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Mitchell v. Procini6/12/2000
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 12, 2000
On appeal from the Superior Court of New Jersey, Law Division, Camden County.
The central issue raised is whether the defense's inability to examine a plaintiff prior to the insertion of new dental implants constitutes substantial prejudice under R. 4:5-1(b)(2), so as to preclude later joinder in a malpractice action where the complete medical records are available for review. We conclude that Dr. Procini's (defendant) ability to present a defense was not substantially prejudiced. We reverse and remand to permit the motion judge to impose appropriate sanctions. We also reverse the motion judge's grant of summary judgment entering judgment of dismissal in favor of defendant, based upon the determination that plaintiff was fully compensated for his injuries.
This appeal arises from the trial judge's denial of plaintiff's motion for reconsideration of his grant of summary judgment in favor of defendant, Dr. Charles P. Procini, dismissing plaintiff's complaint. A full discussion of the underlying facts is set forth in this court's reported opinion in Mitchell v. Charles P. Procini, D.D.S., 315 N.J. Super. 557 (App. Div. 1998). We provide a short synopsis of the facts relevant to this appeal.
On January 1, 1994, plaintiff, Anthony D. Mitchell, was injured in a bar brawl at Planet Cherry Hill. He suffered serious injuries to his mouth requiring significant dental work. Defendant examined plaintiff on January 27, 1994, and started treatment culminating in the insertion of dental implants. Shortly after defendant started his treatment, plaintiff filed an amended complaint seeking damages against Planet Cherry Hill, its owners and employees (Cherry Hill defendants), asserting that his injuries were caused by the Cherry Hill defendants' negligent failure to separate two brawling patrons. Plaintiff's final office visit with defendant was on January 3, 1995. On June 1, 1995, at plaintiff's attorney's request, defendant Procini furnished a report concerning the treatment he rendered.
Thereafter, plaintiff was examined by Dr. Thomas Westcott, another dentist, who informed plaintiff that the two dental implants inserted by defendant needed to be replaced. In July 1995, Dr. Bradford Porter removed and replaced the implants. In August 1995, soon after the removal and replacement of the implants by Dr. Porter, plaintiff attended a voluntary arbitration hearing pursuant to R. 4:21A-1 and was awarded $90,000 in total damages. The arbitration panel assessed plaintiff's contributory fault at thirty-five percent. Plaintiff rejected the arbitration award and filed a demand for jury trial de novo. R. 4:21A-6(c).
On May 22, 1996, the scheduled trial date, plaintiff settled his claims against the Cherry Hill defendants for $125,000, eventually signing a release presumably preserving his rights against other potential tortfeasor defendants. On that same day, plaintiff filed a motion to file an amended complaint, seeking to add defendant, alleging malpractice. After answering the amended complaint, defendant moved for summary judgment and, under the then-existing entire controversy rule, the motion judge dismissed the action against defendants, finding that plaintiff had failed to comply with the then-applicable entire controversy doctrine and notice requirements of R. 4:5-1(b)(2).
In a published opinion, we concluded that plaintiff's failure to provide notice of the contemplated addition of defendant to the case was inexcusable but found, based upon the record before us, that a determination could not be made that defendant's ability to present a d
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