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Tischler v. Watts

July 24, 2003

ALYSSA TISCHLER, PLAINTIFF-APPELLANT,
v.
DAVID C. WATTS, M.D., DEFENDANT-RESPONDENT,
AND JOHN DOE PARTNERSHIPS 1-10, JOHN DOE INCORPORATED 1-10, JOHN DOE PROFESSIONAL CORPORATIONS 1-10, JOHN DOE PROFESSIONAL ASSOCIATIONS, FICTITIOUS AND UNIDENTIFIED PARTNERSHIPS, CORPORATIONS, PROFESSIONAL CORPORATIONS, PROFESSIONAL ASSOCIATIONS, INDIVIDUALLY, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court is asked whether a dismissal with prejudice of a medical malpractice claim was warranted under the circumstances of the case.

In November 1995, plaintiff, fifteen years old at the time, underwent a surgical procedure known as reduction mammoplasty. Years later, plaintiff experienced complications and filed a medical malpractice claim against defendant. Plaintiff's attorney, Dale Verfaillie Chant, retained the expert services of Dr. Stanley F. Schoenbach, a plastic surgeon licensed to practice in New York. Dr. Schoenbach filed a defective Affidavit of Merit that ultimately resulted in plaintiff's case being dismissed with prejudice for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. In the months leading up to the dismissal, Chant had been diagnosed with advanced lung cancer and, following aggressive radiation and chemotherapy treatments, she died on June 12, 2000. John C. Eastlack, an attorney and close friend of Chant's, handled Chant's cases while she was ill and by late July all of Chant's cases had been transferred to him. Eastlack filed an appearance in plaintiff's case on August 11, 2000.

The Appellate Division affirmed the dismissal of plaintiff's case with prejudice.

The Supreme Court granted plaintiff's petition for certification.

HELD: A fact-sensitive analysis inexorably leads to the conclusion that the circumstances in this case are precisely the sort of "extraordinary" circumstances meant under the Affidavit of Merit Statute and the case should have been dismissed without prejudice.

1. The Affidavit of Merit Statute was designed to curtail frivolous litigation. Under the statute, a dismissal should be with prejudice unless there are "extraordinary circumstances." If ever there were a case in which extraordinary circumstances justified a failure to comply with procedural requirements, this is that case. It would be counter to the fundamental purpose of the Affidavit of Merit Statute to dismiss this case with prejudice when such compelling circumstances exist and when the underlying case may be a meritorious lawsuit that, except for those circumstances, would have been timely filed. (Pp. 4-6)

The decision of the Appellate Division is REVERSED. The dismissal of plaintiff's case shall be without prejudice.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, LaVECCHIA, ZAZZALI, and ALBIN join in this opinion. JUSTICE VERNIERO did not participate.

The opinion of the court was delivered by: Per Curiam

Argued September 24, 2002

In November 1995, David C. Watts, M.D., performed a surgical procedure known as reduction mammoplasty on plaintiff who was fifteen years old at the time. Some three-and-a-half years later, plaintiff returned to Dr. Watts with ailments resulting from the reduction surgery, including permanent loss of the ability to breastfeed, loss of tactile sensation, scarring, and disfigurement. Subsequently, on November 24, 1999, plaintiff hired an attorney, Dale Verfaillie Chant, and initiated a medical malpractice action against Dr. Watts. The complaint alleged that Dr. Watts's deviation from the standard of care in performing the reduction mammoplasty caused plaintiff's complications.

In preparation for the lawsuit, Chant contacted Stanley F. Schoenbach, M.D., a plastic surgeon licensed to practice in New York. Dr. Schoenbach provided Chant with his curriculum vitae, which chronicled an impressive career in plastic surgery and listed academic appointments and research publications. Chant sent Dr. Schoenbach a copy of plaintiff's medical records and an Affidavit of Merit for Dr. Schoenbach to sign if, after reviewing those records, he determined that there was a reasonable probability that Dr. Watts's care fell below acceptable standards. Dr. Schoenbach authored and signed a new Affidavit of Merit omitting any reference to his current licensure, and Chant filed it in February 2000. Shortly thereafter, in early to mid-March 2000, Chant was diagnosed with advanced lung cancer and immediately underwent aggressive radiation and chemotherapy treatments. John C. Eastlack, an attorney and close friend of Chant's since law school, voluntarily took over Chant's cases, covering appearances and proceedings during her brief but terminal illness, and acting as ...


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