On appeal from Superior Court of New Jersey, Law Division, Morris County.
Approved for Publication April 24, 1997.
Before Judges Long, Skillman and A.a. Rodriguez. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
In 1977, the infant-plaintiff, William J. Reimer, Jr., was born at St. Clare's Riverside Medical Center. Ten years after his birth, the infant-plaintiff's parents, individually and on his behalf, filed a medical malpractice complaint against Reza P. Zarkesh, M.D., the obstetrician who handled the delivery. The complaint alleged that the infant's presentation in a double footling breech position warranted performance of a caesarean section and that failure to perform that surgery was malpractice which resulted in injury to the infant. In 1989, that action was voluntarily dismissed because plaintiffs were apparently unable to produce an expert report.
On June 3, 1991, the infant-plaintiff's parents, individually and on his behalf, filed a new complaint against Dr. Zarkesh and fictitiously joined unknown "licensed practicing physicians and/or other health care providers." These defendants allegedly breached their duty
to render proper diagnostic tests and procedures, failed to carefully & diligently monitor plaintiff pregnancy with infant plaintiff ... and failed to adequately monitor plaintiff's overall obstetrical condition, failed to make themselves available to plaintiff for consultations and treatment, failed to properly advise plaintiff of potential complications of her pregnancy which the defendants knew or should have known of, failed to properly attend her delivery of infant plaintiff ... and used a contraindicated and unreasonably dangerous means of delivering said infant, and the defendants generally failed and neglected to treat and care for plaintiff [mother] in a skillful and knowledgeable fashion according to accepted standards of medical and obstetrical practice.
Dr. Zarkesh moved for summary judgment. The trial Judge granted the motion, but only as to the parents' individual claims, and subsequently ordered the guardian ad litem to serve a liability expert report within 30 days. Because no report was timely produced, Dr. Zarkesh again moved for summary judgment dismissing the complaint as to all plaintiffs with prejudice.
Apparently, on February 20, 1992, plaintiffs served Dr. Zarkesh with an expert report prepared by Bernard M. Nathanson, M.D. Dr. Nathanson's report, citing alleged deviations from the standards of practice by Dr. Zarkesh, states in pertinent part:
On page 101 [of his deposition transcript in the previous action] Dr. Zarkesh indicates that he had no time to do a Ceasarean section and that it would take almost an hour to ready an operating room for a Ceasarean section. In that the standard in 1977 for any facility representing itself as offering obstetrical facilities had [sic] to have Ceasarean section capability within 30 minutes, it is clear that either the hospital [i.e., St. Clare's] deviated/departed from the customary standards or Dr. Zarkesh was egregiously incorrect in his opinion that at 9:00 a.m. on a week day morning it would take one hour to set up and start a Cesarean section. *fn1
The trial Judge granted Dr. Zarkesh's previously filed motion for summary judgment and dismissed plaintiffs' complaint in its entirety, with prejudice, on the basis that the expert report was inadequate to establish that Dr. Zarkesh committed malpractice. On appeal, we reversed the trial Judge's dismissal of the infant-plaintiff's claims, but affirmed the dismissal of the parents' claims on the basis that they were time barred under N.J.S.A. 2A:14-2. Riemer v. Zarkesh, No. A-4043-91 (App. Div. April 23, 1993). The infant-plaintiff's case proceeded.
On October 6, 1993, in response to a subpoena duces tecum, St. Clare's advised the infant-plaintiff that it had no written protocols or rules for delivery of infants in a footling breech presentation or for performance of a caesarean section. Dr. Zarkesh thereafter moved to dismiss the infant-plaintiff's complaint for various procedural shortcomings, including the failure to produce Dr. Nathanson for a deposition; to arrange for an examination of plaintiff by a defense medical expert; and, to arrange for depositions of the orthopaedic and pediatric neurology experts. The case then settled, after which a hearing to approve the infant-plaintiff's settlement was held pursuant to R. 4:44-3. An order approving a settlement for $525,000 was signed on November 2, 1994. *fn2
On January 25, 1995, the infant-plaintiff moved for vacation of the orders of dismissal so that he could amend his complaint to add the hospital and two fictitious hospital administrators as defendants. The Judge denied the motion, stating in a handwritten notation at the bottom of a March 20, 1995 order: "Since none of new parties were named in the original complaint, a new action should be instituted." Approximately five weeks later, on May 1, 1995, the ...