DIANE R. REINHARDT VS. STEVEN L. RASNER, DMD (L-0282-19, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2709-19
DIANE R. REINHARDT,
Plaintiff-Appellant,
v.
STEVEN L. RASNER, DMD,
Defendant-Respondent.
__________________________
Argued August 2, 2021 – Decided August 16, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0282-19.
Vincent J. Pancari argued the cause for appellant
(Capizola Pancari Lapham & Fralinger, attorneys;
Vincent J. Pancari, on the brief).
James E. Drake argued the cause for respondent (Drake
Law Firm, PC, attorneys; James E. Drake, on the brief).
PER CURIAM
Plaintiff Diane R. Reinhardt appeals from a February 14, 2020 order
granting a motion for reconsideration on behalf of defendant Steven L. Rasner,
D.M.D. and dismissing her complaint with prejudice for failure to provide an
affidavit of merit (AOM). Defendant sought reconsideration of a December 20,
2019 order denying his motion for summary judgment based on the motion judge
finding an AOM unnecessary for plaintiff to pursue her claims. We affirm
dismissal of plaintiff's complaint for failure to provide an AOM.
The facts are undisputed. Plaintiff went to defendant's dental office for a
tooth extraction. During the extraction, a "fisher bur 25 mm" flew off a dental
drill and became lodged in plaintiff's left maxillary sinus. Plaintiff required an
operative procedure to remove the fisher bur.
Plaintiff filed a complaint against defendant alleging negligence and
dental malpractice. Defendant served plaintiff with a demand for an AOM in
accordance with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29.
Plaintiff's counsel replied an AOM was not required under the facts of the case.
Defendant responded a motion for summary judgment would be filed if plaintiff
declined to submit an AOM. 1
1
A plaintiff aware of the AOM requirement is free to conclude an AOM is
unnecessary. However, if that conclusion is incorrect and the required time
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Plaintiff did not file an AOM, and defendant moved for summary
judgment. In a December 20, 2019 order, the motion judge held an AOM was
not required because the common knowledge doctrine applied. In denying
defendant's motion, the judge explained a jury, applying common knowledge,
could determine the duty owed to plaintiff by defendant.
Roughly two weeks later, defendant filed a motion for reconsideration.
As part of the reconsideration application, defendant submitted an expert report
from Joseph A. Battaglia, D.M.D. Dr. Battaglia opined surgical tooth
extractions presented recognized risks, explaining "complications with dental
equipment and instruments can and do occur in the absence of negligence.
Dental burs can and do break for unknown reasons." Dr. Battaglia described the
particular dental drill used for plaintiff's tooth extraction and the safety
mechanisms designed to prevent unanticipated dislodgment of the bur. He
concluded defendant's treatment of plaintiff and use of the dental drill met the
requisite standard of care in the dentistry field.
After reconsidering the matter and reviewing the defense expert report ,
the motion judge granted summary judgment to defendant based on the lack of
period for filing the AOM has lapsed, the complaint must be dismissed. Paragon
Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 423 (2010).
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an AOM. The judge explained why she was "wrong the first time" in denying
defendant's motion. She deemed her original decision erroneous because she
"inserted a cause of action in the complaint that did not exist and relied upon the
possibility of proving that cause of action" in denying defendant's original
summary judgment motion.
On reconsideration, the judge noted plaintiff pleaded a cause of action for
medical malpractice and failed to assert a cause of action for "careless
maintenance" or "any other non-medical malpractice theory of negligence."
Because plaintiff claimed defendant, "acting as a licensed dentist failed to
comply with the standard of care in his provision of medical treatment [,]" the
judge determined the statute required the filing of an AOM. See N.J.S.A.
2A:53A-27.
The judge recognized plaintiff's case was "not similar to the line of cases
where common knowledge has been applied in medical malpractice cases[,]"
such as a "sponge left in a body" or "extraction of the wrong tooth . . . ." The
judge further reasoned "the existence of a poor outcome doesn't necessarily
equate with negligence." In reviewing the defense expert report, the judge
stated:
[T]he bur[] can become dislodged for various reasons.
[The report] describes the mechanism of the drill. And
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it's somewhat complex and would not be known to an
average juror without some explanation from an expert
about how it operated. . . . [A] juror simply would not
know how [defendant] should have operated the drill.
So, if the jury can't set forth the standard of care, then
that means the common knowledge doctrine does not
apply. And, therefore, the plaintiff has to submit an
affidavit of merit.
On appeal, plaintiff contends the judge erred in granting reconsideration
and concluding she required an AOM to pursue her claim against defendant. We
disagree.
"[A] trial court's reconsideration decision will be left undisturbed unless
it represents a clear abuse of discretion." Pitney Bowes Bank, Inc. v. ABC
Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Where the order
sought to be reconsidered is interlocutory, as in this case, Rule 4:42-2 governs
the motion. Reconsideration under this rule offers a "far more liberal approach"
than Rule 4:49-2 governing reconsideration of a final order. Lawson v. Dewar,
__ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 2). Interlocutory orders
"shall be subject to revision at any time before the entry of final judgment in the
sound discretion of the court in the interest of justice." R. 4:42-2.
Here, the judge, exercising sound discretion in the interest of justice,
acknowledged she erred in denying defendant's initial motion for summary
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judgment because the decision reflected plaintiff's ability to prove a cause of
action not alleged in the complaint. The judge also considered the defense
expert report in support of the reconsideration motion and determined a jury
required expert testimony to assess the claims asserted by plaintiff. We are
satisfied the judge's decision to reconsider the December 20, 2019 order denying
defendant's motion for summary judgment was not an abuse of discretion.
We next consider the judge's decision to grant summary judgment to
defendant. We review grants of summary judgment de novo applying the same
standard as the trial court. Lee v. Brown, 232 N.J. 114, 126 (2018). Summary
judgment will be granted if, viewing the evidence in the light most favorable to
the non-moving party, "there is no genuine issue of material fact and 'the moving
party is entitled to a judgment or order as a matter of law.'" Conley v. Guerrero,
228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); R. 4:46-2(c).
Whether a complaint is exempt from the AOM requirement is a legal issue
subject to our de novo review. Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super.
104, 113 (App. Div. 2011). Case law establishes a high bar for application of
exceptions to the AOM requirement. See Ferreira v. Rancocas Orthopedic
Assocs., 178 N.J. 144, 151 (2003). Exceptions to the AOM requirement must
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be construed "narrowly in order to avoid non-compliance with the statute."
Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 397 (2001).
The AOM statute requires a plaintiff filing a complaint against a licensed
professional to have the case evaluated by an appropriately licensed person who
will attest, under oath, "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 AOM statute
"require[s] plaintiffs in malpractice cases to make a threshold showing that their
claim is meritorious . . . ." Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey,
Branzburg Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 2010) (quoting In re
Hall, 147 N.J. 379, 391 (1997)).
There are some exceptions to the AOM requirement in professional
negligence cases. See Hubbard, 168 N.J. at 393-94. One such exception is the
common knowledge doctrine. In cases applying the common knowledge
exception to the AOM requirement, the alleged negligence is unrelated to
technical matters particularly within the knowledge of practitioners in the
defendant's field. Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961).
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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
benefit of the specialized knowledge of experts.'" Hubbard, 168 N.J. at 394(quoting Estate of Chin ex rel. Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469
(1999)). In common knowledge cases, a jury is permitted to supply the
applicable standard of care "from its fund of common knowledge" and assess
"the feasibility of possible precautions which the defendant might have taken to
avoid injury to the plaintiff." Sanzari, 34 N.J. at 142.
To invoke the common knowledge exception, the "carelessness of the
defendant is readily apparent to anyone of average intelligence and ordinary
experience." Estate of Chin, 160 N.J. at 469-70 (quoting Rosenberg ex rel.
Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)). As stated by our Supreme Court
in considering the common knowledge exception to the AOM requirement,
"[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." Cowley v.
Virtua Health Sys., 242 N.J. 1, 19 (2020) (citing Butler v. Acme Mkts., Inc., 89
N.J. 270, 283 (1982)). "[T]he exception is properly invoked only when 'jurors
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are competent to assess simple negligence occurring . . . without expert
testimony to establish the standard of ordinary care.'" Id. at 19-20 (citing
Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 292 (App. Div. 1995)).
Examples of cases applying the common knowledge doctrine exception
include extracting the wrong tooth, Hubbard, 168 N.J. at 396, pumping gas
instead of fluid into a patient's uterus, Estate of Chin, 160 N.J. at 471, filling a
prescription with medication other than the drug prescribed, Bender v. Walgreen
E. Co., 399 N.J. Super. 584, 590-91 (App. Div. 2008), and using a caustic
solution rather than soothing medication post-surgery, Becker v. Eisenstodt, 60
N.J. Super. 240, 242-46 (App. Div. 1960). Cases applying the common
knowledge exception "involve obvious or extreme error." Cowley, 456 N.J.
Super. at 290 (citing Bender, 399 N.J. Super. at 590).
In determining whether a matter alleges professional negligence requiring
an AOM or ordinary negligence falling within the common knowledge
exception, the trial court must scrutinize the legal claims alleged in the pleading.
See Couri v. Gardner, 173 N.J. 328, 340-41 (2002). "If jurors, using ordinary
understanding and experience and without the assistance of an expert, can
determine whether a defendant has been negligent, the threshold of merit should
be readily apparent from a reading of the plaintiff's complaint." Hubbard, 168
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N.J. at 395. A judge must consider "whether a claim's underlying factual
allegations require proof of a deviation from a professional standard of care," or
ordinary negligence, because the former requires an AOM. Couri, 173 N.J. at
341.
An AOM is also unnecessary in ordinary negligence actions against a
licensed professional under the doctrine of res ipsa loquitor. See Palanque v.
Lambert-Woolley, 168 N.J. 398, 406 (2001). In ordinary negligence cases,
"defendant's careless acts are quite obvious, [and] a plaintiff need not present
expert testimony at trial to establish the standard of care." Ibid. (citing Estate
of Chin, 160 N.J. at 469-70). In seeking such an exception to the AOM
requirement, a plaintiff must assert "the injury to the plaintiff would not have
occurred in the absence of the defendant's negligence." Sanzari, 34 N.J. at 140.
Under the res ipsa doctrine, negligence may be inferred "where (a) the
occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was
within the defendant's exclusive control; and (c) there [was] no indication in the
circumstances that the injury was the result of plaintiff's own voluntary act or
neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein
v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). No expert testimony is
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required where defendant's conduct bespeaks negligence. Sanzari, 34 N.J. at
134.
Here, the common knowledge and ordinary negligence exceptions are
inapplicable to the facts, and plaintiff required an AOM to pursue her claims.
The common knowledge doctrine did not apply because plaintiff's
allegations in her complaint addressed defendant's deviations from accepted
standards of care. If "proof of a deviation from the professional standard of care
for [the] specific profession . . . is required, an [AOM] shall be mandatory for
that claim . . . . " Couri, 173 N.J. at 341.
Nor was this a case involving ordinary negligence because the situation
involved "technical matters peculiarly within the knowledge of medical or
dental practitioners." Estate of Chin, 160 N.J. at 470 (quoting Sanzari, 34 N.J.
at 142). The operation of a dental drill is beyond the average juror's common
knowledge. Jurors cannot readily assess what precautions, if any, defendant
could have taken to avoid the bit dislodging from the dental drill. As stated by
our Supreme Court:
In the ordinary dental . . . malpractice case, . . . the jury
is not competent to supply the standard by which to
measure the defendant's conduct. Since it has not the
technical training necessary to determine the applicable
standard of care, it cannot, without more, form a valid
judgment as to whether the defendant's conduct was
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unreasonable under the circumstances. Therefore,
ordinarily when a physician or dentist is charged with
negligence in the treatment of a patient, the standard of
practice to which he failed to adhere must be
established by expert testimony.
[Sanzari, 34 N.J. at 134-35.]
The fact that a bit dislodged from the dental drill during a tooth extraction,
without more, does not bespeak negligence. Surgical procedures present risks
to a patient even in the absence of negligence. Thus, plaintiff was required to
present expert testimony supporting the dislocation of the bit from the dental
drill would not have occurred in the absence of negligence. See Smallwood v.
Mitchell, 264 N.J. Super. 295, 298 (App. Div. 1993).
The facts of this case do not fall within the noted exceptions to the AOM
requirement. A dental drill is a complex piece of dental equipment. An injury
resulting from a bit dislodging from a dental drill is a complication that may
occur in the absence of negligence. Plaintiff failed to identify any act or
omission by defendant causing the bit to dislodge from the drill. Absent such
evidence, a jury may not rely on the common knowledge doctrine or ordinary
negligence, and the judge correctly granted summary judgment based on
plaintiff's failure to provide the required AOM.
Affirmed.
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