Jones v. Stess

• Decision Date: 27 July 1970
• Parties: , 42 A.L.R.3d 475 Lucille B. JONES, Plaintiff-Appellant, v. Leo STESS, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 283

111 N.J.Super. 283

268 A.2d 292, 42 A.L.R.3d 475

Lucille B. JONES, Plaintiff-Appellant, v. Leo STESS, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued June 22, 1970.

Decided July 27, 1970.

Kenneth E. Joel , Keyport, for plaintiff-appellant.

Richard A. Amdur, Allenhurst, for defendant-respondent (Hanlon, Argeris & Amdur, Asbury Park, attorneys).

Before Judges KILKENNY, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Plaintiff Lucille B. Jones appeals from a judgment in favor of defendant Leo Stess following he granting of defendant's motion for involuntary dismissal at the close of her case.

On September 12, 1966 plaintiff visited the office of defendant, a licensed chiropodist (podiatrist), for the purpose of having her 'feet, her nails and her calluses taken care of.' Defendant had been treating her for a number of years and knew that she suffered from diabetes. In a portion of his deposition which was offered in evidence he stated that he had specifically noted that fact on his office record card, by underlining the word 'diabetic' in red ink. He gave as the reason for this the fact that 'diabetic patients are special patients to be considered with care'--they 'have to be watched more closely,' 'as a precaution against infection or injury.' He added, 'we don't work too close with diabetic patients' and agreed that 'you don't want to unintentionally cut a diabetic.'

On the day in question, after soaking plaintiff's feet in a whirlpool bath, defendant began clipping her toe nails. When he reached the great toe of her left foot he, in some manner, clipped the inside of her toe. When she jerked her foot back because it hurt, he allegedly said, 'I'm sorry, Mrs. Jones, but those kids have upset me. They have been in here all afternoon * * *,' (she had previously heard two boys talking and 'kidding around' with the doctor). She felt pain in the toe but after he had applied a red substance to it she was permitted to return home.

By he next day the pain was worse. Two days later continued pain in the toe caused her to consult Dr. Wales, her personal physician. When she did not respond to his treatment he referred her to Dr. Slobodien, a surgeon, who observed an area of infection on the inside of the left big toe. Subsequent x-rays indicated that the infection had penetrated into the bone below. Dr. Slobodien ordered plaintiff admitted to Perth Amboy General Hospital where, on October 31, 1966 her condition was diagnosed as osteomyelitis of the toe, and an operation was performed which consisted of removing the nail and curetting the osteomyelitic area of the distal phalanx. When the infection persisted plaintiff was readmitted to the hospital on December 2l at which time, because diabetic gangrene had set in, her entire toe was amputated. When he condition continued to spread she underwent three more operations, the last, an amputation, extending to her mid thigh. With the final amputation the infection was contained and healing took place. Eventually, an artificial leg was fitted.

There was medical testimony from Dr. Wales as to the existence of causal relationship between the cutting of the toe by defendant and the resultant loss of plaintiff's left leg. Dr. Slobodien testified that 'diabetics have problems with regard to healing, particularly with infection.' As to the reasons for this he stated, 'Basically, one of them is that the blood vessels are older than the individual is, and the second is that because of the fluctuating sugar levels in the body, infection itself tends to recede more slowiy than it would in individuals without diabetes.' He added that, '(D)iabetes affects blood vessels in the body, primarily arteries of the middle size. Because these vessels are involved, the blood flow through these vessels is diminished,' and '(I)n order to have proper healing, (w)hat you want is an adequate blood flow to the area as much as possible, and in diabetics this flow is decreased.' He opined that the diminished blood flow would affect the lower extremities most severely.

Dr. Wales was in substantial accord. With reference to the extremities he testified, 'Great care must be used in taking care of these areas because any type of trauma can precipitate an infection in the toe.'

At the close of plaintiff's case the court granted defendant's motion for an involuntary dismissal on the ground that plaintiff was required, but had failed, to adduce expert testimony as to the standard of care required of defendant, and whether there had been a deviation from that standard.

The sole question presented by the present appeal is whether the foregoing testimony was sufficient to make out a Prima facie case, and thus require defendant to put in his defense.

In passing upon defendant's motion to dismiss, the court was required to consider the proofs in the light most favorable to plaintiff, and to accord her the benefit of the most favorable inferences reasonably to the drawn from them. Sanzari v. Rosenfeld, 34 N.J. 128, 132, 167 A.2d 625 (1961). Applying that standard to the present case, we are satisfied that plaintiff's proofs presented a jury question, and that the dismissal was error.

As a chiropodist, licensed pursuant to N.J.S.A. 45:5--1 et seq., defendant was required to possess that degree of knowledge and skill usually pertaining to other members of his profession. Cf. Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (E. & A.1944). See Annotation, 'Liability of Chiropodist for Malpractice,' 80 A.L.R.2d 1278 (1961). In the rendition of his professional services, he was required to exercise that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the members of his profession. Cf. Fernandez v. Baruch, 52 N.J. 127, 244 A.2d 109 (1968).

In general, in a malpractice action the patient is required to establish that defendant's treatment fell below the standards established and recognized in the profession in which defendant was engaged. Ordinarily, the question of what those standards demanded of defendant, or whether he had deviated therefrom, is to be established by expert testimony. Carbone v. Warburton, 22 N.J.Super. 5, 91 A.2d 518 (App.Div.1952), aff'd 11 N.J. 418, 94 A.2d 680 (1953); Ayers v. Parry, 192 F.2d 181 (3 Cir. 1951), cert. den. 343 U.S. 980, 72 S.Ct. 1081, 96 L.Ed. 1371 (1952), reh. den.344 U.S. 849, 73 S.Ct. 49, 97 L.Ed. 660 (1952), 344 U.S. 916, 73 S.Ct. 337, 97 L.Ed. 707 (1953), 345 U.S. 961, 73 S.Ct. 941, 97 L.Ed. 1381 (1953). However, a well recognized exception dispenses with the need for such testimony where the facts are such that it may be said, looking at it in he light of the 'common knowledge and experience' of laymen, that there has been a lapse from the standard. Steinke v. Bell, 32 N.J.Super. 67, 69, 107 A.2d 825 (App.Div.1954); Sanzari v. Rosenfeld, Supra, 34 N.J. at 141, 167 A.2d 625; Martin v. Perth Amboy General Hospital, 104 N.J.Super. 335, 342, 250 A.2d 40 (App.Div.1969); Becker v. Eisenstodt, 60 N.J.Super. 240, 246, 158 A.2d 706 (App.Div.1960); Ayers v. Parry, Supra, 192 F.2d at 184--185. See also Annotations, 'Necessity of Expert Evidence to Support an Action for Malpractice against a Physician or Surgeon,' 141 A.L.R. 5, 12, 24, 29 (1942), 81 A.L.R.2d 597, 608, 641 (1962); 'Liability of Dentist to Patient,' 83 A.L.R.2d 7, 78, 89 (1962).

Becker v. Eisenstodt, Supra, involved the use of a caustic solution in a patient's nose by a plastic surgeon while Steinke v. Bell, Supra, involved the removal of the wrong tooth by a dentist. In Sanzari v. Rosenfeld, Supra, where the patient died as a result of a cerebral hemorrhage allegedly caused by aggravation of her hypertensive condition brought about by the injection of Epinephrine, an anesthetic solution, into her gums by a dentist, Justice Proctor referred to the 'common knowledge' exception as follows:

Ordinarily, the common knowledge doctrine is applied in a malpractice case after the plaintiff proves his injury and a causally related act or omission...