NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5098-18T1
FRANCIS ROSS CLARK, APPROVED FOR PUBLICATION Plaintiff-Appellant, December 29, 2020
v. APPELLATE DIVISION
DAVID NENNA, M.D.,
Defendant-Respondent,
and
HUNTERDON MEDICAL CENTER, HUNTERDON CENTER FOR SURGERY, 1
Defendants. ________________________
Submitted October 21, 2020 – Decided December 29, 2020
Before Judges Alvarez, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L- 0197-17.
Peter C. Gordon, attorney for appellant.
1 Hunterdon Center for Surgery was improperly designated as Hunterdon Medical Center at the trial level. Vasios, Kelly & Strollo, PA, attorneys for respondent (Maura Waters Brady, of counsel; Douglas M. Singleterry, on the brief).
The opinion of the court was delivered by
MITTERHOFF, J.A.D.
Plaintiff Francis Ross Clark appeals from a May 10, 2019 order granting
defendant Dr. David Nenna's motion for summary judgment dismissing his
complaint, as well as a July 12, 2019 order denying his motion for
reconsideration. This case arises out of a surgical procedure defendant
performed on plaintiff in 2011. The court granted defendant's summary
judgment motion, finding plaintiff failed to timely provide an affidavit of merit
pursuant to N.J.S.A. 2A:53A-27. As a second basis for summary judgment,
the court found plaintiff failed to make a legally sufficient showing of
damages. Plaintiff contends the court erred because there are genuine issues of
material fact that preclude summary judgment. We affirm the dismissal in
light of plaintiff's failure to establish compensable damages.
We discern the following facts from the motion record, viewed in the
light most favorable to plaintiff, the non-moving party. Plaintiff, a paraplegic,
broke his femur during a physical therapy session on October 28, 2010. The
injury required surgery to stabilize the bone with four screws and washers. Id.
A-5098-18T1 2 Plaintiff subsequently developed discomfort while wearing a leg brace due to
protrusion of the screw heads. Id.
On March 11, 2011, defendant, an orthopedic surgeon, performed
surgery on plaintiff to remove the screws. 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. Id.
Defendant claims to have 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. 2 Id. Defendant did not document
anything about the retained washers, or his decision to leave them behind, in
the post-operative reports. 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 plaintiff learned of the retained washers in his leg was
more than four years later on August 25, 2015, when he had x-rays performed
related to other medical concerns.
Plaintiff filed his complaint on May 17, 2017, and an amended
complaint naming Hunterdon Center for Surgery as a defendant on January 29,
2018. Defendant demanded an affidavit of merit in both of his answers.
2 Clark suffered from a history of post-operative complications which his primary care physician advised placed him at a high risk of infection following surgery. A-5098-18T1 3 Plaintiff took the position that this was a common knowledge case,
therefore, no affidavit of merit was required. Prior to filing the complaint, he
had obtained a copy of defendant's post-operative report, and because it made
no mention of the retained washers, or defendant's decision to leave them in,
plaintiff believed defendant simply forgot to take them out. Under plaintiff's
theory of the case, he expected all of the surgical hardware to be removed.
Defendant's failure to do so was a deviation from that expectation. Therefore,
plaintiff argued, no expert was needed to determine whether a deviation
occurred.3 Id.
It was only after receiving defendant's answers to interrogatories, that
plaintiff learned for the first time that defendant was asserting he made a
conscious decision not to remove the washers in an effort to minimize post -
operative complications. Defendant was deposed on October 29, 2018.
Following the deposition, plaintiff submitted an expert report prepared by Dr.
Hervey Sicherman, an orthopedic surgeon. Dr. Sicherman acknowledged that,
depending on the circumstances, a determination to leave hardware in a patient
could be a reasonable exercise of judgment. He did not comment on whether
defendant doing so was proper, given the apparently conflicting evidence in
3 Notwithstanding plaintiff's failure to serve an affidavit of merit within one hundred and twenty days of the date the answer that made the demand was filed, defendant did not promptly move to dismiss the complaint, raising the question of whether the exercise of judgment defense had been fully developed at the time. A-5098-18T1 4 the record as to whether defendant exercised his judgment in fact. Dr.
Sicherman opined that defendant did deviate from accepted medical standards
in failing to properly record the surgery, or inform the patient that the
hardware had not been removed. Id.
Meanwhile, on August 31, 2018, Hunterdon Center for Surgery moved
to dismiss the complaint based on plaintiff's failure to serve an affidavit of
merit. The parties voluntarily stipulated to the dismissal of the surgical center
on March 22, 2019. On March 13, 2019, defendant moved for summary
judgment citing plaintiff's failure to serve an affidavit of merit. Defendant also
argued plaintiff had failed to make a prima facie showing of damages. On
April 26, 2019, plaintiff submitted an affidavit of merit prepared by Dr.
Sicherman.
In opposition to the motion, plaintiff argued defendant was equitably
estopped and barred by laches from asserting an affidavit of merit defense. In
support of his claim for damages, 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
A-5098-18T1 5 remove the retained washers. 4 Plaintiff acknowledged that he was seeking
damages related only to emotional distress.
The court found: (1) the common knowledge doctrine was inapplicable,
(2) plaintiff's late service of the affidavit was ineffective under N.J.S.A.
2A:53A-27; Id.; (3) defendant was not estopped or barred by laches from
moving for summary judgment; and (4) plaintiff had failed to establish
compensable damages. The judge granted summary judgment to defendant
and later denied plaintiff's motion for reconsideration. This appeal followed.
We review an order granting summary judgment by applying the same
standard as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016). Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5098-18T1
FRANCIS ROSS CLARK, APPROVED FOR PUBLICATION Plaintiff-Appellant, December 29, 2020
v. APPELLATE DIVISION
DAVID NENNA, M.D.,
Defendant-Respondent,
and
HUNTERDON MEDICAL CENTER, HUNTERDON CENTER FOR SURGERY, 1
Defendants. ________________________
Submitted October 21, 2020 – Decided December 29, 2020
Before Judges Alvarez, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L- 0197-17.
Peter C. Gordon, attorney for appellant.
1 Hunterdon Center for Surgery was improperly designated as Hunterdon Medical Center at the trial level. Vasios, Kelly & Strollo, PA, attorneys for respondent (Maura Waters Brady, of counsel; Douglas M. Singleterry, on the brief).
The opinion of the court was delivered by
MITTERHOFF, J.A.D.
Plaintiff Francis Ross Clark appeals from a May 10, 2019 order granting
defendant Dr. David Nenna's motion for summary judgment dismissing his
complaint, as well as a July 12, 2019 order denying his motion for
reconsideration. This case arises out of a surgical procedure defendant
performed on plaintiff in 2011. The court granted defendant's summary
judgment motion, finding plaintiff failed to timely provide an affidavit of merit
pursuant to N.J.S.A. 2A:53A-27. As a second basis for summary judgment,
the court found plaintiff failed to make a legally sufficient showing of
damages. Plaintiff contends the court erred because there are genuine issues of
material fact that preclude summary judgment. We affirm the dismissal in
light of plaintiff's failure to establish compensable damages.
We discern the following facts from the motion record, viewed in the
light most favorable to plaintiff, the non-moving party. Plaintiff, a paraplegic,
broke his femur during a physical therapy session on October 28, 2010. The
injury required surgery to stabilize the bone with four screws and washers. Id.
A-5098-18T1 2 Plaintiff subsequently developed discomfort while wearing a leg brace due to
protrusion of the screw heads. Id.
On March 11, 2011, defendant, an orthopedic surgeon, performed
surgery on plaintiff to remove the screws. 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. Id.
Defendant claims to have 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. 2 Id. Defendant did not document
anything about the retained washers, or his decision to leave them behind, in
the post-operative reports. 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 plaintiff learned of the retained washers in his leg was
more than four years later on August 25, 2015, when he had x-rays performed
related to other medical concerns.
Plaintiff filed his complaint on May 17, 2017, and an amended
complaint naming Hunterdon Center for Surgery as a defendant on January 29,
2018. Defendant demanded an affidavit of merit in both of his answers.
2 Clark suffered from a history of post-operative complications which his primary care physician advised placed him at a high risk of infection following surgery. A-5098-18T1 3 Plaintiff took the position that this was a common knowledge case,
therefore, no affidavit of merit was required. Prior to filing the complaint, he
had obtained a copy of defendant's post-operative report, and because it made
no mention of the retained washers, or defendant's decision to leave them in,
plaintiff believed defendant simply forgot to take them out. Under plaintiff's
theory of the case, he expected all of the surgical hardware to be removed.
Defendant's failure to do so was a deviation from that expectation. Therefore,
plaintiff argued, no expert was needed to determine whether a deviation
occurred.3 Id.
It was only after receiving defendant's answers to interrogatories, that
plaintiff learned for the first time that defendant was asserting he made a
conscious decision not to remove the washers in an effort to minimize post -
operative complications. Defendant was deposed on October 29, 2018.
Following the deposition, plaintiff submitted an expert report prepared by Dr.
Hervey Sicherman, an orthopedic surgeon. Dr. Sicherman acknowledged that,
depending on the circumstances, a determination to leave hardware in a patient
could be a reasonable exercise of judgment. He did not comment on whether
defendant doing so was proper, given the apparently conflicting evidence in
3 Notwithstanding plaintiff's failure to serve an affidavit of merit within one hundred and twenty days of the date the answer that made the demand was filed, defendant did not promptly move to dismiss the complaint, raising the question of whether the exercise of judgment defense had been fully developed at the time. A-5098-18T1 4 the record as to whether defendant exercised his judgment in fact. Dr.
Sicherman opined that defendant did deviate from accepted medical standards
in failing to properly record the surgery, or inform the patient that the
hardware had not been removed. Id.
Meanwhile, on August 31, 2018, Hunterdon Center for Surgery moved
to dismiss the complaint based on plaintiff's failure to serve an affidavit of
merit. The parties voluntarily stipulated to the dismissal of the surgical center
on March 22, 2019. On March 13, 2019, defendant moved for summary
judgment citing plaintiff's failure to serve an affidavit of merit. Defendant also
argued plaintiff had failed to make a prima facie showing of damages. On
April 26, 2019, plaintiff submitted an affidavit of merit prepared by Dr.
Sicherman.
In opposition to the motion, plaintiff argued defendant was equitably
estopped and barred by laches from asserting an affidavit of merit defense. In
support of his claim for damages, 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
A-5098-18T1 5 remove the retained washers. 4 Plaintiff acknowledged that he was seeking
damages related only to emotional distress.
The court found: (1) the common knowledge doctrine was inapplicable,
(2) plaintiff's late service of the affidavit was ineffective under N.J.S.A.
2A:53A-27; Id.; (3) defendant was not estopped or barred by laches from
moving for summary judgment; and (4) plaintiff had failed to establish
compensable damages. The judge granted summary judgment to defendant
and later denied plaintiff's motion for reconsideration. This appeal followed.
We review an order granting summary judgment by applying the same
standard as the trial court. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479
(2016). Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a matter of law."
Ibid. (quoting R. 4:46-2(c)). The trial court's legal conclusions are, as always,
reviewed de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.
369, 385 (2010).
The transcript of the summary judgment motion hearing suggested
defendant did not actually recall any details about the surgery. Because
4 Plaintiff produced a letter from his primary care physician stating the risks of surgery outweighed the benefits, and was not medically warranted. A-5098-18T1 6 defendant did not document his decision regarding the washers, plaintiff would
have been able to attack his credibility at trial. On this appeal, however, 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.
We agree with the trial court that plaintiff failed to demonstrate
compensable damages. Plaintiff concededly seeks damages only for the
emotional distress he suffered as a result of the retained washers. "A claim of
direct, negligent infliction of emotional distress," may be viable where the
plaintiff claims damages proximately caused by a breach of a duty owed by the
defendant. Lascurain v. City of Newark, 349 N.J. Super. 251, 277 (App. Div.
2002). To be compensable, a plaintiff must demonstrate he or she suffered
from "severe," McDougall v. Lamm, 211 N.J. 203, 215 (2012), or "genuine
and substantial" emotional distress. Lascurain, 149 N.J. Super. at 277.
"Severe emotional distress means any type of severe and disabling
emotional or mental condition which may be generally recognized and
A-5098-18T1 7 diagnosed by professionals trained to do so . . . ." Innes v. Marzano-
Lesnevich, 435 N.J. Super. 198, 236 (App. Div. 2014) (alteration in original)
(quoting Taylor v. Metzger, 152 N.J. 490, 515 (1998)). Medical evidence or
expert testimony is required because of the potential for fabricated claims.
Ibid. (citing Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 396-97
(1996)). Because the severity of emotional distress raises questions of both
law and fact, a court first decides whether, as a matter of law, such emotional
distress can be found. Lascurain, 349 N.J. Super at 279. If a court finds that it
can, the jury then decides whether it has in fact been proven. Ibid.
"Complaints such as lack of sleep, aggravation, headaches and
depression have been frequently deemed insufficient as a matter of law."
Innes, 435 N.J. Super. at 237 (citing DeAngelis v. Hill, 180 N.J. 1, 20-21
(2004)). Generally, for the conduct to be actionable, "the emotional distress
must be 'so severe that no reasonable [person] could be expected to endure it.'"
Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366-67 (1988) (quoting
Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965)). Emotional
distress damages cannot be based on speculation. Innes, 435 N.J. Super. at
241.
Ordinarily, medical or expert proof is required to establish emotional
distress damages. Our courts have recognized two exceptions to this general
A-5098-18T1 8 rule. The first exception applies in cases involving intentional torts such as
racial or sexual discrimination. Tarr v. Ciasulli, 181 N.J. 70, 77-78 (2003).
See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 62 N.J. 399, 416
(1973) (awarding compensatory damages for pain and suffering inflicted upon
plaintiff in denial of apartment rental because of her sex and marital status);
Morris v. MacNab, 25 N.J. 271, 280 (1957) (permitting recovery for wife's
"shame, humiliation, and mental anguish" caused by the defendant's fraudulent
inducement into bigamous marriage); Gray v. Serruto Builders, Inc., 110 N.J.
Super. 297, 315-18 (Ch. Div. 1970) (ruling that Director of Civil Rights
Division has authority to award damages for emotional distress caused by
racial discrimination in residential leasing).
Under this exception, "compensatory damages for emotional distress,
including humiliation and indignity resulting from willful discriminatory
conduct, are remedies that require a far less stringent standard of proof than
that required for tort-based emotional distress cause of action." Tarr, 181 N.J.
at 82. Where a tortfeasor's conduct is willful, the Court has explained "the
victim may recover all natural consequences of that wrongful conduct,
including emotional distress and mental anguish damages . . . ." Ibid.
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
A-5098-18T1 9 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." Ibid. (alteration in original) (quoting
Strachan v. John F. Kennedy Mem. Hosp., 109 N.J. 523, 537 (1988)). These
"special circumstances" have been found in cases where the plaintiff has
suffered emotional distress from malicious use of process, Baglini v. Lauletta,
338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from
inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457
(App. Div. 2003), and where a funeral home failed to ensure that orthodox
ritual requirements were met, Menorah Chapels at Millburn v. Needle, 386
N.J. Super. 100, 116 (App. Div. 2006). In each of those cases, the courts
found the nature of the harm would have caused any reasonable person
"severe" or "genuine and substantial" emotional distress. Conversely, where
the circumstances do not create such a clear objective expectation of "s evere"
or "genuine and substantial" emotional distress, plaintiffs are required to
support their claims for damages with medical or expert proof. Innes, 435 N.J.
Super. at 236 (quoting Taylor, 152 N.J. at 515).
Here, plaintiff alleges emotional distress caused by the professional
negligence of a surgeon who failed to remove surgical washers from his leg.
A-5098-18T1 10 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.
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude that they are either moot or without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5098-18T1 11