MARIA C. PETERS VS. THOMAS K. JOHN, M.D. (L-1259-19, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0227-19T1
MARIA C. PETERS,
Plaintiff-Appellant,
v.
THOMAS K. JOHN, M.D., JUSTIN
MENDOZA, M.D. and ACTIVE
ORTHOPEDICS & SPORTS
MEDICINE,
Defendants-Respondents.
________________________________
Argued November 17, 2020 – Decided December 7, 2020
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-1259-19.
Winnie Ihemaguba argued the cause for appellant.
Robert E. Spitzer argued the cause for respondents
(MacNeil, O'Neil & Riveles, LLC, attorneys; Lauren K.
O'Neill, of counsel; Robert E. Spitzer and Ethan
Lillianthal, on the brief).
PER CURIAM
Plaintiff Maria Peters appeals from an August 2, 2019 order dismissing
her complaint against defendants Thomas K. John, M.D., Justin Mendoza, D.O.,1
and Active Orthopedics & Sports Medicine, L.L.C. with prejudice. The motion
judge concluded that: (1) plaintiff's claim sounded in professional medical
malpractice; (2) the common knowledge exception did not apply, and an
affidavit of merit (AOM) was required, which plaintiff failed to furnish. We
agree and affirm.
On March 16, 2016, Dr. John performed bilateral knee replacement
surgery upon plaintiff. Following the surgery, plaintiff returned to Dr. John and
complained about "excruciating pain in her left knee." Dr. John did not have an
MRI, CT scan, or bone scan performed and "prescribed a cream for [p]laintiff's
knee." Dr. John also referred plaintiff to another physician in his practice, Dr.
Mendoza,2 who prescribed cortisone injections to ease plaintiff's pain.
According to plaintiff, Dr. Mendoza did not perform any scans of her knee
before prescribing this medication.
1
Incorrectly referred to as Justin Mendoza, M.D. in plaintiff's complaint.
2
Both doctors were employed by defendant Active Orthopedics & Sports
Medicine, L.L.C.
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Plaintiff alleged that the pain in her left knee got worse following the
injections and she eventually had to have another knee replacement device
installed. In her February 15, 2019 complaint, plaintiff claimed that Dr. John
and Dr. Mendoza both "breach[ed] . . . the applicable standard of medical care[,]
. . . which resulted in the faulty replacement knee surgery and the misdiagnosis
and failure to perform any corrective knee replacement surgery" or address her
complaints of pain in the knee.
Defendants filed an answer and demanded that plaintiff submit an AOM
covering their "respective specialties of physical medicine/rehabilitation and
orthopedics." The trial court conducted a Ferreira3 hearing and determined that
an AOM was required. The court ordered plaintiff to serve defendants with the
AOM no later than May 24, 2019, although the order also stated that plaintiff
could apply for an extension of that deadline. Plaintiff requested additional time
to produce the AOM, and the judge set July 12, 2019 as the new due date.
When plaintiff failed to submit the required AOM by that date, defendants
filed a motion to dismiss her complaint. In response, plaintiff alleged that she
had attempted to obtain an expert to prepare an AOM, but had been unable to
locate anyone who was willing to do so. At that point, plaintiff alleged for the
3
Ferreira v. Rancocas Orthopedics Assocs., 178 N.J. 144, 154 (2003).
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first time that her case fell under the common knowledge exception to the AOM
requirement and, therefore, an expert's report was not required.
At oral argument on defendants' motion, plaintiff's attorney stated that
plaintiff had recently undergone a second replacement surgery, this time on her
right knee, and she indicated she would file an amended complaint to include
the additional damages her client allegedly incurred as a result of having to
undergo this surgery. Plaintiff's attorney also stated she would include more
specific allegations in the complaint concerning defendants' failure to conduct
appropriate testing when plaintiff presented them with her complaints of pain.
However, plaintiff's attorney did not bring the amended complaint to court
and never filed a motion to file this pleading. Thus, the motion judge made clear
that the information plaintiff attempted to interject had no impact on the question
at hand, that is, whether an AOM was required in this medical malpractice case.
Following oral argument, the judge answered that question in the
affirmative and dismissed plaintiff's complaint with prejudice. In so ruling, the
judge rejected plaintiff's contention that this matter fell within the common
knowledge exception to the AOM statute. This appeal followed.
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On appeal, plaintiff repeats the same argument she unsuccessfully
presented to the motion judge and argues that an AOM was not required here
because this is a "common knowledge case." 4 We disagree.
N.J.S.A. 2A:53A-27 states that a plaintiff pursuing a claim for injuries
"resulting from an alleged act of malpractice or negligence of a licensed person
in his profession or occupation," must provide an affidavit by an appropriately -
licensed person who attests under oath "that there exists a reasonable probability
that the care, skill or knowledge exercised" by the defendant deviated from
accepted professional standards. "The submission of an appropriate [AOM] is
considered an element of the claim." Meehan v. Antonellis, 226 N.J. 216, 228
(2016) (citing Alan J. Cornblatt, PA v. Barow, 153 N.J. 218, 244 (1998)).
The AOM must be furnished within 60 days of the filing of defendant's
answer, but the time may be extended up to 120 days for good cause. N.J.S.A.
2A:53A-27. If the plaintiff does not file the AOM within the required time, the
4
Plaintiff also argues that the motion judge improperly considered "facts
outside of the pleadings" and, therefore, should have converted defendants'
motion to dismiss into a motion for summary judgment. As noted above,
however, the judge found that the additional facts plaintiff's attorney raised at
oral argument had no bearing on the question of whether an AOM was required.
Accordingly, the judge correctly considered defendants' motion under Rule 4:6-
2(e). Therefore, plaintiff's contention on this point is without sufficient merit to
warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
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complaint is dismissed with prejudice unless the plaintiff's failure to file it was
due to extraordinary circumstances, not present here. Ferreira, 178 N.J. at 151.
However, a plaintiff need not provide an AOM in a so-called common
knowledge case. Hubbard v. Reed, 168 N.J. 387, 394 (2001). The common
knowledge doctrine is an exception to the general rule that professional
negligence must be established by expert testimony. Sanzari v. Rosenfeld, 34
N.J. 128, 141 (1961). A common knowledge case is one in which
an expert is not needed to demonstrate that a defendant
breached a duty of care. The doctrine applies where
"jurors' common knowledge as lay persons is sufficient
to enable them, using ordinary understanding and
experience, to determine defendant's negligence
without the benefit of the specialized knowledge of
experts."
[Hubbard, 168 N.J. at 394 (quoting Estate of Chin v. St.
Barnabas Med. Ctr., 160 N.J. 454, 469 (1999))].
Our Supreme Court has cautioned that the common knowledge exception
must be construed "narrowly in order to avoid noncompliance with the statute."
Id. at 397. Thus, for example, the doctrine has been applied when a dentist
pulled the wrong tooth. Id. at 396. See also Palanque v. Lambert-Woolley, 168
N.J. 398, 407 (2001) (applying common knowledge doctrine to misdiagnosis
resulting from misreading of numbers on a lab chart); Estate of Chin, 160 N.J.
at 460 (finding that an AOM was not needed where equipment was used that
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pumped gas, rather than the fluid that should have been used, into the patient);
Bender v. Walgreen Eastern Co., Inc., 399 N.J. Super. 584, 591-92 (App. Div.
2008) (holding that the common knowledge exception applies to a pharmacist
filling a prescription with a drug other than the one prescribed); Becker v.
Eisenstodt, 60 N.J. Super. 240, 242-46 (App. Div. 1960) (applying the doctrine
when a caustic solution, rather than the soothing medication intended, was used
to treat a patient's nose after surgery).
Applying these principles, we are satisfied that the common knowledge
doctrine does not apply to this case. Here, plaintiff claimed that defendants
deviated from accepted standards of medical care by, in the case of Dr. John,
performing the bilateral knee replacement surgery and, in the case of both
doctors, determining the appropriate testing regime and treatment for plaintiff
after she complained of pain following her operation.
Simply stated, jurors cannot be expected to know the particulars of how
knee replacement surgery is performed, the criteria for selecting the hardware
used during the operation, the types of testing available and warranted when a
patient complains of post-operative pain, and the various treatment regimens
that may be thereafter employed. Accordingly, we are convinced that the jurors
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would not, based on their own common knowledge and experience, be capable
of determining the standards of care applicable to plaintiff's claims.
Therefore, plaintiff was required to produce an AOM in this case.
Because she did not, the motion judge properly dismissed her complain t with
prejudice.
Affirmed.
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