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Deery v. Dhawlikar


May 15, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-3789-06.

Per curiam.


Argued April 28, 2008

Before Judges Lintner and Alvarez.

Plaintiff, Claire Derry, appeals the dismissal of her medical malpractice complaint against defendants, Dr. Sripad Hanmant Dhawlikar and Community Medical Center, based upon her failure to file an Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27. The motion judge rejected plaintiff's assertion that an Affidavit of Merit was not needed because defendants' alleged deviation came under the common knowledge doctrine. On appeal, plaintiff essentially raises the same contention. We concur with the motion judge's findings and affirm.

We combine the relevant facts and procedural history. Plaintiff, eighty years of age, was admitted to Community Medical Center (Community) in Toms River, after sustaining a mid-shaft facture of her right femur when her leg gave out and she fell outside her home. On July 6, 2006, she underwent a surgical procedure that included a closed reduction and intramedullary rodding of the right femur. The operative record discloses the following pertinent information:

[A]n incision was made on the right proximal aspect of the hip in vertical fashion. The incision was deepened down through the subcutaneous tissue down to the fascia. Hemostasis was secured. Self-retaining retractors were placed and the fascia was incised along the line of the skin incision. . . . [T]he appropriate rod was then assembled and impacted and placed into the femoral canal. Thereafter the proximal compression screws were placed across the proximal head of the rod using the jig for the nail. The compression screw appeared to be satisfactorily positioned considering the size of the patient and the difficulty with fracture reduction. Thereafter, several attempts also were made to centralize the guidepin in the lateral plane. However, it appeared to be going somewhat posteriorly and appeared to be well covered at the head of the femur at which point reaming followed by insertion of the screws were undertaken.

The screw appeared to be well positioned in the AP and lateral planes. At this point, it was decided to lock the rod proximally and the locking screw was opened and was passed along the proximal end of the jig and the rod, and as it went further in, the screw dislodged from the holder and was placed in the soft tissues posterior and medial to the trochanter. At this point in time, it was decided to explore the wound further and the insertion was extended proximally and distally as well so . . . further exposure could be obtained. The second lock screw placed on the rod in a satisfactory fashion, at which point the rod holder and the jig [were] removed, and incision was extended proximally and distally to explore the wound for the previous locking screw. After several attempts of the image intensification, the screw was localized and using blunt digital dissection, the screw was palpated and gently extracted.

Plaintiff's initial complaint, filed on December 5, 2006, asserted that Dhawlikar performed both the operative procedure and plaintiff's subsequent care in a negligent and careless manner. An amended complaint, filed on March 7, 2007, asserted that Community was vicariously liable and was negligent in providing faulty surgical equipment.

On March 13, 2007, defendants agreed to extend plaintiff an additional sixty days to submit an Affidavit of Merit. In July, after the extension period had expired, defendants filed motions to dismiss pursuant to N.J.S.A. 2A:53A-27. In support of the motions, Dhawlikar filed a certification, stating:

I performed surgery on plaintiff's right leg to reduce a fractured right femur. This surgery included insertion of a rod. I elected to lock the rod in place with a screw. The screw was provided to me upon a screwdriver or holder by operating room [personnel]. I entered the wound with the screwdriver and used x-ray guidance (fluoroscopy) to attempt to secure the screw. The wound was approximately six to eight inches deep and there was much soft tissue in the area. Despite being as careful as I could in attempting to proceed with inserting the screw into the rod, and while viewing the anatomy via x-ray, the screw became dislodged from the screwdriver within the surgical wound.*fn1

In response to defendants' motions, plaintiff filed a cross-motion to dismiss her complaint without prejudice and pursuant to R. 4:37-1(b). She asserted that the case was "a complex medical malpractice action" and there would be no prejudice to defendants except for incurrence of attorney fees, payment of which could be "a condition of [refiling] the complaint." Plaintiff then apparently retained new counsel who appeared at oral argument on defendant's motion, asserting that the doctor's alleged deviation was a matter of common knowledge and, therefore, an Affidavit of Merit was not needed.

Relying on Hubbard v. Reed, 168 N.J. 387, 390 (2001), the motion judge found:

This is not a case where an individual professional, be that doctor or nurse, dropped a knife or scalpel on a patient or a situation where the doctor or nurse, for example . . . left a screw in the body in an inappropriate place after it came off the device that was being used to place same. . . . [T]he screw became dislodged during a two dimensional x-ray procedure . . . in a six to eight inch deep wound and thereafter the doctor completed the procedure. There's nothing before the [c]court in terms of what this [c]court finds to be necessary and essential expert input as to whether or not this fact pattern deviates from a standard of care, whether indeed the x-ray guidance utilized was the appropriate course of action, whether it was inappropriate, and if so whether it's common . . . or typical to have such a screw become temporarily dislodged and if so, what is the standard of care for a doctor encountering such a situation to complete the operation.

Clearly had this occurred and a doctor left a dislodged screw in the body, this court would be faced with a different fact pattern which would in all likelihood be analogous to the sponge left in the stomach type of fact pattern.

On appeal, plaintiff contends (1) the circumstances in this case brings it within the common knowledge exception; (2) it was error for the judge to consider the operative record and doctor's affidavit, facts outside the complaint, without giving plaintiff an opportunity to present similar type of material; and (3) dropping the screw was a deviation from the way the procedure was supposed to be performed, thus suggesting that the doctor did not maintain sufficient control over the screw.

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 Reed, the alleged malpractice was a dentist's pulling the wrong tooth. The 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 statute was adopted to require a plaintiff to produce expert testimony that the defendant doctor breached a duty of care before compelling the doctor to defend. Id. at 394-95. However, when the duty of care and breach of that duty are obvious to a layperson, there is no need for expert testimony and, hence, no need for an Affidavit of Merit. Id. at 394-95.

The Court, however, cautioned that the common-knowledge exception should be narrowly construed "to avoid non-compliance with the statute." Id. at 397. While a plaintiff may not want to pay for the expense of an expert, the wisest course of action in all malpractice cases is to provide an Affidavit of Merit even it is later decided not to call the expert as a witness at trial. Ibid. Indeed, in most cases, "expert testimony will be required to establish both a standard of care and breach of that standard by the defendant, and a plaintiff who fails to present testimony could be subject to involuntary dismissal pursuant to Rule 4:37-2(b)." Ibid.; see also Palanque v. Lambert-Woolley, 168 N.J. 398, 407 (2001) (no affidavit of merit was required because of the admitted "mistaken reading of [a] laboratory report").

The circumstances in this case deal with the complexities involved in the operative procedures performed on plaintiff. Indeed, plaintiff's initial counsel sought a dismissal without prejudice in order to gain the necessary time to develop the complex medical malpractice issues in the case. We agree with the judge's conclusion distinguishing this case from those in which a doctor left foreign matter or a surgical device in a plaintiff's body. Dhawlikar's duty of care and whether he breached it necessarily involves questions concerning the intricacies of and the difficulties encountered during a complex surgical intervention to reduce a fracture and implant a rod. As such, an expert is needed and an Affidavit of Merit is required.

Finally, plaintiff argues, for the first time on appeal, that she should have been given more time to respond to the factual circumstances presented by defendant. Rule 4:6-2 provides that if, on a motion to dismiss for failure to state a cause of action, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." Generally, "we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). At oral argument on the motion, plaintiff never requested additional time to meet the factual circumstances respecting the operative procedure. We, therefore, decline to consider the issue here.

Nevertheless, we make the following additional observations. At the outset of oral argument on the motions, the judge summarized the facts as set forth in the operative record. Instead of questioning the accuracy of those facts, plaintiff's counsel argued:

This is how I understand the Statute; you need an affidavit that says that the practitioner or the professional deviated from accepted standard. In fact, we have a neurologist lined up. We may need an expert on damages. But the question is whether we need an expert on deviation. The issue Your Honor is talking about is once the screw fell, was the doctor's response appropriate, whether he should have left it there or whether he should have taken it out. That's a whole separate issue from whether the doctor deviated by letting the screw fall in the first place.

In essence, plaintiff accepted as accurate the facts presented, arguing that the mere fact that the screw came off the device used to attach it bespeaks negligence under the common knowledge doctrine. Under these circumstances, were we to consider the issue on appeal, we would determine that a remand to permit plaintiff to present additional material pertinent to the motion would not be warranted.


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