In its October 15, 2021 decision, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in a dental malpractrice case: “defendants have not challenged the amount of the jury award. The primary thrust of their contentions is that the trial court made erroneous evidentiary rulings pertaining to liability and proximate cause. Therefore, we need not vacate the amount of damages awarded by the jury, and remand solely for a new trial on liability and proximate cause.”
The New Jersey dental malpractice jury had returned a verdict finding that the defendants deviated from the standard of care and proximately caused $1,100,000 in damages to the plaintiff and awarded $233,000 to her husband for his per quod claim. The trial court entered an order of final judgment against defendants for compensatory damages, taxed costs, and pre-judgment interest in the amount of $1,451,499.69.
The plaintiff was referred to Dr. Ziccardi “for evaluation and management of a right [IAN] injury, status post[-]surgical removal of tooth #30” and continued to follow up with him on “multiple occasions for nerve monitoring.” Dr. Ziccardi evaluated the IAN using a microscope and removed scar tissue as well as inflamed tissue encompassing the nerve.
The New Jersey Appellate Court stated: “A treating healthcare provider may testify as a fact witness about any subject relevant to the patient’s evaluation and treatment if the testimony is within the provider’s personal knowledge and the information that forms the basis of the testimony is obtained from the patient in the course of the treatment pursuant to Rule 701. The offering party must provide notice to the opposing party and comply with discovery requests … a treating physician may testify about “diagnosis and treatment,” including the physician’s determination of the cause of the patient’s malady.”
The New Jersey Appellate Court stated with regard to the case it was deciding: “Stigliano is controlling because plaintiff was evaluated, treated, and monitored by Dr. Ziccardi relative to a previously identified injury. Therefore, this matter clearly falls within the Stigliano framework because Dr. Ziccardi is a subsequent treating healthcare provider.”
“Here, the evidence showed that the CT scan taken by Dr. Ziccardi revealed abnormal findings—osteomyelitis—which caused plaintiff’s lower right jawbone to erode. She also sustained a nerve injury, and Dr. Ziccardi noted “the nerve was exposed” in that area. When asked by plaintiff’s counsel if Dr. Ricker’s surgical procedure contributed to plaintiff’s injuries, Dr. Ziccardi responded, “I can’t say for sure because . . . it’s several months later.” He testified that the inflammatory tissue was a result of the infectious process. According to Dr. Ziccardi, plaintiff had approximately a fifty-percent sensory improvement following his surgery. This is precisely the scenario contemplated by the holding in Stigliano and its progeny.”
“Based upon our careful review of the record, we conclude the trial court erred by barring Dr. Ziccardi’s videotaped deposition testimony at trial. Defense counsel sought to introduce a partially redacted version of Dr. Ziccardi’s testimony, which was brief—only about thirty minutes total in duration. Dr. Ziccardi’s testimony included his independent assessment of the cause of plaintiff’s infectious process, her injuries, and prognosis for the purpose of diagnosing and addressing her dental issues as her subsequent treating oral and maxillofacial surgeon. Stigliano, 140 N.J. at 314. Moreover, even without the videotaped deposition taken by plaintiff’s counsel, Dr. Ricker’s counsel could have subpoenaed Dr. Ziccardi to testify at trial under Stigliano, and his opinions regarding his evaluation, diagnoses, and treatment of plaintiff would have been presented to the jury. Since the deposition was taken after the date set for trial, there was no resulting prejudice to plaintiff because her counsel knew exactly what Dr. Ziccardi would say, and plaintiff’s expert had the benefit of his treating records. Therefore, we reverse the trial court’s ruling barring Dr. Ziccardi’s videotaped deposition. On remand, either party may file a motion or request a Rule 104 hearing to address any issues potentially involving the presentation of Dr. Ziccardi’s videotaped deposition to the jury consistent with our opinion.”
The New jersey Appellate Court further held that the trial court had improperly precluded a defense expert from testifying during trial with regard to proximate cause.
Source Seergy v. Ricker, D.D.S., Docket No. A-1412-19.
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