On appeal from a final order of the Superior Court, Law Division, Ocean County, Docket No. OCN-L-545-00.
Before Judges Petrella, Kestin, and Alley
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we apply N.J.S.A. 2A:53A-28, a provision of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to 29, and we do so in the context of the right of a patient or the patient's legal representative to obtain his or her own medical records. Plaintiff, well before the institution of suit, and therefore before the running of the time for filing an affidavit of merit pursuant to N.J.S.A. 2A:53A-27,*fn1 requested that Shoreline Behavioral Health, now a defendant in this action, provide medical records that plaintiff contends had a substantial bearing on the preparation of an affidavit of merit. To support these requests, plaintiff supplied Shoreline with appropriate signed authorizations. Plaintiff also requested medical records by serving a formal notice to produce following the start of this litigation. Shoreline, however, never furnished the requested documents, either before or after suit was instituted, but it eventually moved to dismiss the complaint for failure to provide an affidavit of merit assertedly required by the statute. The Law Division dismissed the action. We reverse, holding that, in the circumstances before us, the records requested by plaintiff presumptively had a substantial bearing on the ability to prepare an affidavit of merit, Shoreline did not establish a basis for a contrary finding, and plaintiff timely complied with N.J.S.A. 2A:53A-28, which in prescribed conditions alleviates the requirement of filing an affidavit of merit.*fn2
The background is this. On or about September 3, 1998, eighty-four-year-old Salvatore Garofalo was admitted to the custody of defendant Shoreline. Upon his arrival there, Garofalo was in restraints. While under defendant's care and custody, plaintiff asserts, the restraints were removed and Garofalo was given medication which caused him to become drowsy and disoriented. Allegedly unattended by Shoreline, he fell and suffered serious injuries, including a fractured hip.
Francine Aster, then acting as counsel for Garofalo, sought discovery of his medical records from Shoreline before filing the complaint in this litigation. Initially, on September 30, 1998, she sent a letter to Shoreline's medical records director requesting the release of the medical records, and she enclosed with the request a medical authorization executed by Garofalo. Shoreline, mistakenly referring to it as a "subpoena," denied the request for Garofalo's records on October 6, 1998.
Aster made a further pre-litigation attempt to obtain Garofalo's medical records on December 30, 1998, again sending Shoreline a completed medical records form for the release of medical records, as requested by Shoreline, along with Garofalo's power of attorney, which authorized her to act on his behalf. On January 27, 1999, Shoreline denied this request for medical records, stating that "per the instructions of our legal department, we are not allowed to release the medical records due to irregularities in the power of attorney documentation." Shoreline stated with respect to the power of attorney, ". . . we will not accept an authorization that does not have an original signature, . . ." notwithstanding an express provision in Garofalo's power of attorney reading, "[a] photostatic copy of the Power of Attorney shall be as valid and as evidential as the original thereof."*fn3
On June 24, 1999, Aster filed a complaint in the Law Division as Garofalo's guardian ad prosequendum, alleging that Shoreline among others had caused Garofalo's injuries, and that it had breached its duty of care by failing to keep Garofalo "safe and free from harm while in . . . [its] care, custody and control" and by not taking measures "to monitor him and/or properly secure him in a safe place." Garofalo died on July 8, 1999, soon after the complaint was filed.
On or about March 3, 2000, Aster sent Shoreline a notice to produce documents, still not having received any documents in response to her previous requests. If the non-filing of an affidavit of merit did not come within the protection of N.J.S.A. 2A:53A-28, the affidavit would have been due within sixty days of the filing of Shoreline's answer on or about November 22, 1999, or, at the latest, after a sixty-day extension from that date as authorized by N.J.S.A. 2A:53A-27, if leave of court for the extension were granted. Aster's efforts to obtain the documents had, however, as already mentioned, begun well before the expiration of that time. Aster applied to the trial court by a motion dated April 11, 2000, for leave to file a "sworn statement in lieu of [an] . . . affidavit [of merit]," as provided by N.J.S.A. 2A:53A-28, because Shoreline had not provided her with the information to aid her filing the affidavit of merit. On June 23, 2000, however, the trial court entered an order dismissing the complaint for failure to file an affidavit of merit. Aster appeals from that order.
To support her position on appeal that dismissal of the complaint for failure to submit an affidavit of merit was erroneous, Aster again invokes N.J.S.A. 2A:53A-28. She contends, and Shoreline denies, that Shoreline's refusal to provide Garofalo's medical records was a significant factor as to why an affidavit of merit was not filed, or in the statutory language, that the records Shoreline failed to provide "had a substantial bearing on preparation of the affidavit . . . ." As already noted, on three separate occasions medical records were requested from Shoreline, twice by letters from Aster and once by a notice to produce. These efforts began well before suit was filed. Shoreline consistently failed to furnish the documents sought by all these requests. If this failure to produce Garofalo's documents had a "substantial bearing" on Aster's inability to prepare an affidavit of merit, her request to submit a sworn statement in lieu of an affidavit of merit under N.J.S.A. 2A:53A- 28 should have been approved.
Shoreline asserts it acted properly by refusing Aster's document requests. It says that the initial request for medical records, made in September 1998, was denied because the authorization sent with the request was invalid inasmuch as it did not have an original signature. Shoreline further states that the medical records request sent by Aster in December 1998 was denied based upon irregularities in the power of attorney. Almost a year and one-half later, in March 2000, Aster sent Shoreline a notice to produce documents. Shoreline again did not supply those documents.
In our view, an affidavit of merit was required unless sufficient grounds existed to permit plaintiff to file a "sworn statement in lieu of the affidavit [.]" N.J.S.A. 2A:53A-28.*fn4 We conclude, however, that those grounds were present.*fn5
Shoreline acknowledges in its brief, "A licensed professional should not be permitted to wrongfully withhold records and then also assert that the plaintiff has not stated a cause of action because the plaintiff has failed to provide an affidavit where the records are a necessary component in procuring such an affidavit." We agree. Indeed, it is Shoreline's attempt to use, as both a sword and shield, the absence of the very records it has failed to divulge, which underscores the fundamentally unsound nature of its position. This conclusion does not require a finding that Shoreline acted in bad faith in failing to provide records to plaintiff, notwithstanding repeated requests, both before and after the filing of suit. We do not take issue with Shoreline's view that a medical institution, and in particular one where mental health care issues are implicated, has legitimate reason to be concerned about responsibility for wrongful release of patient information. Patient confidentiality merits a high ...