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Rab v. Doner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 19, 2010

JENO RAB, PLAINTIFF-RESPONDENT,
v.
JOEL M. DONER, BARRY WOLINSKI AND LAWRENCE GORZELNIK, DEFENDANTS, AND MICHAEL LEPERA, DEFENDANT-APPELLANT.
JENO RAB, PLAINTIFF-APPELLANT,
v.
JOEL M. DONER AND MICHAEL LEPERA, DEFENDANTS-RESPONDENTS, AND BARRY WOLINSKI AND LAWRENCE GORZELNIK, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9931-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 7, 2010

Before Judges Yannotti and Chambers.

We have granted leave to appeal in this dental malpractice case due to conflicting rulings by two different trial judges. One trial judge granted summary judgment to one defendant dentist, finding plaintiff's expert reports inadequate to sustain the cause of action, while another trial judge denied summary judgment to the other defendant dentist on the basis that the expert reports were sufficient. After a careful review of the record, we conclude that one of the expert reports is sufficient to allow plaintiff's case to survive a motion for summary judgment. We reverse in part and affirm in part.

I.

When reviewing a trial court decision on a motion for summary judgment, we apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is granted when no genuine issue of material fact is present and the movant "is entitled to a judgment or order as a matter of law." R. 4:46-2(c). When analyzing whether a genuine issue of material fact exists, we look at the competent evidence "in the light most favorable to the non-moving party" and determine whether it is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In light of this standard, we review the competent evidence in the record from the perspective most favorable to plaintiff and discern the following facts. On March 21, 2006, plaintiff Jeno Rab had a wisdom tooth surgically extracted by defendant Joel M. Doner, D.D.S. Plaintiff returned to Dr. Doner due to complaints of pain, swelling, bleeding, and numbness of his lower right lip. Over a period of two months, he made a number of visits to Dr. Doner and to another doctor who was covering for Dr. Doner. During this time, plaintiff was placed on antibiotics. Dr. Doner eventually referred him for an MRI.

At this point, plaintiff sought care from another oral surgeon who referred him to defendant Dr. Michael LePera, D.M.D., M.D. Dr. LePera first saw plaintiff on May 19, 2006. At that time, he took x-rays and ordered a CT scan. The next day, after the CT scan results were received, he diagnosed a mandible fracture, which he believed began in the post-operative period, and osteomyelitis, which is an infection of the bone. That day, Dr. LePera performed an open debridement with irrigation and a closed reduction with elastic immobilization mandibular fracture and took a biopsy and wound culture. He prescribed Cipro, an antibiotic. Dr. LePera continued to treat plaintiff's condition for the next two weeks.

On June 2, 2006, after contact from an infectious disease specialist regarding plaintiff's infection, Dr. LePera changed plaintiff's antibiotic from Cipro to Augmentin. Plaintiff was placed on intravenous antibiotics for three weeks. Another oral surgeon completed plaintiff's care. Plaintiff has been left with residual pain and numbness in his lip, including a sensation that feels like liquid is running down his chin.

Plaintiff thereafter filed this dental malpractice case against Drs. Doner and LePera.*fn1 In order to comply with N.J.S.A. 2A:53A-27, plaintiff submitted two affidavits of merit, one from Arthur K. Adamo, D.D.S., F.A.C.D., an oral surgeon, and one from Angelo T. Scotti, M.D., a specialist in internal medicine and infectious diseases. The affidavits of both doctors state the conclusion that based on a reasonable probability, "the care, skill, or knowledge exercised or exhibited" by defendants in their treatment of plaintiff "fell outside acceptable professional or occupational standards or treatment practices." Neither affidavit identifies the deviation from the standard of care. In the course of discovery, plaintiff submitted expert reports from these two experts.

On June 19, 2009, Dr. Doner moved for summary judgment. Included in his opposition to the motion, plaintiff submitted a supplemental report from Dr. Adamo. The trial court granted Dr. Doner's motion for summary judgment, finding both of plaintiff's expert reports inadequate. The trial court also stated that the supplemental report could not be considered because it was submitted after the discovery end date and without a proper certification justifying the delay. R. 4:17-7. Further, even if the supplemental report were considered, it would not affect the outcome because Dr. Adamo's expert report would still be insufficient. Finding that plaintiff had failed to establish the accepted standard of care, the trial court granted summary judgment to Dr. Doner.

Plaintiff moved for reconsideration and clarified that he was claiming that the defendant doctors had deviated from accepted standards of care by failing to properly diagnose and treat his infection. The trial court denied the motion for reconsideration, observing that Dr. Adamo had failed to describe or explain in his report any deviation by Dr. Doner from the accepted standards of care. The trial court also stated that Dr. Scotti failed to set forth the standard of care applicable to an oral surgeon and that the standard of care relevant to a medical doctor, such as Dr. Scotti, did not apply to an oral surgeon.

In the meantime, Dr. LePera had moved for summary judgment also on the basis that plaintiff's expert reports were insufficient. This motion was heard by a different judge who denied the motion. This judge found that Dr. Scotti was qualified to express an opinion in this case even though he was not a dental expert, because in the area of treating infections in the mouth, the fields of dentistry and infectious diseases overlapped. The judge evaluated Dr. Adamo's report under the standard applicable to affidavits of merit and found that it satisfied the statute governing affidavits of merit, N.J.S.A. 2A:53A-26 to -29. The judge recognized that the report failed to set forth a deviation from the accepted standard of care to a reasonable degree of medical probability, but determined that the failure to do so was not fatal to plaintiff's case. Finally, applying law relevant to the affidavits of merit, this judge determined that Dr. LePera was barred by the doctrines of laches and equitable estoppel from questioning the sufficiency of the reports.

Plaintiff sought leave to appeal from the order of August 14, 2009, granting Dr. Doner's motion for summary judgment, and from the order of October 9, 2009, denying his motion for reconsideration. Dr. LePera sought leave to appeal from the order of December 4, 2009, denying his motion for summary judgment. Due to the conflict in the lower court's rulings in the same case, we granted both parties leave to appeal.

With respect to the order dismissing the claim against Dr. Doner, plaintiff argues that the trial judge erred in concluding that Dr. Adamo had expressed a net opinion; in rejecting Dr. Adamo's supplemental report; and in failing to apply the doctrines of equitable estoppel and laches to preclude Dr. Doner from challenging the sufficiency of plaintiff's expert reports. Dr. LePera argues that he should have been granted summary judgment because Dr. Scotti, as an infectious disease specialist, is not qualified to express an opinion regarding the applicable standard of care in the field of oral surgery and that Dr. Adamo failed to set forth a deviation from an accepted standard of care by Dr. LePera. He also contends that the trial court's application of the law governing affidavits of merit was irrelevant to the motion for summary judgment.

II.

We will first address plaintiff's contention that principles of laches and equitable estoppel bar the defense from challenging his expert reports. This argument rests on two cases, Knorr v. Smeal, 178 N.J. 169 (2003) (overturning dismissal for failure to serve a timely affidavit of merit required by N.J.S.A. 2A:53A-27, where defendant delayed making the motion for fourteen months while expensive litigation continued and where plaintiff's counsel had the affidavit of merit a few weeks after the deadline but had inadvertently failed to serve it), and Hernandez v. Stella, 359 N.J. Super. 415 (App. Div. 2003) (reversing the dismissal of a personal injury action for failure to submit a physician's certification within the timeframe required by N.J.S.A. 39:6A-8(a) where the defense waited until after arbitration to move for dismissal).

Both of these cases are inapplicable to our analysis here because they involve statutes requiring a plaintiff to serve an affidavit or certification from an expert shortly after the commencement of the lawsuit in order to meet the threshold of proceeding with the case. They do not involve the determination of whether plaintiff has made out a prima facie case sufficient to survive a motion for summary judgment.

The affidavit of merit statute requires, as a threshold to pursuing professional malpractice litigation, that plaintiff provide, within the statutory time frame, an affidavit from an appropriate expert "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. Putting aside the question of whether Dr. Scotti has the appropriate expertise, Drs. Adamo's and Scotti's affidavits of merit contain almost verbatim the statutory language and clearly meet the statutory requirement.

However, the fact that the affidavits meet the affidavit of merit statute requirements does not mean that plaintiff is insulated from a motion for summary judgment. As the Court stated in Knorr v. Smeal, supra, "[t]he statute's essential goal is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial." 178 N.J. at 176 (emphasis added). This language contemplates, then, that at the conclusion of discovery, the case may be reevaluated to determine if it warrants submission to a jury. In a summary judgment motion, the court must evaluate the proofs and determine whether a genuine issue of material fact is present and whether the movant is entitled to judgment as a matter of law. R. 4:46-2(c). Thus, the doctrines of laches and equitable estoppel do not bar the defense from challenging the sufficiency of plaintiff's expert reports on motions for summary judgment.

III.

A medical malpractice case is a negligence case against a medical professional. The claim "is based on the improper performance of a professional service that deviated from the acceptable standard of care." Zuidema v. Pedicano, 373 N.J. Super. 135, 145 (App. Div. 2004), certif. denied, 183 N.J. 215 (2005). Generally, a plaintiff alleging medical malpractice must prove with expert testimony "(1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations omitted). With these requirements in mind, we review plaintiff's expert reports.

We first address Dr. Adamo's report of April 11, 2008. There is no dispute that Dr. Adamo, an oral surgeon, is qualified to express an opinion in this case. In his report, he recounts the medical treatment plaintiff received after the tooth was removed, sets forth his clinical findings based on his examination of plaintiff, and then states his opinion as follows:

Based on the history given and the clinical examination it does appear that the patient sustained a fractured mandible with subsequent osteomyelitis and traumatic neuropathy of the right inferior alveolar nerve. In my opinion this was a complication of the surgery performed to remove his lower right third molar tooth. The osteomyelitis developed because the fracture was untreated for 2 months. At this time, 2 years post operatively, the residual paresthesia is probably permanent. He could seek consultation with Dr. Vincent Ziccardi at UMDNJ for possible neurosurgical repair.

Notably, Dr. Adamo's report does not set forth the applicable standard of care nor does it discuss any deviation from that standard of care by Drs. Doner or LePera.

Dr. Adamo's supplemental report, also dated April 11, 2008, was served while Dr. Doner's motion for summary judgment was pending. We need not address the timeliness of Dr. Adamo's supplemental report because, even if it were considered timely and Dr. Adamo's statements were accepted as true, they are not sufficient to establish that Drs. Doner or LePera deviated from the accepted standard of care in the treatment of plaintiff.

In his supplemental report, Dr. Adamo clarifies that Dr. Doner performed the surgery. He then adds the following sentence: "[m]y further opinion is that the surgery performed by Dr. Doner deviated from acceptable standards of dental and medical care." His report attempts to implicate Dr. Doner only; it does not implicate Dr. LePera. Further, while Dr. Adamo contends in the supplemental report that a deviation occurred in the surgery, he does not indicate what that deviation was. Indeed, plaintiff's theory is not that Dr. Doner was negligent in performing the surgery, but rather that he was negligent in failing to properly diagnose and treat the subsequent infection. Thus, Dr. Adamo's supplemental report does not support plaintiff's contention that Drs. Doner and LePera deviated from accepted standards of care in their diagnosis and treatment of plaintiff's infection.

We now turn to Dr. Scotti's expert report of April 18, 2008. After setting forth plaintiff's treatment history, Dr. Scotti writes:

I will not comment on the dental aspect of the case; however, from the infectious disease point of view there were deviations on the parts of Dr. Doner and Dr. Lepera. Dr. Doner deviated by not considering post extraction infection when Mr. Rab experienced prolonged pain, swelling, tenderness and neurological symptoms after the extraction. The dentist should have ordered blood tests including a CBC and inflammatory markers (ESR, CRP) as well as X-rays and a CT of the mandible. An MRI, which was ordered, was appropriate for soft tissue abnormalities, but is not sufficient to rule out bony abnormalities.

Dr. Lepera deviated by prescribing inadequate antibiotic coverage. Cipro is not consistently effective against oral bacteria, especially anaerobes. High doses of some form of Penicillin or Clindamycin would have been much more appropriate.

The deviations by Dr. Doner resulted in a missed fracture, spread of soft tissue infection into bone and progression of osteomyelitis, all without prompt diagnosis and appropriate therapy. Dr. Lepera's deviation caused further delay in appropriate treatment.

Thus, Dr. Scotti does express an opinion that Drs. Doner and LePera deviated from accepted standards of care and sets forth those deviations. Looking at the evidence from the perspective most favorable to plaintiff, as we must on a motion for summary judgment, this statement is sufficient to allow plaintiff's claim to survive a summary judgment motion.

Drs. Doner and LePera contend that Dr. Scotti, a medical doctor and infectious disease specialist, is not competent to express an opinion on the standard of care governing dentists and oral surgeons. Evidence Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. [N.J.R.E. 702.]

Dr. Scotti makes clear in his report that he is not commenting on the dental work in the case, but rather he is expressing an opinion on the diagnosis and treatment of the infection. Generally, the expert in a medical malpractice case must be licensed in the field in which he is expressing an expert opinion. Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961).

The reason for this requirement is that when the subject matter testified to falls distinctly within the province of a particular profession, the license to practice imports the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion. [Ibid.]

However, a medical expert may be competent to express an opinion in a case against a professional in another field where the two fields overlap. Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 331 (1985) (holding that a medical doctor can have the requisite training and knowledge to express an opinion that a chiropractor deviated from the standard of care in reading an x-ray because "it is clear from the statutory and regulatory scheme that there is an overlap between the medical and chiropractic professions with respect to both the use of x-rays and the diagnosis of conditions that may require medical attention").

In Sanzari v. Rosenfeld, supra, the Court considered whether a medical doctor could testify to the standard of care applicable to a dentist in the administration of anesthesia. 34 N.J. at 135-38. The Court stated that "where the medical and dental professions overlap, a physician familiar with the situation in issue is competent to testify to the accepted practice among dentists." Id. at 136. In that case, the expert, a licensed physician, had worked as a dental anesthesiologist although he had never gone to dental school, and the Court concluded that he was competent to express an opinion on the standard of care required of a dentist when using anesthesia. Id. at 137-38.

Thus, under this case law, although Dr. Scotti is an infectious disease specialist and not a dentist or an oral surgeon, he may express an opinion on the standard of care Drs. Doner and LePera owed plaintiff with respect to diagnosis and treatment of the infection provided plaintiff can lay a foundation that Dr. Scotti, based on his training and experience, is sufficiently familiar with the issue to do so. Further, if Dr. Scotti intends to opine that Dr. Doner's deviation from the accepted standard of care included a "missed fracture," then he will have to establish that this criticism falls within his field of expertise rather than the "dental aspect of the case."

Dr. LePera argues that a provision in the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-41, requires that the expert witness giving testimony on the appropriate standard of care must have the same specialty or subspecialty as the party against whom the testimony is offered. While this statutory limitation applies to medical specialists and subspecialists, it does not apply to dentists. The statute provides, as a general rule, that in a medical malpractice case, an expert witness testifying to the appropriate standard of care must be "licensed as a physician or other health care professional in the United States." N.J.S.A. 2A:53A-41. An expert witness testifying against a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, must have the same specialty or subspecialty in accordance with the provisions of the act and must meet other requirements in the act. N.J.S.A. 2A:53A-41(a). Dentistry is not recognized by either organization.*fn2 We do not address, since the issue has not been directly presented to us, whether plaintiff's claim is governed by N.J.S.A. 2A:53A-41(b) dealing with general practitioners.

In summary, Dr. Adamo's reports do not support plaintiff's contention that Drs. Doner and LePera deviated from accepted standards of care in their diagnosis and treatment of plaintiff's infection. We express no opinion on whether he may testify on other aspects of the case. However, Dr. Scotti's report does set forth deviations by Drs. Doner and LePera from the accepted standard of care in the diagnosis and treatment of the infection. Of course, plaintiff must establish that Dr. Scotti is qualified to render this opinion before presenting it at trial, but on a motion for summary judgment, where we must give plaintiff the benefit of all the favorable inferences that can be drawn from the evidence, we assume he will be able to do so. Accordingly, the order of August 14, 2009, granting summary judgment to Dr. Doner is reversed and the order of December 4, 2009, denying Dr. LePera's motion for summary judgment is affirmed.

Reversed in part; affirmed in part.


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