On appeal from Superior Court of New Jersey, Law Division, Camden County, L-364-97.
Before Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendants West Jersey Health Systems, Donna Woodhull, R.N., and Betty Shaw, R.N. (the Hospital defendants) appeal from an order barring them from referring to South Jersey Anesthesia Associates, Dorothy Petracci, C.R.N.A., and Tomas Manalo, M.D. (the Anesthesiology defendants) as former defendants, and from an order barring them from offering testimony at trial regarding any negligence of the Anesthesiology defendants. We reverse each order.
The procedural history of this case is complex and convoluted. In fact, this is the second time we have granted leave to appeal interlocutory orders. In the prior appeal, we affirmed an order denying the Hospital defendants' motion to dismiss the complaint for failure to supply an affidavit of merit. However, we also reversed an order denying the Anesthesiology defendants' motion to dismiss the complaint against them for failure to supply an affidavit of merit. The result of that prior appeal was that all claims were dismissed against the Anesthesiology defendants, and the case was permitted to proceed against the Hospital defendants.
For the purposes of this opinion, we will set forth only those facts necessary for resolution of the limited issues impacted by this interlocutory appeal. On December 26, 1995, plaintiff Stephanie Burt's decedent, Mildred Pollak, underwent right total knee replacement surgery at West Jersey Health Systems. After the surgery, Pollak was administered a drug, Buprvacine, by order of the Anesthesiology defendants, specifically Dr. Tomas Manalo. According to the epidural analgesia order form, if Pollak's SBP*fn1 fell below ninety, the epidural pump was to be disconnected and Anesthesia Pain Service was to be called. Pollak's blood pressure fell below that rate. That evening Woodhull twice noted that Pollak's systolic blood pressure had fallen below ninety. However, the Buprvacine was not discontinued. Woodhull's notes set forth on Pollak's chart indicated that she notified "Anesthesia" of the drop in blood pressure at 10:30 p.m.
According to Woodhull, she had been instructed that she had no authority to disconnect the epidural pump. Shaw also took blood pressure readings of Pollak, once obtaining a reading of eighty, but she did not disconnect the pump or again call Anesthesia. Thereafter, Pollak sustained a spinal infarction which resulted in paraplegia.
Petracci did not recall receiving a phone call from the hospital nurses. However, she acknowledged that as part of her duties she was required to make rounds, and adjust the pump up or down, as required. Essentially, the Hospital defendants claim it was their responsibility to monitor the patient, and advise the Anesthesiology defendants if the patient's blood pressure fell below ninety. The Hospital defendants claim that they notified Anesthesiology upon determining that the patient's blood pressure had fallen below ninety. On the other hand, the Anesthesiology defendant claimed to have no recollection of receiving a call from the Hospital defendants regarding Pollak.
In their answer to plaintiff's amended complaint, the Hospital defendants filed a cross-claim seeking indemnity from the Anesthesiology defendants, or, alternatively, for contribution, or "settlement credit."
Prior to trial, as a result of our prior opinion which effectively mandated dismissal against the Anesthesiology defendants, on an Affidavit of Merit issue, plaintiffs moved to bar the Hospital defendants from seeking to assert any negligence of the Anesthesiology defendants, or even referring to the Anesthesiology defendants as "former defendants." The motion judge granted both applications, resulting in this interlocutory appeal, in which the Hospital defendants contend that the motion judge has incorrectly deprived them of their statutory rights to contribution and indemnification, as well as "their right to allocation of negligence and damages by the jury."
This case presents questions of first impression requiring us to consider the interplay between the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.4, the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, and the Affidavit of Merit Act, N.J.S.A. 2A:53A-27 to -29. The purpose of the Joint Tortfeasors Contribution Law is "to promote fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim." Holloway v. State, 125 N.J. 386, 401 (1991) (citations omitted). Contribution is designed to reflect a sharing of "common responsibility according to equity and natural justice." Sattelberger v. Telep., 14 N.J. 353, 367-68 (1954). The Joint Tortfeasors Contribution Law is intended to promote those purposes. Arcell v. Ashland Chemical Co., Inc., 152 N.J. Super. 471, 485 (Law Div. 1977). The Comparative Negligence Act has the same purpose. Ibid. The Joint Tortfeasors Contribution Law is also designed to "alleviate the evident harshness and inequity of the common-law rule . . . pursuant to which there was no right of joint tortfeasors to seek allocation among themselves of the burden of their fault." Markey v. Skog, 129 N.J. Super. 192, 199 (Law Div. 1974). Thus, the Legislature enacted the Joint Tortfeasors Contribution Law to comport with "basic equitable notations that those whose fault caused the injury should, in good conscience, bear their just shares of the burden." Dunn v. Praiss, 139 N.J. 564, 575 (1995) (citations omitted).
The Affidavit of Merit Act requires a plaintiff, in malpractice actions filed against certain specifically designated licensed professionals, to file an affidavit of merit within sixty days following the filing of an answer to the complaint by the defendant. N.J.S.A. 2A:53-A-27. The plaintiff's failure to provide an affidavit of merit is tantamount to a failure to state a cause of action. N.J.S.A. 2A:53-29. The Affidavit of Merit Act was part of "a package of five tort reform bills intended to 'bring common sense and equity to the State's civil litigation system.'" Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 228 (1998) (citing Office of the Governor, News Release 1 (June 29, 1995)). Absent extraordinary circumstances, a failure to comply with the statute requires the complaint to be dismissed, with prejudice. Id. at 247. In construing statutes relating to the same subject matter, we must strive to harmonize them. In the Matter of J.W.D., 149 N.J. 108, 115 (1997). Thus, "[s]tatutes in pari materia, are to be construed together when helpful in resolving doubts or uncertainties and the ascertainment of legislative intent." Ibid. (citations omitted).
With these principles of law in mind, we conclude that the judge erred in precluding the Hospital defendants from seeking to assert the negligence of the Anesthesiology defendants. That determination denied the Hospital defendants the opportunity, through no fault of their own, to proceed on their cross-claim and seek to shift some of the blame for plaintiff's injuries to the Anesthesiology defendants simply because plaintiff failed to perfect her claim against the ...