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Hubbard v. Reed

June 21, 2001

NINA HUBBARD, AS GUARDIAN AD LITEM OF NIA HUBBARD, HER MINOR CHILD, PLAINTIFF-APPELLANT,
v.
DR. JOSEPH REED, D.D.S., DEFENDANT-RESPONDENT, AND DR. ROBERT KARDON, D.D.S., DEFENDANT.



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

ON CERTIFICATION TO Appellate Division, Superior Court

Argued January 29, 2001

On certification to the Superior Court, Appellate Division, whose opinion is reported 331 N.J. Super. 283 (2000).

This case and Palanque v. Lambert-Woolley, ___ N.J. ___ (2001), also decided today, are the seventh and eighth malpractice actions to require intervention by this Court for a determination of the meaning and applicability of the Affidavit of Merit Statute enacted six years ago. Plaintiffs have raised numerous issues in a variety of factual settings that implicate both the language of the statute and the Legislature's intent. In our opinions we have focused on the legislative goals, and on the words and phrases used by the Legislature to carry out those goals. Where we have found ambiguity, we have looked to the legislative purpose underlying the statute, but we have also sought to eliminate any remaining confusion and to provide guidance for the future.

At issue in this case is whether a plaintiff in a common knowledge malpractice action must comply with the affidavit requirement of the statute. Under the statute, a plaintiff who brings a malpractice action against a licensed professional must provide the defendant with the affidavit of an appropriate expert stating that the action has merit. N.J.S.A. 2A:53A-27. Because we do not believe that the Legislature intended to burden a plaintiff with the affidavit requirement when expert testimony is not required at trial to establish the defendant's negligence, we hold that an affidavit need not be provided in common knowledge cases when an expert will not be called to testify "that the care, skill or knowledge . . . [of the defendant] fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27.

I.

On August 9, 1996, an orthodontist referred sixteen-year-old plaintiff Nia Hubbard to defendant Robert Kardon, D.D.S., with instructions to extract her mandibular left lateral incisor. Dr. Kardon, in turn, referred plaintiff to his associate, Joseph Reed, D.D.S, who extracted her mandibular left second bicuspid instead. Plaintiff and her mother as guardian ad litem filed a complaint for dental malpractice on July 6, 1998 against Drs. Reed and Kardon. In his answer to the complaint, Dr. Kardon denied any negligence and requested that plaintiffs provide him with an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. Dr. Reed also filed an answer denying negligence and cross-claiming against Dr. Kardon.

Plaintiffs did not file the affidavit within the sixty-day time period prescribed by N.J.S.A. 2A:53A-27. On April 20, 1999, Dr. Kardon filed a motion to dismiss based on that failure and six days later Dr. Reed filed a similar motion. Plaintiffs responded on May 5, 1999, asserting that they were not obligated to provide an affidavit of merit because they intended to rely at trial upon the common knowledge doctrine and res ipsa loquitur.*fn1 Finding that plaintiffs are required to comply with the Affidavit of Merit Statute even in common knowledge cases, the trial court granted defendants' motions.

Plaintiffs appealed and the Appellate Division affirmed. Hubbard v. Reed, 331 N.J. Super. 283 (2000). We granted certification on September 8, 2000, 165 N.J. 527, and now reverse.

II.

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.

Defendants argue that the clear and unambiguous language of N.J.S.A. 2A:53A-27 requires that an affidavit of merit be filed in all malpractice cases. Defendants contend that only after a plaintiff has made a threshold showing of merit by way of an expert affidavit can he or she then select a theory of liability under which to seek damages. Without that affidavit, according to defendants, attorneys would be attesting to the merits of their clients' claims.

Plaintiffs respond that when a defendant's negligence is so apparent that expert testimony will not be needed at trial, the purpose of the statute -- to reduce frivolous lawsuits -- would not be furthered by requiring an affidavit of merit. Plaintiffs further assert that the cost of obtaining an affidavit in a common knowledge case involving minor ...


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