MEDICAL MALPRACTICE – submitted by New Jersey Malpractice Attorney, Jeffrey Hark
29-2-5415 Colon v. Robinson, App. Div
The subject matter of this appeal to two fold. Factually the plaintiff has claimed, and was successful at trial with regard to a dental malpractice lawsuit stemming from the alleged extraction of the wrong tooth by defendant Lealon A. Robinson, D.M.D resulting in a jury award of $20,000 for pain and suffering and $30,000 for future dental treatment in favor of plaintiff Lynnette Colon. After the trial the Defendant contended plaintiff’s claims should have been dismissed, or in the alternative a new trial should be granted, because plaintiff’s expert was not qualified to provide testimony regarding defendant’s deviation from the appropriate standard of care and plaintiff failed to establish that future dental expenses were based upon a reasonable degree of probability.
Testimony on Dentist’s Competence Permitted
The appellate panel disagreed and affirmed. At issue is New Jersey’s Affidavit of Merit statute which mandates a plaintiff making any professional malpractice claim to obtain from a similarly situated professional with at least 5 years of clinical (treating) experience in the same professional ‘zone’ where the defendant was practicing his trade. The appellate court found the record supports the judge’s conclusion that Dr. Nicoletti could provide expert testimony to support plaintiff’s dental malpractice claim. Dr. Nicoletti practices in the same general field as defendant. They are both licensed dentists. The fact that Dr. Nicoletti does not specialize in the defendant’s field of oral and maxillofacial surgery was not a barrier to allow him to testify as an expert in this case regarding the correct tooth to extract.
Sufficient Evidentiary Burden of Future Expense
The second area of appeal was plaintiff’s evidentiary burden regarding ‘future’ dental expenses.” Briefly, the panel also concluded that there was sufficient evidence in the record from which the jury could reasonably determine the need for future dental treatment and to arrive at an award for future dental expenses. Essentially, the court ruled the there was adequate facts upon which the jury was able to render its verdict by a preponderance of the evidence and plaintiff’s expert was qualified to testify about that subject matter as well.