LEE v. PARK, MD

Filing 24

OPINION and ORDER granting 10 Motion for Waiver of Affidavit of Merit Requirement. Signed by Magistrate Judge Joseph A. Dickson on 10/23/13. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SANG GEOUL LEE,
Plaintiff,

Hon. Esther Salas, U.S.D.J.
Hon. Joseph A. Dickson, U.S.M.J.

V.

Civil Action No. 2:12-cv-07437-ES-JAD
WON IL PARK, M.D.,
Defendant.

OPINION AND ORDER

JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon Plaintiffs Motion for Waiver of Affidavit of
Merit Requirement. Pursuant to Rule 78 ofthe Federal Rules of Civil Procedure, no oral
argument was heard. Upon consideration of the parties' submissions and for the reasons stated
below, Plaintiffs motion to waive affidavit of merit is GRANTED.

I.

BACKGROUND
In this diversity action, Plaintiff, Sang Geoul Lee, alleges that his physician, Defendant

Won Il Park, M.D., negligently disclosed information regarding Plaintiffs use of certain
medication to Plaintiffs wife. Plaintiff claims that Defendant disclosed this information "to be
rid of what defendant perceived as plaintiffs wife's harassing requests," and that Defendant's
disclosure enabled Plaintiffs wife to lodge charges of sexual infidelity against him. 1 See
Complaint, ~7 (ECF doc. 1). Plaintiff seeks compensatory and punitive damages from Defenda !lt
for breach of confidentiality, negligence, and negligence per se. Id. at 4.

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Prior to this lawsuit, Plaintiff filed for divorce from his wife.

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Plaintiff moves for an order waiving the statutory requirement of an affidavit of merit
("AOM") applicable to professional malpractice actions in New Jersey. See N.J.S.A. 2A:53A
27. Plaintiff does not address whether the AOM statute is applicable to this action in the first
place. Instead, Plaintiff argues that the common knowledge exception to the affidavit of merit
applies, as it is common knowledge that disclosing doctor-patient privileged information is
negligent. Defendant argues that the common knowledge exception does not apply because th
disclosure of private health information involves complex rules and laws that are not in the
common knowledge of jurors.

II.

DISCUSSION AND ANALYSIS

A.

Applicability ofAffidavit of Merit Statute
As a threshold matter, this Court must first determine whether the affidavit of merit

statute applies in this action. The AOM statute provides, in relevant part:
In any action for damages for personal injuries, wrongful death or property dam
resulting from an alleged act of malpractice or negligence by a licensed person
his profession or occupation, the plaintiff shall, within 60 days following the d
of filing of the answer to the complaint by the defendant, provide each defend
with an affidavit of an appropriate licensed person that there exists a reasona
probability that the care, skill or knowledge exercised or exhibited in the treatme
practice or work that is the subject of the complaint, fell outside accepta
professional or occupational standards or treatment practices.

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N.J.S.A. 2A:53A-27 (emphasis added).
The main purpose of the statute is "to require plaintiffs in malpractice cases to make a
threshold showing that their claim is meritorious, in order that meritless lawsuits readily could e
identified at an early stage of litigation." Couri v. Gardner, 137 N.J. 328, 333 (2002) (internal
citations and quotations omitted). The legislature's purpose was not to "create a minefield of
hyper-technicalities in order to doom innocent litigants possessing meritorious claims." Parag n
2

Contractors, Inc. v. Peachtree Condominium Association, 202 N.J. 415, 422 (2010) (internal

citations and quotations omitted). Rather, the statute was designed to "weed out frivolous
lawsuits early in the litigation." Hubbard v. Reed, 168 N.J. 3 87, 498 (200 1).
The statute accomplishes this purpose by requiring the plaintiff to provide an affidavit c
merit "stating that the care, skill or knowledge exercised or exhibited in the treatment, practice r
work that is the subject of the complaint[] fell outside acceptable professional or occupational
standards or treatment practices." Couri, 137 N.J. at 340 (citing N.J.S.A. 2A: 53A-27) (interna
quotations omitted). The relevant inquiry is not whether the action is denominated as tort or
contract, but whether "a claim's underlying factual allegations require proof of a deviation fron
a professional standard of care." Id. at 340-41 (emphasis in original). This inquiry allows cour s
to ensure that "claims against licensed professionals acting in a professional capacity that requi

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proof of ordinary negligence but not of a deviation from professional standards are not
encompassed by the statute." Id. at 341. For example, a claim that a psychiatrist failed to
diagnose a patient properly would be encompassed by the statute, but a claim that the psychiatr st
negligently tripped a patient who entered his office would not. See id.
To determine whether the AOM statute applies in an action, courts consider: (1) "whetb r
the action is for 'damages for personal injuries, wrongful death or property damage' (nature of
injury); (2) whether the action is for 'malpractice or negligence' (cause of action); and (3)
whether 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' (standard of care)." Id at 334 (quoting N.J.S.A. 2A:53A-27).
As to the first element, the AOM statute applies to "action[s] for damages for personal
injuries, wrongful death or property damage." Id at 334-35. However, it is unclear whether tb

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AOM statute would apply in professional malpractice actions that "do not cause personal
injuries, wrongful death or property damage." See Nuveen Municipal Trust v. Withumsmith
Brown, P.C., 692 F. 3d 283,312 (3d Cir. 2012) (emphasis in original) (certifying to the New
Jersey Supreme Court "a question regarding the scope of the 'nature ofthe injuries' element of
the Statute."). 2 In Couri, the plaintiff brought an action against the expert psychiatrist he
retained for his divorce action. !d. at 330. The plaintiff alleged that the defendant psychiatrist
breached their oral contract by distributing, without his consent, his preliminary expert report t
plaintiffs wife and their child's guardian ad litem. Id. at 331. Although plaintiff requested
"compensatory and punitive damages" in his complaint, plaintiff at oral argument narrowed his
damages to the amount he paid defendant for the report, plus incidental costs in the divorce
action arising from defendant's dissemination of the report. Id. at 334-35. The court held that
"because the damages that plaintiff is seeking are neither damages for personal injuries, wrong
death or property damage, plaintiffs [breach of contract] claim does not fall within the first
element of the statute." Id. at 335.
In this action, Plaintiffs complaint does not seek damages for personal injuries, wrong
death or property damage. Plaintiff does not allege any wrongful death or property damage.
Whether Plaintiff is in fact seeking damages for personal injuries, and whether allegations of
such damages are required for the AOM statute to apply to this case by law, are unclear. See i
Although Plaintiff seeks compensatory damages exceeding $75,000, Plaintiff does not allege t t
Defendant's disclosure of confidential information caused any personal injury or any injury.
Even though Plaintiff marked the "other personal injury" box under the "nature of suit" questio

2
The New Jersey Supreme Court denied the Third Circuit Court of Appeals' petition for certification of this
question, and the Third Circuit has not ruled on whether the plaintiffs action is subject to the AOM Statute. See
Nuveen Municipal Trust v. Withumsmith Brown, P.C., 213 N.J. 527, 528 (2013).

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on the civil cover sheet for his complaint, "[i]t is not the label placed on the action that is pivot
but the nature of the legal inquiry." Id. at 340. Whether Plaintiff's allegation that the disclosur
enabled his wife to lodge charges of sexual infidelity against him is an allegation that Plaintiff
suffered personal injury is unclear. 3
Analysis of the first element precludes resolution of the threshold question of whether t
AOM statute is applicable to this action for two reasons. First, it is unclear whether the New
Jersey Supreme Court applies the AOM statute "to actions requesting damages for alleged acts f
professional malpractice or negligence that do not cause personal injuries, wrongful death or
property damage." See Nuveen Municipal Trust, 692 F. 3d at 311-12 (3d Cir. 20 12) (declining
rule on whether an action alleging fraud, negligent misrepresentation and malpractice was
subject to the AOM statute where plaintiff sought only money damages.). Second, even if the
law required the complaint to include such allegations, it is unclear whether Plaintiff has indee
made such allegations. Because the law concerning this element has not yet been resolved, thi
court will assess whether an exception applies that would obviate further analysis ofthe
threshold question of the applicability of the AOM statute. See id. at 305. Even assuming
Plaintiff alleged personal injury damages, and also met the other requirements for the AOM
statute to apply, Plaintiff does not need to file an affidavit of merit because the common
knowledge exception applies.

3

Plaintiff was the party who sought divorce in his matrimonial action against his wife. Thus, it is unclear whethe
the compensatory damages he seeks are related to monetary damages stemming from his wife's charges of sexual
infidelity, or from personal injury.
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B.

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Common Knowledge Exception

Plaintiff argues that he does not need to produce an affidavit of merit because it is
common knowledge that a physician's unauthorized disclosure of a patient's treatment
information constitutes negligence. See Memorandum of Law in Support of Motion for Waive
of Affidavit of Merit Requirement, at 5 (ECF doc. 10-2). Under the common knowledge
exception, an affidavit of merit is not required "[w ]here the allegations do not require proof of
deviation from a professional standard of care." Syndicate 1245 at Lloyd's v. Walnut Advisory
Corp., 721 F. Supp.2d 307,315 (D.N.J. 2010) (citingHubbardv. Reed, 168 N.J. 387,394-95

(2001)). Whereas the typical malpractice case requires expert testimony to establish the standa d
of care and deviation therefrom, the common knowledge case does not require such testimony,

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"the carelessness of the defendant is readily apparent to anyone of average intelligence and
ordinary experience." See Natale v. Camden County Correctional Facility, 318 F.3d 575, 579
(3d Cir. 2003) (internal citations and quotations omitted). Instead, "the jury itself is allowed to
supply the applicable standard of care." !d.
In a medical malpractice case, the common knowledge exception applies when "the iss e
of negligence is not related to technical matters peculiarly within the knowledge of
medical.. .practitioners." See Sanzari v. Rosenfeld, 34 N.J. 128, 142 (1961). Where common
knowledge enables a juror to "determine a defendant's negligence without the benefit of the
specialized knowledge of experts," expert testimony on the applicable standard of care is not
necessary and an affidavit of merit is not required. Natale, 318 F. 3d at 579; see also Mora v.
US. et al., No. 11-cv-03321-ES-JAD, 2013 WL 5180041 (D.N.J. Sept. 13, 2013), at *7 (holdir

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that common knowledge exception applied where health care provider allegedly failed to treat r
provide medical care for plaintiff prisoner's injuries during his detention even though the injur s

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were documented and reported). In Natale, the Third Circuit held that the common knowledge
exception applied where medical personnel of defendant Prison Health Services ("PHS") were
informed that plaintiff prisoner was an insulin-dependent diabetic, but failed to determine how
often he needed insulin to be administered. Id. at 580. Plaintiff did not receive his first dose o
insulin until twenty-one hours after being admitted to the prison, and contended that the late
administration of insulin caused him to suffer a stroke. See id. at 578. The court held that a
reasonable jury could conclude, without expert testimony, that the personnel were negligent in
failing to ask plaintiff's physician or plaintiff himself how often they should administer
plaintiff's insulin. Id. at 580. The issue of negligence was not related to the technical matter o
how often insulin-dependent diabetics need insulin, but to whether "medical personnel charged
with caring for an insulin-dependent diabetic should determine how often the diabetic needs
insulin." See id. at 580 (emphasis added). Therefore, "no special expertise or expert testimon
[was] needed to show ... that the claim [was] not frivolous." Id.
Defendant cites Stempler v. Speidel to argue that the court has envisioned exceptions to
physician-patient confidentiality that include "potential disclosures to a person with a legitimat
interest in a patient's health," and that a wife may have a legitimate interest in a husband's
health. See Defendant's Opposition to Plaintiff's Motion to Waive Requirement to File Affida it
of Merit ("Defendant's Brief''), at 8 (citing Stempler v. Speidel, 100 N.J. 368, 336 (1985)).
Defendant's argument goes to the legal merits of a breach of confidentiality claim against a
physician, rather than the issue of whether an expert would be needed to determine if a
physician's unauthorized disclosure of medical information is negligent. In other words, a cou
can dismiss a breach of confidentiality claim against a physician if the court determines that "t
public interest or the private interest of the patient" demands an exception to the patient's right

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against such disclosure. See Hague v. Williams, 37 N.J. 328, 336-37 (1962) (affirming dismiss
of breach of confidentiality claim against physician where physician disclosed medical
information to insurance company that plaintiff sued in a separate action, and the medical
information was part of plaintiffs claim in that action). But the possibility that a court may
dismiss a breach of confidentiality claim by determining that an exception thereto applied does
not mean expert testimony is required to opine on the physician's underlying general duty of
nondisclosure.
Defendant also argues that the standards that apply to the disclosure of private health
information are complex rules codified in the Health Insurance Portability and Accountability
Act of 1996 ("HIP AA") requiring expert testimony. See Defendant's Brief at 7. In particular,
Defendant argues that HIP AA includes exceptions that are not within the common knowledge
jurors. !d. at 8. Assuming that the exceptions to HIPAA are not within the common knowledg
of the average juror, this does not change the analysis. The issue in this case is not whether the
physician was negligent in disclosing the medical information in a particular circumstance that
would have implicated an exception to HIPAA. Plaintiffs complaint alleges only that defenda t
disclosed his medical information to Plaintiffs wife "to be rid of what defendant perceived as
plaintiffs wife's harassing requests," and Defendant does not offer any particular circumstance
that implicate any exception to HIP AA. See Complaint, ~7 (ECF doc. 1).
The facts of this case are analogous to the facts in Natale, where the issue of negligence
was not related to how often insulin should be administered, but to whether the failure to inqui
about plaintiffs insulin needs was negligent. In this case, the issue of negligence is not related
to the Defendant's mistaken determination that a particular exception to HIP AA applied, but to
his failure to inquire of whether an exception to HIP AA applied before disclosing the

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information. The common knowledge exception applies, because it is common knowledge that
physicians have a general duty of nondisclosure and that an unauthorized, unjustified disclosur
of a patient's medical information is negligent. See Stempler v. Speidel!, 100 N.J. 368, 375
(1985) (citing American Medical Ass'n, Principles of Medical Ethics, section 9 (1957))
("[T]here is a clear recognition that, in general, a physician does have a professional obligation
to maintain the confidentiality of his patient's communications."). Because proof of a deviatio
from standard of care is not essential to the establishment of plaintiffs right to recover, Plaintif
is not required to obtain an affidavit of merit.

II.

CONCLUSION

For the foregoing reasons, Plaintiffs Motion for Waiver of Affidavit of Merit
Requirement is GRANTED.

SO ORDERED.

cc:

Honorable Esther Salas, U.S.D.J.

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