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Burns v. Belafsky

February 26, 2001


The opinion of the court was delivered by: Poritz, C.J.

ON CERTIFICATION TO Appellate Division, Superior Court

Argued September 11, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 326 N.J. Super. 462 (1999).

In this case we are once again called on to consider the Affidavit of Merit Statute enacted by the Legislature in 1995 as part of a legislative package designed to effectuate tort reform in New Jersey. See Peter Verniero, Chief Counsel to the Governor, Report to the Governor on the Subject of Tort Reform (Sept. 13, 1994). That statute establishes procedures by which "plaintiffs in malpractice cases [are required] to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily [can] be identified at an early stage of litigation." Cornblatt v. Barow, 153 N.J. 218, 242 (1998) (quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). To make that threshold showing, when plaintiffs allege medical malpractice they must provide defendants with an affidavit of merit executed by an appropriate licensed physician. N.J.S.A. 2A:53A-27.

The dispute before the Court involves the timeliness of plaintiffs' affidavit. The statute requires a plaintiff to provide the affidavit of merit within sixty days of the date the defendant files his answer to the complaint, but allows a sixty- day extension for good cause. Ibid. Here, plaintiffs obtained a physician's report months before filing their complaint, and then failed to submit the affidavit until eighty-five and ninety-five days after each defendant's respective answer had been filed. The affidavit was thereby provided within the extension period permitted by statute, although leave of court had not been sought within the initial sixty-day window. Defendants claim that the affidavit may be submitted after the first sixty days only when the plaintiffs have made their request for an extension during the first sixty days. The statute is silent on that question.

We do not know whether plaintiffs will ultimately prevail at trial. We do know that in this case, an expert's report was obtained even before the complaint was filed. Indeed, the physician who prepared that report later executed the affidavit, asserting to the merit of plaintiffs' claims. When a statute is susceptible of an interpretation true to its purpose and that permits plaintiffs to proceed with meritorious claims, we will not add requirements not explicitly set forth that deny plaintiffs their day in court. We hold therefore that an affidavit submitted within the sixty-day extension period should be considered timely filed so long as good cause is found by the trial court.


Plaintiffs, Denise L. Burns and her husband, allege medical malpractice by defendants, Drs. Mark and Robert Belafsky, Dr. Ira Stark, and South Jersey Imaging Associates, in their diagnosis, treatment, and care of Denise Burns (hereinafter Burns or plaintiff) in respect of a soft tissue mass found in the left side of plaintiff's neck. From December 1995 through January 1996, defendants performed several tests and procedures on Burns in an attempt to diagnose and remove the mass. Plaintiffs allege that, as a result of those procedures, Burns suffered paralysis of certain cranial nerves, as well as other permanent damage to her head, neck, throat and vocal cords.

After undergoing successful surgery in April 1996 to remove the mass, plaintiff submitted her medical records to a neurosurgeon, Dr. Michael Salcman. In a report dated June 6, 1997, Dr. Salcman expressed his belief that defendants had deviated from accepted standards of care in their diagnosis and treatment of Burns. Plaintiffs then filed this malpractice action on October 6, 1997.

Although Dr. Stark filed his answer on December 18, 1997 and Drs. Mark and Robert Belafsky filed their answer on December 29, 1997, plaintiffs' counsel failed to provide an affidavit of merit as required by N.J.S.A. 2A:53A-27 within sixty days of defendants' respective answers. Consequently, on March 4, 1998, Dr. Stark filed a motion to dismiss the complaint for failure to file an affidavit of merit. Plaintiffs filed Dr. Salcman's affidavit, incorporating his June 1997 report, on March 23, 1998, ninety-five days after Dr. Stark filed his answer and eighty-five days after Drs. Mark and Robert Belafsky filed their answer. On June 22, 1998, both doctors also filed a motion to dismiss plaintiffs' complaint for failure to file an affidavit of merit within sixty days of the filing of their answer.

The trial court granted defendants' motions, agreeing that the statute required plaintiffs to file either an affidavit of merit or a motion for an extension within sixty days of each defendant's answer and that, in any case, plaintiffs had not made a showing of good cause for an extension. The Appellate Division reversed, finding that plaintiffs had timely filed their motion within the sixty day extension period provided by the statute and that counsel's inadvertent failure to file Dr. Salcman's affidavit constituted good cause to permit the extension. Burns v. Belafsky, 326 N.J. Super. 462, 466, 472 (1999). We granted defendants' petition for certification, 164 N.J. 189 (2000), and now affirm the judgment of the Appellate Division.

II. The Affidavit of Merit Statute, N.J.S.A. 2A:53A-27, states:

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.

Both plaintiffs and defendants rest their respective positions in this appeal on principles of statutory construction. Plaintiffs' argue that the statute does not expressly require a plaintiff to file a motion for an extension within sixty days of a defendant's answer, and therefore permits a court to grant such an extension for good cause when the affidavit is provided before the expiration of the extension period, i.e., after sixty but before 120 days from defendants' answers. In support of that position, plaintiffs contrast the Affidavit of Merit Statute with other New Jersey statutes that explicitly state when a motion for an extension must be filed. Plaintiffs also contend that permitting an extension in this case will not compromise the legislative purpose behind the statute -- the prevention of meritless malpractice lawsuits -- because plaintiffs had Dr. Salcman's report in their possession even before filing their lawsuit.

Defendants counter that the statute imposes a strict requirement on plaintiffs to file an affidavit within sixty days of a defendant's answer. Defendants contend that that requirement can be relaxed only if a court grants an extension for good cause within the original sixty day time period. Defendants further argue that counsel's ...

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