SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

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MICHAEL BUTTACAVOLI,

Plaintiff

- Appellant,

v.

UNIVERSAL DENTISTR Y, PA,

DR. ROBERT DENMARK, and

DR. TRELLA DUTTON,

Defendants

- Respondents

,

and

SCHAE FLEN MANAGEMENT,

LLC, and JOHN SCHAEFER,

Defendants.

____ __________________________

Submitted April 4, 2019

– Decided May 21, 2019

Before Judges Simonelli and Firk o.

On appeal from Superior Court of New Jersey, Law

Division, Gloucester County, Docket No. L

- 0049

- 17.

Michael Buttacavoli, appellant pro se.

NOT FOR PUBLICATION WITHOUT THE

A PPROVAL 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

- 3.2 A

- 0175

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respondent University Dentistry, PA (Walter H.

Swayze, III a nd John M. Borelli, of counsel and on the

brief).

Law Offices of Steven J. Tegrar, attorneys for

respondent Trella Dutton, DDS (Michael L. Lazarus, of

counsel and on the brief).

Stahl & De L aurentis, PC, attorneys for respondent

Robert Denmark, DMD (Mich ael C. Pacholski, on the

brief).

PER CURIAM

In this dental malpractice matte r, plaintiff Michael Buttacavoli appeals

from the July 27, 2017 and June 22, 2018 Law Division orders dismissing his

complaint and amended complaint with prejudice against the de fendant s, a

dentist and a periodontist, for failing to comply with the Affidavit of Merit

(AOM) statute, N.J.S.A. 2A:53A

- 27. Becau se we agree with the trial court that

the c ommon knowledge exception was in applicable, and an AOM was required

as to each def endant

, we affirm.

I.

On January 18, 2010, plaintiff underwent a dental examination at

d efendant Universal Dentistry, P.A., ("Universal") and expressed an interest in

having a dental implant for tooth number fourteen

. Defendant

, Dr. Trella

Dutton

, recomm ended plaintiff undergo a consultation with d efendant

, Dr.3 A

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Robe r t Denmark, a periodontist, to consider other options, such as a bridge

placement or a removable partial denture.

On July 12, 2011, Denmark evaluated plaintiff in Dutton's presence.

Denmark ad vised plaintiff that if a denta l implant w as inserted for too th number

fo urteen

, as well as teeth numbers three and four, lateral wall sinus lifts 1 and

guided bone regeneration 2 would be required since there was insufficient bone

for osteotome sinus liftin g. Denmark further advised plaintiff that these

procedures would need to be performed by an oral surgeon, an o ption which

plaintiff declined. I nstead , he elected to proceed with a fixed bridge. 3

1 Lateral wall sinus lifts are procedures used when "[l]ack of sufficient bone

height along maxillary sinus poses significant difficulty for placement of

implants in edentulous maxillary jaw." The procedure is minimally invas ive. S.

M. Balaji, Direct v/s Indirect Sinus Lift in Maxillary Dental I mplants , US

National Library of Medicine National Institutes of Health,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3814663/ (last visited Apr. 2 4

, 2019).

2 Guided bone reg eneration is a surgical procedure that uses barrier membranes

with or without particulate bone grafts or/and bone substitutes to help regenerate

bone. Jie Liu and David G. Kerns, Mechanism of Guided Bone Regeneration:

A Review , US National Library of Medicine Nat ional Institutes of Health,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4040931/ (last visited Apr. 23,

2019).

3 "Fixed [i]mplant [b]ridges utilize dental implants placed in the jawbo ne (the

foundation) and tooth

- like porcelain restorations to replace missing teeth (fixed

bridge). In addition to preserving the jawbone and surrounding teeth, bridges4 A

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Dutton prepared an upper round maxillary bridge for plainti ff , and at his

August 10, 2011 visit

, informed him "the most common risk with the type of

trea tment I rendered [is] the necessity for a root canal and decay at the margins."

Plaintiff alleges that Dutton omitted the fact that "after this treatment, you

co mmit to bridges [for] the rest of your life ," and also alleges Dutton did "not

reveal risks and complications of the treatment , such as infection from

microleakage ." Plaintiff had a follow

- up visit on August 16, 2012

, to have his

upper round house bridge tapped off and re

- cemented. During tha t visit, Dutton

learned that the bridge was loosen ed at another dental office that plaintiff went

to for a cleaning

. In an effort to address this problem , Dutton discussed

placement of a lower bridge with plaintiff.

Follo w ing anoth er evaluation with Dutton on February 21, 2013, plaintiff

consented to having a fixed lower bridge constructed for teeth numbers twenty

one through twenty

- seven . The bridge was completed and inserted at that visit.

Plaintiff contends the b ridge led to his developing dental infections.

can help maintain the shape of [the] smile and prevent future dental

complications." T he Dental Implant Center, Fixed Implant Bridges (non

removable) , https://www.dentalimplantcenter.com/fixed

- bridges

- non

removable/ (last visited Apr. 24 , 2019).5 A

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Plaintiff alleges that o n December 5, 2016, he became aware of

"complications that caused severe misery and financial loss," because of his

inability to make an "optimum choice regarding treatment [,] and if of fered

complete and truthful information [, he] would have rejected defendants[']

remedy." P laintiff filed suit on January 11, 201 7, naming Dutton and Universal

as defendants. In his initial complaint, he requested "dental service fees" in the

amount of $1 8,651

, plus $3,000 for "misery," and "pending dental servi ce fees"

in the amount of $49,96 9

, plus $9,000 for "sickness and ill health."

The complaint a nd amended complaint allege defendants were negligent

for failing to provide plaintiff with informed co nsent about the "increased

probability of infection with dental bridges" and that they misrepresented the

"high

- risk" nature of the implant procedure. He claims Dutton never advised

him of the risk of potential root canals and infections that may emanate from

dental implants , and Denmark failed to disclos e accurate information relative to

the success rate of implants. Had this information been disclosed, plaintiff

asserts he would have declined dental implants

. Plaintiff claims a dental

assistant employe d by Universal "offered a fixed bridge in lieu of implants," that

would give him a "perfect smile" and lessen the risk of infection associated with

dental implants. Being "ultra health

- conscious," he chose the bridge over the6 A

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implants

. Universal defaulte d, and plaintiff obtained a default judgment against

it on March 27, 2017, which was vacated by an order dated January 5, 2018. 4

Dutton denied plaintiff's allegations, and contend ed there are signed

informed consent forms in his chart initialed b y plaintif f

, evidencing plaintiff

was advised of the risks of the proposed treatment plan. The first consent form

is dated July 5, 2011, and another consent form was signed for plaintiff's lower

bridge on February 21, 2013 . In Dutton's answer to the complaint file d on March

16, 2017, an AOM was demanded. Instead of providing an AOM

, plaintiff

served a letter dated April 20, 2017 from Dr. Bob Harris, a doctor of dental

surgery, licensed in North Carolina to practice dentistry, who is plaintiff's

current treating de ntist. The letter does not comport with the AOM statute since

it is not attested to or notarized, does not state that Dutton's professional services

fell below recognized standards of care, and simply comments that "the entire

proposition is based on info rmed consent[ .]" Dr. Harris stated he "was not

present for any of that and cannot speak for this."

4 The January 5

, 2018 order also dismissed John Schaefer (improperly referred

to as James Scha efer) and Schaef len Management, LLC with prejudice, by

consent.7 A

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Dutton moved for summary judgment based upon plaintiff's failure to

serve an AOM

, arguing Dr. Harris's letter is conjecture and does not satisfy the

delinea ted requirements of the AOM statute. J udge David W. Morgan granted

Dutton's motion on July 27, 2017, noting "plaintiff conten ds [Dutton] presented

egregious misrepresentations . . . . But nowhere, either in his complaint or in

his opposition, does he sta te what those misrepresentations are. He doesn't

provide anything as to what the informed consent information would have been

that would have fit into the common knowledge." The judge aptly found:

[P] laintiff has more of an obligation than just to use th e

word common knowledge to demonstrate that this

might be considered a common knowledge case . . . .

he's basically saying, look, the doctor told me this or

omitted something, he doesn't say what, and I basically

went on with the course of treatment only t o find out

later that something else was true, he doesn't tell us

what that is; and then said, had I known that, I would

have rejected the treatment as provided.

And so that all requires an expert to tell us what the

details were that should have been p rovided, what the

standard was as to what should have been provided,

what was provided [,] and how that would constitute a

deviation from the standard of care.

Thereafter, plaintiff filed a n amended complaint on January 16, 2018,

naming Universal and Denm ark as defendants. Judge Timothy W. Chell held a8 A

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Ferreira 5 conference on May 4, 2018, and advised plaintiff of his obligation to

serve an appropriate AOM and offered him a sixty

- day extension to do so, but

plaintiff declined , stating, "I waive my right to submit an AOM" and "[i]f you

are waiting for an AOM, you will be wandering in the desert." The judge entered

an order memorializing what transpired at the confer ence and indicated that

plaintiff had to serve an AOM a s to Denmark by May 21, 2018. On May 22,

2018, Denmark filed a motion to dismiss the amended complaint with prejudice

because plaintiff failed to serve an AOM. In opposi tion , plaintiff argued that an

AOM was unnecessary because his claim was based on informed consent.

Following oral arg umen t on June 22, 2018, Judge Chell granted Denmark's

motion finding "informed consent cases require expert testimony absent an

admission by defendant [

, ] " citing Darwin v. Gooberman , 339 N.J. Super. 467,

476 (App. Div. 2001)

, abrogated by Couri v. Gardner , 173 N.J. 328 (2002) . The

judge further held:

Darwin and other New Jersey case law on this issue

make it clear that informed consent, generally, is

viewed as a breach of professional responsibility.

Informed consent is a negligence concept predicated on

the duty of a physician to disclose to a patient

information that will

. . . enable the patient to evaluate

knowledgeably the options available and the risks

5 Ferreira v. Rancocas Orthopedic Assoc s

. , 178 N.J. 144, 151 (2003).9 A

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course of treatment.

Here, pla intiff's case g oes directly to

. . . Denmark's

assessment of a potential dental implant procedure.

Plaintiff alleges misrepresentations of the risks of that

procedure. The question of whether

. . . Denmark

correctly informed plaintiff of the risks of a dental

implant p rocedure is a question that

. . . requires a

determination if the information provided deviated

from a standard of care or sound medical judgment.

This [c]ourt finds that plaintiff is, essentially, asserting

a negligence or malpractice claim. It is not c lear from

. . . plaintiff's submissions if plaintiff is asserting that

this is a common knowledge or res ipsa loquitur

exc eption to the [AOM] requirement. Assuming

arguendo, the plaintiff is making these claims, the

[c]ourt is, also, forced to reject thos e claims.

A jury could infer a defendant's negligence w here, A,

the occurrence, itself

. . . ordinarily bespeaks

negligence; B, the instrumentality was within

defendant's exclusive control; and, C, there is no

indication in the circumstances that the inju ry was the

result of plaintiff's own voluntary act or negligence.

The [c]ourt finds that plaintiff's claim fails on the first

prong of this . . . . [And] require [s] proof of a deviation

from a professional standard of care . . . . [A nd]

plaintiff has fa iled to provide an [AOM] despite being

. . . given every reasonable opportunity to do so.

On appeal, pla intiff maintains that the two judges erred in concluding

AOM's were required because "the common knowledge of the jury can render

justice," because "[t ]he issue is not about the practical aspects of stand ard of10 A

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care . . . [it] is about negligent communication," and "extraordinary

circumstances" make it impossible to satisfy the AOM statute. Defendants

counter, as they did in the trial court, that plaint iff's contentions "are beyond the

common knowledge of a layperson," and Denmark's opinion that plaintiff

required "lateral wall sinus lifts and bone grafts," "strike at the heart of

professional judgment" requiring an AOM. We agree.

II.

The AOM statute r equires a plaintiff filing suit against a licensed

professional to have the case evaluated by an appropriately licensed person who

will then attest under oath, "that there exists a reasonable probability that the

care, skill or knowledge exercised or exhib ited 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

stated purpose of the AOM statute is laudatory

— to weed out friv olous claims

against licensed professionals early in the litigation process." Meehan v.

Antonellis , 226 N.J. 216, 228 (2016) (citation omitted). The other primary

concern, which together constitutes the AOM statute's "dual purpose," is

permitting "merito rious claims to proceed efficiently through the litigation

process . . . ." Id. at 229 ; Hubbard ex rel. Hubbard v. Reed , 168 N.J. 387, 39511 A

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(2001), superseded by Affidavit of Merit Statutory Amendment L. 2001, c. 372,

§ 1, N.J.S.A. 2A:53A

- 26 to

- 29, as rec ognized in Meeha n , 226 N.J. at 228

. 6

Therefore, the AOM's objective is to "require plaintiffs in malpractice cases to

make a threshold showing that their claim is meritorious," Shamrock Lacrosse,

Inc. v. Klehr, Harrison, Harvey, Branzburg Ellers, LLP , 416 N.J. Super. 1, 14

(App. Div. 2010), not to prove, at this stage, the allegations in the complaint.

The statute is not concerned with whether a plaintiff can actually prove the

allegations of the complaint, but only whether a threshold showing of merit ca n

objectively be made. Hubbard , 168 N.J. at 394

.

Our Supreme Court has recognized an exception to the affidavit

requirement in professional negligence cases in which it is not necessary for

plaintiff to present an expert to establish the standard of care or a deviation from

that standard : the common knowledge exception

. Id. at 390. In common

knowledge cases, the alleged negligence is unrelated to technical matters

peculiarly within the knowledge of practitioners within the defendant's field.

Sanzari v . Rosenfeld , 34 N.J. 128, 142 (1961). Common knowledge cases are

thus treated as ordinary negligence actions in which the jury can supply the

6 Although the statutory amendment was enacted after the Hubbard case, the

amendment aligns with, and indeed reflects, t he Legislature's intent, and the

Hubbard Court's interpretation of the AOM statute as a whole.12 A

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applicable standard of care "from its fund of common knowledge" and assess

"the feasibility of possible precautio ns which the defendant might have taken to

avoid injury to the plaintiff." Id. at 142. The common knowledge exception

allows meritorious claims to go forward without forcing a plaintiff to incur the

expense of hiring an expert to submit an affidavit when no expert is needed at

trial. See Hubbard , 168 N.J. at 395

.

The Court has cautioned, however, that the exception must be construed

"narrowly in order to avoid non

- compliance with the statute." Id. at 397.

Accordingly, the doctrine has been applied onl y

in circumstances involving obvious errors: a dentist's

extraction of the wrong tooth, Hubbard

, [ 168 N.J. at

396 ] ; the erroneous hookup of equipment that resulted

in the pumping of gas, rather than the fluid that ought

to have been used, into the patient 's uterus, [ Estate of

Chin v. Saint Barnabas Med. Ctr. , 160 N.J. 454, 460,

471 (1999)]; and the use of caustic solution, rather than

the soothing medication intended to treat a patient's

nose after surgery

, Becker v. Eisenstodt

, [ 60 N.J. Super.

240, 242

- 46 ] (App. Div. 1960).

[ Bender v. Walgreen E. Co. , 399 N.J. Super. 584, 590

(App. Div. 2008) (holding common knowledge

exception applies to pharmacist filling prescription

with a drug other than the one prescribed).]

Determining whether a matter alleges p rofessional negligence

, thus

requiring an AOM

, or ordinary negligence fitting within the common knowledge13 A

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exception, demands scrutiny of the legal claims alleged. Couri

, 173 N.J. at 340

-

41 ("It is not the label placed on the action that is pivotal but the nature of the

legal inquiry."). "If jurors, using ordinary understanding and experience and

without the assistance of an expert, can determine whether a defendant has been

negligent, the threshold of merit should be readily apparent from a reading of

the plaintiff's complaint." Hubbard

, 168 N.J. at 395. Accordingly, a judge must

consider "whether a claim's underlying factual allegations require proof of a

deviation from a professional standard of care," or ordinary negligence, as only

the former claims are subject to the statutory requirements. Couri

, 173 N.J. at

341.

The exercise of the mandated close scrutiny of claims to determine the

applicability of the common knowledge exception was exhibited by this court in

Bender

. There, we held that an AOM wa s not required as to the pharmacist's

alleged filling of a prescription with a drug other than the one prescribed, as that

error of substitution was a clear and obvious deviation evincing ordinary

negligence. Bender

, 399, N.J. Super. at 591. In contrast, we held that the

plaintiff's failure to provide an AOM was fatal as to his claims based on the

pharmacy

- defendant's "failure to recognize the impropriety of the dosage" of the

substituted drug "and failure to provide adequate information or warnings." Id

.14 A

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at 592. We held that an AOM was required because those claims needed to be

established by way of the testimony of an expert, to speak to whether the care,

skill, and knowledge of the defendant "fell outside acceptable professional or

occupational standa rds or treatment practices." Ibid. (quoting Hubbard

, 168

N.J. at 390). As has been stated, "common knowledge cases involve obvious or

extreme error." Cowley v. Virtua Health Sys.

, 456 N.J. Super. 278, 290 (App.

Div. 2018).

In an effort to avoid unneces sary delay and resolve disputes between the

parties regarding the need to provide an AOM

, and to avoid dismissal of

meritorious claims brought in good faith, our C ourt has "developed a

prophylactic measure to encourage th e timely filing of affidavits [ : ]" Ferreira

conferences. Paragon Contr actor s

, Inc. v. Peachtree Condo. Ass'n

, 202 N.J. 415,

423 (2010) (citing Ferreira

, 178 N.J. at 154

- 55). A Ferreira c onference is "an

accelerated case management conference [to] be held within ninety days of the

service of an answer" in all professional negligence cases to "ensure that

discovery related issues, such as compliance with the [ AOM ] statute, do not

become sideshows to the primary purpos e of the civil justice system

— to

shepherd legitimate cl aims expeditiously t o trial[.]" Ibid. ( first and third

alteration s in original) ( quoting Ferreira

, 178 N.J. at 154)

. In this way, any15 A

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factual question regarding a defendant's status as related to the allegations of

negligence in a plaintiff's complaint can be resolved. Mu rphy v. New Road

Const r

. , 378 N.J. Super. 238, 241

- 42 (App. Div. 2005).

"B y not producing an [ AOM ]

, [a] plaintiff may be seen to have plac ed all

his eggs in the ordinary n egligence basket without alleging pr ofessional

negligence as well." Murphy

, 378 N.J. Super. at 243. Although a plaintiff aware

of the AOM r equirements is free to conclude an AOM is not necessary, if that

conclusion is incorrect and the requisite time period for filing has passed, t he

complaint must be dismissed. Paragon

, 202 N.J. at 423 (stating " an attorney's

inadvertence in failing to timely file an affidavit will generally result in

dismissal with prejudice") ; Triarsi v. BSC Grp. Servs., LLC

, 422 N.J. Super.

104, 121 (App. Div. 2011)

. Here, a Ferreira conference was condu cted and

pla intiff was placed on notice of his need to file timely, appropriate AOM's.

We do not view the informed consent component of plaintiff's dental

malpractice claim any differently . As our Supreme Court held:

[T]o sustain a claim based on lack of informed con sent

, the patient must prove that the doctor [or dentist]

withheld pertinent medical information concerning the

risks of the procedure or treatment, the alternatives, or

the potential results if the procedure or treatment were

not undertaken. The informat ion a doctor must disclose

depends on what a reasonably prudent patient would16 A

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with the proposed procedure.

A plaintiff seeking to recover under a theory of lack of

informed consent also must prove causati on, thereby

requiring a plaintiff to prove that a reasonably prudent

patient in the plaintiff's position would have declined to

undergo the treatment if informed of the risks that th e

defendant failed to disclose. If the plaintiff would have

consented to the proposed treatment even with full

disclosure, the burden of proving causation is not met.

Accordingly,

[t]o establish a prima facie case for medical

negligence premised on a theory of liability

for lack of informed consent

, a plaintiff

must show "(1) the physician failed to

comply with the [reasonably

- prudent

patient] standard for disclosure; (2) the

undisclosed risk occurred and harmed the

plaintiff ; (3) a reasonable person under the

circumstances would not have consented

and submitted to the operatio n or surgical

procedure had he or she been so informed;

and (4 ) the operation or surgical procedure

was a proximate cause of the plaintiff's

injuries. "

[ Howard v. Univ. of Med. & Dentistry of N.J.

, 172 N.J.

537, 548

- 49 (2002) ( third and fourth alterations in

original) (citations omitted) (quoting Teilhaber v.

Greene

, 320 N.J. Su per. 453, 465 (App. Div. 1999 )) .]

The AOM requirement applies equally to cases where the claims at issue

are based on a theory of lack of informed consent. Risko v. Ciocca

, 356 N. J.

Super. 406, 412 n.1 (App. Div. 2003). Relatedly

, " [a] plaintiff alleging lack17 A

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of informed consent has the burden of producing expert testimony [

. ] " Tyndall

v. Zaboski

, 306 N.J. Super. 423, 426 (1997); see als o Chamberlain v. Giampapa

,

210 F

. 3d 154, 161

- 62 (3d Cir. 2000). Plaintiff argues that it is a "logical

impossibility to produce an [AOM] where the misrepresentation occurred

between plaintiff and defen dants void of witnesses, " to substantiate his claim of

lack of informed consent . We disagree.

Wh ether plaintiff's complaint is exempt from the AOM re quirement based

on the common knowledge doctrine is a legal issue subject to our de novo

review. Triarsi

, 422 N.J. Super. at 113

. "A trial court's interpretation of the law

and the legal consequences t hat flow from established facts are not establi shed

to any special deference." Manalapan Realty, LP v. Twp. Comm. of Manalapan

,

140 N.J. 366, 378 (1995). We review issues of law de novo and accord no

deference to the judge's legal conclusions. Nicholas v. Mynster

, 213 N.J. 463,

478 (2013).

Case law dictates that the threshold for any ex ception to the AOM statute

is a high bar

. See Ferreira 178 N.J. at 151 (2003) ("[T]wo equitable remedies

. . . temper the draconian results of an inflexi ble applicatio n of the statute. A

complaint will not be dismissed if the plaintiff can show . . . he has substantially

complied with the statute. Moreover, a complaint will be dismissed without18 A

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prejudice if there are extraordinary circumstances to explain noncomplianc e.")

(citations omitted).

W e find no exceptions or extraordinary circumstances here, and an

appropriate AOM was required as to each defendant. We likewise reject

pl aintiff's claim that the judges failed to determine his constitutional rights were

violated under the equal protection clause because of "bait

- and

- switch"

marketing by defendants at his expense. T he common knowledge doctrine is

in appl icable here because the allegations address deviations from accepted

standards of care . As our Court has stated , if "proof of a deviation from the

professional standard of care for [the] specific profession

. . . . is required, an

[AOM] shall be mandatory for that claim, unless either the statutory, or common

knowledge exceptions apply." Cou ri , 173 N.J. at 341 (cit ation omitted).

Affirmed.