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Rhamstine v. Scott

July 30, 2010

ELIZABETH RHAMSTINE AND STEPHEN P. RHAMSTINE, PLAINTIFFS-RESPONDENTS,
v.
DR. GEORGE SCOTT, DEFENDANT-APPELLANT, AND DR. RICHARD MERCURIO, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1646-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

In this professional negligence matter, defendant George Scott appeals from a jury verdict in favor of plaintiff Elizabeth Rhamstine, as well as the Law Division's denial of his motions for a new trial and judgment notwithstanding the verdict. On appeal, defendant submits eight points, arguing the verdict was against the weight of the evidence and asserting plaintiff's expert lacked requisite qualifications and testified beyond the scope of his report. Defendant also claims various hearsay statements admitted into evidence warrant the grant of a mistrial or, alternatively, a new trial under the plain error standard. Finally, defendant contends cumulative errors require a new trial. We reject each of defendant's assertions and affirm.

These facts are taken from the trial record. Concerned about a gap developing between her front teeth, plaintiff contacted her general dentist, Dr. Richard Mercurio.*fn1 Dr. Mercurio referred her to defendant, an orthodontist. During plaintiff's first visit with defendant, she completed an entrance form and defendant conducted a visual examination with a tongue depressor. Defendant did not take x-rays or request a patient treatment history from Dr. Mercurio.

Defendant recommended using an invisible tray system involving a series of three color-coded, pre-adjusted trays to correct the gap. He took impressions of plaintiff's teeth to create molds for the dental trays. When the trays were completed, defendant instructed plaintiff would use the red tray for two weeks followed by the white one for two weeks.

Plaintiff purportedly followed this procedure for the first two trays, then returned to defendant's office for an examination and to obtain a replacement after she misplaced the third tray. Plaintiff remarked that her teeth were loose and she was experiencing difficulty eating bread, apples, and other hard foods. Defendant reassured her some loosening was normal because her "teeth [were] shifting back to the memory of where they once were."

Several weeks later, plaintiff presented with an abscess and defendant advised her to return to Dr. Mercurio for treatment. Later that day, Dr. Mercurio x-rayed plaintiff's teeth, and determined plaintiff had experienced significant bone loss and was in danger of losing her two front teeth. At trial, plaintiff testified Dr. Mercurio called her the next day because:

[H]e wanted to see how I felt, how I was doing, and I was very upset. I mean, he said, well, I realize, and I don't understand. I'm a little perplexed on how this happened. He said in reviewing your charts, I must have missed something, he said, but Dr. Scott, he made a big blunder. He never took x-rays.

Defendant objected and the trial judge instructed the jury to disregard this testimony.

In an effort to save her teeth, plaintiff consulted with Dr. Zaskin, a periodontist. Plaintiff underwent allograft surgery, which involves an insertion of cadaver bone grafts into the maxilla to spur bone growth, setting the stage for dental implants. During direct testimony, plaintiff discussed the procedure:

Q: Okay. And did you in fact submit to treatment by Dr. Zaskin?

A: Yes.

Q: What was that treatment?

A: When I went to see him and after he examined and took the x-rays, I explained to him the situation and at this point I wanted to try and save my teeth. I would have done anything if somebody would tell me this might help save your two front teeth. Dr. Zaskin said we can possibly do -- we can do an allograft surgery on you. There's no guarantee, and in fact it's a very heroic attempt, but that was my only option at the time to try to save my front teeth. So I decided to go with him on that.

Q: Okay. And can you tell us what was done for you?

A: The allograft procedure?

Q: Yes.

A: They cut open your gums. In the process, you lose a lot of your gum line, a little disfiguring and then they put cadaver bone up there and it takes a couple months to heal and set and they're trying to build the bone in your mouth. He said that's why I didn't have enough bone to get an implant for my two front teeth. My only options . . . would have been like a detachable denture that you can plop in a little glass with water.

Q: At some point after the procedure, did you become aware as to whether the procedure, the allograft surgery was effective or not?

A: It brought down the -- the bone mass on the top of my mouth was ten and a half millimeters, a severe bone loss. After Dr. Zaskin did the surgery, it brought it down to about nine and a half. It ...


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