RICHARD GREISBERG VS. MICHAEL OMBRELLINO, MD (L-0921-19, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1082-19T3
RICHARD GREISBERG,
Plaintiff-Appellant,
v.
MICHAEL OMBRELLINO, M.D.,
Defendant-Respondent.
_____________________________
Submitted October 26, 2020 – Decided November 16, 2020
Before Judges Fasciale and Susswein.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0921-19.
Richard Greisberg, appellant pro se.
Giblin, Combs, Schwartz, Cunningham & Scarpa,
attorneys for respondent (Rachel M. Schwartz, on the
brief).
PER CURIAM
In this medical malpractice informed-consent case, plaintiff appeals an
October 30, 2019 order dismissing his complaint for failure to serve an affidavit
of merit (AOM). His main contention is that an AOM was unnecessary because
the common knowledge doctrine applies. The judge disagreed and dismissed
the complaint against defendant Michael Ombrellino, M.D., a board certified
vascular and general surgeon, concluding that—although given the opportunity
to replace a previously served non-conforming AOM with a new one—plaintiff
failed to do so. We agree that the common knowledge doctrine is inapplicable
and affirm.
In the fall of 2002, plaintiff underwent two open-heart surgeries,
performed by other surgeons, which resulted in several complications. After his
second surgery, plaintiff suffered a pulmonary embolism in his right lung, which
led to his hospitalization. On November 2, 2002, plaintiff was stable and signed
a consent form, agreeing to the implant of a filter in his inferior vena cava to
prevent future embolisms. Defendant, who performed the surgery that day, also
signed the form.
Defendant inserted the filter without complications, and the hospital
discharged plaintiff. Six years later, in 2008, plaintiff started experiencing
complications allegedly related to the filter. In 2018, plaintiff underwent a CT
scan and learned that the filter purportedly was tilting and penetrating his
inferior vena cava. Plaintiff called defendant, who did not respond.
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Plaintiff then filed his complaint, alleging defendant failed to adequately
communicate the risks associated with the filter. Specifically, he asserts that
defendant failed to disclose risks associated with the insertion of the filter, to
provide post-operative instructions to plaintiff, to inform him to register the
filter, and to notify him about any alleged recalls of the filter.1 Defendant's
answer acknowledged his area of specialty.
Defendant requested a Ferreira2 conference. Under the assumption that
an AOM was required, plaintiff then provided one authored by a general
internist; not a vascular or general surgeon. Defendant objected, arguing the
AOM did not comply with N.J.S.A. 2A:53A-27 and -41. Thereafter, the judge
held the Ferreira conference, which was followed by defendant's first motion to
dismiss for failing to comply with the statute. The judge denied defendant's
motion, giving plaintiff time to submit a different AOM. Plaintiff instead filed
a motion to waive the AOM requirement, arguing for the first time that the
1
On this record, there is no credible evidence that the filter used in the
procedure was recalled because of a product failure. Defendant maintains that
he had no knowledge that plaintiff's filter was recalled for its propensity to fail,
and to support that assertion, he provided recall notices issued after the
procedure verifying that it was not recalled for that purpose. But even assuming
it was recalled, an AOM is still required for the reasons we express in this
opinion.
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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common knowledge doctrine applied. Defendant filed his second motion to
dismiss the complaint for failure to file a proper AOM, which led to the order
under review.
On appeal, plaintiff maintains that an AOM is not required because the
common knowledge exception applies. He argues that defendant failed to
communicate "non-medical" facts before and after the surgery, including the
risks associated with the filter, instructions on registering the filter, and the
filter's subsequent recall. Plaintiff contends that the applicable "medical
standard [of] care" in this case amounts to a "common sense patient[-]doctor
relationship." Applying a de novo review to the issue of whether a cause of
action is exempt from the AOM requirement, Cowley v. Virtua Health System,
242 N.J. 1, 14 (2020), we conclude an AOM was required and affirm
substantially for the reasons given by the judge. We nevertheless add the
following remarks.
The AOM statute applies to informed consent cases. Risko v. Ciocca, 356
N.J. Super. 406, 412 n.1 (App. Div. 2003); see also Tyndall v. Zaboski, 306 N.J.
Super. 423, 426 (App. Div. 1997). The AOM statute—N.J.S.A. 2A:53A-26 to -
29—states in part:
In any action for damages for personal injuries,
wrongful death or property damage resulting from an
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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 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 . . . .
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 or executes an affidavit as set forth in
[N.J.S.A. 2A:53A-41].
[N.J.S.A. 2A:53A-27.]
"The submission of an appropriate [AOM] is considered an element of the
claim." Meehan v. Antonellis, 226 N.J. 216, 228 (2016). "To demonstrate the
threshold of merit, the [AOM] [s]tatute 'requires plaintiffs to provide an expert
opinion, given under oath, that a duty of care existed and that the defendant
breached that duty.'" Cowley, 242 N.J. at 16 (quoting Hubbard v. Reed, 168
N.J. 387, 394 (2001)). Failure to serve an appropriate AOM, like here, is
considered a failure to state a cause of action, N.J.S.A. 2A:53A-29, which
requires a dismissal of the complaint with prejudice. See Cowley, 242 N.J. at
16.
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The expert or affiant authoring the AOM must be "specialized in the same
specialty or subspecialty" as the defendant physician. Meehan, 226 N.J. at 233;
see also Buck v. Henry, 207 N.J. 377, 389-90 (2011). When the defendant is
board certified in a
specialty or subspecialty and the care and treatment
provided by the physician involved that specialty or
subspecialty, the expert or affiant must be a physician
with credentials from a hospital to treat patients for the
medical condition or perform the procedure that is the
subject of the claim, or a physician who possesses board
certification in the same specialty or subspecialty as the
physician and has devoted a majority of his or her
professional practice to that specialty or subspecialty
through active clinical practice or the instruction of
students or both.
[Meehan, 226 N.J. at 233 (citing N.J.S.A. 2A:53A-
41(a)).]
The expert or affiant attests under oath 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." N.J.S.A. 2A:53A-27.
The common knowledge doctrine is an exception to the AOM
requirement. Cowley, 242 N.J. at 17. It applies "where the carelessness of the
defendant is readily apparent to anyone of average intelligence." Ibid. (quoting
Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). The common knowledge
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exception allows the "jurors' common knowledge as lay persons [to be]
sufficient to enable them, using ordinary understanding and experience, to
determine a defendant's negligence without the benefit of the specialized
knowledge of experts." Ibid. (quoting Hubbard, 168 N.J. at 394). Under the
common knowledge exception, a plaintiff is exempt from the AOM requirement
only "where it is apparent that 'the issue of negligence is not related to technical
matters peculiarly within the knowledge of [the licensed] practitioner[].'" Ibid.(alterations in original) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961)).
The exception allows jurors to "supply the applicable standard of care
. . . to obviate the necessity for expert testimony relative thereto." Id. at 19
(alteration in original) (quoting Sanzari, 34 N.J. at 141). We must not allow "a
jury of laymen . . . to speculate as to whether the procedure followed by a
[defendant professional] conformed to the required professional standards."
Ibid. (second alteration in original) (quoting Schueler v. Strelinger, 43 N.J. 330,
345 (1964)). "Rather, the common knowledge exception to the [AOM] [s]tatute
applies only to cases where expert testimony is not needed to establish the
applicable standard of care." Ibid.We interpret this exception narrowly "to avoid noncompliance with the
statute." Id. at 18-19 (quoting Hubbard, 168 N.J. at 397). The New Jersey
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Supreme Court has determined that "[t]he test of need of expert testimony is
whether the matter to be dealt with is so esoteric that jurors of common judgment
and experience cannot form a valid judgment as to whether the conduct of the
party was reasonable." Id. at 19 (alteration in original) (quoting Butler v. Acme
Mkts., Inc., 89 N.J. 270, 283 (1982)).
The Court did not apply the common knowledge exception in Cowley. In
that case, the plaintiff alleged that her night nurse did not reinsert a nasogastric
tube that she herself removed during the night, claiming the nurse was negligent
in caring for her. Id. at 9-10. The Court stated the common knowledge
exception did not apply because "[t]o assess a deviation in the standard of care
in such a setting, one must know the procedures, protocols, and scope of duties
of the licensed professional nurse[] in such circumstances." Id. at 20. The Court
found the plaintiff must have an AOM to show the scope of the nurse's duties.
Id. at 21. In contrast, the Hubbard Court applied the exception where a dentist
extracted the wrong tooth. 168 N.J. at 394-96. Likewise, in Bender v. Walgreen
Eastern Co., 399 N.J. Super. 584, 591 (App. Div. 2008), this court applied the
exception to a pharmacist who filled a prescription with the wrong drug rather
than the one prescribed.
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We conclude the common knowledge exception is inapplicable here. Like
in Cowley, an expert is necessary to determine "the procedures, protocols , and
scope of duties" of physicians like defendant who performed this surgery.
Cowley, 242 N.J. at 20. Jurors do not have the ordinary knowledge and
experience to identify what the medical standard of care requires in this
situation. They do not know—without expert testimony—what a vascular
surgeon must say to inform a patient about associated risks before and after the
surgeon inserts a filter, such as the one inserted by defendant. Indeed, the record
is silent as to whether the signed informed consent was adequate, and if not,
what more would be required under the standard of care applicable to vascular
and general surgery. And without an expert, jurors would be unfamiliar with
the medical standards for post-operative communication about such things as a
medical device's risks, instructions (such as registration), or recalls.
For the first time on appeal, plaintiff contends—in his preliminary
statement and conclusion—that he had a "gut feeling" that the judge had a
conflict of interest. Because this argument was not raised below, we choose not
to address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We
briefly point out, however, that a "gut feeling" cannot support a claim for bias—
there must be an objective reasonable belief that bias exists. DeNike v. Cupo,
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196 N.J. 502, 517 (2008). Moreover, after reviewing the record, there is no
evidence that the judge acted partially towards defendant.
Affirmed.
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