On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6109-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Plaintiff Philip Hahn appeals from an order dismissing with prejudice his dental malpractice claim and denying his motion to amend and reinstate his complaint against defendant Dr. Donna Marie DeGhetto. We affirm.
Plaintiff filed a handwritten complaint against Dr. DeGhetto in August 2008 alleging that he suffered emotional distress in September 2006 when defendant "swung her arm in front of the plaintiff after performing a tooth extraction in an effort to cause emotional distress." Defendant filed an answer, which included a demand for an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Defendant then propounded interrogatories upon plaintiff and requested medical releases.
Plaintiff's responses to the interrogatories included the following: "The doctor removed the plaintiff's tooth and swung her arm in front of him (similarly to the way a large group of people had been doing prior to the incident)." Adding that the incident lasted "for a few seconds," plaintiff stated: "I believe that the arm swinging was part of an at least decade long plan to harass me throughout New Jersey." Plaintiff had not received any treatment for his emotional distress, and he was unemployed at the time of the incident and did not lose any income as a result. He had no documents to produce in discovery, no other person had relevant knowledge about his cause of action, and he did not intend to call any expert witness to testify on his behalf. Plaintiff described his cause of action as the tort of intentional infliction of emotional distress.
Defendant moved to dismiss the complaint because of plaintiff's failure to produce an affidavit of merit. After hearing argument in May 2009, the court denied without prejudice defendant's motion to dismiss and granted plaintiff leave to file an amended complaint. Plaintiff's amended complaint repeated the same claim of emotional distress, and it also alleged that "plaintiff's tooth was needlessly removed." In a new claim of dental malpractice for failure of the doctor to obtain plaintiff's informed consent to the procedure, the amended complaint alleged that defendant had extracted the tooth "without informing [plaintiff] of the alternative option of not extracting the tooth."
By order dated September 1, 2009, and marked "unopposed," the trial court dismissed without prejudice under Rule 4:23-5(a)(1) plaintiff's claim for emotional distress on the ground that he had failed to provide responsive answers to certain relevant interrogatories. In October 2009, plaintiff supplemented his answers to interrogatories, stating again that he had been "followed around for ten years by people waving their arm in front of me" but that he had not received any treatment for the emotional injuries.
Defendant-doctor renewed her motion to dismiss the lawsuit for failure to serve an affidavit of merit, and plaintiff filed a cross-motion to reinstate his complaint and to amend it again, adding a third claim for harassment. The court heard argument and granted defendant's motion to dismiss with prejudice, also denying plaintiff's motion. Plaintiff filed a timely notice of appeal.*fn1
On appeal, plaintiff contends he does not need to serve an affidavit of merit because his claim is not that defendant negligently extracted his tooth. He claims an expert witness is not required to prove that the doctor was required to inform him of the option of not extracting his fractured tooth. As to his claims for infliction of emotional distress and harassment, plaintiff claims he expects Dr. DeGhetto to testify at trial that she waved her arm in front of him for the purpose of causing him emotional distress or otherwise harassing him.
We reject plaintiff's arguments for the reasons expressed in open court by the trial judge on December 18, 2009. We add the following in direct response to some of plaintiff's arguments on appeal.
The affidavit of merit statute, N.J.S.A. 2A:53A-27, provides in relevant part:
In any action for damages for personal injuries . . . resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work ...