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Rossi v. Brady

Superior Court of New Jersey, Appellate Division

December 26, 2013

SHARON ROSSI and RICHARD ROSSI, wife and husband, Plaintiffs-Appellants,
v.
SCOTT E. BRADY, D.M.D., WILLIAM H. BRADY, D.M.D., and RIVERTON DENTAL ARTS, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 10, 2013

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0354-08.

Stark & Stark, attorneys for appellants (Deborah S. Dunn, on the brief).

Law Offices of Philip M. Lustbader and David Lustbader, attorneys for respondents (David Lustbader and James S. Colavito, on the brief).

Before Judges Reisner, Alvarez and Carroll.

PER CURIAM

Plaintiffs Sharon Rossi and her husband Richard Rossi appeal from a June 22, 2012 order memorializing a no-cause verdict returned by a jury in their dental malpractice case against defendants, Dr. Scott E. Brady, Nicole Sidell, [1] and Riverton Dental Arts.[2] On this appeal, plaintiffs contend that: the jury should have been charged that the standard of care applicable to defendants' conduct is "that of a reasonable and prudent person under the circumstances"; the jury should have been given a "common knowledge" charge; defense counsel confused the jury about the standard of care by "misstating the standard of care"; and the verdict sheet was confusing. Finding no merit in any of those contentions, we affirm.

I

We summarize the trial record in light of the issues raised on appeal. According to plaintiffs' evidence, on February 9, 2006, a dental hygienist employed by Dr. Brady failed to provide plaintiff with goggles or other protective eyewear during a routine cleaning of her teeth. Plaintiff testified that the hygienist removed plaintiff's eyeglasses because they were getting in the way of her work, and thereafter, some of the prophylactic paste used in the cleaning process spattered into plaintiff's eyes, causing injury and a serious infection. Through their witnesses, defendants denied that the hygienist removed plaintiff's glasses, and denied that plaintiff was injured at all during the cleaning.

The parties presented conflicting expert testimony on whether the standard of care in February 2006 required that a patient be provided with protective eyewear during dental procedures. During the testimony of plaintiffs' expert, the judge declined to permit plaintiffs' counsel to question the expert about what a reasonably prudent dentist would have done, as opposed to what the standard of care was for a dentist in 2006. Distinguishing Estate of Elkerson v. North Jersey Blood Ctr., 342 N.J.Super. 219 (App. Div. 2001), the judge ruled that the issue in this case was not whether the prevailing standard of care in the dental profession was inadequate, but what that standard was and whether defendants deviated from the standard. After that ruling, the expert confirmed that "the standard of care for the treatment of dental patients by dental health care providers is to provide the patient with protective eyewear." He testified that defendants deviated from that standard.

Defendants presented two experts who testified that the standard of care did not require dentists or hygienists to give their patients protective eyewear to use during dental procedures. One of the experts explained that if a patient wears eye goggles, they can get in the dentist's way when he is performing dental procedures.

Plaintiffs' counsel requested a jury charge as to common knowledge or res ipsa loquitur, and a charge with respect to the reasonable person standard as set forth in Elkerson. Those requests were denied, and were more fully addressed on the record after the jury was sent to deliberate. Plaintiffs' ...


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