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Burns v. Belafsky

December 20, 1999


Before Judges Havey, Rodriguez and Lintner.

The opinion of the court was delivered by: Lintner, J.S.C. (temporarily assigned)


Argued telephonically October 19, 1999

On appeal from the Superior Court of New Jersey, Law Division, Burlington County.

The central issue posed by this appeal is whether the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, requires a party seeking an extension of time to file a motion during the initial sixty day period. We hold that there is no such limitation, and that a motion to extend may be made within 120 days.

In December 1995, plaintiff, Denise L. Burns, began experiencing pain in the left side of her face. Her family doctor referred her to defendants, Drs. Mark L. and Robert B. Belafsky, who in turn referred her to defendants, Dr. Ira Stark and South Jersey Imaging Associates P.A., on or about December 22, 1995, for various radiological studies including a CT scan, MRI and MRA of the neck. Dr. Stark reviewed the radiological studies and determined that plaintiff was suffering from a soft tissue mass in the left side of her neck situated in the left parapharyngeal space.

On or about December 29, 1995, as an office procedure, Dr. Mark Belafsky*fn1 attempted a needle aspiration of a parapharyngeal mass in plaintiff's neck, the results of which were inconclusive. On January 5, 1996, Dr. Mark Belafsky attempted a direct laryngoscopy, left cervical node biopsy, and fine needle aspiration of the mass, and again the results were inconclusive. Thereafter, plaintiff was admitted to Rancocas Hospital on January 24, 1996, where Dr. Mark Belafsky and Dr. Robert Belafsky performed additional procedures, in an attempt to remove the mass. Plaintiffs contend that, as a result of these procedures, Mrs. Burns suffered paralysis of the 9th, 10th and 12th cranial nerves, as well as other permanent damage to her head, neck, throat and vocal cords.

On April 1, 1996, Mrs. Burns underwent a pre-operative work up at Wills Eye Hospital and thereafter, on April 2, 1996, was admitted to Pennsylvania Hospital, where a benign left glomus vagale tumor was removed by Drs. Rosenwasser, Keane and Rosen. Subsequent to the surgery, plaintiffs submitted all medical records to Dr. Michael Salcman, a neurosurgeon. Dr. Salcman completed a report, dated June 6, 1997, in which he opined that defendants Belafsky and Stark deviated from accepted medical standards with respect to their diagnosis, treatment and care of plaintiff.

Mr. and Mrs. Burns instituted this medical malpractice action by filing a complaint against the Drs. Belafsky and Stark on October 6, 1997. Dr. Stark filed an answer on December 18, 1997, and Drs. Belafsky filed their answer on December 29, 1997. Although plaintiffs' counsel had Dr. Salcman's report in his possession since June 1997, he admits that, through inadvertence, he failed to obtain and file an Affidavit of Merit from Dr. Salcman as required by N.J.S.A. 2A:53A-27 within the sixty day period following the filing of Dr. Stark's and Drs. Belafsky's answers. On March 4, 1998, a motion to dismiss the complaint for failure to file the required Affidavit of Merit was filed on behalf of Dr. Stark. On March 23, 1998, during the pendency of Dr. Stark's motion to dismiss, plaintiffs filed Dr. Salcman's Affidavit of Merit incorporating his report of June 6, 1997. Plaintiffs' counsel also filed a response brief which, in part, argued that the March 23 filing was in compliance with the sixty day extension provisions of the statute. The Affidavit of Merit was filed thirty-five days late with regard to Dr. Stark and twenty-five days late with respect to Drs. Belafsky. Dr. Stark's counsel responded that the Affidavit of Merit filed by plaintiffs was out of time, plaintiffs had not filed a motion to extend the time for an additional sixty day period within the first sixty day period, plaintiffs could not establish good cause required to obtain a sixty day extension, and Dr. Salcman was not appropriately licensed, as required by the statute, to give an opinion regarding radiology.

At a hearing held on April 3, 1997, the motion judge indicated he would delay ruling on the motion until counsel and the court had an opportunity to review the recently released Supreme Court decision in Cornblatt v. Barow, 153 N.J. 218 (1998). On May 1, 1998, the judge entered an order dismissing plaintiffs' claims as to Dr. Stark, concluding that plaintiffs had failed to comply with the Affidavit of Merit statute. In reaching his conclusion the judge said:

I am entirely satisfied that the statute is clear and unequivocal, unambiguous, that an affidavit of merit has to be filed within 60 days of the filing of the answer. That if it is not, then an application has to be made within that 60 days [sic] period to extend for another 60 days. Even in the absence of that, there is no indication here of good cause as to why the affidavit of merit was filed without the 60 day period, that is outside the initial 60 day period.

The motion judge never reached a determination of whether plaintiffs' expert was appropriately licenced to render an opinion. On June 22, 1998, defendants Drs. Belafsky filed their motion to dismiss plaintiffs' complaint for failure to comply with the Affidavit of Merit statute. In a response motion, plaintiffs argued that they substantially complied with the statute and Drs. Belafsky were barred by the doctrines of waiver, laches, and estoppel from moving to dismiss at that time. In support of their argument plaintiffs contended Drs. Belafsky: (1) failed to demand an Affidavit of Merit in its answer; and (2) knew about the late filing of the affidavit because of Dr. Stark's March 7, 1998, motion to dismiss. As a result of their delay in moving to dismiss, plaintiffs maintained that they relied upon Drs. Belafsky's silence and continued to move forward with their claims, incurring expenses.

Drs. Belafsky's counsel countered, contending he never received Dr. Stark's motion to dismiss, pointing out that he was omitted from the motion's counsel list. Moreover, defense counsel argued he did not learn of the motion to dismiss until he received the court's May 1, 1998, order dismissing the complaint against Dr. Stark. The motion judge again found plaintiffs had failed to comply with the sixty day requirement of the statute and, accordingly, entered an order dismissing plaintiffs' claims with prejudice for failure to state a cause of action.

On appeal, plaintiffs contend that their late service of the Affidavit of Merit should be excused in accordance with the doctrine of substantial compliance. We disagree. The doctrine of substantial compliance was invoked by our Supreme Court in Cornblatt, supra, 153 N.J. at 218, to justify adequate notice under the Affidavit of Merit statute where a certification was used in lieu of an affidavit. The Supreme Court set forth the requisite circumstances justifying invocation of the substantial compliance doctrine including "at the very least the timely filing of a certification otherwise complying with all the specifications for an Affidavit of Merit; an adequate and reasonable ...

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