Rosenberg by Rosenberg v. Cahill

• Decision Date: 13 May 1985
• Citation: 492 A.2d 371,99 N.J. 318
• Parties: , 53 USLW 2604 Lawrence James ROSENBERG, by his Guardian ad Litem, Lawrence Glenn ROSENBERG, and Lawrence Glenn Rosenberg, Individually, Plaintiffs-Appellants, v. Michael J. CAHILL, M.D., and Richard McCarthy, M.D., Defendants, and Bruce McElwain, D.C., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 318

99 N.J. 318

492 A.2d 371, 53 USLW 2604

Lawrence James ROSENBERG, by his Guardian ad Litem, Lawrence Glenn ROSENBERG, and Lawrence Glenn Rosenberg Individually, Plaintiffs-Appellants, v. Michael J. CAHILL, M.D., and Richard McCarthy, M.D., Defendants and Bruce McElwain, D.C., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 11, 1984.

Decided May 13, 1985.

Louis F. Locascio, Red Bank, for plaintiffs-appellants (Drazin & Warshaw, Red Bank, attorneys; Steven L. Kessel, Red Bank, on brief).

Stuart V. Brod, Atlantic Highlands, for defendant-respondent (Pillsbury & Russell, Atlantic Highlands, attorneys).

The opinion of the Court was delivered by

HANDLER, J.

This appeal arises from an action for personal injuries assertedly caused by the professional malpractice of a chiropractor. The issues raised call for our consideration of the nature and extent of the professional duty of care that a chiropractor owes to a patient as to matters that in some respects fall outside the scope of chiropractic practice. The more specific question presented is whether a chiropractor is under a duty to recognize from a patient's x-ray the presence of observable soft tissue abnormalities, the actual diagnosis and treatment of which are properly within the field of medicine. In answering this question we must consider whether a medical doctor is competent to express an expert opinion as to the professional duty of care governing chiropractors, and if so, whether the evidence in this case was sufficient to create a triable issue that the defendant, a chiropractor, breached that duty.

I.

The plaintiffs in this case are Lawrence James Rosenberg, an infant, and his father, Glenn Rosenberg. They brought a complaint charging malpractice against a chiropractor, Bruce McElwain, and two medical doctors specializing in pediatrics. Each of these licensed practitioners had treated Lawrence at various times during a period of approximately one-and-a-half years before he was diagnosed as suffering from Hodgkin's disease. The complaint alleged that defendants had negligently failed to make an early diagnosis of the disease. ¹

Plaintiffs' complaint against defendant McElwain asserted that during his treatment of Lawrence, he took x-rays of plaintiff's spine, but failed to notice soft tissue abnormalities that were disclosed on the x-rays. Plaintiffs further charged that defendant negligently failed to refer Lawrence to a medical doctor competent to diagnose and treat these abnormalities. As a result of these alleged acts of malpractice, plaintiffs contended that Lawrence suffered an unreasonable delay in obtaining a proper diagnosis and timely treatment of his condition. Defendant denied any negligence.

Following the completion of discovery, defendant brought a motion for summary judgment. The record on the motion indicated that defendant McElwain first saw the infant plaintiff Lawrence on August 22, 1980. According to defendant, the only symptoms mentioned by Lawrence were some difficulty in moving his head and occasional headaches, which were related to an injury that Lawrence had sustained while trampolining. Plaintiffs, on the other hand, asserted that Lawrence complained of many more symptoms. Despite this factual difference, however, it is reasonably clear that plaintiffs consulted defendant in his capacity as a chiropractor.

As part of his initial examination, defendant took x-rays of Lawrence, which disclosed evidence of soft tissue abnormalities, i.e., tumors. Nevertheless, defendant failed to observe or recognize these abnormalities. According to his deposition, defendant viewed the x-rays "chiropractically to look for an alteration in the vertebrae." He claimed that he had taken the x-rays only for purposes of chiropractic treatment and that a chiropractor of his "school" or specialty, referred to as "straight chiropractic," was under no duty to notice tissue abnormalities on such x-rays. Plaintiffs countered defendant's allegations with the deposition testimony of a medical doctor to the effect that defendant failed to exercise reasonable care in reading the x-rays. Defendant's treatment of Lawrence consisted of "adjustment," that is, manual manipulation of the spine for the purpose of "replacing" the subluxated vertebra. Lawrence was seen on five subsequent dates by defendant, the last being November 28, 1980. Having failed to recognize the soft tissue abnormalities that were shown by the x-rays, defendant did not refer his patient to a medical doctor for further examination, diagnosis, or treatment of this condition.

The trial court concluded that plaintiffs had not proffered competent proof through a qualified expert as to the applicable duty owed by a chiropractor in the circumstances. Accordingly, it granted defendant's motion for summary judgment, which was affirmed by the Appellate Division. Plaintiffs petitioned this Court for certification, which we granted.

II.

As noted, plaintiffs offered the testimony of a licensed medical doctor, Dr. Herbert A. Knapp, to establish professional malpractice on the part of defendant. Plaintiffs contended below, as well as before us, that Dr. Knapp, as a medical doctor, was adequately qualified to render an opinion as an expert concerning the professional standard of care owed by a chiropractor in the reading of x-rays. This testimony, according to plaintiffs, was sufficient to demonstrate the duty of care owed by a chiropractor and its breach by defendant.

While the competence of Dr. Knapp's opinion concerning the chiropractic duty of care in these circumstances is presented as the major issue in this litigation, plaintiffs argue in the alternative that any asserted deficiencies in their expert proof were harmless. They contend that the negligence of defendant under the given circumstances could have been determined by a jury drawing upon their common knowledge as laypersons. In effect, plaintiffs assert that, as a matter of common knowledge, x-rays that depict soft tissue abnormalities, such as occurred in this case, can be sufficiently understood by a layperson viewing the x-rays, obviating the need for expert testimony. In light of this contention, the first issue that we consider is whether the common knowledge doctrine is applicable in this case and whether expert testimony was required at all.

It is generally recognized that in the ordinary medical malpractice case "the standard of practice to which [the defendant-practitioner] failed to adhere must be established by expert testimony," and that a jury generally lacks the "requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert." Sanzari v. Rosenfeld, 34 N.J. 128, 134-35, 167 A.2d 625 (1961). This requirement, that the relevant professional duty must be established by expert testimony, is also generally applicable in malpractice actions against chiropractors. See Klimko v. Rose, 84 N.J. 496, 422 A.2d 418 (1980).

Under the common knowledge doctrine, however, a malpractice case against a licensed professional may present triable issues without resort to the testimony of an expert. In such a case the jury itself is allowed "to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto." Sanzari v. Rosenfeld, supra, 34 N.J. at 141, 167 A.2d 625. The trial of such a case is essentially no different from "an ordinary negligence case." Id.; see Buckelew v. Grossbard, 87 N.J. 512, 527, 435 A.2d 1150 (1981). Nevertheless, it is the unusual professional malpractice case in which the common knowledge doctrine can be invoked. See Hake v. Manchester Township, 98 N.J. 302, 313, 486 A.2d 836 (1985).

The basic postulate for the application of the common knowledge doctrine in a malpractice action "is that the issue of negligence is not related to technical matter peculiarly within the knowledge of the licensed practitioner." Sanzari, supra, 34 N.J. at 142, 167 A.2d 625. The most appropriate application of the common knowledge doctrine involves situations where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience. E.g., Sanzari v. Rosenfeld, supra, 34 N.J. at 140, 167 A.2d 625; Magner v. Beth Israel Hosp., 120 N.J.Super. 529, 533, 295 A.2d 363 (App.Div.1972), certif. den., 62 N.J. 199, 299 A.2d 733 (1973); Tramutola v. Bortone, 118 N.J.Super. 503, 512-13, 288 A.2d 863 (App.Div.1972), rev'd in part on other grounds, 63 N.J. 9, 304 A.2d 197 (1973); Jones v. Stess, 111 N.J.Super. 283, 287-90, 268 A.2d 292 (App.Div.1970); Lewis v. Read, 80 N.J.Super. 148, 170-71, 193 A.2d 255 (App.Div.1963); Becker v. Eisenstodt, 60 N.J.Super. 240, 158 A.2d 706 (App.Div.1960); Toy v. Rickert, 53 N.J.Super. 27, 146 A.2d 510 (App.Div.1958); Steinke v. Bell, 32 N.J.Super. 67, 107 A.2d 825 (App.Div.1954); Gould v. Winokur, 98 N.J.Super. 554, 237 A.2d 916 (Law Div.1968), aff'd, 104 N.J.Super. 329, 250 A.2d 38 (App.Div.1969).

We have specifically acknowledged that the common knowledge doctrine may be applicable to a malpractice action against a chiropractor. Thus, in Klimko v. Rose, supra, the Court pointed out that while expert testimony was required to establish causation, such testimony was not required under the particular circumstances to establish the standard of care applicable to a chiropractor or to establish whether under the circumstances that standard of care had been breached. In that case the conduct of defendant involved a course of treatment entailing the forcible application of pressure against the patient's neck. We concluded that a layperson drawing upon common knowledge and ordinary experience could readily determine without the assistance of an expert whether defendant had acted unreasonably in repeatedly applying pressure to the patient's neck after the patient had already once lost consciousness. 84 N.J....