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BRYAN v. SHAH

January 10, 2005.

DEBRA BRYAN, Plaintiff,
v.
AMIRA SHAH, M.D., and/or PRISON HEALTH SERVICES, INC. and/or JOHN DOE, M.D., 1-5, and/or STEINENGER BEHAVIORAL CARE SERVICES, and/or JOHN DOE PHYSICIANS #1-5, and/or RICHARD ROE 1-5 Defendants.



The opinion of the court was delivered by: JOSEPH IRENAS, District Judge

OPINION

Currently before this Court is Plaintiff's Motion for Reargument of the Court's Order dated October 12,*fn1 2004.*fn2 For the reasons set forth below, the Court will grant Plaintiff's motion, vacate the Order of October 12, 2004, and deny Defendants' motion to dismiss Plaintiff's state law claims.

I.

  Plaintiff Debra Bryan ("Plaintiff" or "Bryan") filed a complaint (the "Complaint") against Prison Health Services ("PHS")*fn3 and Dr. Amira Shah ("Shah"),*fn4 in state court on December 18, 2003. The case was removed to federal court on February 13, 2004. Plaintiff amended her complaint (the "Amended Complaint") on September 28, 2004, to include Steinenger Behavioral Care Services ("SBCS") as an additional defendant.*fn5

  The Complaint alleges violations of both state and federal law.*fn6 On October 12, 2004, this Court issued an Opinion and Order in which we dismissed, with prejudice, Plaintiff's state law claims against Defendants Shah and PHS*fn7 for failure to provide an Affidavit of Merit in conformity with N.J.S.A. 2A:53A-27 (the "Statute"). Bryan v. Shah, No. 04-0629, 2004 WL 2326383 (D.N.J. Oct. 12, 2004).

  II.

  The Statute mandates that a plaintiff serve an Affidavit of Merit ("Affidavit") on the defendant(s) in all cases alleging medical malpractice under state law. Service must be made within a period of at most 120 days after the filing of the Answer. N.J.S.A. 2A:53A-27; see also Burns v. Belafsky, 166 N.J. 466, 473-77, 766 A.2d 1095, 1099-1101 (2001) (holding that while the Statute provides an initial 60 day window, one 60 day extension may be granted by a court for good cause shown and the plaintiff may apply for the extension even after the initial 60 days have run, but before the full 120 days has expired).

  If a plaintiff fails to file the Affidavit in the appropriate manner, the defendant may move to dismiss the cause of action. If the motion is granted, the state claims should be dismissed with prejudice. Tischler v. Watts, 177 N.J. 243, 246, 827 A.2d 1036, 1038 (2003) (reaffirming that non-compliance with the Statute shall result in a dismissal with prejudice); see also N.J.S.A. 2A:53A-29 (failure to comply with the Statute is deemed a failure to state a cause of action).

  III.

  Defendants PHS and Shah filed their Answer to the Complaint on February 26, 2004. Defendants PHS and Shah moved to dismiss the state law claims after the 120 days had run. In her Response, Plaintiff conceded that the Affidavit was filed late, but argued that her cause of action should not be dismissed with prejudice because (1) she had substantially complied with the Statute; and/or (2) some other equitable doctrine applied. This Court found that Plaintiff did not substantially comply with the Statute. Furthermore, this Court held that the doctrines of estoppel, laches and waiver did not apply. Accordingly, we dismissed the state law claims against PHS and Shah with prejudice.

  In reaching that decision, we did not consider the common knowledge exception, as it was not raised in the parties' papers. After receiving Plaintiff's Notice of Motion for Reargument and Defendants' Opposition, this Court, by letter dated November 4, 2004, requested full briefing on the applicability of the common knowledge exception. At this time, Plaintiff requests that this Court withdraw its dismissal of her state claims, because, she contends, her case falls under the common knowledge exception.

  IV.

  Under the common knowledge exception, if the professional negligence would be obvious to a layperson, the Statute does not require an Affidavit. Risko v. Ciocca, 356 N.J. Super. 406, 409, 812 A.2d 1138, 1140 (App.Div. 2003). The New Jersey courts have concluded that the Legislature did not intend for the Statute to apply in cases where "jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent." Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth).

  While such an exception is viable, its application is limited as the negligence must be so apparent that "an expert will not be called to testify as to the standard of care." Id. at 390, 774 A.2d at 497. The New Jersey Supreme Court has held that "the threshold of merit should be readily ...


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