On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-4192-99.
Before Judges Havey, A. A. Rodríguez, and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Enez Balthazar appeals from an order of May 23, 2000 dismissing with prejudice her claims for medical malpractice against defendants Barbara Henderson, M.D., Joseph DeStefano, M.D., Allan Feldman, M.D., Larry Kaufman, M.D., and Phillip Korzeniowski, M.D. (the Henderson defendants) as the result of plaintiff's failure to comply with the requirements of the affidavit of merit statute, N.J.S.A. 2A:53A-26 through -29. Balthazar also appeals from an order of May 14, 2001 denying her motion to amend her complaint to allege claims of battery and fraudulent concealment. *fn1 We affirm.
On January 27, 1998, Plaintiff underwent an abdominal hysterectomy at Atlantic City Medical Center (ACMC), performed by Henderson, an employee of the medical group of DeStefano, Feldman, Kaufman & Korzeniowski, P.A., with the assistance of Korzeniowski. A resident named Richard Cooper was also present in the operating room. During the surgery, sutures were mistakenly placed in Balthazar's left ureter that blocked the flow of urine, and the ureter may have been cut. *fn2 These acts caused complications that resulted in a second laparotomy on January 31, 1998, at which time the damage to the ureter was discovered, the ureter was rejoined to the bladder at a new location, and a stent was placed in it for a period of six weeks, at which time it was surgically removed. Additional complications arose of relevance to damages issues, but not to this appeal.
On June 21, 1999, plaintiff filed suit against the Henderson defendants, ACMC and others alleging injury to her ureter as the result of defendants' negligence. The Henderson defendants answered the complaint on October 5, 1999, and ACMC answered within two additional days. Demands for service of an affidavit of merit within sixty days were made in the answers of ACMC and the Henderson defendants. However, plaintiff did not file her affidavit until March 8, 2000 - a date more than 120 days after the answers of the relevant parties had been filed and after the Henderson defendants and ACMC had moved *fn3 for dismissal of Balthazar's suit with prejudice as the result of her failure to comply with the affidavit of merit act. *fn4
That act, enacted as a tort reform measure in 1995, requires that plaintiffs seeking damages as the result of professional negligence make a threshold showing that their claims are valid, thereby permitting identification and dismissal of meritless lawsuits at an early stage of litigation before large sums are spent on defense. In re Petition of Hall, 147 N.J. 379, 391 (1997). See also, e.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001); Fink v. Thompson, 167 N.J. 551, 559 (2001); Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 242 (1998).
N.J.S.A. 2A:53A-27, a key section of the statute, provides in relevant part:
In any action for damages for personal injuries . . . resulting from an alleged act of malpractice . . . 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 . . . 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.
An escape from the statute's requirements is offered in N.J.S.A. 2A:53A-28, which provides: An affidavit shall not be required pursuant to section 2 of this act [N.J.S.A. 2A:53A-27] if the plaintiff provides a sworn statement in lieu of the affidavit setting forth that: the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit; a written request therefor along with, if necessary, a signed authorization by the plaintiff for release of the medical records . . . has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request. That section of the act reflects a legislative recognition that a plaintiff may be prevented from making a threshold showing of merit if defendant fails to produce essential medical records. Scaffidi v. Horvitz, 343 N.J. Super. 552, 558 (App. Div. 2001). In this regard, we have observed that the purpose of the affidavit of merit act is not to provide a sword to defendants that can be used by them to fight off malpractice actions by procrastinating in providing necessary records or information. Barreiro v. Morais, 318 N.J. Super. 461, 470 (App. Div. 1999). Nonetheless, to realize its tort reform goal, the act provides a stiff penalty upon noncompliance with the act's affidavit of merit or, alternatively, its escape provisions. Failure to timely provide an affidavit pursuant to N.J.S.A. 2A:53A-27, or furnish a statement conforming to N.J.S.A. 2A:53A-28 "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. In this case, Balthazar's failure to submit an affidavit of merit within the statutory time limit of 120 days *fn5 or to comply with the escape provisions of N.J.S.A. 2A:53A-28 led to dismissal of her complaint with prejudice.
On appeal, Balthazar argues that her complaint should have been preserved because of the allegedly fraudulent maintenance of relevant records, her substantial compliance with statutory directives, and the existence of extraordinary circumstances. Balthazar also argues the unconstitutionality of the affidavit of merit statute, *fn6 and claims error in the court's denial of her motion to amend her complaint. We will address these arguments in turn.
The record discloses the existence of two operative reports by Dr. Henderson. According to Henderson, the first was dictated over the telephone upon completion of the surgery on January 27, 1998. When she did not find the report in the chart two days later, on January 29 ...