Before Judges Pressler, Kestin, and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
This appeal presents another opportunity for interpretation and application of the affidavit of merit statute, N.J.S.A. 2A:53A-27. It arises in the context of a medical malpractice action and involves both an affidavit of merit timely filed but not served, and an expert's report timely served but not sworn.
Plaintiffs' complaint was filed on April 14, 1999. It alleges that Billy Dean Mayfield was a patient of defendant Community Medical Associates and of various doctors in that practice, that they engaged in medical malpractice by failing to assist him in timely renewing a prescription for a particular anti-coagulant medication, and that, as a result, he suffered severe medical problems, hospitalization, and substantial economic loss. His wife asserts a per quod claim.
On April 28, 1999, plaintiffs' counsel filed with the court an affidavit of merit signed by Salvatore Bernardo, Jr., M.D. Solely through inadvertence of counsel, the affidavit was not served on defense counsel until almost one year later, on April 6, 2000. The document, specifically designated as an "affidavit of merit," appears to have been duly sworn to and subscribed by Dr. Bernardo before a notary public of New Jersey on February 26, 1999, and reads in material part as follows:
SALVATORE BERNARDO, JR., M.D., OF FULL AGE BEING DULY SWORN ACCORDING TO LAW UPON HIS OATH, DEPOSES AND SAYS:
1. I am a physician licensed in the State of New Jersey. I have been licensed since 1994 and have been board certified in family medicine since 1996.
2. I am a member of a medical group which has six offices in Monmouth County. I recently started treating Billy Dean Mayfield.
3. I am aware of what occurred to Mr. Mayfield while he was a patient at Community Medical Associates. He has discussed the matter with me and in my view, assuming everything he said is accurate, there is definitely merit in this suit against the doctors in question and their staff.
4. I have no financial interest in the outcome of this matter.
The answer of all defendants was filed July 28, 1999. Plaintiffs' counsel provided an expert's report to defense counsel on September 24, 1999. The report, dated September 7, 1999, is unsworn and uncertified, but appears to be signed by Henry D. Berkowitz, M.D., and is addressed to plaintiff's counsel. It states:
At your request I am responding to your letter of 08/24/99.
Mr. Mayfield has been my patient for some time and has undergone very complicated vascular surgery related to multiple graft occlusions of his right leg. He was found to have a hypercoagular state and because of this was placed on long-term anticoagulation with Coumadin. Apparently Mr. Mayfield's prescription for Coumadin expired and when he called his primary care physicians they refused to renew the prescription for reasons which are completely unclear to me. As a result Mr. Mayfield thrombosed his vein graft which then had to be opened with lytic therapy and then we had to correct some underlying vein graft abnormalities.
Mr. Mayfield was known by his primary care physicians to be on long-term anticoagulations [sic] and the failure to renew his prescription was a significant deviation from the standard of medical care.
Defendants filed a motion on April 5, 2000, seeking an order dismissing the complaint with prejudice for failure to produce an affidavit of merit. The next day, plaintiffs' counsel, having learned that the filed affidavit of merit had not been served, then sent it on to defense counsel. The motion court ruled that plaintiffs had substantially complied with the statute and denied defendants' ...