Opinion
DOCKET NO. A-0556-11T2
02-08-2013
WENDY JEAN-GILLES, Plaintiff-Appellant, v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AT RAHWAY, Defendant-Respondent.
Andrzej P. Szymanski argued the cause for appellant. Thomas J. Pyle, Jr. argued the cause for respondent (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Mr. Pyle, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3723-10.
Andrzej P. Szymanski argued the cause for appellant.
Thomas J. Pyle, Jr. argued the cause for respondent (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Mr. Pyle, of counsel and on the brief). PER CURIAM
Plaintiff Wendy Jean-Gilles appeals from an August 19, 2011 final order dismissing her complaint with prejudice for failure to comply with the "Affidavit of Merit Statute," N.J.S.A. 2A:53A-27. Because we agree with the trial judge that the common knowledge exception was not applicable, and an affidavit of merit was required in this case, we affirm.
The facts are scant but undisputed. Plaintiff, accompanied by her husband, went to the emergency room at defendant Robert Wood Johnson University Hospital at Rahway (the hospital) suffering from severe stomach pains. Upon arrival plaintiff was incoherent and unable to control her physical movements. Plaintiff and her husband were ushered into a small room to wait privately while the hospital made a bed available for her. While they remained alone in the room for five minutes, plaintiff suffered a broken arm when her husband attempted to restrain her. Plaintiff had been treated previously in the emergency room at defendant hospital for the same ailment.
Plaintiff filed a complaint against the hospital alleging that it was negligent in leaving plaintiff unattended with only her husband, and by failing to properly restrain her through the use "of hospital attendants, restraints, stretchers and/or chemical sedatives," as well as for negligent hiring of unknown security personnel. In an accompanying case information statement, plaintiff characterized her complaint as one for personal injury.
Defendant filed an answer, which included a demand that plaintiff file an affidavit of merit. Defendant simultaneously applied to the court to change the case track assignment pursuant to Rule 4:5A-2, alleging that the case sounded in professional negligence and that plaintiff was required to file an affidavit of merit. Defendant served plaintiff with a copy of its application with its answer. Defendant's counsel thereafter wrote to his adversary advising that the civil division had changed the case track assignment and again reminded of the need to timely file an affidavit of merit.
When no affidavit was filed within the outer 120-day limit allowed by N.J.S.A. 2A:53A-27, defendant filed a motion to dismiss the complaint. Plaintiff filed opposition claiming that no affidavit was required because she did not intend to call an expert, but to instead rely on common knowledge or res ipsa loquitur to prove defendant's negligence. After hearing argument, Judge Lisa Chrystal delivered an opinion from the bench that "the determination of whether or not a person with stomach pains needs to be restrained in order to prevent the person from breaking an arm, requires medical expertise beyond the ken of an ordinary juror." Finding that no exception applied, she dismissed the complaint with prejudice for failure to file the affidavit.
On appeal, plaintiff maintains that the trial judge erred in concluding that an affidavit of merit was required, because "a jury can determine on their own" whether the "hospital security apparatus should have had security personnel restrain the plaintiff instead of leaving her in the hands of a lay person for a very long five minutes." Defendant counters, as it did in the trial court, that the use of restraints on a patient in a hospital is a medical decision that plaintiff may not challenge without presenting an affidavit of merit.
The affidavit of merit statute requires a plaintiff filing suit against a licensed professional to have the case evaluated by an appropriately licensed person who will then attest 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 purpose of the statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 395 (2001). The statute is not concerned with whether a plaintiff can actually prove the allegations of the complaint, but only whether a threshold showing of merit can objectively be made. Id. at 394.
The Supreme Court has recognized an exception to the affidavit requirement in professional negligence cases in which it is not necessary for plaintiff to present an expert to establish the standard of care or a deviation from that standard. Id. at 390. In common knowledge cases, the alleged negligence is unrelated to technical matters peculiarly within the knowledge of practitioners within the defendant's field. Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). Common knowledge cases are thus treated as ordinary negligence actions in which the jury can 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." Id. at 141-42. The common knowledge exception allows meritorious claims to go forward without forcing a plaintiff to incur the expense of hiring an expert to submit an affidavit when no expert is needed at trial. Hubbard, supra, 168 N.J. at 395.
The Supreme Court has cautioned, however, that the exception must be construed "narrowly in order to avoid non-compliance with the statute." Id. at 397. Accordingly, the doctrine has been applied only
in circumstances involving obvious errors: a dentist's extraction of the wrong tooth, Hubbard, supra, 168 N.J. at 396; the erroneous hookup of equipment that resulted in the pumping of gas, rather than the fluid that ought to have been used, into the patient's uterus, [Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 460, 471 (1999)]; and the use of caustic solution, rather than the soothing medication intended, to treat a patient's nose after surgery, Becker v. Eisenstodt, 60 N.J. Super. 240, 242-46 (App. Div. 1960).
[Bender v. Walgreen E. Co., 399 N.J. Super. 584, 590 (App. Div. 2008) (holding common knowledge exception applies to pharmacist filling prescription with a drug other than the one prescribed).]
We agree with Judge Chrystal that a jury using its common knowledge could not evaluate whether the hospital should have used security personnel to restrain plaintiff in the emergency room. Plaintiff presented herself in the emergency room as a patient in acute distress suffering from an unknown ailment that she claims has yet to be fully diagnosed. Clearly the determination of whether and how to restrain an emergency room patient suffering from such acute symptoms is a medical decision requiring a high degree of judgment. See Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002) (holding that cases entailing care with which licensed professionals were exercising their professional responsibility and judgment do not come within common knowledge doctrine). At least one New Jersey Administrative Code provision addresses specifically the restraint of patients in a hospital setting, N.J.A.C. 8:43G-18.4 (addressing nursing care; use of restraints), and defendant has promulgated several policies guiding its medical staff in the management of patients requiring restraints.
Unlike a dentist extracting the wrong tooth, Hubbard, supra, or a pharmacist providing a person with the wrong drug, Bender, supra, this is patently not a case where the error was self-evident and could be evaluated by a jury using its common knowledge. Whether and how to restrain, in an emergency room, an acutely ill patient suffering from severe stomach pains is not within the ken of the average juror.
We likewise reject plaintiff's claim that the judge erred in determining res ipsa loquitur inapplicable to relieve her from the requirement of filing an affidavit of merit. Judge Chrystal determined that the failure to restrain an emergency room patient with stomach pains resulting in her suffering a broken arm when her husband attempted to restrain her, does not ordinarily bespeak negligence. See Buckelew v. Grossbard, 87 N.J. 512, 526 (1981) (noting that whether an occurrence "ordinarily bespeaks negligence" depends on the balance of probabilities favoring negligence). While we agree with the judge, plaintiff would have required an affidavit of merit to proceed on her res ipsa claim in any event. As we held in Risko v. Ciocca, 356 N.J. Super. 406, 411 (App. Div.), certif. denied, 176 N.J. 430 (2003), an affidavit of merit is required in a res ipsa case, unless the common knowledge doctrine also applies. Because we agree with Judge Chrystal that the common knowledge exception does not apply here, plaintiff would have required an affidavit of merit to proceed on her res ipsa claim.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION