrine applied, thereby obviating the need for an affidavit of merit. Judge Shirley A. Tolentino heard oral arguments on this motion on February 16, 2007. She rendered an oral decision from the bench granting defendants' motion and issued a subsequent order dismissing plaintiff's complaint with prejudice. Plaintiff filed this appeal in which he raises one argument:

POINT I:

THE ORDER DIMISSING PLAINTIFF'S COMPLAINT SHOULD BE REVERSED BECAUSE THE COURT ABUSED ITS DISCRETION IN RULING THAT THE "COMMON KNOWLEDGE" DOCTRINE WAS NOT APPLICABLE.

We reject the argument and, as noted above, we affirm the ruling of the motion judge.

The legislature passed The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, to prevent frivolous professional malpractice cases while allowing meritorious cases to go forward. Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001); Cornblatt v. Barow, 153 N.J. 218, 242 (1998). When filing a complaint for damages resulting from an act of professional malpractice, the plaintiff must file an affidavit of merit within sixty days of the filing of defendant's answer. N.J.S.A. 2A:53A-27. "If the plaintiff fails to provide an affidavit or a statement in lieu thereof, . . . it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29.

In this case, the court found plaintiff did not file a timely affidavit. Therefore, the court dismissed the complaint with prejudice. See Cornblatt, supra, 153 N.J. at 247 (noting "Absent extraordinary circumstances, a failure to comply with the statute that requires a dismissal would be with prejudice.").

Plaintiff does not dispute his failure to file an affidavit of merit; instead, he asserts that no such affidavit was required due to the common knowledge doctrine. If the common knowledge doctrine is properly invoked, the plaintiff is not required to file an affidavit of merit. Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001); Hubbard v. Reed, 168 N.J. 387, 394 (2001). We are reminded, however, that

[t]he general rule in malpractice cases is that "evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians." Schueler v. Strelinger, 43 N.J. 330, 345, 204 A.2d 577 (1964). Only in the "unusual medical malpractice case" will the common knowledge doctrine be invoked. Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325, 492 A.2d 371 (1985). The doctrine of common knowledge permits exception to the general rule; when it is applied, expert testimony is not needed to establish the applicable standard of care. Schueler, supra, 43 N.J. at 345, 204 A.2d 577. ...


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