The opinion of the court was delivered by: Poritz, C.J.
ON CERTIFICATION TO Appellate Division, Superior Court
Chief Justice Poritz PRESIDING
On certification to the Superior Court, Appellate Division, whose opinion is reported at 327 N.J. Super. 158 (2000).
This case is substantially like Hubbard v. Reed, ___ N.J. ___ (2001), also decided today. We rely therefore on much of what we said in Hubbard in holding that an affidavit of merit is not required in a common knowledge malpractice case.
On December 12, 1996, plaintiff Michelle Palanque sought medical treatment from defendant Dr. Margaret Lambert-Woolley because plaintiff was experiencing mennorhagia, a heavy menstrual bleeding. Defendant ordered a BhCG test to determine whether plaintiff was pregnant, a possible cause of her condition, but misread the test results and determined that plaintiff was pregnant when she was not. After a subsequent ultrasound test did not confirm plaintiff's pregnancy, defendant ordered another BhCG test that, again, confirmed plaintiff was not pregnant. Yet defendant misread the results again, and this time mis-diagnosed an ectopic pregnancy.*fn1 She recommended surgery and plaintiff underwent both a dilation and curettage procedure and a laparoscopy.*fn2 Those procedures revealed that plaintiff was not pregnant.
Plaintiff retained an attorney to investigate whether she had an actionable malpractice claim against defendant. The attorney obtained plaintiff's medical records and discovered that defendant had read the BhCG test results as 1145 and 1421, numbers that were actually the specimen identification numbers on the laboratory report. The records were submitted for evaluation to Dr. Albert G. Thomas who confirmed that defendant had read the identification numbers incorrectly as the test results. Dr. Thomas issued a report, dated January 23, 1998, stating that defendant Lambert-Woolley had deviated from the standard of care and concluding that "the misreading as positive of the pregnancy tests [led] to the incorrect diagnosis of ectopic pregnancy" and "[t]his deviation led to the performance of surgery which was not needed." In October 1998, after plaintiff had filed a complaint and after the time for filing an affidavit of merit had passed, defendant admitted in response to requests for admissions that the BhCG test results were "now known" to be less than 5.0 MIU/ML, but that her earlier "understanding was that the . . . reading was 1145 [and 1421] MIU/ML." Defendant also admitted that she "believed the lab reports were consistent with ectopic pregnancy or moler pregnancy."
On November 2, 1998, defendant moved to dismiss plaintiff's complaint with prejudice for failure to file an affidavit of merit. In response, Dr. Thomas affirmed his January 1998 report, a jurat was added, and the affidavit, dated November 17, 1998, was served on defendant before the court heard arguments on the motion to dismiss. The court dismissed plaintiff's complaint with prejudice nonetheless because her affidavit of merit had not been filed within 120 days of defendant's answer.
The Appellate Division affirmed, denying plaintiff's claims that extraordinary circumstances prevented her from filing an affidavit of merit and, in the alternative, that she was not required to file an affidavit of merit under an exception to the statute for common knowledge cases, that is, cases in which malpractice can be determined without the aid of expert testimony. Palanque v. Lambert-Woolley, 327 N.J. Super. 158, 162, 164 (2000). The court found unpersuasive plaintiff's claim that extraordinary circumstances existed because she obtained an expert report prior to filing suit and filed an affidavit of merit before the statute of limitations expired. Id. at 160-61, 163. The court further found that counsel's inadvertent failure to file an affidavit was not an extraordinary circumstance. Id. at 164.
On the issue whether an affidavit is required in a common knowledge malpractice case, the Appellate Division "assum[ed], without deciding" that a malpractice case in which the jury can determine negligence without the aid of expert testimony does not require an affidavit of merit. Id. at 162. However, the court concluded that plaintiff would need expert testimony "to explain that the surgery was not medically necessary and to explain the impact of the misreading of the laboratory report." Ibid. Without that testimony, the Appellate Division did not believe that plaintiff could survive a motion to dismiss at the end of trial. Id. at 162-63. Because expert testimony was required, the court held that the case fell outside of a common knowledge exception to the Affidavit of Merit Statute.
We granted certification on October 4, 2000, 165 N.J. 602, and now reverse.
Before this Court, plaintiff argues that the Appellate Division erred when it denied her claim of extraordinary circumstances. She contends that she substantially complied with the statute by obtaining an expert report prior to the commencement of litigation. By seeking early review by an expert she ensured that her claim had merit and fulfilled the legislative intent underlying the statute, the curtailment of frivolous litigation. Plaintiff ...