August 10, 2009
BRIAN D'AMICO, PLAINTIFF-APPELLANT,
JERSEY SHORE UNIVERSITY MEDICAL CENTER, DEFENDANT-RESPONDENT/THIRD-PARTY PLAINTIFF, AND NIVEEN HANNA, M.D., DEFENDANT/THIRD-PARTY PLAINTIFF,
ATUL PASRICHA, D.O., THIRD-PARTY DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5324-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 9, 2009
Before Judges Lisa and Collester.
Plaintiff Brian D'Amico appeals from the September 3, 2008, order of Judge Mark A. Sullivan dismissing his medical malpractice complaint for failure to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-29, and from the October 10, 2008 order denying his motion for reconsideration.
On May 26, 2006, plaintiff suffered a four to nine centimeter laceration of his right knee in a motorcycle accident. He was taken to the Jersey Shore University Medical Center (JSUMC) emergency room where the physician on duty cleaned the right knee and removed a foreign body from the wound.
Because of persistent pain in the right knee, plaintiff consulted Dr. Manuel Banzon on June 6, 2006. An x-ray of the knee disclosed the presence of a foreign body, either a stone or a pebble. Dr. Banzon debrided the wound but could not probe it to remove the foreign body at that time because it was infected.
Following treatment for the infection, plaintiff underwent surgery on October 20, 2006, to remove a pebble.
The affidavit of merit statute requires that the plaintiff's case must be evaluated by an appropriately licensed person who will attest, under oath, "that there exists a reasonable probability that the care, skill or knowledge" exercised by the defendant deviated from accepted standards within the profession. N.J.S.A. 2A:53A-27. The affidavit of merit must be filed within sixty days of the defendant's answer, but the time may be extended up to 120 days for good cause. Ibid. If a plaintiff fails to file the affidavit within 120 days, the complaint is dismissed with prejudice unless extraordinary circumstances prevented the filing.
The primary purpose of the affidavit of merit statute is to require plaintiffs in malpractice actions "to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily . . . [can] be identified at an early stage of litigation." In re Petition of Hall, 147 N.J. 379, 391 (1997). The statute is not concerned with the ability of a plaintiff to prove the allegation contained in the complaint, but rather whether there is objective threshold merit to his contentions. Hubbard v. Reed, 168 N.J. 387, 394 (2001).
In Hubbard, the Supreme Court held that an affidavit of merit need not be provided in common knowledge cases, defined as follows:
[B]y definition, in common knowledge cases an expert is not needed to demonstrate that a defendant breached a duty of care. The doctrine applies where "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999). Thus, a plaintiff in a common knowledge malpractice case will not need expert testimony at trial to establish the standard of care or a deviation therefrom.
[168 N.J. at 394.]
Where a medical malpractice case does not present issues that are peculiarly within the knowledge of a medical practitioner, it is treated as an ordinary negligence action in which a jury can determine without expert testimony whether reasonable care was exercised. Recognition of the common knowledge exception allows meritorious claims to go forward without the expense of hiring an expert to submit an affidavit when an expert is not needed to testify at trial.
However, the Court stated that:
The wise course of action in all malpractice cases would be for plaintiffs to provide affidavits even when they do not intend to rely on expert testimony at trial.
[Hubbard, supra, 168 N.J. at 397.]
The common knowledge doctrine is an exception to the rule that the standard of practice to which the professional failed to adhere must be established by expert testimony. Sanzari v. Rosenfeld, 34 N.J. 128, 140 (1961). That is, "it is the unusual professional malpractice case in which the common knowledge doctrine can be invoked." Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). If the injury results from the exercise of judgment, it is not common knowledge. See Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 fn. 4 (App. Div. 2002). Examples of common knowledge exceptions include Palanque v. Lambert-Woolley, 168 N.J. 398, 407 (2001) (misdiagnosis based on misreading of numbers in a lab report did not require affidavit of merit); Hubbard, supra, 168 N.J. at 387 (affidavit of merit not required when a dentist pulled the wrong tooth); Bender v. Walgreen Eastern Co. Inc., 399 N.J. Super. 584, 588-89 (App. Div. 2008) (affidavit of merit not required to proceed against a pharmacist for filling a prescription with the wrong drug).
Plaintiff asserts that an affidavit of merit is unnecessary in the instant case because "it is common knowledge that a wound should be cleaned before it is closed." However, as Judge Sullivan noted, some objects may safely be left in tissue, and it may be more harmful to remove an object than to leave it in.
It is not common knowledge of a lay person to know what standard a doctor is held in treating a particular type of wound and whether the defendant fell short of that standard. Therefore, we affirm Judge Sullivan's judgment.
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