October 14, 2011
CAROL RIDLER AS GUARDIAN IN FACT AND GUARDIAN AD LITEM OF ASHLEY
RIDLER AND MORGAN RIDLER, BOTH MINORS, PLAINTIFF-APPELLANT,
SCOTT M. BRUGGEWORTH, INDIVIDUALLY AND DOING BUSINESS AS SIGNATURE SMILES, WINTER ENTERPRISES, LLC AND JAMES E. MC KEAN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0194-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 27, 2010
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Plaintiff Carol Ridler, as Guardian in Fact and Guardian ad litem for her twin daughters Ashley and Morgan, commenced this civil action contending that defendants formulated and started to implement a dental treatment plan upon the twins that included unnecessary drilling and filling of healthy teeth. Plaintiff appeals from January 30, 2009 orders partially dismissing her complaint without prejudice and from July 17, 2009 orders dismissing her remaining negligence claim on summary judgment.*fn1 We affirm.
Plaintiff filed her complaint on April 4, 2007 against Dr. Scott M. Bruggeworth, individually and doing business as Signature Smiles, LLC. On April 24, 2007, before receiving any answer, plaintiff filed an amended complaint adding Winter Enterprises, LLC as a defendant. Thereafter, the Law Division granted plaintiff leave to file a second amended complaint, in which she added Dr. James E. McKean as a defendant. Dr. McKean, who was semi-retired, worked primarily as a hygienist, cleaning teeth and performing dental examinations for Signature Smiles.
On September 20, 2007, the parties entered into a consent order confirming that all issues involving the Affidavit of Merit statute had been appropriately addressed. In the stipulation, defendants expressly waived any objections to the adequacy of the affidavits, submitted by Dr. Frank Sammartino, a dentist licensed to practice dentistry in the State of Pennsylvania.
In mid-September 2008, the Bruggeworth defendants moved for partial dismissal of the second amended complaint pursuant to Rule 4:6-2(e), and defendant Dr. McKean sought the same relief. The motions sought dismissal of plaintiff's claims for breach of implied warranty, breach of contract, battery, fraud and the tort of outrage. Following oral arguments, the court granted defendants' motions and dismissed without prejudice all claims except the claims of dental negligence. In a memorandum of decision, the court explained that it dismissed plaintiff's claim for breach of implied warranty because "New Jersey courts have made it clear that they will not recognize a claim for breach of implied warranty for services provided by dentists" and "[p]laintiff's entire complaint arises out of the provision of dental services." Plaintiff's claim for breach of contract was dismissed because "there is no allegation of a special agreement by a dentist to perform medical services." The court dismissed plaintiff's claim for battery because plaintiff had alleged that she gave consent, albeit induced by deceit, and because the dentist did not "perform a substantially different procedure from that which was authorized." In dismissing plaintiff's cause of action for fraud, the court cited a factually similar unpublished Appellate Division case that "declined to recognize a fraud in inducement cause of action." Last, the court dismissed plaintiff's claim for the tort of outrage, noting that "the [c]court does not find that [emotional distress] can be proved under the current circumstances" and "[d]efendant's alleged conduct . . . does not rise to a level of behavior beyond 'all bounds of human decency,' such that it would be called outrageous."
Plaintiff moved for leave to amend her complaint, which was granted, to reflect that "Ashley Morgan [sic] was diagnosed with twelve cavities present in seven teeth; and Morgan Ridler was diagnosed as having six cavities present in five teeth." Plaintiff's third amended complaint, asserting claims of dental negligence and negligent hiring, negligent training and negligent retention and vicarious liability, was filed on February 25, 2009.
In May 2009, defendants moved for summary judgment. Plaintiff filed opposition and cross-moved for reinstatement of her battery claim. The court denied plaintiff's motion for reinstatement and dismissed her complaint with prejudice, finding that plaintiff could not sustain her claim against defendants for dental negligence because her expert "retracted his expert opinion, admitting that he could not state within a reasonable degree of dental certainty that the children had no cavities or decay on June 23, 2009." Regarding plaintiff's negligent hiring claim, the court found that "there is no evidence on the record that Signature [Smiles] or Winter knew or should have known of any unfitness, incompetence, or dangerous attributes of Dr. Bruggeworth or Dr. McKean."
Plaintiff's cross-motion to reinstate her claim of battery was denied because "[p]laintiff, in [her] opposition to the motion to dismiss [her] claim for battery, admitted that she consented to the operation but stated that she did so as a result of deceit. The [p]laintiff now completely changes her stance on the issue of consent, claiming consent was never obtained, without explaining the contradiction."
This appeal ensued, and the facts associated with plaintiff's claims are as follows.
On June 23, 2006, plaintiff's minor children, then fifteen years old, visited Signature Smiles for dental cleanings and examinations. Prior to that visit, the twins had not visited a dentist for about two years. Ashley exhibited tooth decay in one tooth for the first time eleven years earlier when she was seen by Joel M. Applebaum, D.M.D. Morgan had never been diagnosed with any cavities before her visit to Signature Smiles.
Dr. McKean performed a cleaning for Ashley, while another hygienist saw Morgan. Dr. McKean took x-rays and after he performed an examination of both girls' teeth, he prepared proposed treatment plans showing Ashley had twelve cavities in seven teeth and Morgan had six cavities in five teeth. The twins had been brought to the dentist by their father, who testified in his deposition that after he and his daughters walked outside Signature Smiles, "Ashley was happy and said she had [no cavities] and Morgan was sad that she had one [cavity]."
Three days later, Ashley and Morgan's grandmother took them back to Signature Smiles, where Dr. Bruggeworth treated two of the seven teeth diagnosed as having cavities in Ashley's mouth and three of the five cavities diagnosed in Morgan's teeth. A few days after that visit, plaintiff and the girls returned to Signature Smiles for a repair of a cracked filling.
Within a month, plaintiff took her daughters to their former dentist, Dr. Applebaum. He performed a visual exam with an explorer, and he eventually wrote a May 4, 2007 letter to John C. Grady, a Deputy Attorney General investigating the case, in which he reported:
After examining both Ashley and Morgan Ridler on July 8, 2006[,] I feel confident that the cavities found at Signature Smiles on the teeth that have not yet been restored do not exist. The only exception would be the small buccal cavity that I repaired on Morgan on tooth #30 on August 4, 2006.
Please note that diagnosing decay is somewhat subjective. What one dentist may diagnose a cavity will not be a cavity to another dentist. This being said, I examined both girls very closely and I could not find the decay found at Signature Smiles.
In a deposition taken on January 20, 2009, Dr. Appelbaum testified that "without looking at the tooth before the filling was done, it would be impossible for me to tell whether or not there was decay in the tooth."
On September 30, 2006, plaintiff's expert, Dr. Sammartino, examined Ashley and Morgan. He conducted a "visual examination, a radiographic examination . . . and a clinical examination with a sharp explorer." Dr. Sammartino "detected no dental [cavities] on the original films" taken by Signature Smiles. He opined that "[b]ased on the size and the depth of the amalgams that I examined in teeth [fourteen] and [fifteen], I would have expected that to appear radiographically on the pre-op films[.]" However, at his deposition, Dr. Sammartino acknowledged that he could not say "within a dental-legal degree of certainty that there was no decay on Morgan and Ashley's teeth when they visited Signature Smiles[.]"
On this appeal, plaintiff argues that the motions to dismiss her complaint were improperly granted because (1) the defendants had already filed their answers; (2) the motion court relied on an unpublished opinion in dismissing plaintiffs' allegation of fraud; and (3) the motion judge considered matters outside the pleadings, thereby converting the motions to motions for summary judgment under Rule 4:6-2(e) without affording plaintiff an opportunity to present a defense.
First, we address whether it was error for defendants to move for dismissal under Rule 4:6-2(e) after they filed their answers. Rule 4:6-2(e) allows a party to move to dismiss for "failure to state a claim upon which relief can be granted." If a motion is made raising a defense under Rule 4:6-2 "it shall be made before pleading if a further pleading is to be made." In Allstate New Jersey Insurance Co. v. Cherry Hill Pain & Rehabilitation Institute, 389 N.J. Super. 130, 137 (App. Div. 2006), we reaffirmed that a defense under Rule 4:6-2(e) may be raised in an answer, explaining:
The word "shall" in the rule applies to when a motion to dismiss for the enumerated defenses is to be filed "[i]f" the defendant chooses to raise them by motion. The rule gives the defendant the option to raise the enumerated defenses either by motion or in the answer. Indeed, the rule contemplates that the enumerated defenses that can be raised by motion may also be raised in an answer[.] [(second alteration added).]
Therefore, certain defenses, including failure to state a claim upon which relief can be granted, "may be raised either by answer or by motion, but, if by motion, then before the party's required responsive pleading." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:6-2 (2012).
Here, defendants filed an answer in July 2007.*fn2 In their answer, the Bruggeworth defendants listed separate defenses, the first of which is "[p]laintiffs' [sic] [c]omplaint fails to state a cause of action against defendants upon which relief can be granted." Likewise, Dr. McKean's answer, specifically reserved the right to dismiss plaintiff's complaint for failure to state a cause of action. Defenses under Rule 4:6-2(e), "whether raised by motion or answer, are required, on a party's application to be heard and determined before trial unless the court otherwise orders." Pressler & Verniero, supra, comment 1 on R. 4:6-2. Such a defense may be "made in any pleading permitted or ordered, or by motion for summary judgment or at the trial on the merits." R. 4:6-7. Accordingly, plaintiff's contention is without merit as defendants appropriately reserved a defense under Rule 4:6-2(e) in their answers.
Second, plaintiff argues the motion court improperly relied on an unpublished Appellate Division opinion as precedent. "No unpublished opinion shall constitute precedent or be binding upon any court." R. 1:36-3. "Although an unpublished opinion does not have precedential authority, it may nevertheless constitute secondary authority." Pressler & Verniero, supra, comment 2 on R. 1:36. The Supreme Court Civil Practice Committee recognized in its 2010 Report that there are "a great number of worthwhile unpublished opinions that can and should be cited to the court" and that the "citation of unpublished opinions [should not] be limited to those situations where the citation is absolutely necessary, such as those cases dealing with res judicata, the law of the case, the single controversy doctrine, or the like." 2010 Report of the Supreme Court Civil Practice Committee, Proposed Amendments to R. 1:36-3, at 20 (January 25, 2010).
Here, the court found our unpublished opinion in Wang v. Shi, No. A-2249-06 (App. Div. Nov. 29, 2007) instructive concerning fraud in "pre-procedure [inducement of consent] cases." The court used the unpublished case as "guidance" but "not precedent required to be followed." The motion court's affinity to the factually similar unpublished decision does not under these circumstances violate Rule 1:36-3. Additionally, while the court referred to Wang for the proposition that "New Jersey courts declined to create a novel fraud- or deceit-based cause of action arising from a doctor's pre-treatment misrepresentations about his qualifications," that proposition as stated in Wang is a quote from Ligouri v. Elmann, 191 N.J. 527, 548 (2007) describing the court's decision in Howard v. University of Medicine and Dentistry of New Jersey, 172 N.J. 537, 543 (2002).
Next, plaintiff argues the court considered exhibits outside of the pleadings, which converted the motions for dismissal under Rule 4:6-2(e) to motions for summary judgment under Rule 4:46. We reject this argument.
Rule 4:5-2 requires that a claim for relief "shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement." Rule 4:6-2(e) allows a party to make a motion to dismiss for failure to state a claim upon which relief can be granted. The rule further provides that if when such a motion is made, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by [Rule] 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." Review of a motion to dismiss a complaint under Rule 4:6-2(e) is "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). See also Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005) (noting our review of a motion to dismiss for failure to state a claim is governed by the same standard as the trial court).
In opposition to defendants' motion to dismiss, plaintiff submitted an undated certification with exhibits attached, namely, answers to interrogatories, an affidavit of merit and two letters from Dr. Appelbaum to plaintiff.
At oral argument on October 24, 2008, the following colloquy took place, where plaintiff's counsel asked the court to limit its consideration to the four corners of the complaint:
THE COURT: Do you - do you want me to limit the consideration to only those things within the four corners of the complaint or do you want me to consider all the exhibits? PLAINTIFF'S COUNSEL: Only within the four corners of the complaint, Your Honor.
THE COURT: I should ignore anything that's not within the four corners of the complaint?
PLAINTIFF'S COUNSEL: You should, Your Honor.
THE COURT: Then why was it submitted to me? PLAINTIFF'S COUNSEL: I apologize?
THE COURT: Why were things beyond the four corners of the complaint submitted to me?
PLAINTIFF'S COUNSEL: I made a mistake, Your Honor.
THE COURT: Okay.
Plaintiff argues that the court considered facts beyond the four corners of the complaint when the court stated "[W]e're beyond the allegations at this point, we want to - get to the facts." Plaintiff's counsel responded, referencing an item outside the pleadings:
Well the fact is that - and I don't want to go outside the four corners of the complaint[,] but there is a certificate of merit in this case submitted by Dr. Frank [Sammartino] which says that these claims actually do have merit, he's reviewed the dental records of both girls, the dental fillings, the treatment records and also performed an exam of both girls[.]
Here, the motion court prepared a thirteen-page memorandum explaining its decision to grant partial dismissal of the complaint for failure to state a claim, declaring at the outset that "[t]he court has carefully and thoroughly reviewed the moving papers and attached exhibits submitted by the parties with this motion." Our review of the memorandum does not find an explicit reference to, nor does the plaintiff point to, any items beyond the pleadings in the court's analysis. For instance, the court relied on Howard, supra, 172 N.J. at 545, in addressing plaintiff's battery claim noting the procedure was conducted with the patient's knowledge and authorization. Paragraph sixteen of plaintiff's complaint admits consent was given to Bruggeworth to drill and fill cavities consistent with the treatment plan. Therefore, absent any indication the court relied on evidence outside the pleadings, we do not consider the motion to have been converted to a motion for summary judgment.
Plaintiff further argues the court erred by dismissing her fraud claim. Specifically, plaintiff alleges that "this case involves a deliberate misrepresentation as to the extent of treatment that Ashley and Morgan required" and "involves an attempt to engage in extensive, unnecessary treatment for financial gain." The Howard Court addressed the circumstances in which a fraud claim could arise, and adopted the view that a fraud claim may only arise "'when the alleged fraud occurs separately from and subsequent to the malpractice . . . and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice.'" Id. at 553-54 (quoting Spinosa v. Weinstein, 571 N.Y.S.2d 747, 753 (App. Div. 1991)). The Court applied this same reasoning in Ligouri, supra, 191 N.J. at 548-49, declining to reverse the dismissal of a fraud claim since the "harms suffered by [decedent] cannot be separated from the insertion of the chest tube, regardless of what [the doctor] did or did not say about those events."
Similarly, we are satisfied the dismissal of plaintiff's claim for fraud and misrepresentation was appropriate since the alleged fraud did not occur separately from or subsequent to the alleged malpractice. Specifically, plaintiff alleges that the fraud or misrepresentation occurred prior to treatment when defendants prepared treatment plans showing dental cavities that allegedly did not exist. Additionally, the alleged harms suffered by the twins, i.e. the drilling and filling of nonexistent dental cavities, cannot be separated from alleged negligence committed pursuant to their dental treatment plan.
Plaintiff asserts the court erroneously granted defendants' motion for summary judgment on the dental negligence claims. When reviewing a motion for summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are 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, 523 (1995). Our review of a grant of summary judgment is de novo using the same standard as the trial court under Rule 4:46-2(c). Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Therefore, we must determine whether a genuine issue of material fact is present and, if not, evaluate whether the trial court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
As an initial basis of challenge, plaintiff argues the court improperly found Dr. Sammartino's testimony to be a "net opinion." The "net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). "The net opinion rule has been succinctly defined as a prohibition against speculative testimony." Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (citation and internal quotations omitted), certif. denied, 194 N.J. 272 (2008). An expert witness may not give a "net opinion," which is an opinion that is unsupported by factual evidence. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 49 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991). If the expert offers instead a bare conclusion with no foundation at all, it will be deemed a net opinion and be excluded. In re Yaccarino, 117 N.J. 175, 196 (1989); Buckelew, supra, 87 N.J. at 524; Rosenberg, supra, 352 N.J. Super. at 401.
In its written opinion granting summary judgment in favor of defendants, the motion court found:
Dr. Sammartino, in his expert report of February 25, 2009, concluded "within a dental-legal certainty" that neither child had any pre-existing cavities as of June 23, 2006.
Dr. Sammartino and Dr. Applebaum, however, later admitted that cavities are not always visible via x-ray, and that some require clinical diagnosis. Dr. Sammartino and Dr. Applebaum, at their depositions, also admitted that it was impossible to determine whether a restored tooth had decay prior to the restoration without having examined the party prior to the restoration. Dr. Sammartino retracted his expert opinion, admitting that he could not state within a reasonable degree of dental certainty that the children had no cavities or decay on June 23, 2006.
Dr. Sammartino is [p]laintiff's sole expert who testified as to the [d]efendants' deviation from the standard of care. As Dr. Sammartino has admitted that his conclusion of dental negligence cannot be supported by the facts, Dr. Sammartino's opinion is a net opinion and must be barred.
Indeed, Dr. Sammartino could not opine whether Dr. Bruggeworth deviated from the standard of care. In his deposition, Dr. Sammartino testified it was impossible to determine whether Ashley and Morgan had cavities that were restored by Dr. Bruggeworth:
Q. But if you are looking at a tooth that has been restored, there is no evidence of decay if the filling was done correctly, right?
Q. So it's impossible, you would agree with me, Dr. Sammartino, to conclude once a tooth has been filled whether there was decay present in that tooth prior to the restoration?
A. That's correct. . . . .
Q. You did not examine Ashley or Morgan
Ridler prior to their treatment at
Signature Smiles, did you?
A. I did not.
Q. So there's no way for you to determine the extent of decay that existed on June 23rd, 2006, correct?
A. That's correct. . . . .
Q. But you would agree with me that as you're sitting here today, you cannot say with any degree of certainty whether there was decay present prior to the restoration or not?
In a medical malpractice case, a plaintiff must prove "the applicable standard of care, that a deviation has occurred, and that the deviation proximately caused the injury[.]" Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) (internal citations omitted). Thus, the motion court appropriately found that Dr. Sammartino could not give an expert opinion on whether cavities existed because such a statement requires seeing the teeth before they are treated, which Dr. Sammartino did not. Without proof a deviation occurred, plaintiff's cause of action for malpractice must be dismissed.
Plaintiff also argues that summary judgment should not have been granted to defendants because there is a genuine issue of material fact regarding whether the defendants obtained informed consent before treating Ashley or Morgan. We disagree.
The failure to obtain informed consent is a form of negligence, seen as a breach of professional responsibility. Matthies v. Mastromonaco, 160 N.J. 26, 35, 39 (1999). A doctor is bound to disclose risks which a reasonably prudent person would consider material to a decision as to whether or not to undergo a particular treatment. Largey v. Rothman, 110 N.J. 204, 211-12 (1988). A risk is material if "a reasonable patient in the patient's position would have considered the risk material." Matthies, supra, 160 N.J. at 37. A patient cannot sustain a complaint if he would have still undergone the treatment knowing the risk. Ibid.
Doctors must give information to their patients necessary for them to evaluate the risks and alternatives of treatment. Largey, supra, 110 N.J. at 208. A plaintiff alleging lack of informed consent must prove the doctor's failure to disclose the risks of treatment was the proximate cause of the plaintiff's injuries. Id. at 215. The elements of a lack of informed consent claim are: (1) the physician failed to disclose the risk in accordance with the reasonably prudent patient standard, (2) the undisclosed risk occurred and harmed the patient, (3) a reasonable person in the patient's position would have rejected the treatment if the risk was known, and (4) the treatment was a proximate cause of the patient's injury. Howard, supra, 172 N.J. at 549.
Here, plaintiff does not allege that Dr. Bruggeworth failed to disclose a risk or that such undisclosed risk occurred and harmed the patients. Instead, plaintiff alleges that the cavities that were filled by Dr. Bruggeworth did not exist and that the procedure performed was not needed. Therefore, even viewing all the facts in the light most favorable to plaintiff, summary judgment on the issue of informed consent was properly granted because this is an inappropriate cause of action given the facts alleged. Brill, supra, 142 N.J. at 523.
Finally, plaintiff argues the court erred by not reinstating her battery claim. "Any non-consensual touching is a battery." Perna v. Pirozzi, 92 N.J. 446, 461 (1983). A claim is analyzed as battery when a physician "has not obtained any consent or has exceeded the scope of consent." Matthies, supra, 160 N.J. at 36. In an action for medical battery, a plaintiff "need not prove initially that the physician has deviated from a professional standard of care[,]" so that "proof of an unauthorized invasion of the plaintiff's person, even if harmless, entitles him to nominal damages." Perna, supra, 92 N.J. at 460. On the other hand, when the patient has consented to the procedure, a claim for battery will fail: "although a claim for battery will lie where there has been 'ghost surgery' or where no consent has been given for the procedure undertaken, if consent has been given for the procedure only a claim based on lack of informed consent will lie." Howard, supra, 172 N.J. at 552.
Plaintiff argues that, at minimum, the trial court should have allowed her to reinstate her claim for battery because there is no evidence of consent. Contrary to that argument, in both her initial complaint and her amended complaint, plaintiff stated that "plaintiff's consent was [sic] to the dental procedures performed by defendants was procured by deceit." In dismissing plaintiff's claim for battery, the court recognized plaintiff's characterization of her consent, stating that:
[p]laintiff alleges that she gave consent, but that it was not fully informed because the dentists allegedly did not tell her it was unnecessary surgery, as [p]laintiff claims. . . . Plaintiff, in [her] opposition, attempts to analogize the current situation to those considered as battery in Howard, by stating that [p]laintiffs sought surgery for teeth with cavities, not surgery for the teeth without cavities, but this does not amount to a physician performing a substantially different procedure from that which was authorized. [Howard, supra, 172 N.J.] at 550. Plaintiffs authorized the dentists to drill, and that is what the [d]efendants did.
Because plaintiff admitted that she gave consent to the dental procedures, albeit as a result of deceit, the motion court correctly found she cannot succeed on a claim for battery. Howard, supra, 172 N.J. at 552. Plaintiff's claim was properly dismissed and her motion for reconsideration was properly denied.