Before Judges Muir, Jr., Keefe, and Coburn.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Plaintiffs appeal from an order dismissing with prejudice their medical malpractice complaint for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27. The trial court's order was entered after our opinion, but before the Supreme Court's opinion, in Cornblatt v. Barow, 303 N.J. Super. 81 (App. Div. 1997), rev'd, 153 N.J. 218 (1998). Plaintiff raises the following contentions:
"SINCE (1) THE PURPORTED BENEFIT OF EARLY TERMINATION OF SUITS IS ILLUSORY, (2) THE STATUTE IS ESSENTIALLY DIRECTED TOWARD MEDICAL NEGLIGENCE AND HAS LITTLE APPLICATION TO THE OTHER NAMED PROFESSIONS AND (3) EFFECTS MAJOR CHANGES IN THE PROOFS REQUIRED TO ESTABLISH A CAUSE OF ACTION AT TRIAL, N.J.S.A. 2A:53A-26 TO 29 IS UNCONSTITUTIONAL ON SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION GROUNDS UNDER THE NEW JERSEY CONSTITUTION."
"THE CERTIFICATE OF MERIT STATUTE CONTRAVENES THE DOCTRINE OF SEPARATION OF POWERS AND IS IN CONFLICT, EITHER DIRECTLY OR BY NECESSARY IMPLICATION WITH THE RULES OF PROCEDURE PROMULGATED BY THE SUPREME COURT PURSUANT TO THE AUTHORITY DELEGATED TO IT UNDER THE CONSTITUTION."
"THE PROPER CONSTRUCTION OF N.J.S.A. 2A:53A-29 REQUIRES A FINDING THAT ANY DISMISSAL BE "WITHOUT PREJUDICE."
We reject the contentions raised. Nonetheless, the circumstances demonstrated in the record before us suggest extraordinary circumstances, see Cornblatt, supra, 153 N.J. at 245, which would have dictated a dismissal without prejudice before the tort statute of limitations ran. Plaintiff did not have the opportunity to present evidence on the issue of extraordinary circumstances. Consequently, we vacate the order under appeal and remand for a hearing on that issue. We rely on documents in the record for the factual backdrop.
Jose Manuel Barreiro (Barreiro), plaintiffs' son, died March 29, 1996. He was 20 years old. The cause of death was brain stem herniation due to subarachnoid hemorrhage.
Barreiro's medical history prior to his death is reflected in a University Hospital Discharge Summary. Defendant St. James Hospital transferred Barreiro to University Hospital after he went into a deep coma. During the two weeks prior to his admission to St. James, Barreiro experienced flu-like symptoms, vomiting, diarrhea, abdominal pain, and dizziness. ...