Sanzari v. Rosenfeld

• Decision Date: 23 January 1961
• Docket Number: No. A--57,A--57
• Citation: 34 N.J. 128,167 A.2d 625
• Parties: Angelo SANZARI, administrator ad prosequendum and general administrator of the Estate of Violet Sanzari, deceased, and Angelo Sanzari, individually, Plaintiff-Appellant, v. Philip J. ROSENFELD and Lawrence I. Shepard, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 128

34 N.J. 128

167 A.2d 625

Angelo SANZARI, administrator ad prosequendum and general administrator of the Estate of Violet Sanzari deceased, and Angelo Sanzari individually, Plaintiff-Appellant, v. Philip J. ROSENFELD and Lawrence I. Shepard, Defendants-Respondents.

No. A--57.

Supreme Court of New Jersey.

Argued Dec. 19 and 20, 1960.

Decided Jan. 23, 1961.

Seymour Cohen, Hackensack, for plaintiff-appellant (Joseph Coult, Fairlawn, of counsel and on the brief).

Kevin M. O'Halloran, Hackensack, for defendants-respondents (Morrison, Lloyd & Griggs, Hackensack, attorneys; Kevin M. O'Halloran, Hackensack, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

This is a death action involving a claim of dental malpractice. The specific act of negligence stressed at the trial by the plaintiff, administrator Ad pros and general administrator of the estate of Violet Sanzari, was that the defendant, Dr. Philip J. Rosenfeld, failed either to take a medical history or an adequate history from Mrs. Sanzari before administering anesthesia. The trial court granted defendants' motion for dismissal at the end of plaintiff's case. We certified plaintiff's appeal before hearing in the Appellate Division.

When ruling upon a motion for judgment of dismissal, the court must view plaintiff's evidence as true, and draw therefrom every legitimate inference of fact favorable to the plaintiff. Applying that standard to the present case, we find that the evidence discloses the following:

The defendants, Drs. Rosenfeld and Shepard, were partners in the practice of dentistry at Hackensack, Bergen County. On August 27, 1958 Mrs. Sanzari visited Dr. Rosenfeld (hereinafter called defendant) to have a filling replaced. After the defendant injected an anesthetic solution into Mrs. Sanzari's gums, she asked him to wait a few minutes because she was 'very nervous.' He waited three to five minutes, began work, and completed filling the tooth in about twenty minutes. Mrs. Sanzari then rose from the chair, prepared to leave the room, and fell, having suffered a cerebral hemorrhage or stroke, as a result of which she died three days later.

The anesthetic solution injected into Mrs. Sanzari's gums was Xylocaine in combination with Epinephrine, a compound manufactured by Astra Pharmaceutical Products, Inc. A brochure prepared by the manufacturer and accompanying each container of Xylocaine describes the nature of the solution and states that it is prepared in three ways: with two strengths of Epinephrine and without Epinephrine. The brochure further states that Xylocaine without Epinephrine is 'adequate in those cases where vasopressor drugs are contraindicated.' Xylocaine is an anesthetic. Epinephrine is a vasoconstricting drug, i.e., one which compresses the diameter of the blood vessels. It is administered in combination with Xylocaine to contain the latter in the injected area so as to extend the duration of the anesthetic effect. A consequence of administering Epinephrine is to increase the patient's blood pressure. It is for this reason that the use of Epinephrine is contraindicated in cases where the patient suffers from hypertension (high blood presure). In a hypertensive patient the bursting point of the blood vessels is reached very quickly upon elevation of the blood pressure. Only a minute amount of Epinephrine is required to raise the pressure. A stroke is the cerebral hemorrhage which results from the bursting of the vessels.

Mrs. Sanzari suffered from high blood pressure. From June 16, 1947 to November 2, 1956, she was treated by her physician, Dr. Arthur Greenfield, for high blood pressure, an old systolic heart murmur, chronic myocarditis and overweight. She first visited the defendant for dental work on June 25, 1956, when she was still being actively treated by Dr. Greenfield. Medical testimony showed that the Epinephrine-bearing compound injected by defendant aggravated Mrs. Sanzari's already hypertensive condition, causing the cerebral hemorrhage and ensuing death.

The foregoing is a resume of what a jury could find on the basis of the testimony presented.

There was also testimony that at the time the defendant injected the Xylocaine with Epinephrine into Mrs. Sanzari, he was unaware that she suffered from hypertension. His dental records contain no mention of any medical history. However, in his deposition, admitted in evidence, he stated that it was his practice to ask all patients upon the occasion of their first visit how their 'general health' was. Only if the patient told him of some condition would he make any notation upon his chart. He said that to the best of his recollection, it was his 'guess' that he asked Mrs. Sanzari how her general health was, and that since he made no notation on his chart, she must not have told him anything about her hypertension. If he had known Mrs. Sanzari was hypertensive, he would have consulted her physician before administering the solution. On the other hand, he also stated that to his knowledge Xylocaine with Epinephrine was not contraindicated in cases of patients suffering from hypertension.

The trial court granted defendants' motion for dismissal at the close of plaintiff's case on the grounds that (1) there was no expert testimony as to the method of treatment approved by dentists administering anesthesia, and (2) there was no evidence that defendant failed to obtain a history from the patient. Plaintiff urges reversal of the judgment below on the grounds that (1) if he did not establish the applicable standard of care, it was because the trial court erroneously prohibited his expert from testifying thereto, (2) he in fact did establish a standard of care, and (3) it was unnecessary to establish a standard of care in this case.

I

Was plaintiff's expert qualified to testify to the applicable standard of care?

Negligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm. In the usual negligence case, it is not necessary for the plaintiff to prove the standard of conduct violated by the defendant. It is sufficient for plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken. 2 Harper & James, Torts, § 17.1, pp. 963--964 (1956). '(T)he jury (thus) must formulate an unformulated community standard of conduct and match the defendant's acts against it.' Morris, 'The Relation of Criminal Statutes to Tort Liability,' 46 Harv.L.Rev. 453, 454 (1933). In the ordinary dental or medical malpractice case, however, the jury is not competent to supply the standard by which to measure the defendant's conduct. Since it has not the technical training necessary to determine the applicable standard of care, it cannot, without more, form a valid judgment as to whether the defendant's conduct was unreasonable under the circumstances. Therefore, ordinarily when a physician or dentist is charged with negligence in the treatment of a patient, the standard of practice to which he failed to adhere must be established by expert testimony. In such cases, if the plaintiff does not advance expert testimony establishing an accepted standard of care, it is proper for the court to grant a dismissal at the close of plaintiff's case. Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (E. & A.1944); Burdge v. Errickson, 132 N.J.L. 377, 40 A.2d 573 (E. & A.1945); Toy v. Rickert, 53 N.J.Super. 27, 146 A.2d 510 (App.Div.1958). See Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680 (1953); 7 Wigmore, Evidence § 2090a, p. 453 (3d ed. 1940); Rogers, Expert Testimony § 153, p. 361 (3d ed. 1941).

Plaintiff's expert witness was a physician, Dr. Isaac M. Kaplan. After testifying as to his medical and dental anesthesiological experience, the nature and function of Xylocaine and Epinephrine, and the effect of Epinephrine on a hypertensive person, Dr. Kaplan was asked the following questions:

'(1) Q. Doctor, are you familiar with the general accepted practice among dentists in this area, the Bergen County area, with reference to the use of anesthetics in dental cases?

'(2) Q. Doctor, in your experience as an anesthesiologist, both in the medical and dental anesthesiology fields, is it proper practice for either the dentist or the doctor prior to administering an anesthesia to take a history from a patient?

'(3) Q. Doctor, do you know from your own knowledge and experience what standard of care is used by dentists in the Bergen County area with reference to the use of anesthetics?'

The trial court did not permit Dr. Kaplan to answer the above-quoted questions because, in its view, since he was not a dentist, he was not qualified to testify to the proper standard of care applicable to the dental profession.

In this State, a trial judge's determination of whether a witness is qualified to testify as an expert may be reviewed, and, if clearly erroneous, may be set aside. See Bosze v. Metropolitan Life Insurance Co., 1 N.J. 5, 61 A.2d 499 (1948); Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 72 A.2d 204 (1950).

The test of whether a particular witness is competent to testify as an expert in a malpractice action is whether he has sufficient knowledge of professional standards applicable to the situation under investigation to justify his expression of an opinion relative thereto. Carbone v. Warburton, supra, 11 N.J. at p. 425, 94 A.2d at p. 683. It is generally held that the witness must be a licensed member of the profession whose standards he professes to know. See, e.g., Hull v. Plume, supra, 131 N.J.L. at p. 515, 37 A.2d at p. 55; Rawleigh v. Donoho, 238 Ky. 480, 38 S.W.2d 227 (Ct.App. 1931). The reason for this requirement is that when the subject matter testified to falls distinctly within the province of a...