On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, L- 1005-98.
Before Judges Baime, Fall and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 5, 2001
In this medical malpractice action, plaintiff, Margaret Hefferon, Administratrix of the Estate of Susan Hefferon, appeals from the entry of an order dismissing her complaint for failure to comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27.
On May 26, 1998, plaintiff filed a medical malpractice complaint against defendants, Dr. Steven Gitler, Dr. Lewis Carp, and Delsea Family Medical Group, arising out of the death of her daughter on May 29, 1996. Plaintiff alleges that defendants were negligent in the medical care and treatment they rendered to Susan Hefferon the day before her death.
Susan Hefferon was under the medical care of Doctors Gitler and Carp when she presented herself to their office at the Delsea Family Medical Center on May 28, 1996 with symptoms of vomiting, diarrhea, dehydration, fever and a ten-pound weight loss within a three-day period. Dr. Gitler prescribed Compazine and Lomotil for her complaints and sent her home for bed rest. When a family friend contacted the doctor that evening and advised that Susan Hefferon's temperature had risen to 104·, he referred her to the emergency room. Ms. Hefferon was admitted to the Elmer Hospital emergency room on May 29, 1996 at l:17 a.m. in acute renal failure with thrombocytopenia. The pulmonologist's impression was that she was in acute hypoxic respiratory failure and had developed acute anion gap and the hematologist's impression was sepsis of unknown source. Ms. Hefferon went into ventricular tachycardia by noon and into cardiac arrest and was pronounced dead at 2:03 p.m. Plaintiff contended that her daughter's death could have been avoided by defendants conducting a proper physical examination, ordering proper laboratory studies and proper treatment.
Defendant filed an answer on July 13, 1998. On November 11, 1998, plaintiff sent the May 21, 1998 report of Mark G. Graham, M.D., FACP, Clinical Associate Professor of Medicine, Jefferson Medical College, to defendants' counsel with answers to interrogatories. In his report the expert opines that
the standard of care of a patient with this presentation on 5/28/96 was hospitalization to effect the above [immediate replacement of lost fluids parenterally, correction of certainly altered electrolytes, constant monitor of intake and output of all fluids, antibiotic care of septicemia if found to be present, which it very well may have been]. This was not done. To the contrary, not only was she deprived of this appropriate and likely life saving action, a specifically contraindicated empiric therapy in the form of Lomotil was given, trapping any infectious agent and its toxins within the patient.
Within a reasonable degree of medical certainty, these steps taken on 5/28/96 would have ameliorated her compromised condition, avoiding the development of hypovolemic shock, ARDS, DIC [agonal disseminated intravascular coagulation], HUS [hemolytic-uremia syndrome] and death. In that case, she would have recovered unscathed and lived a normal actuarial life. Dr. [Gitler's] care on this date was negligent.
On December 4, 1998, the complaint was dismissed for plaintiff's failure to answer interrogatories. On March 12, 1999, plaintiff's counsel filed an affidavit of merit by Dr. Graham, dated November 18, 1998, that stated, upon his review of the medical records pertaining to Susan Hefferon, that "[i]t is my professional opinion there is a reasonable probability that the care exercised and exhibited in the treatment which is the subject of the complaint fell outside acceptable treatment practices."
Defendants then filed a series of motions in April and May l999 to dismiss plaintiff's individual claims and punitive damage claims; to dismiss the complaint for failure to timely file the affidavit of merit; and for partial summary judgment dismissing plaintiff's wrongful death claims, individual claims, and punitive damage claims. On or about May 12, 1999, plaintiff filed a motion to reinstate the complaint on the basis that interrogatory answers and documentation and supplemental responses and documentation were provided to defense counsel on November 10, 1998 and March 16, 1999, respectively.
In opposition to the motion to dismiss based on the affidavit of merit statute, plaintiff's counsel admitted that the affidavit of merit was not filed within sixty days following defendants' answer to the complaint and there was no application made for an additional sixty-day extension pursuant to N.J.S.A. 2A:53A-27. He contended, however, that service of Dr. Graham's expert report with plaintiff's interrogatory answers on November 11, 1998, constituted "substantial compliance" with the affidavit of merit statute. According to counsel, the expert report, which was obtained by plaintiff prior to filing her complaint and contained information far in excess of that required in an affidavit of merit, was served within a sixty-day extension if one had been granted. Additionally, the parties engaged in discovery prior to and after Dr. Graham's report was supplied, beyond the statutorily allotted time frame for delivery of the affidavit, and thus defendant waived his right to invoke the statute. According to plaintiff's counsel, he filed the affidavit of merit on March 12, 1999 "only for the purpose of form since the substantive aspects had long since been a fact."
On June ll, l999, the Law Division judge entered an order denying defendants' motion to dismiss plaintiff's complaint for failure to comply with the affidavit of merit statute. In a ...