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Ricra v. Barbera

March 01, 2000

CARLOS RICRA, PLAINTIFF-RESPONDENT,
v.
FRANK BARBERA, M.D., DEFENDANT-APPELLANT.



Before Judges Skillman, D'Annunzio and Fall.

The opinion of the court was delivered by: D'annunzio, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 1, 2000

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

We granted defendant leave to appeal an order denying his motion to dismiss the complaint in this medical malpractice case. The issue is whether plaintiff's submission of an unsworn and uncertified expert's report within sixty days of defendant's answer satisfied the affidavit of merit statute. N.J.S.A. 2A:53A-26 et seq. We conclude that it did not and we reverse.

Plaintiff alleged that he suffered adverse consequences from medication defendant had prescribed. The complaint alleged that in February 1996 defendant "negligently and carelessly failed to warn plaintiff of side effects of medication prescribed and/or negligently and carelessly failed to supervise the plaintiff's condition over the course of the five week period during which plaintiff was utilizing drugs prescribed by defendant."

Plaintiff filed the complaint on February 5, 1998, but the summons is dated September 28, 1998. Defendant filed his answer on December 10, 1998. The parties agree that simultaneously with the filing of his answer defendant served on plaintiff a request to produce and a demand for answers to interrogatories. The request to produce included:

"Plaintiff's Affidavit of Merit from a physician to support plaintiff's claims against this defendant pursuant to N.J.S.A. 2A:53A-29."

On January 20, 1999, within sixty days of defendant's answer, plaintiff submitted the unsworn and uncertified letter report of Dr. Lawrence J. Nastro of the Summit Medical Group. The report, dated August 31, 1998, states in full:

At your request, I have reviewed the records of Mr. Carlos Ricra and also your follow-up letter of March 9, 1998 clarifying the medication that was prescribed for Mr. Ricra.

Basically, he was given Voltaren 75 mg twice a day in addition, Flexeril 10 mg once a day on February 12, 1996. He continued this through March 5, 1996.

On March 6, 1996 he was admitted to the hospital with a bleeding peptic ulcer for which he was successfully treated.

I am also informed that Mr. Ricra was never informed of the possible side effects of Voltaren by either his physician [ ]or the pharmacy that provided him with his prescription medication.

It is therefore, my opinion that firstly Mr. Ricra's ulcer was definitely related to Voltaren. Voltaren is a non-steroidal anti-inflammatory drug that has a known ...


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