On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8864-99.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Lisa.
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to 29, states that a plaintiff in a malpractice action may be relieved of the obligation to provide the defendant with an affidavit of merit if the defendant fails to provide medical records or other information "having a substantial bearing on preparation of the affidavit" within forty-five days of a request for such information. N.J.S.A. 2A:53A-28. The issue presented by this appeal is whether the plaintiff must give the defendant reasonable notice that particular medical records or other information are needed to prepare an affidavit of merit in order to obtain relief from this requirement. We conclude that such notice is required and that, because the plaintiff in this action received all the medical records required to prepare an affidavit of merit within forty-five days after giving the defendants this notice, the trial court correctly concluded that plaintiff was not entitled to relief from the requirement of providing an affidavit of merit within the time allowed under N.J.S.A. 2A:53A- 27.
Plaintiff's complaint alleged that defendants Lewis L. Horvitz, M.D., Cardiovascular Associates of the Delaware Valley, P.A. (Cardiovascular Associates) and Our Lady of Lourdes Medical Center (Medical Center) were "negligent in the performance of Electro Physiology procedures on October 16, 1997 and October 17, 1997 and January 6, 1998 and in failing to warn of the risks of injury resulting in radiation burns to plaintiff's back, the risks of heart damage and ultimate need for open heart surgery." The complaint served on the Medical Center on December 29, 1999, was accompanied by uniform interrogatories and a multi-part notice to produce documents. The seventh entry on the notice to produce stated:
Kindly provide the procedure log from the [Electro Physiologic] laboratory for the procedures of October 16, 1997, October 17, 1997 and January 6-7, 1998.
The notice demanded production of these documents "within sixty (60) days." Horvitz and Cardiovascular Associates filed their answer to the complaint on January 19, 2000, and the Medical Center filed its answer on February 4, 2000.
On February 3, 2000, plaintiff filed a motion for an extension of time to file an affidavit of merit. The supporting affidavit of plaintiff's attorney stated in part:
3. In order to complete a review of this issue by an expert, it is necessary to obtain the procedure log from the electro physiologic laboratory for a procedure on October 16 and 17, 1997 and January 6, 1998 as well as records of radiation monitoring for the above dates.
4. This information was requested from the defendant hospital in plaintiff's Interrogatories and Notice to Produce which were served on the Hospital on December 29, 1999 but have [not] yet been responded to. More than 45 days will have passed by the date on which this motion is returnable.
7. The information requested has "a substantial bearing on preparation of the Affidavit" as required by 2A:53A-28.
The motion sought to extend the time for filing an affidavit of merit for sixty days from when Medical Center responded to plaintiff's notice to produce. However, defendants' answering papers contended that plaintiff was only entitled to a sixty day extension from the expiration of the "initial sixty day time period." By letter dated February 23, 2000, plaintiff's counsel indicated that he agreed with this contention and noted his understanding that this meant the extended date for plaintiff filing an affidavit of merit would be May 16, 2000. In conformity with this letter, the trial court entered an order which extended the time for plaintiff to serve an affidavit of merit to May 16, 2000.
On March 3, 2000, the Medical Center provided the documents demanded by plaintiff's notice to produce, including the logs for the procedures performed on October 16 and 17, 1997, and January 6, 1998. Plaintiff ...