March 22, 2010
JONATHAN ISSHAK AND FADWA ISSHAK, HIS WIFE, PLAINTIFFS-APPELLANTS,
JOEL D. EICHLER, M.D., DEFENDANT-RESPONDENT, AND PHILLIPS EYE SPECIALISTS,*FN1 DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2734-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Sapp-Peterson.
Plaintiffs,*fn2 Jonathan and Fadwa Isshak, appeal from the dismissal, with prejudice, of their medical malpractice complaint against defendant, Dr. Joel D. Eichler. We affirm.
According to the facts viewed most favorably to plaintiff, on June 30, 2006, Dr. Eichler, a physician of optometry, examined plaintiff and advised that he needed emergency surgery to reattach a detached retina in his right eye. Dr. Eichler told plaintiff that without surgery, he would lose his eye. Plaintiff requested time to seek a second opinion, but Dr. Eichler told him that surgery could not be delayed. Plaintiff therefore agreed to have the surgical procedure, which was performed the following morning. Once the surgery was completed and the bandages were removed from plaintiff's eye, he had double vision, a condition he did not have prior to the surgery. Plaintiff also developed a severe eye infection in his right eye after the surgery, which plaintiff contends resulted from the placement of a scleral buckle*fn3 in the eye. Plaintiff required additional surgery to repair his detached retina and also to attempt to eliminate his double vision. When the scleral buckle was removed, plaintiff was left with an exposed suture. The effort to eliminate plaintiff's double vision was not successful.
Plaintiff filed a complaint alleging medical negligence against defendant on June 30, 2008. Defendant filed an answer denying the allegations on August 8, 2008. Plaintiff failed to file an affidavit of merit within 120 days after defendant filed his answer. Thereafter, defendant filed a motion to dismiss the complaint, with prejudice, for failure to file the requisite affidavit of merit pursuant to N.J.S.A. 2A:53A-27 to -29 (Act). Plaintiff opposed the motion, arguing that the underlying facts as alleged implicated the common knowledge exception to the requirement of an affidavit of merit. The court rejected this contention and concluded that the nature of the allegations required expert testimony. The present appeal followed.
On appeal, plaintiff argues, as he did before the trial court, that the common knowledge exception applies under the factual circumstances as alleged. Additionally, plaintiff urges that defendant's insistence that he undergo emergency surgery demonstrates that plaintiff was "not given informed consent on the eye surgery and that he faced the possibility of having double vision." We reject these arguments.
For all medical malpractice complaints, N.J.S.A. 2A:53A-27 requires that "the plaintiff shall, within [sixty] days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit[.]" The purpose of the affidavit is to require a plaintiff to make a threshold showing of a meritorious claim during the early stages of litigation. Fink v. Thompson, 167 N.J. 551, 559 (2001) (citing In re Petition of Hall, 147 N.J. 379, 391 (1997)). The affidavit must be prepared by "an appropriate licensed person" and must indicate "that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. Under the Act, a trial court "may grant no more than one additional period, not to exceed [sixty] days, to file the affidavit pursuant to this section, upon a finding of good cause." Ibid. A plaintiff's failure to provide an affidavit requires dismissal of a plaintiff's complaint with prejudice, absent extraordinary circumstances. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998).
In addition to the extraordinary circumstances exception to the affidavit requirement under the Act, a plaintiff may avoid dismissal for failure to provide an affidavit of merit based upon the "common knowledge" exception. Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 390 (2001). Under the common knowledge exception, the need for expert testimony is obviated because the nature of the alleged malpractice is such that "'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.'" Id. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). In other words, when the alleged negligence is apparent or obvious to persons of ordinary intelligence, expert testimony is not required. Estate of Chin, supra, 160 N.J. at 469-70 (citing Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). Examples of alleged deviations for which our courts have concluded that expert testimony was not required include misdiagnosis caused by misreading numbers in a lab report, Palanque v. Lambert-Woolley, 168 N.J. 398, 407 (2001); extraction of the wrong tooth, Hubbard, supra, 168 N.J. at 396-97; and filling a prescription with the wrong drug, Bender v. Walgreen Eastern Co. Inc., 399 N.J. Super. 584, 588-89 (App. Div. 2008).
Here, plaintiff's complaint that neither double vision nor eye infection should result from retinal surgery does not, in our view, fall within the "common knowledge" exception to the affidavit of merit statute recognized by the Supreme Court in Hubbard. Hubbard, supra, 168 N.J. at 394. It is only through expert testimony that a jury may be apprised of any risks inherent in retinal surgery. Likewise, as to plaintiff's claim based upon a lack of informed consent, plaintiff must establish, under the "prudent patient" or "materiality of risk" standard, that defendant failed to appropriately warn him of all risks that could materially affect his decision to undergo the retinal surgery, and such facts are clearly beyond the ken of the average juror and therefore require expert testimony. Febus v. Barot, 260 N.J. Super. 322, 327 (App. Div. 1992) (noting that while "no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community"). The trial court therefore properly dismissed plaintiff's claims.