RICHARD GREISBERG VS. MICHAEL OMBRELLINO, MD (L-0921-19, MORRIS COUNTY AND STATEWIDE)

R
                                NOT FOR PUBLICATION WITHOUT THE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-1082-19T3

RICHARD GREISBERG,

                    Plaintiff-Appellant,

v.

MICHAEL OMBRELLINO, M.D.,

          Defendant-Respondent.
_____________________________

                    Submitted October 26, 2020 – Decided November 16, 2020

                    Before Judges Fasciale and Susswein.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-0921-19.

                    Richard Greisberg, appellant pro se.

                    Giblin, Combs, Schwartz, Cunningham & Scarpa,
                    attorneys for respondent (Rachel M. Schwartz, on the
                    brief).

PER CURIAM

          In this medical malpractice informed-consent case, plaintiff appeals an

October 30, 2019 order dismissing his complaint for failure to serve an affidavit
of merit (AOM). His main contention is that an AOM was unnecessary because

the common knowledge doctrine applies. The judge disagreed and dismissed

the complaint against defendant Michael Ombrellino, M.D., a board certified

vascular and general surgeon, concluding that—although given the opportunity

to replace a previously served non-conforming AOM with a new one—plaintiff

failed to do so. We agree that the common knowledge doctrine is inapplicable

and affirm.

      In the fall of 2002, plaintiff underwent two open-heart surgeries,

performed by other surgeons, which resulted in several complications. After his

second surgery, plaintiff suffered a pulmonary embolism in his right lung, which

led to his hospitalization. On November 2, 2002, plaintiff was stable and signed

a consent form, agreeing to the implant of a filter in his inferior vena cava to

prevent future embolisms. Defendant, who performed the surgery that day, also

signed the form.

      Defendant inserted the filter without complications, and the hospital

discharged plaintiff. Six years later, in 2008, plaintiff started experiencing

complications allegedly related to the filter. In 2018, plaintiff underwent a CT

scan and learned that the filter purportedly was tilting and penetrating his

inferior vena cava. Plaintiff called defendant, who did not respond.


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       Plaintiff then filed his complaint, alleging defendant failed to adequately

communicate the risks associated with the filter. Specifically, he asserts that

defendant failed to disclose risks associated with the insertion of the filter, to

provide post-operative instructions to plaintiff, to inform him to register the

filter, and to notify him about any alleged recalls of the filter.1 Defendant's

answer acknowledged his area of specialty.

       Defendant requested a Ferreira2 conference. Under the assumption that

an AOM was required, plaintiff then provided one authored by a general

internist; not a vascular or general surgeon. Defendant objected, arguing the

AOM did not comply with N.J.S.A. 2A:53A-27 and -41. Thereafter, the judge

held the Ferreira conference, which was followed by defendant's first motion to

dismiss for failing to comply with the statute. The judge denied defendant's

motion, giving plaintiff time to submit a different AOM. Plaintiff instead filed

a motion to waive the AOM requirement, arguing for the first time that the


1
   On this record, there is no credible evidence that the filter used in the
procedure was recalled because of a product failure. Defendant maintains that
he had no knowledge that plaintiff's filter was recalled for its propensity to fail,
and to support that assertion, he provided recall notices issued after the
procedure verifying that it was not recalled for that purpose. But even assuming
it was recalled, an AOM is still required for the reasons we express in this
opinion.
2
    Ferreira v. Rancocas Orthopedic Assocs., 

178 N.J. 144

(2003).
                                                                             A-1082-19T3
                                         3
common knowledge doctrine applied. Defendant filed his second motion to

dismiss the complaint for failure to file a proper AOM, which led to the order

under review.

      On appeal, plaintiff maintains that an AOM is not required because the

common knowledge exception applies.        He argues that defendant failed to

communicate "non-medical" facts before and after the surgery, including the

risks associated with the filter, instructions on registering the filter, and the

filter's subsequent recall.   Plaintiff contends that the applicable "medical

standard [of] care" in this case amounts to a "common sense patient[-]doctor

relationship." Applying a de novo review to the issue of whether a cause of

action is exempt from the AOM requirement, Cowley v. Virtua Health System,

242 N.J. 1

, 14 (2020), we conclude an AOM was required and affirm

substantially for the reasons given by the judge. We nevertheless add the

following remarks.

      The AOM statute applies to informed consent cases. Risko v. Ciocca, 

356 N.J. Super. 406

, 412 n.1 (App. Div. 2003); see also Tyndall v. Zaboski, 306 N.J.

Super. 423, 426 (App. Div. 1997). The AOM statute—N.J.S.A. 2A:53A-26 to -

29—states in part:

            In any action for damages for personal injuries,
            wrongful death or property damage resulting from an

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                                       4
            alleged act of malpractice or negligence by a licensed
            person in his profession or occupation, the plaintiff
            shall, within [sixty] days following the date of filing of
            the answer to the complaint by the defendant, provide
            each defendant with an affidavit of an appropriate
            licensed person 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 . . . .

            In the case of an action for medical malpractice, the
            person executing the affidavit shall meet the
            requirements of a person who provides expert
            testimony or executes an affidavit as set forth in
            [N.J.S.A. 2A:53A-41].

            [N.J.S.A. 2A:53A-27.]

"The submission of an appropriate [AOM] is considered an element of the

claim." Meehan v. Antonellis, 

226 N.J. 216

, 228 (2016). "To demonstrate the

threshold of merit, the [AOM] [s]tatute 'requires plaintiffs to provide an expert

opinion, given under oath, that a duty of care existed and that the defendant

breached that duty.'" 

Cowley, 242 N.J. at 16

(quoting Hubbard v. Reed, 

168 N.J. 387

, 394 (2001)). Failure to serve an appropriate AOM, like here, is

considered a failure to state a cause of action, N.J.S.A. 2A:53A-29, which

requires a dismissal of the complaint with prejudice. See 

Cowley, 242 N.J. at 16

.


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      The expert or affiant authoring the AOM must be "specialized in the same

specialty or subspecialty" as the defendant physician. 

Meehan, 226 N.J. at 233

;

see also Buck v. Henry, 

207 N.J. 377

, 389-90 (2011). When the defendant is

board certified in a

            specialty or subspecialty and the care and treatment
            provided by the physician involved that specialty or
            subspecialty, the expert or affiant must be a physician
            with credentials from a hospital to treat patients for the
            medical condition or perform the procedure that is the
            subject of the claim, or a physician who possesses board
            certification in the same specialty or subspecialty as the
            physician and has devoted a majority of his or her
            professional practice to that specialty or subspecialty
            through active clinical practice or the instruction of
            students or both.

            [

Meehan, 226 N.J. at 233

(citing N.J.S.A. 2A:53A-
            41(a)).]

The expert or affiant attests 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 common knowledge doctrine is an exception to the AOM

requirement. 

Cowley, 242 N.J. at 17

. It applies "where the carelessness of the

defendant is readily apparent to anyone of average intelligence."

Ibid. (quoting Rosenberg v.

Cahill, 

99 N.J. 318

, 325 (1985)).          The common knowledge

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exception allows the "jurors' common knowledge as lay persons [to be]

sufficient to enable them, using ordinary understanding and experience, to

determine a defendant's negligence without the benefit of the specialized

knowledge of experts."

Ibid. (quoting Hubbard, 168

N.J. at 394). Under the

common knowledge exception, a plaintiff is exempt from the AOM requirement

only "where it is apparent that 'the issue of negligence is not related to technical

matters peculiarly within the knowledge of [the licensed] practitioner[].'"

Ibid. (alterations in original)

(quoting Sanzari v. Rosenfeld, 

34 N.J. 128

, 142 (1961)).

      The exception allows jurors to "supply the applicable standard of care

. . . to obviate the necessity for expert testimony relative thereto."

Id. at 19

(alteration in original) (quoting 

Sanzari, 34 N.J. at 141

). We must not allow "a

jury of laymen . . . to speculate as to whether the procedure followed by a

[defendant professional] conformed to the required professional standards."

Ibid. (second alteration in

original) (quoting Schueler v. Strelinger, 

43 N.J. 330

,

345 (1964)). "Rather, the common knowledge exception to the [AOM] [s]tatute

applies only to cases where expert testimony is not needed to establish the

applicable standard of care."

Ibid. We interpret this

exception narrowly "to avoid noncompliance with the

statute."

Id. at 18-19

(quoting 

Hubbard, 168 N.J. at 397

). The New Jersey


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Supreme Court has determined that "[t]he test of need of expert testimony is

whether the matter to be dealt with is so esoteric that jurors of common judgment

and experience cannot form a valid judgment as to whether the conduct of the

party was reasonable."

Id. at 19

(alteration in original) (quoting Butler v. Acme

Mkts., Inc., 

89 N.J. 270

, 283 (1982)).

      The Court did not apply the common knowledge exception in Cowley. In

that case, the plaintiff alleged that her night nurse did not reinsert a nasogastric

tube that she herself removed during the night, claiming the nurse was negligent

in caring for her.

Id. at 9-10.

  The Court stated the common knowledge

exception did not apply because "[t]o assess a deviation in the standard of care

in such a setting, one must know the procedures, protocols, and scope of duties

of the licensed professional nurse[] in such circumstances."

Id. at 20.

The Court

found the plaintiff must have an AOM to show the scope of the nurse's duties.

Id. at 21.

In contrast, the Hubbard Court applied the exception where a dentist

extracted the wrong 

tooth. 168 N.J. at 394-96

. Likewise, in Bender v. Walgreen

Eastern Co., 

399 N.J. Super. 584

, 591 (App. Div. 2008), this court applied the

exception to a pharmacist who filled a prescription with the wrong drug rather

than the one prescribed.




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      We conclude the common knowledge exception is inapplicable here. Like

in Cowley, an expert is necessary to determine "the procedures, protocols , and

scope of duties" of physicians like defendant who performed this surgery.

Cowley, 242 N.J. at 20

.       Jurors do not have the ordinary knowledge and

experience to identify what the medical standard of care requires in this

situation.   They do not know—without expert testimony—what a vascular

surgeon must say to inform a patient about associated risks before and after the

surgeon inserts a filter, such as the one inserted by defendant. Indeed, the record

is silent as to whether the signed informed consent was adequate, and if not,

what more would be required under the standard of care applicable to vascular

and general surgery. And without an expert, jurors would be unfamiliar with

the medical standards for post-operative communication about such things as a

medical device's risks, instructions (such as registration), or recalls.

      For the first time on appeal, plaintiff contends—in his preliminary

statement and conclusion—that he had a "gut feeling" that the judge had a

conflict of interest. Because this argument was not raised below, we choose not

to address it. Nieder v. Royal Indem. Ins. Co., 

62 N.J. 229

, 234 (1973). We

briefly point out, however, that a "gut feeling" cannot support a claim for bias—

there must be an objective reasonable belief that bias exists. DeNike v. Cupo,


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196 N.J. 502

, 517 (2008). Moreover, after reviewing the record, there is no

evidence that the judge acted partially towards defendant.

      Affirmed.




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