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Hughes v. Braver

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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