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Hughes v. Braver

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2007

JEAN M. HUGHES, PLAINTIFF-APPELLANT,
v.
DR. RICHARD T. BRAVER, THE ACTIVE FOOT AND ANKLE CARE CENTER; HACKENSACK MEDICAL CENTER; AND GREG CLARK, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1932-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2007

Before Judges A. A. Rodríguez, Sabatino and Lyons.

Plaintiff, Jean M. Hughes, appeals from an order dismissing her medical malpractice complaint against defendant, Dr. Richard T. Braver, for failure to comply with the affidavit of merit statute. N.J.S.A. 2A:53A-27. We reverse because we conclude the judge's interpretation of the affidavit of merit requirements was not in accord with the terms of the then-applicable statute.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. This is a podiatric malpractice case that arises out of surgery performed by defendant. Defendant is a doctor of podiatric medicine licensed by the State Board of Medical Examiners. Defendant performed ankle stabilization surgery, as well as surgery on plaintiff's left heel on March 1, 2003. Plaintiff filed her complaint on February 28, 2005 alleging the surgery performed by defendant was done in a negligent manner. Plaintiff served a fully executed affidavit of merit on each defendant on June 29, 2005. Gerald A. Coniglio, M.D. ("Dr. Coniglio") executed the affidavit. Dr. Coniglio is licensed to practice medicine in the State of New York and is board certified in orthopaedic surgery, as well as emergency medicine. He states in his affidavit that he has been engaged in orthopaedics and emergency medicine for at least the past five years. He also swore that he has devoted, for more than five years, a "substantial portion of my practice to the general area involved in this action." He also swore that he had no financial interest in the outcome of the case and it was his opinion that there existed a reasonable probability that the skill and knowledge exercised or exhibited in the practice or work, which is the subject of the within action, fell outside acceptable professional standards as they applied to defendant.

On August 1, 2005, defendant was served with Dr. Coniglio's detailed report dated May 1, 2005. On February 22, 2006, the trial court ordered that defendant may file a motion to dismiss based upon a perceived insufficiency of the affidavit of merit. Pursuant to that order, defendant filed a motion to dismiss which was heard by the trial court on April 3, 2006. Following oral argument, the trial judge entered an order dismissing with prejudice plaintiff's complaint for failure to comply with N.J.S.A. 2A:53A-27, the affidavit of merit statute.

The trial judge, in her oral opinion, distinguished this case from Burns v. Belafsky, 166 N.J. 466 (2001). In Burns, the Supreme Court held that a neurosurgeon was qualified to execute an affidavit of merit with respect to a radiologist given his particular expertise in the general area involved in the action. Id. at 480. The trial judge noted that there was nothing in the record before her to suggest that Dr. Coniglio had the required expertise under the statute or that he was in fact involved in this particular area for at least five years. The trial judge noted that plaintiff's counsel had not produced a certification from Dr. Coniglio in the face of the motion to demonstrate the doctor's particular expertise. Accordingly, the trial court granted the motion.

On appeal, plaintiff argues that the trial judge erred in dismissing an otherwise "meritorious claim" by requiring that plaintiff make a threshold showing that malpractice occurred before accepting an affidavit of merit.

We begin our consideration of this argument by restating applicable legal principles. Our Supreme Court has explained that the affidavit of merit statute has a dual purpose: "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." Ferreira v. Rancocas Orthopedic, 178 N.J. 144, 150 (2003) (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). The Court has made clear that "[t]he legislative purpose [behind the affidavit of merit statute] was not to 'create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.'" Id. at 151 (quoting Mayfield v. Cmty. Med. Assocs., 335 N.J. Super. 198, 209 (App. Div. 2000)). Recognizing the two-fold purpose of this statute, we now examine the particular language of the statute with reference to the facts at hand.

When dealing with questions of statutory construction, a court first considers the plain meaning of the provision at issue. Burns, supra, 166 N.J. at 473. "Such language should be given its ordinary meaning absent a legislative intent to the contrary." Ibid. (citing Merin v. Maglaki, 126 N.J. 430, 434 (1992)). The pertinent language here reads as follows:

[T]he person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case. [N.J.S.A. 2A:53A-27*fn1 (emphasis added).]

N.J.S.A. 2A:53A-27 required the affidavit to be executed by one who: (1) is licensed in New Jersey or any other state; (2) has particular expertise in the general area or specialty involved in the action, which expertise is evidenced either by (a) board certification or (b) devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years; and (3) who does not have a financial interest in the outcome of the case.

We are satisfied that Dr. Coniglio meets these general requirements. He is licensed in New York, has been a physician since 1972, is board certified in orthopaedic surgery since July 1984 and has no financial interest in the outcome of the case. There is also no dispute that defendant is a doctor of podiatric medicine, and that the action involves the foot and ankle.

N.J.S.A. 45:5-7 defines podiatry as: the diagnosis or treatment of or the holding out of a right or ability to diagnose or treat any ailment of the human foot, including local manifestations of systemic diseases as they appear on the lower leg or foot but not treatment of systemic diseases of any other part of the body . . .*fn2

The issue in this case is whether a person who is board certified in orthopaedic surgery can satisfy the statutory requirements of N.J.S.A. 2A:53A-27 in a case involving professional malpractice concerning the actions of a podiatrist in operating on a foot and ankle. We find that in such a case, board certification in orthopaedic surgery meets the statutory requirements under the former version of N.J.S.A. 2A:53A-27.

The statute requires particular expertise in the general area or specialty involved in the action. In other words, the statute first of all requires the opining doctor to have particular expertise in the general area or specialty involved in the action, in this case, the foot and ankle. That expertise may be evidenced under the statute in either of two ways, by board certification, or absent that, by proof the affiant has devoted his or her practice substantially to the general area or specialty involved in the action for at least five years. There are no proofs in the record that the affiant has specifically devoted his practice substantially to treating foot and ankle for a period of at least five years. However, there is proof that he is board certified in orthopaedic surgery. The issue becomes whether board certification in orthopaedics evidences a sufficient degree of expertise in actions concerning the care of the human ankle and foot.

The American Board of Orthopaedic Surgery has defined orthopaedics and the scope of orthopaedic surgery:

Orthopaedics is the broad based medical and surgical specialty dedicated to the prevention, diagnosis and treatment of diseases and injuries of the musculoskeletal system. The frequency and impact of these diseases and injuries combined with recent advances in their diagnosis and treatment make orthopaedics a critical part of health care. The areas of orthopaedic surgery include: Pediatric Orthopaedics. Care of injuries, deformities and diseases of the bone, joints, muscles and tendons in children. Sports Medicine. Care of injuries related to athletic activities.

Joint Replacement and Surgery in Arthritis. Care of patients with advanced arthritis, including medical treatment, joint replacement and other procedures.

Foot and Ankle. Care of patients with injury and diseases of the foot and ankle. Hand surgery. Surgical and non-surgical treatment of the hand and wrist.

Shoulder and Elbows. Care of diseases and injuries of the shoulder and elbow.

Spine. Surgical and non-surgical treatment of deformities, injuries and disorders of the back and neck.

Trauma and Fractures. Treatment of injuries to the . . . muscles, tendons, nerves and vessels in the . . . back and neck. Musculoskeletal Oncology. Treatment of benign and malignant tumors of bones, joints and muscles.

Rehabilitation. Short and long-term programs to improve strength and mobility and optimize recovery.

Arthroscopy and Arthroscopic Surgery.

Diagnosis and treatment of joint diseases and injuries using arthroscopic methods.

The arthopaedic surgeon works with many other surgical and medical specialists. [American Board of Orthopaedic Surgery, Your Surgeon is Certified by the American Board of Orthopaedic Surgery (1994) (emphasis added)].

It is clear from the cited publication that care of patients with injuries and diseases of the foot and ankle are included in the areas encompassing orthopaedic surgery. Therefore, if a doctor is certified by the American Board of Orthopaedic Surgery, he or she must possess particular expertise in the care of patients with injury and diseases of the foot and ankle, areas involved in this action. Accordingly, because Dr. Coniglio is a board certified orthopaedic surgeon, and since orthopaedic surgery includes treating the foot and ankle, the doctor meets the statutory definition without reference to whether he has devoted a substantial part of his practice to the foot and ankle for the last five years.*fn3

This outcome is consistent with the Court's stated and recognized purposes of an affidavit of merit and in accordance with the then-applicable terms of the statute. We note, however, that our opinion herein is limited strictly to whether Dr. Coniglio possessed the requisite credentials to submit an affidavit of merit pursuant to the former version of N.J.S.A. 2A:53A-27. Our ruling is without prejudice to any further evidentiary or dispositive applications or arguments counsel may wish to make after reviewing the doctor's report and taking his deposition as to his qualifications. We simply hold that the threshold requirements of the affidavit of merit were met.

Accordingly, we reverse the order of the trial judge and remand the matter for further proceedings.


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