On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-934-00.
Before Judges Stern, Collester and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2001
This interlocutory appeal requires us to decide, for the first time, whether a plaintiff's failure to provide defendant with a certification from a licenced treating physician or a board-certified licensed physician pursuant to N.J.S.A. 39:6A-8a mandates a dismissal with prejudice, absent a showing of good cause to permit an extension of up to sixty days. We hold that plaintiff's failure to comply with the physician certification requirement of the compulsory no-fault liability insurance provisions of N.J.S.A. 39:6A-8a, under the circumstances of this case, required a dismissal without prejudice and the motion judge's failure to enter such an order was error. However, we see no reason to interfere with the motion judge's refusal to enter an order of dismissal without prejudice because entry of such an order, at this stage of the litigation, would serve no legitimate purpose. We therefore remand for further proceedings.
Because they are interrelated, we combine the procedural history with the relevant facts. On March 17, 2000, plaintiff, Wilford Watts, filed a complaint against defendants, Brenda and Ibarrarue Camaligan, for injuries he allegedly suffered in a February 8, 2000, automobile accident occurring on Route 9 in Lakewood. Defendants filed their answer on April 19, 2000. On September 20, 2000, defendants filed a motion to dismiss for failure to provide a physician certification within sixty days of the filing of defendants' answer as required by N.J.S.A. 39:6A- 8a. In response, plaintiff filed a certification dated October 6, 2000, signed by Dr. John L. Hochberg.
Dr. Hochberg's certification indicated that he was a "licensed treating physician or Board Certified licensed physician to whom the above-referenced plaintiff was referred." It also indicated that he had first examined plaintiff on July 18, 2000, and that his initial diagnosis was cervical and lumbar radiculopathy. The certification provided that plaintiff's injuries were confirmed by "objective clinical evidence," specifically an EMG evidencing a lumbar radiculopathy and an MRI noting disc bulges at multiple levels. The doctor's diagnosis at the time of certification was lumbar radiculopathy and stenosis.*fn1 Finally, the doctor checked off a portion of the certification stating that, in his opinion, plaintiff sustained "a permanent injury within a reasonable degree of medical probability other than scarring or disfigurement" as a result of the motor vehicle accident.
Argument on the motion was held on October 20, 2000. Although plaintiff conceded that the filing of the certification was 150 days late, the motion judge denied defendants' motion and refused to dismiss plaintiff's complaint. On October 27, 2000, plaintiff provided defendants with a three-page written report by Dr. Hochberg, expounding further on the nature and extent of plaintiff's injuries and indicating that plaintiff was initially seen by him on July 18, 2000. We granted leave to appeal, R. 2:2-4, and on December 18, 2000, remanded the matter to the motion judge "for consideration of whether 'good cause,' as required by N.J.S.A. 39:6A-8a for the late certification, was shown and whether, if not, a dismissal with prejudice would be the proper remedy."
On February 15, 2001, the motion judge, following argument on the motion, adjourned the matter thirty days to permit plaintiff's counsel to submit a certification detailing why he was late and "spell[ing] out exactly what took place." On February 23, plaintiff submitted a certification from William Rabb, Esq., indicating that plaintiff was first treated by Dr. Burt Frank, D.O., in Lakewood. According to Rabb, eleven days following the accident his office wrote Dr. Frank requesting "a medical report." Having received no response, counsel's office forwarded additional written requests to Dr. Frank on June 13, June 26, August 2, and October 23 asking that he forward a "narrative medical report." According to Rabb's certification, he eventually obtained "office records" from Dr. Franks for his treatment of plaintiff on November 2, 2000, which he immediately forwarded to defense counsel as formal amendments to interrogatories.*fn2
Rabb's certification also asserted that plaintiff "presented" himself to Dr. Hochberg for treatment during the month of July 2000, and was referred by Dr. Hochberg for an MRI on September 13, 2000. Rabb disclosed that he wrote requesting a written "narrative medical report" from Dr. Hochberg on September 15, 2000. On September 21, plaintiff served defendants with a copy of the MRI report disclosing plaintiff's multiple disc bulges as amended answers to interrogatories. Rabb further confirms that, for the first time, his office forwarded Dr. Hochberg's physician certification form for completion on September 27, 2000, two days after receiving defendants' motion to dismiss. According to Rabb, a second and third request was made for completion of the physician certification form on October 4 and October 6, 2000.
On March 16, 2001, the motion judge again refused to enter a dismissal of plaintiff's complaint, finding that there was no design to mislead because plaintiff's counsel had made "numerous efforts" to obtain a narrative report and physician certification, despite the fact that the certification was served out of time. In addition, the judge concluded:
Secondly, the underlying reason for the cause is one that I see on a regular basis. We have busy doctors who, despite repeated requests, simply do not respond. And, in addition, there doesn't appear to have been an awareness on the part of the attorney, at least there's no mention of it in the certification, that he realized that certification was due and that he was late and that the statute was being violated.
Three, the fault or blamelessness of the litigant, here we have a litigant -- there's no allegation by anyone that the plaintiff was at fault in any way. It was his attorney.
Four, the prejudice that would accrue in my opinion is negligible. Even though the statute has to mean something and, as is pointed out by Mr. Ryan, I'm not sure how far we should go in relaxing requirements of this nature. But just as I felt in the initial motion made before me, I feel that here we have good cause. We have an attorney who made repeated requests to the physician and no response. And I don't believe it appropriate to penalize the plaintiff, cause other lawsuits. In the appropriate case, there would be lawsuits filed for malpractice. Whether or not this case involves that type of malfeasance, I can't say.
But I think the appropriate thing, under our case law and in the absence of any clear direction from the Appellate Division or any other authority, I find that here is good cause and that it is appropriate to allow the plaintiff to proceed with the ...