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Steven Mathis, Jr v. Dr. Pomerentze


December 11, 2012


The opinion of the court was delivered by: Hillman, District Judge


This matter has come before the Court on the motion of Defendant, Dr. Pomerantz,*fn1 for summary judgment on Plaintiff's medical malpractice claims against him.*fn2 For the reasons expressed below, Defendant's motion will be granted.


On or around October 3, 2008, while Plaintiff, Steven Mathis, Jr. ("Plaintiff"), was a prisoner at the Camden County Correctional Facility ("CCCF"), Plaintiff claims that he notified CCCF staff of chest pains and the loss of the use of his right hand. In response to his complaints, Plaintiff was scheduled for an appointment to see the facility's medical staff and was subsequently attended to by Defendant, Dr. Pomerantz ("Defendant"), on October 17, 2008. After examining Plaintiff, Defendant sent Plaintiff to Our Lady of Lourdes Hospital where he was diagnosed with a blood clot in his upper right arm and was prescribed a blood thinning medication. Plaintiff was eventually returned to CCCF.

According to the Plaintiff's complaint, although he had been told by a medical professional that he would be on blood thinners for the rest of his life, Defendant stopped Plaintiff's blood thinning medication on November 20, 2008. On December 5, 2008, Defendant diagnosed Plaintiff with additional blood clots in his lower right arm.

Plaintiff filed the instant action pro se*fn3 , claiming that Defendant committed medical negligence as well as was deliberately indifferent to his medical needs.*fn4 Defendant has moved for summary judgment*fn5 on Plaintiff's medical malpractice claim for failure to provide an Affidavit of Merit. Plaintiff has opposed Defendant's motion.

B.Legal Standard and Discussion

An Affidavit of Merit is a legislative tool crafted for use by the courts to halt unmeritorious and frivolous professional malpractice lawsuits at an early stage of litigation. Buck v. Henry, 25 A.3d 240, 242 (N.J. 2011); Cornblatt v. Barow, 708 A.2d 401, 413 (N.J. 1998). The text of the Affidavit of Merit statute provides, In any action for damages for personal injuries, wrongful death or property damage 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 that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

N.J.S.A. 2A:53A.

Because the Affidavit of Merit is a substantive, rather than a procedural, requirement of a professional malpractice suit, failing to submit an Affidavit of Merit after the proscribed 60, or after an extension for good cause 120, days will usually result in a dismissal with prejudice. Ferreira v. Rancocas Orthopedic Assoc's, 836 A.2d 779, 785 (N.J. 2003); Cornblatt, 708 A.2d at 415 (N.J. 1998).

In this case, Defendant filed his Answer on August 17, 2010. Thus, even assuming the one-time statutory extension had been sought and obtained, Plaintiff was required to submit his Affidavit of Merit no later than December 15, 2010. To date, Plaintiff has never filed an Affidavit of Merit. Recognizing that he has not provided an Affidavit of Merit, Plaintiff argues that one of the equitable exceptions to the requirement saves his claims from dismissal. There are three exceptions to the Affidavit requirement: common knowledge, substantial compliance and extraordinary circumstances. Plaintiff argues that he does not need to provide an Affidavit of Merit under the common knowledge exception.

Plaintiff argues that he does not need to provide an Affidavit of Merit because the negligence of Defendant falls within the realm of common knowledge, thereby making the requirement of an expert's affidavit superfluous. Plaintiff argues that a lay juror could use common knowledge to find that Defendant's failure to keep Plaintiff on a blood thinner medication was negligent.*fn6 Plaintiff's argument is unavailing.

The common knowledge doctrine applies when jurors can use their common knowledge as laypersons to determine the negligence of the defendant without the benefit of specialized testimony from an expert witness. Hubbard v. Reed, 774 A.2d 495, 501 (N.J. 2001). The doctrine is properly invoked when the negligence of the professional is "readily apparent to anyone of average intelligence and ordinary experience." Est. of Chin v. St. Barnabas Med. Ctr., 734 A.2d 778, 785-86 (N.J. 1999).

For example, in Hubbard, the court used the common knowledge doctrine where the doctor extracted the wrong tooth from his patient. In Chin, the court used the doctrine where a gas, rather than fluid, was erroneously pumped into the patient's uterus.

The common knowledge doctrine does not apply to the facts of the present case. Unlike in Hubbard and Chin, it is not readily apparent, even assuming Plaintiff's version of the facts, that defendant was negligent in this case. Absent evidence concerning the cause of Plaintiff's clots, the threat they represented, the remedies available to treat them, the propriety of blood thinners as opposed to some other forms of treatment given their efficacy and side effects, and the wisdom of first prescribing and then removing them, it is impossible for a lay juror to second guess Defendant's actions. To make those kinds of judgments would require more than common knowledge. Rather, regardless of what Plaintiff may have been told in the past, Defendant's actions here must be examined by a medical expert to determine whether he departed from the standard of care in his subsequent treatment of the Plaintiff.

The present case is distinguishable from Hubbard and Chin by the inferential leap required to conclude Defendant was negligent. Here, jurors cannot observe merely Defendant's actions and conclude, without more, that he was negligent in taking Plaintiff off his blood thinning medication. See Lazerson v. Balthaser, A-5713-07T1, 2009 WL 1617853 (N.J. Super. App. Div. 2009).

Because the alleged negligence requires an expert's testimony and does not fall within a juror's common knowledge, this doctrine does not save Plaintiff's failure to provide an Affidavit of Merit.*fn7


Because Plaintiff's failure to provide an Affidavit of Merit cannot be saved by the common knowledge, or any other, exception, Defendant's motion for summary judgment on Plaintiff's medical malpractice claim against him must be granted. An appropriate Order will be entered.


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