January 16, 2021

In its published opinion dated December 29, 2020, the New Jersey Superior Court Appellate Division (“New Jersey Appellate Court”) held: “plaintiff alleges emotional distress caused by the professional negligence of a surgeon who failed to remove surgical washers from his leg. Plaintiff does not allege that defendant’s conduct was intentional or willful. Nor does the nature of plaintiff’s harm present “an especial likelihood of genuine and serious mental distress.” As such, plaintiff was required to support his claim for emotional distress damages, as a matter of law, with medical or expert proof. He did not do so. Accordingly, we affirm.”

The Underlying Facts

The plaintiff, who is a paraplegic, fractured his femur during a physical therapy session on October 28, 2010. The injury required surgery to stabilize the bone with four screws and washers.

On March 11, 2011, the defendant orthopedic surgeon performed surgery on the plaintiff to remove the screws. The defendant made a small incision in the skin and successfully extricated the screws. The washers, however, were embedded in scar tissue that had developed around the hardware. The defendant claimed he made a conscious decision to leave the washers behind, because removal would have required a larger incision resulting in greater risk of post-operative infection. The defendant did not document anything about the retained washers, or his decision to leave them behind, in the post-operative reports. The defendant did not discuss the potential of leaving the washers behind during pre-operative consultations, nor did he inform plaintiff of the retained washers during any of his post-operative consultations. In fact, the first time the plaintiff learned of the retained washers in his leg was on August 25, 2015, when he had x-rays performed related to other medical concerns.

The plaintiff alleged with regard to his New Jersey medical malpractice claim that it was a common knowledge case and therefore no affidavit of merit was required – he expected all of the surgical hardware to be removed, the defendant’s failure to do so was a deviation from that expectation, and therefore no expert was needed to determine whether a deviation occurred. It was only after receiving the defendant’s answers to interrogatories that the plaintiff learned for the first time that the defendant was asserting that he made a conscious decision not to remove the washers in an effort to minimize postoperative complications.

On March 13, 2019, the defendant moved for summary judgment citing the plaintiff’s failure to serve an affidavit of merit. The defendant also argued that the plaintiff had failed to make a prima facie showing of damages. On April 26, 2019, the plaintiff submitted an affidavit of merit prepared by his medical expert, Dr. Sicherman.

In opposition to the defendant’s motion for summary judgment, the plaintiff argued that the defendant was equitably estopped and barred by laches from asserting an affidavit of merit defense. In support of his claim for damages, the plaintiff cited the mental anguish caused by the knowledge that a foreign object is in his body that should not be there, coupled with the knowledge that he could not undergo another surgery to remove the retained washers. The plaintiff acknowledged that he was seeking damages related only to emotional distress.

The trial court found: (1) the common knowledge doctrine was inapplicable, (2) the plaintiff’s late service of the affidavit was ineffective under N.J.S.A. 2A:53A-27; (3) the defendant was not estopped or barred by laches from moving for summary judgment; and (4) the plaintiff had failed to establish compensable damages. The judge granted summary judgment to the defendant, and the plaintiff appealed.

New Jersey Appellate Court Opinion

The New Jersey Appellate Court stated: “we have not been provided with an adequate record, including the doctor’s full deposition, which would enable us to evaluate whether the jury should decide whether defendant consciously exercised his judgment as he alleged, or whether, as plaintiff alleged, the common knowledge doctrine applied because defendant forgot to remove the washers. Regardless, given our conclusion that dismissal was warranted on other grounds, the issue is moot and will not be addressed.”

The New Jersey Appellate Court continued: “Ordinarily, medical or expert proof is required to establish emotional distress damages. Our courts have recognized two exceptions to this general rule. The first exception applies in cases involving intentional torts such as racial or sexual discrimination … The second exception to the general rule is applied to cases in which “[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims.” Innes, 435 N.J. Super. at 239. In such “special circumstances,” “an especial likelihood of genuine and serious mental distress . . . serves as a guarantee that the claim is not spurious.””

The New Jersey Appellate Court held that the “plaintiff was required to support his claim for emotional distress damages, as a matter of law, with medical or expert proof,” which he failed to do.

Source Clark v. Nenna, Docket No. A-5098-18T1.

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