EVELYN L. AIKEN VS. DANIEL J. PYO, M.D. (L-1705-15, MORRIS COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1715-16T1
EVELYN L. AIKEN,
Plaintiff-Appellant,
v.
DANIEL J. PYO, M.D.,
BARRY EFROS, M.D.,
BETH BLANCHARD, R.N.,
NANCY JENSEN, R.N.,
CHRISTINE CARPENTER,
R.N., JOYCE KUCEROVY,
R.N, and BEBE LI, R.N.,
Defendants-Respondents,
and
CAREY DOLGIN, M.D.,
Defendant.
____________________________
Argued December 11, 2018 – Decided September 12, 2019
Before Judges Suter and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1705-15.
Evelyn L. Aiken, appellant, argued the cause pro se.
Renee Jean Sherman argued the cause for respondent
Daniel J. Pyo, M.D. (Ruprecht Hart Ricciardulli &
Sherman, LLP, attorneys; Renee Jean Sherman and
Michael Joseph Di Leo, on the brief).
Walter F. Kawalec, III argued the cause for respondent
Barry Efros, M.D. (Marshall Dennehey Warner
Coleman & Goggin, attorneys; Walter F. Kawalec, III,
on the brief).
Priya R. Masilamani argued the cause for respondents
Beth Blanchard, R.N., Nancy Jensen, R.N., Christine
Carpenter, R.N., Joyce Kucerovy, R.N., and Bebe Li,
R.N. (Cocca & Cutinello, LLP, attorneys; Anthony
Cocca and Katelyn E. Cutinello, of counsel and on the
brief).
PER CURIAM
Plaintiff Evelyn L. Aiken appeals the November 18, 2016 order that
dismissed her medical malpractice complaint with prejudice for failure to serve
an affidavit of merit. Plaintiff's malpractice complaints,1 filed in July 2015
against three doctors and five nurses, 2 alleged that an ulcerative sore on her left
1
Although plaintiff filed separate complaints against each individual defendant,
defendant Pyo advised in his brief that the complaints were consolidated for
management purposes under one docket number. We were not provided with
this order. Hereafter, we refer to her complaints as just one complaint.
2
Defendants include: Daniel J. Pyo, M.D., a plastic surgeon; Carey Dolgin,
M.D., a board certified general surgeon; Barry Efros, M.D., a board certified
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2
ankle was misdiagnosed because of the absence of medical testing, and that it
then was negligently treated. She developed sepsis, and her leg developed
gangrene, which she attributed to defendants' malpractice. Her left leg was
amputated below the knee.
As plaintiff did not provide defendants with an affidavit of merit, we agree
her medical malpractice complaint was properly dismissed. This case does not
present facts that would exempt plaintiff from the affidavit of merit requirement
based on common knowledge. And, neither her own personally created affidavit
of merit nor her complaint satisfied the Affidavit of Merit statute, N.J.S.A.
2A:53A-26 to -29, because of her "financial interest in the outcome of the case
under review[.]" N.J.S.A. 2A:53-27. We affirm the dismissal of plaintiff's
malpractice complaint.
I
Plaintiff's complaint alleged that she was treated from May 20, 2013 to
July 8, 2013 for a "small ulcer (0.7 cm)" on her left ankle. She was rushed to
the hospital on July 13, 2013, "with sepsis which led to gangrene which
necessitated amputation of [her] left leg." It is her contention that the ulcer —
rheumatologist; Beth Blanchard, R.N.; Nancy Jensen, R.N.; Christine Carpenter,
R.N.; Joyce Kucerovy, R.N.; and Bebe Li, R.N.
A-1715-16T1
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treated as venous in origin—was in fact arterial, and that the treatment provided,
consisting of debridement and compression, was not appropriate for an arterial
ulcer. She alleged that defendants deviated from appropriate standards by
failing to use "aseptic techniques," prescribe "prophylactic antibiotics," take a
"culture of the wound," perform Doppler studies, or take "ankle brachial
pressure index" (ABI) readings and by treating her with debridement and
compression dressings without knowing her ABI values. In a letter submitted
with her complaint, she alleged that "pre-lab" tests were not performed, Drs. Pyo
and Efros did not consult with each other on her behalf, "HBO" therapy was not
done and there was not a "thorough assessment of [her] circulatory status before
beginning treatment." She claimed her rheumatologist, Dr. Efros, did not
monitor her while she was being treated for the leg ulcer. She claimed tests
taken at the hospital showed this was an arterial ulcer.
Plaintiff alleged the nurses "failed to perform the nursing process, . . . by
not swabbing [her] leg to test for infection" although she claimed she asked
whether her leg was infected on July 8, 2013. She claimed they should have
asked the doctors for antibiotics.
A-1715-16T1
4
Plaintiff submitted her own affidavit of merit against the doctors and
nurses when she filed her complaint. At the Ferreira3 conference in October
2015, the court advised plaintiff she was not allowed to file her own affidavit
because she had a "financial stake in . . . this case" and that she needed a person
who was "independent." The court explained the time frames needed to satisfy
the statute, and that if she did not comply, her case could be dismissed with
prejudice. It clarified that the person providing the affidavit against the doctors
had to practice in the same specialty. The exceptions from the affidavit of merit
requirement were described. Plaintiff was given deadlines to meet, but advised
the court she had already "contacted over sixty attorneys" and "couldn't get one."
Between June 2015 and November 2016, plaintiff claimed she contacted
140 medical experts, but could not obtain an affidavit of merit against the
doctors or nurses. When she was in court in February 2016 opposing a motion
to dismiss on statute of limitations grounds, the court reminded her of the
statutory deadline and that she still had time to comply. Despite this, no affidavit
of merit was filed.
3
See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003)
(providing for "an accelerated case management conference" to address affidavit
of merit issues). See also R. 4:5B-4.
A-1715-16T1
5
Defendants Efros, Dolgin and Pyo filed separate motions to dismiss
plaintiff's complaint with prejudice because plaintiff had not filed an affidavit
of merit. Plaintiff opposed the motions based on the common knowledge
exemption, claiming she had satisfied this because the defendant doctors failed
to conduct any diagnostic tests prior to treatment. She argued the ABI was the
"gold standard that should be done and no ulcer should be treated without it."
She claimed defendant Pyo ordered tests for an earlier leg ulcer, but had not
done so this time. She complained that Dr. Efros should have ordered tests
because of another medical condition she had. The tests he did order on June
27, "did not have anything to do with [her other medical condition] at the time."
She argued the nurses did not "swab" her leg on July 8, 2013, even though she
asked them if the wound was infected.
The trial court dismissed the case against the doctors with prejudice.4 The
court rejected application of the common knowledge exception, concluding that
the average lay person would not have:
the background, the knowledge or the information to
know whether the various tests for which [plaintiff]
advocates should have been administered, either at the
time of her hospitalization or at some time leading up
to that. Whether there was in fact a misdiagnosis. And
4
Drs. Pyo and Dolgin were dismissed on May 13, 2016. Dr. Efros was
dismissed on May 26, 2016.
A-1715-16T1
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generally speaking whether the defendant physicians
departed from any—from an applicable standard of care
in their various fields of rheumatology, surgery and
plastic surgery.
The court concluded "plaintiff must show that her complaint is meritorious by
obtaining an affidavit from an appropriate medical expert attesting to the
reasonable probability of professional negligence." Because one was not
provided within 120 days of the doctors' answers, the court dismissed plaintiff's
complaint against defendant doctors with prejudice.
A few days later, defendant nurses filed a motion to dismiss, also based
on the lack of an affidavit of merit. Plaintiff opposed the motion based on the
common knowledge exception. She also argued she qualified as an expert
herself as a registered nurse (R.N.) and licensed practical nurse (L.P.N.). In her
view, defendants did not perform a subjective or objective nursing assessment,
and no testing was done. 5 She claimed she contacted 138 "affidavit of merit
representatives" without success.
On November 18, 2016, the court dismissed defendant nurses with
prejudice. It rejected application of the common knowledge exception because
the allegations against the nurses were "technical," requiring expertise about the
5
Plaintiff also alleged that the record of the July 8, 2013 visit was altered
because it referred to "amputation" which did not occur until July 17, 2013.
A-1715-16T1
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standard that applied, whether there was a deviation from the standard of care
and whether the deviation was proximately related to damages. It observed "that
a lay person . . . would not know what appropriate nursing care would be." As
such, plaintiff was required to serve an affidavit of merit, but had failed to do
so. The court rejected plaintiff's request that it construe her complaint as an
affidavit of merit. It was not a sworn statement and it did not state there was a
reasonable probability the "care, skill or knowledge exercised" was outside
accepted professional standards. 6
On appeal, plaintiff raises the following issues:
To prove my claims of Medical Malpractice by a
preponderance of the evidence. I will discuss the errors
of omission and commission and how the three doctors
and five nurses deviated from their standard of care
while treating my left leg ulcer.
I. Trial Judge Robert J. Brennan erred when he did
not accept my request for the Common Knowledge
Exception.
II. I will prove that the substandard medical care that
I received was so overtly erroneous that, a Jury of peers,
who possesses reasonable knowledge, is quite capable
of discerning the medical negligence.
6
After the dismissal orders, plaintiff's motion to extend discovery was denied
as was her motion for transcripts and a stay pending appeal. Indigency status
was granted. Her two motions to correct the record were granted on September
27, 2017 and November 17, 2017. We denied her motion to relieve her of
transcript costs.
A-1715-16T1
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III. I will prove that doctors are required to order
tests while treating any type of wound, especially leg
ulcers. I will prove that doctors get sued for not
performing diagnostic tests.
II
"Whether plaintiff's complaint is exempt from the [affidavit of merit]
requirement based on the common knowledge doctrine is a legal issue subject
to our de novo review." Cowley v. Virtua Health Sys., 456 N.J. Super. 278, 287
(App. Div. 2018), certif. granted, 236 N.J. 363 (2019). Where a legal question
is at issue, "[a] trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A plaintiff in a professional malpractice case seeking damages must file
an affidavit of merit. 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 [sixty] days following the date of filing of
the answer to the complaint by the defendant, provide
each defendant with an affidavit of merit from 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
professional or occupational standards or treatment
practices. The court may grant no more than one
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additional period, not to exceed [sixty] days, to file the
affidavit pursuant to this section, upon a finding of
good cause.
[N.J.S.A. 2A:53A-27.]
The failure to comply with these standards "shall be deemed a failure to state a
cause of action." N.J.S.A. 2A:53A-29.
The purpose of the statute is for the plaintiffs "to make a threshold
showing that their claim is meritorious, in order that meritless lawsuits readily
could be identified at an early stage of the litigation." Paragon Contractors, Inc.
v. Peachtree Condo. Ass'n, 202 N.J. 415, 421 (2010) (quoting In re Petition of
Hall, 147 N.J. 379, 391 (1997)). The statute "is consistent with the general
requirement that expert testimony is required to establish the standard of care,
which is an essential element of a plaintiff's professional negligence claim."
Cowley, 456 N.J. Super. at 288.
Plaintiff contends the trial court erred by rejecting her argument that she
did not have to comply with the affidavit of merit requirement. She argued the
malpractice claim was based on common knowledge.
The common knowledge doctrine applies "where 'jurors' common
knowledge as lay persons is sufficient to enable them, using ordinary
understanding and experience, to determine a defendant's negligence without the
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benefit of the specialized knowledge of experts.'" Hubbard v. Reed, 168 N.J.
387, 394 (2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J.
454, 469 (1999)). "Common knowledge cases involve obvious or extreme
error." Cowley, 456 N.J. Super. at 290. For example, in Hubbard, the defendant
dentist pulled the wrong tooth. 168 N.J. at 396. In Palanque v. Lambert–
Woolley, 168 N.J. 398, 406-07 (2001), the doctor performed unnecessary
surgery because he had misread two lab reports. The doctrine also can be
applied in the case of an alleged omission. See Cowley, 456 N.J. Super. at 292
(applying the doctrine where nurses did not take action after a tube became
dislodged).
The exception is to be construed "narrowly in order to avoid non-
compliance with the [statute]." Hubbard, 168 N.J. at 397. "The basic postulate
for application of the doctrine therefore is that the issue of negligence is not
related to technical matters peculiarly within the knowledge of medical or dental
practitioners." Chin, 160 N.J. at 470 (quoting Sanzari v. Rosenfeld, 34 N.J. 128,
142 (1961)).
We agree with the trial court that this case did not present facts warranting
application of the common knowledge exception. Plaintiff's basic contention is
that the doctors needed to conduct medical tests to diagnose and treat the ulcer
A-1715-16T1
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and that every layperson would know this. That simply is not the case. Without
expert testimony, jurors could not know whether a doctor was able to diagnose
and treat a leg ulcer using their training, knowledge and experience, whether
tests needed to be done, what tests those should be and when they should be
conducted. All of the negligence plaintiff alleged against defendants was related
to technical matters that a medical doctor or a nurse may know, but not the
general layperson. The trial judge was correct not to apply the common
knowledge exception.
The statute is specific about who can provide an affidavit of merit.
In the case of an action for medical malpractice, the
person executing the affidavit shall meet the
requirements of a person who provides expert
testimony executes an affidavit set forth in . . . [N.J.S.A.
2A:53A-41]. In all the cases, the person executing the
affidavit shall be licensed in this or any other state;
have particular expertise in the general area or specialty
involved in the action, as evidenced by board
certification or by devotion of the person's practice
substantially to the general area or specialty involved
in the action for the period of at least five years. The
person shall have no financial interest in the outcome
of the case under review, but this prohibition shall not
exclude the person from being an expert witness in the
case.
[N.J.S.A. 2A:53A-27.]
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Under N.J.S.A. 2A:53A-41, the affiant who supplies the affidavit of merit in a
medical malpractice case should "'be equivalently-qualified to the defendant'
physician." Buck v. Henry, 207 N.J. 377, 389 (2011) (quoting Ryan v. Renny,
203 N.J. 37, 52 (2010)).
Plaintiff did not supply an affidavit of merit from any doctor with the same
specialties as defendant doctors. By not doing so, she did not comply with the
statute. See N.J.S.A. 2A:53A-41. Instead, plaintiff provided a document with
her complaint, under her own signature, that she labeled as an affidavit of merit.
Although plaintiff is a R.N., she did not have the expertise to provide an affidavit
of merit against the defendant doctors. And, whether her complaint was certified
or the "reasonable probability" language was included, which it was not, the
complaint also did not satisfy the statute for the same reason.
Plaintiff opposed the nurses' motion to dismiss based on the same common
knowledge exception. She claimed the nurses did not perform a nursing
assessment, properly diagnose or treat the ulcer or alert the doctor that plaintiff
questioned whether there was an infection. These allegations of negligence were
technical in nature, however, and required knowledge about whether, when,
where and how a nurse was to make an assessment about a leg ulcer. These
were not typical matters of knowledge by laypersons; they required the
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education, training or experience of a nurse. Expert testimony would be needed
at trial to address these issues. Thus, the allegations of negligence against the
nurses were not within the purview of the common knowledge exception.
Plaintiff did not serve an affidavit of merit against defendant nurses.
Although plaintiff did have her own affidavit of merit, she was advised at the
Ferreira conference that she was required to provide an affidavit from an
independent expert. We agree that even though plaintiff is a registered nurse,
she could not supply her own affidavit of merit.
The Affidavit of Merit statute provides expressly that "[t]he person shall
have no financial interest in the outcome of the case under review, but this
prohibition shall not exclude the person from being an expert witness in the
case." N.J.S.A. 2A:53A-27. We must apply this statute as plainly written. As
our Supreme Court has instructed:
We ascribe to the statutory words their ordinary
meaning and significance, and read them in context
with related provisions so as to give sense to the
legislation as a whole. It is not the function of this Court
to "rewrite a plainly-written enactment of the
Legislature or presume that the Legislature intended
something other than that expressed by way of the plain
language."
[DiProspero v. Penn, 183 N.J. 477, 492 (2005)
(citations omitted) (alteration in original) (quoting
O'Connell v. State, 171 N.J. 484, 488 (2002)).]
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Plaintiff was seeking significant monetary compensation from
defendants.7 This gave her a financial interest in the outcome of this litigation
and precluded her from supplying her own affidavit of merit. Permitting this
would undercut the purpose of the affidavit of merit requirement because any
plaintiff likely would consider their claims as being meritorious. Self-created
affidavits of merit would pose no bar to frivolous cases.
After carefully reviewing the record and the applicable legal principles,
we conclude that plaintiff's further arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
7
She sought $10,000,000 from each doctor and $5,000,000 from each nurse.
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