Before Judges Havey, A. A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
The novel issue presented in this appeal is whether dismissal of a medical malpractice complaint for failure to provide a timely affidavit of merit, as required by N.J.S.A. 2A:53A-27, the Affidavit of Merit Statute (AMS), should be without prejudice because the action is prosecuted on behalf of a minor. We hold that, although the two-year personal injury statute of limitations, N.J.S.A. 2A:14-21, is tolled during an injured person's minority, once an action is filed on behalf of the minor, failure to comply with the AMS will result in a dismissal with prejudice.
The pertinent facts are as follows. On July 4, 1996, four-year old Dana Kubiak was treated by Imran Chaudhri, M.D., an emergency room physician at Robert Wood Johnson University Hospital (Hospital), for a laceration to her right middle finger. Dr. Chaudhri sutured the finger to close the wound. Plaintiffs claim that Dr. Chaudhri committed an act of medical malpractice by failing to recognize the severe tendon damage caused by the laceration. Several days later, the stitches were removed by David Sharlin, M.D., the family's pediatrician. They further allege that Dr. Sharlin failed to recognize the extent of the tendon damage and to take the medical steps necessary to repair the damaged tendon.
Dana's parents, Gary Kubiak, Jr. and Susan Kubiak (plaintiffs), sued Dr. Chaudhri and his employer, the Hospital. Plaintiffs also sued Dr. Sharlin, his partner Glenn Palsky, M.D., and their professional association Delaware Valley Pediatrics (collectively "DV Pediatrics"). Before suit was filed, plaintiffs' counsel obtained an outline prepared by Jeffrey A. Lindenbaum, D.O., a physician who is board-certified in family practice. This outline indicated that plaintiffs had a "valid claim" against all defendants. However, this outline was not provided to defendants.
DV Pediatrics answered the complaint and moved 139 days later to dismiss plaintiffs' complaint for failure to provide a timely affidavit of merit. DV Pediatrics also challenged Dr. Lindenbaum's qualification to provide an affidavit of merit because he is not a pediatrician. The Hospital also filed a motion to dismiss the complaint for failure to provide a timely affidavit 98 days after filing its answer. Plaintiffs responded by providing to the Hospital and DV Pediatrics affidavits of merit by Dr. Lindenbaum and Steven Costalas, D.O., a board-certified physician in Emergency Medicine. *fn1
At oral argument on the motion, the judge asked why plaintiffs failed to provide a timely affidavit of merit to the defendants. Plaintiffs' counsel explained that it was due to "an oversight of counsel." He added: "I didn't recognize we didn't have it." The judge concluded that plaintiffs' explanation did not constitute good cause. Accordingly, the judge granted DV Pediatrics' and the Hospital's motions and dismissed the complaint with prejudice.
Plaintiffs moved for reconsideration. Upon reconsideration, the judge denied plaintiffs' motion as to DV Pediatrics. As to the Hospital, the judge granted the motion because the Lindenbaum and Costalos affidavits were submitted within 120 days of the filing of the Hospital's answer. These are interlocutory orders because at the time of this entry, defendant, Imran Chaudhri, M.D., had not yet been served with the summons and complaint. As such, plaintiffs moved for leave to appeal from the denial of their motion for reconsideration as to DV Pediatrics. We granted leave. *fn2 The Hospital cross-appealed as to the order reinstating plaintiffs' complaint against it.
On appeal, plaintiffs contend that the judge erred in dismissing their claim with prejudice because: (1) the AMS is ambiguous; (2) plaintiffs substantially complied with the AMS' requirements; and (3) extraordinary circumstances existed.
At the outset, we note a deficiency which unnecessarily burdened our appellate review. Specifically, plaintiffs' counsel failed to comply with Rule 2:6-1(c) because their appendix's table of contents does not "indicate the initial page of each document, exhibit or other paper included . . . ." The rule requires that "attachments to a document by way of affidavits, exhibits or otherwise shall each be separately identified in the table of contents and the initial page of each such attachment noted therein." Ibid. (emphasis added). The purpose of this rule is to provide easy access to the individual items contained in the appendix. The rule is not burdensome. However, a litigant's failure to abide by this rule can be quite burdensome on this court because it requires us to waste time ...