SABRINE KASTRATI VS. PREMIER ENDOSCOPY, LLC (L-3019-17, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0050-19T3

SABRINE KASTRATI
and SAM KASTRATI,

Plaintiffs-Appellants,

v.

PREMIER ENDOSCOPY, LLC,

Defendant-Respondent.
___________________________

Submitted April 22, 2020 – Decided May 7, 2020

Before Judges Haas and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3019-17.

Peter N. Davis & Associates, attorneys for appellants
(Nicholas Barone and Michael Anthony Mattessich, on
the brief).

Giblin, Combs, Schwartz, Cunningham & Scarpa,
attorneys for respondent (Stewart Arnold Cunningham
and Craig M. Wagenblast, on the brief).

PER CURIAM
 In this personal injury action, plaintiffs Sabrine Kastrati and her husband

Sam1 appeal from the Law Division's July 26, 2019 order granting defendant

Premier Endoscopy, LLC's motion for summary judgment and dismissing their

complaint because they did not file an affidavit of merit. We reverse.

We begin by summarizing the facts, viewed in the light most favorable to

plaintiffs in our consideration of defendant's summary judgment motion. Polzo

v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 523 (1995)). On October 23, 2015, Sabrine went to

defendant's facility for a colonoscopy and endoscopy. After the procedure was

completed, Sabrine awoke in a recovery room. She alleged that a nurse began

yelling at her to "wake up," and told her it was "time to go" to the dressing room

to change her clothes before leaving the facility.

The facility had a single dressing room for both pre- and post-procedure

patients. Sabrine stated she felt tired, sleepy, and dizzy. Because she could not

walk to the dressing room by herself, Sabrine held on to the nurse's arm. After

assisting Sabrine in getting to the dressing room, the nurse closed the door and

went to the kitchen where another nurse was eating lunch. Sabrine alleged she

1
Because plaintiffs share the same surname, we refer to them by their first
names in order to avoid confusion. In doing so, we intend no disrespect.
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still felt sleepy. She remembered walking to the middle of the dressing room

and then she "was out[.]"

When she woke up on the floor, Sabrine began screaming from the pain

she felt on the right side of her body, including her hip. Eventually, several staff

members came to the room and Sabrine told them she had injured her hip. The

staff picked her up and put her in a wheelchair, and later transferred her to a bed.

The staff refused to call an ambulance to come to the facility to assist Sabrine,

and her daughter drove her to a hospital, where she was treated for injuries,

including a broken hip caused by the fall.

On September 21, 2017, plaintiffs filed a complaint against defendant.

The complaint contained one count of negligence applicable to defendant for

"failing to properly supervise and/or monitor [Sabrine] which in turn caused

[her] to sustain a slip and fall accident immediately following her procedure,"

and for "negligently and carelessly leaving [Sabrine] without assistance

following her procedure."2

Plaintiffs did not assert any claim for medical malpractice against

defendant, and did not name the physician who performed the procedure, the

anesthesiologist, or the nurses as defendants. The complaint was placed on the

2
Sam sought damages for loss of consortium.
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"personal injury" track. However, defendant filed an answer, and asserted that

Sabrine's allegations were for medical malpractice and, as result, plaintiffs were

required to file an affidavit of merit (AOM).

When determining whether a cause of action alleges a claim of

professional negligence or ordinary negligence, a court must scrutinize the legal

claims alleged. Couri v. Gardner, 173 N.J. 328, 340-41 (2002). "It is not the

label placed on the action that is pivotal but the nature of the legal inquiry." Id.

at 340. The court must consider whether "a claim's underlying factual

allegations require proof of a deviation from a professional standard of care[.]"

Ibid.

Where a negligence claim against a defendant involves a deviation from a

professional standard of care, thus constituting professional negligence, an

AOM is required. Id. at 340-341. However, not every claim against a licensed

professional requires an AOM. Palanque v. Lambert-Woolley, 168 N.J. 398,

406 (2001). Indeed, a plaintiff need not supply an AOM if defendant's

negligence is a matter of common knowledge, such as ordinary negligence. Ibid.

The common knowledge doctrine applies where "jurors' common knowledge as

lay persons is sufficient to enable them, using ordinary understanding and

experience, to determine a defendant's negligence without the benefit of the

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specialized knowledge of experts." Hubbard ex rel. Hubbard v. Reed, 168 N.J.

387, 394 (2001) (quoting Estate of Chin v. Barnabas Med. Ctr., 160 N.J. 454,

469 (1999)).

Under the AOM statute, N.J.S.A. 2A:53A-26 to -29, the AOM should be

filed within sixty days of the filing of the answer. N.J.S.A. 2A:53A-27.

However, the AOM may still be deemed timely if the plaintiff establishes good

cause and obtains leave from the court. Paragon Contrs., Inc. v. Peachtree

Condo, Ass'n, 202 N.J. 415, 422 (2010). The failure to file a timely AOM

"generally requires dismissal with prejudice because the absence of an [AOM]

strikes at the heart of the cause of action." Ibid.

When there is a dispute as to whether an AOM is required, the trial court

must conduct a Ferreira3 hearing before dismissing the complaint with prejudice.

A Ferreira hearing is "an accelerated case management conference [to] be held

within ninety days of the service of an answer in all malpractice actions." Id. at

154. "At the conference, the parties and the court are to identify any failure to

comply with the [AOM] statute in time to correct it within the statutory time

limit[.]" Paragon, 202 N.J. at 423.

3
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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 The trial court did not conduct a Ferreira hearing in this case. Instead,

defendant filed a motion to dismiss the complaint because plaintiffs had not filed

an AOM. The trial judge denied the motion on May 29, 2018. In his oral

decision, the judge found that an AOM was not required because plaintiffs were

alleging ordinary negligence on defendant's part, rather than a claim for medical

malpractice. The judge stated that

given the nature of the allegation and forgetting the
various labels that counsel are putting on it, and
acknowledging that this is a close question, I'm of the
opinion that an [AOM] is not required based on the
allegations in this case.

I think that it's within the common knowledge of
jurors to hear what happened and determine if there was
negligence on the part of the . . . staff.

Three weeks before the June 1, 2019 discovery end date, defendant filed

a motion for summary judgment. Defendant again asserted that plaintiffs '

allegations sounded in medical malpractice and because they had still not

submitted a liability expert's report in support of their claims, plaintiffs could

not prove their case.

Plaintiffs opposed the motion, and pointed out that the judge had already

determined that their claims fell under the common knowledge doctrine and,

therefore, no expert report or AOM was required. Nevertheless, on June 3, 2019,

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plaintiffs submitted an expert report prepared by a registered nurse, who opined

that Sabrine's injuries "could have been avoided had [she] had the proper

supervision required post procedure." 4

Defendant's summary judgment motion was heard by a different trial

judge. The second judge framed the primary issue for resolution as whether the

first judge "should have tossed [the complaint] at the outset" because this was a

"medical, professional negligence" case that required an AOM. In answering

this question in the affirmative, the second judge stated:

I'm going to grant the motion. I find this was a
professional malpractice case or claim. I do so because
the inference is that whoever made the decision that the
anesthesia had properly worn off and that this woman
was good to go and get back to the dressing room really
deviated from the accepted standard based on her
complaints that she was and then therefore, they should
have kept her longer in recovery.

I will admit that her complaints do – if I was
going to find there was just general negligence, her
complaints would probably cause a genuine issue of
material fact but because I believe that this count is
really a professional negligence/medical malpractice
case, there should have been an [AOM]; there wasn't.

4
The June 1, 2019 discovery end date fell on a Saturday. Thus, plaintiffs'
submission of their expert's report on Monday, June 3, 2019, was timely under
Rule 1:3-1, which states that if the last day of a period of time fixed by a court
rule falls on either a Saturday, Sunday, or legal holiday, the time period "runs
until the end of the next day which is neither a Saturday, Sunday nor legal
holiday."
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 You need an expert. I mean, it's also an admission by
producing the nurses expert towards the end of
discovery and she gives basically the professional
standards of what you – what – how to analyze this and
she – you know, she's a registered nurse. I believe the
woman who brought her to the dressing room was a
registered nurse.

I find therefore that this was a count of medical
or professional negligence, and therefore, I'm going to
grant the application to dismiss this with prejudice.

This appeal followed.

On appeal, plaintiffs contend that the second judge erred by reviewing the

first judge's ruling that an AOM was not required and changing the law of the

case by concluding that because an AOM was not provided, their complaint had

to be dismissed. They also assert that even if they had to submit an expert's

report, they did so on the discovery end date and the second judge erred by

failing to consider it. We agree.

In deciding motions for summary judgment, we, like the trial court, review

"the competent evidential materials submitted by the parties to identify whether

there are genuine issues of material fact and, if not, whether the moving party is

entitled to summary judgment as a matter of law." Bhagat v. Bharat A. Bhagat

& Cranbury Hotels, LLC, 217 N.J. 22, 38 (2014); R. 4:46-2. Summary judgment

should be denied unless the moving party's right to judgment is so clear that

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there is no room for controversy. Akhtar v. JDN Props. at Florham Park, L.L.C.,

439 N.J. Super. 391, 399 (App. Div. 2015). Applying this standard, we are

constrained to reverse the second judge's grant of summary judgment to

defendant.

The first judge analyzed the parties' contentions concerning the nature of

plaintiffs' claim and concluded that it sounded in ordinary negligence. Because

the matter was not a medical malpractice case and the common knowledge

doctrine applied, the judge determined that plaintiffs were not required to submit

an AOM. This decision constituted the law of the case. "The 'law of the case'

doctrine embodies 'the principle that where there is an unreversed decision of a

question of law or fact made during the course of litigation, such decision settles

the decision for all subsequent stages of the suit.'" L.T. v. F.M., 438 N.J. Super.

76, 88 (App. Div. 2014) (quoting Slowinski v. Valley Nat'l Bank, 264 N.J.

Super. 172, 179 (App. Div. 1993)). "The rule is based on the policy that, when

an issue is litigated and decided in a case, that decision should be the end of that

issue." Ibid. (citing Slowinski, 264 N.J. Super. at 179).

A trial judge may reconsider an interlocutory order if the judge determines

the matter was incorrectly decided. Lombardi v. Masso, 207 N.J. 517, 539

(2011). But our system of civil litigation does not permit one trial judge to

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review whether the decision of another judge "of coordinate jurisdiction" is

correct in the same way that an appellate court does. See Akhtar, 439 N.J. Super.

at 399 (stating that "relitigation of an interlocutory order before successive

judges of coordinate jurisdiction is generally disfavored").

In Cineas v. Mammone, 270 N.J. Super. 200, 207-08 (App. Div. 1994),

we stated: "judges should not vacate orders of judges of co-ordinate jurisdiction

unless there are exceptional circumstances" or "unless there has been a material

change in the facts or available evidence." There were no exceptional

circumstances in this case, nor any changes in the facts or the evidence. The

first judge's decision that an AOM was not required was not "a denial of justice

under the law" that warranted the second judge's contrary ruling. Clarkson v.

Kelly, 49 N.J. Super. 10, 18 (App. Div. 1958) (quoting Hartpence v. Grouleff,

15 N.J. 545, 548 (1954)).

A second judge would also be justified in reconsidering and vacating a

prior order if there was an intervening change in the law or an authoritative

judicial decision that affected the prior decision. See Fujisawa Pharm. Co. v.

Kapoor, 151 F.3d 1332, 1339 (7th Cir. 1997) ("The doctrine of law of the case

requires the second judge in a case in which there has been a reassignment to

abide by the rulings of the first judge unless some new development, such as a

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new appellate decision, convinces him that his predecessor's ruling was

incorrect."). There was no change in the law in this case.

The second judge simply had a different view of the nature of the case

from that of the first judge. His decision that an AOM was needed essentially

amounted to a one-judge review of a trial court decision, the equivalent of the

appellate process reserved for this court and the Supreme Court.

Moreover, the second judge's decision to require an expert report at that

late date was unfair to plaintiffs in view of the fact that the entire case had

proceeded on the ordinary negligence, personal injury track based on the

common knowledge doctrine. In addition, the second judge's decision to grant

defendant's summary judgment motion ignored the fact that plaintiffs did submit

an expert report from a registered nurse on the question of liability in response

to the application. The judge did not adequately review the report on the record,

and did not find that the report was insufficient to meet any argument defendant

might press at trial concerning the issue of its liability for Sabrine's injury.

Under these circumstances, we reverse the second judge's grant of

summary judgment to defendant, reinstate plaintiffs' complaint, and remand for

further proceedings.

Reversed and remanded. We do not retain jurisdiction.

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