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Rab v. Doner

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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