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Ferreira v. Ranocoas Orthopedic Associates

November 24, 2003

AGOSTINO FERREIRA AND MARGARIDA FERREIRA, H/W, PLAINTIFFS-APPELLANTS,
v.
RANCOCAS ORTHOPEDIC ASSOCIATES AND BRUCE W. WULFSBERG, M.D., DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

In this matter, the Court considers whether plaintiff is entitled to equitable relief from the dismissal of his complaint following his failure to timely serve an affidavit of merit that he had in his possession a few days after receipt of the defendant's answer.

Plaintiff's attorney filed a medical malpractice complaint against defendants alleging negligent treatment of plaintiff's fractured left heel. Several months before filing suit, plaintiff's attorney retained a board certified orthopedic surgeon to review plaintiff's records and provide an affidavit, pursuant to the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, attesting to the merits of the claim. After receiving a verbal opinion from the surgeon,

plaintiff's attorney filed the complaint on May 31, 2000. On August 17, 2000, defendants filed and served their answer and demanded, in part, the production of a medical expert affidavit. Plaintiff's attorney claimed that the answer was incorrectly filed in his office and that he did not see it until January 2001. The Affidavit of Merit statute requires service of an affidavit on the defendant with 120-days of the filing of the answer. Within ten days of the filing of the answer, plaintiff's attorney received the signed affidavit of merit from the surgeon, but he inadvertently failed to provide it to defense counsel. Discovery proceeded. Defense counsel made no further request for the affidavit during the 120-day period.

Eighteen days after the statutory deadline, plaintiff's attorney was advised by defense counsel during a telephone conversation that no affidavit had been served. Plaintiff's attorney faxed the affidavit to defense counsel the same day. Approximately two weeks later, defendants moved to dismiss the complaint with prejudice for failing to comply with the Affidavit of Merit statute. The trial court granted the motion and the Appellate Division affirmed.

HELD: Principles of equity and the essential goals of the Affidavit of Merit statute -- to eliminate frivolous

lawsuits -- are not advanced by dismissing the complaint in this case in which the plaintiff possessed an affidavit of merit within the 120-day statutory period and served the affidavit on defense counsel outside that time frame but before defense counsel filed the motion to dismiss.

1. Pursuant to the Affidavit of Merit statute, plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the reasonable probability of professional negligence. The statute further requires that the plaintiff provide the affidavit to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. Finally, plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice. (Pp. 6 - 8).

2. The Affidavit of Merit statute has dual purposes. Those purposes are to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court. The legislative purpose was not to create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims. Therefore, the Court has recognized two equitable remedies that temper the results of an inflexible application of the statute. A complaint will not be dismissed if the plaintiff can show that he or she substantially complied with the statute. Further, a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance. (Pp. 8 - 9).

3. Plaintiff's counsel did not meet the requirements of substantial compliance, nor did the misfiling of the answer and failure to calendar the matter constitute extraordinary circumstances. However, plaintiff's counsel complied with the underlying purpose of the statute by having an expert verify the meritorious nature of the claim at an early stage of the case. Defendants do not contend that they suffered prejudice by the late service of the affidavit. Nor did defendants request the affidavit at any point between the filing of the answer and the end of the 120-day statutory period. It was not until after the receipt of the affidavit that defendants filed the motion to dismiss. Under those circumstances, the Court concludes that defendants should be estopped from claiming entitlement to dismissal as a remedy. (Pp. 9 - 12).

4. The Affidavit of Merit statute was intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of the civil justice system. The statute was not intended to encourage gamesmanship or a slavish adherence to form over substance. The statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit. In a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit. If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply. (Pp. 12 - 13).

5. To ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system -- to shepherd legitimate claims expeditiously to trial --the Court proposes that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. At the conference, the court will address all discovery issues, including whether an affidavit of merit has been served on defendant. If an affidavit has been served, defendant will be required to advise the court whether he or she has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements. If no affidavit has been served, the court will remind the parties of the obligation. Early court intervention in the discovery process will permit the Affidavit of Merit statute to fulfill its true purpose. This proposal does not restrict the flexibility of trial courts to convene additional case management conferences to facilitate the discovery process and motion practice. (Pp. 13 - 15).

The decision of the Appellate Division is REVERSED and the matter is REMANDED.

JUSTICE LONG wrote a separate opinion, concurring in part and dissenting in part, in which JUSTICE ZAZZALI and JUDGE PRESSLER join, agreeing with the majority's decision to reinstate the complaint, but disagreeing with the majority's rationale. Justice Long contends that Cornblatt v. Barow, 153 N.J. 218 (1998), should be modified to limit a dismissal with prejudice to those cases in which a plaintiff cannot or will not produce an affidavit of merit, and to permit trial judges a panoply of discretionary remedies to address procedural deficiencies in complying with the Affidavit of Merit statute.

JUSTICE ZAZZALI wrote a separate opinion concurring in part and dissenting in part, joined by JUDGE PRESSLER, expressing reservations about the constitutionality of the Affidavit of Merit statute.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE LONG filed a separate opinion, concurring in part and dissenting in part, in which JUSTICE ZAZZALI and JUDGE PRESSLER, temporarily assigned, join. JUSTICE ZAZZALI filed a separate opinion concurring in part and dissenting in part in which JUDGE PRESSLER joins. JUSTICE VERNIERO did not participate.

The opinion of the court was delivered by: Justice Albin

Argued March 3, 2003

The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires a plaintiff in a malpractice action to serve on a defendant within 120 days of receipt of the answer an expert's sworn statement attesting that there exists a "reasonable probability" that the professional's conduct fell below acceptable standards. The Legislature enacted the statute with the laudatory purpose of weeding out frivolous lawsuits early in the process. The statute does not impose overly burdensome obligations. The plaintiff must keep an eye on the calendar and obtain and serve the expert's report within the statutory timeframe. This seemingly simple scheme has generated a tide of litigation and a new area of jurisprudence as this Court and our appellate courts have grappled with the derelictions of plaintiffs' counsel, who have filed well-grounded complaints, but have neglected to file technically correct or timely affidavits. The failure to deliver a proper affidavit within the statutory time period requires a dismissal of the complaint with prejudice. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998).

Beginning with Cornblatt, we have fashioned equitable remedies to mitigate the harshness of a rigid application of the statute that would result in the dismissal of an otherwise meritorious cause of action. In this case, plaintiff's attorney possessed an affidavit of merit ten days after the receipt of the answer 23af well within the time permitted by the statute to serve the affidavit on opposing counsel. The validity of the complaint is not at issue. Due to inadvertence, plaintiff's attorney served the affidavit eighteen days out-of-time, but before defendants moved to dismiss the complaint for failure to comply with the statutory deadline. We hold that this case is a suitable candidate for equitable relief.

This case brings to mind the adage that an ounce of prevention is worth a pound of cure. Therefore, going forward, we will require case management conferences in the early stage of malpractice actions to ensure compliance with the discovery process, including the Affidavit of Merit statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.

I.

Plaintiff Agostino Ferreira, represented by Mark Cuker, Esq., filed a medical malpractice complaint against defendants Dr. Bruce Wulfsberg and Rancocas Orthopedic Associates. The complaint alleged that defendants' negligent treatment of plaintiff for a fractured left heel caused an infection and the fracture not to heal properly. As a consequence, plaintiff suffered pain and economic hardship. The complaint, which detailed with specificity the acts of malpractice, alleged that defendants failed to use due care in (1) performing the surgery on plaintiff's left leg; (2) diagnosing the infection and bone fragments impinging on nerves; (3) removing bone fragments during surgery; (4) closing the wound; (5) prescribing antibiotics; (6) not consulting an appropriate infectious disease specialist; and (7) instructing the physical therapists on post-operative care. Additionally, plaintiff's wife asserted a per quod claim for loss of consortium.

Several months before filing suit, Cuker retained Dr. Gregory B. Shankman, a board certified orthopedic surgeon, to review plaintiff's medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards. In the pre-suit stage, Dr. Shankman advised Cuker by telephone that, in his opinion, there was a reasonable probability that only defendants were negligent in their care of plaintiff, thereby eliminating two other potential defendants from being named in the complaint. During this period, Cuker sent Dr. Shankman an affidavit of merit to review and sign.

On May 31, 2000, the complaint was filed. On August 17, 2000, defendants filed their answer, which asserted several affirmative defenses and demanded the production of a "medical expert affidavit." Cuker claims that the answer and the case information statement were misfiled in his office and not reviewed by him until January 2001. Within ten days of the filing of the answer, Cuker received Dr. Shankman's signed affidavit of merit, which, due to inadvertence, he failed to forward to defense counsel.

Discovery proceeded in the ordinary course. Plaintiff had 120 days after the filing of the answer in which to forward to defendants the affidavit of merit. During this 120-day period, defense counsel made no further request for the "medical expert affidavit" and did not participate in a telephonic case management conference. On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, Cuker had a telephone conversation with defense counsel, who brought to Cuker's attention that defendants had not received a medical affidavit. Within hours of that conversation, Cuker faxed Dr. Shankman's affidavit to defense counsel.

On January 17, 2001, defendants moved to dismiss the complaint with prejudice for failure to comply with the Affidavit of Merit statute. The trial court granted the motion to dismiss, and the Appellate Division affirmed in an unpublished decision. We granted certification, 174 N.J. 193 (2002), and now reverse.

II.

The Affidavit of Merit statute provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence 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 or occupational standards or treatment ...


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