Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 1999
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
This is an appeal from an order entered on December 4, 1998, dismissing "with prejudice" plaintiff's complaint against defendant "for failure to comply with N.J.S.A. 2A:53A-26," the "Affidavit of Merit" statute. *fn1 On this appeal, plaintiff contends that the dismissal was inappropriate, particularly as it was entered "with prejudice," because she had the expert's report before filing her medical malpractice complaint and, in any event, did not need an expert's report given the nature of the claim.
It is alleged, and we must accept as true given the pretrial dismissal and the expert report, that defendant misread a laboratory report and read the specimen identification numbers as the results of the blood tests. Therefore, according to the expert, "[w]ith reasonable medical certainty the misreading as positive of the pregnancy tests [led] to the incorrect diagnosis of ectopic pregnancy," and "[t]his deviation led to the performance of surgery which was not needed." According to plaintiff, she had the report before filing the complaint and submitted the affidavit of merit before the statute of limitations ran. In any event, as already noted, plaintiff also asserts that an affidavit of merit was not needed because this was the type of malpractice case which could be "proven without the need for expert opinion as to a standard of care or deviation because a jury can reasonably infer that the harm would not have occurred but for the defendant's misreading of the report."
Judge Patrick McGann dismissed the case because the affidavit was received by defendant "far after the maximum 120 day period that is specified under the affidavit of merit statute."
Plaintiff appeals contending, as noted, that an affidavit of merit was not required because she obtained
a report from an expert prior to instituting suit, and thereafter obtain[ed] an affidavit of merit prior to the running of the statute of limitations, demonstrat[ing] that the action was not frivolous and was filed in good faith, so that even if dismissal was appropriate, the circumstances taken in their totality are so extraordinary as to have required that dismissal be without prejudice. Plaintiff cites Barreiro v. Morais, 318 N.J. Super. 461 (App. Div. 1999), and Hyman Zamft & Manard v. Cornell, L.L.C., 309 N.J. Super. 586 (App. Div. 1998), for the proposition that there should be a "fact sensitive analysis" concerning application of an exception to the Cornblatt requirement that the dismissal be "with prejudice." See Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242-47 (1998).
Defendant contends that the dismissal "with prejudice" should be affirmed because the affidavit of merit was not served within 60 days (or even 120 days) of the answer as required by statute. *fn2 She further submits that the "extraordinary circumstances [exception permitted by case law] have to do with either the intransigence of defendants in supplying needed medical records, or lulling [plaintiffs] into believing that the records are forthcoming," which does not apply here, see also N.J.S.A. 2A:53A-28, and that the statute does not provide for an exception to the filing of an affidavit of merit for any type of malpractice case. Finally, she argues that "an affidavit of merit is required to be filed and served by a plaintiff in every case involving an allegation of negligence against a professional licensed defendant." Defendant therefore takes issue with Janelli v. Keeper, 317 N.J. Super. 309, 313 (Law Div. 1998), which "concludes that in a res ipsa loquitur or common knowledge case where expert testimony will not be utilized and is not required at trial, the affidavit of merit statute does not apply."
N.J.S.A. 2A:53A-27 provides:
Affidavit required in certain actions against licensed persons
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.
For purposes of this appeal, we will assume, without deciding, that no affidavit is required where expert testimony is not required and the malpractice can be established as a matter of common sense. See Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 321 (App. Div. 1999) (Wecker, J.A.D., concurring). However, even under that rationale, an affidavit must be served within the sixty-day period unless the proofs would permit application of the common sense or common knowledge exception to the need for expert testimony. Here, however, some expert proof would be required to explain that the surgery was not medically necessary and to explain the impact of the misreading of the laboratory report in this regard. *fn3 Plaintiff does not explain how she would ...