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Hawkins v. Garden State Surgical Associates


February 11, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3791-05.

Per curiam.


Argued November 8, 2007

Before Judges Wefing, Parker and Lyons.

In this medical malpractice action, we granted leave for plaintiff Brenda L. Hawkins to appeal from an order entered on February 2, 2007 granting defendants' motion for summary judgment dismissing the complaint against certain defendants with prejudice on res judicata grounds.

In this case, we address the question of whether a plaintiff, whose medical malpractice complaint was dismissed in one county for failure to file an Affidavit of Merit, may file another medical malpractice complaint in another county against the same defendants alleging essentially the same facts and seeking the same remedies. After carefully considering plaintiff's arguments in light of the applicable law, we hold that she cannot and we affirm the trial court's grant of summary judgment.

On March 18, 2005, plaintiff pro se filed a complaint in Union County against Garden State Surgical Associates, of which Jennifer Syrek, M.D., Alec Simpson, M.D., and David Richmand, M.D., were members, and Muhlenberg Medical Center (the Union complaint). On April 15, 2005, plaintiff filed an amended complaint in Union adding the parties' names to the body of the complaint, which she had omitted in the initial complaint.

On May 24, 2005, plaintiff pro se filed another complaint in Middlesex County against Garden State Surgical Associates and Dr. Syrek (the Middlesex complaint). This complaint was amended on May 30, 2006 to include additional claims.

On July 6, 2005, plaintiff pro se filed another complaint in Union County naming Manor Care as a defendant, alleging that it failed to provide basic emergency treatment to plaintiff's husband.

On August 19, 2005, a case management conference was held in Union County to address discovery issues and the need for an Affidavit of Merit. During the conference, the court advised plaintiff that she must provide an Affidavit of Merit and granted her an additional sixty days to serve the affidavit in accordance with N.J.S.A. 2A:53A-27.

On September 9, 2005, Middlesex denied plaintiff's motion to consolidate the Union and Middlesex cases and indicated that the motion to consolidate should be filed in Union. There is nothing in the record, however, to indicate that plaintiff filed a motion to consolidate in Union. On November 7, 2005, defendants answered the Middlesex complaint.

Meanwhile, plaintiff's time to file an Affidavit of Merit in Union expired and defendants moved to dismiss the complaint with prejudice. On November 4, 2005, the motions were argued and plaintiff, who by then was represented by counsel, was granted additional time to oppose the motions.

On November 10, 2005, however, plaintiff's counsel requested that the motions be decided on the papers because his research did not indicate any case law allowing a further extension of time beyond the 120 days already granted to plaintiff to file an Affidavit of Merit. On November 18, 2005, the Union complaint was dismissed "with prejudice for failure to serve an Affidavit of Merit as required by law." Plaintiff did not appeal that order.

On May 9, 2006, however, plaintiff moved in Union for reconsideration of the November 18, 2005 order pursuant to R. 4:50-1, arguing that per [R. 4:50-1] (a) a mistake was made in the application of the revised Affidavit of Merit statute of 2004 to a medical occurrence from 2003. The Patients First Act was the legislation under which the Affidavit of Merit statute was revised.

Since this was a legislative act, the more stringent statute could only be applied to medical occurrences in 2004 after enactment and beyond. It should not have been applied to this medical malpractice case because the occurrence took place in 2003. Under the initial Affidavit of Merit statute in place in 2003, the Affidavit of Merit that was submitted would have been deemed satisfactory. In addition , per [R. 4:50-1] (b) since this writer began providing legal counsel on the case filed in Middlesex County on March 8, 2006. In analyzing that case, it was necessary to review the case in Union County that had been dismissed. It was during this process that the misapplication of the Affidavit of Merit statute was discovered. It would have not been possible to discover the error in application of the Affidavit of Merit prior to this time.

Finally, per [R. 4:50-1] (f) the additional reason for reinstating the case is in the interest of justice and fair play.

After hearing arguments on the motion for reconsideration, the trial court denied it, stating that the purported Affidavit of Merit did not meet the standard under the pre-amendment statute because it was not a certification under oath as required under N.J.S.A. 2A:53A-27. With respect to plaintiff's argument pursuant to R. 4:50-1(f), the trial court noted that when plaintiff was pro se, the court had explained to her what was required, and when she retained counsel, the court gave her additional time to submit the required affidavit and opposition to defendants' motions to dismiss. Given those circumstances, the court found no reason to vacate the November 18, 2005 order.

On January 2, 2007, the Garden State defendants moved in Middlesex for summary judgment on res judicata grounds, arguing that the dismissal in Union was res judicata with respect to the Affidavit of Merit issue.

On January 14, 2007, plaintiff moved for leave to appeal out of time the dismissal of the Union complaint. We denied the motion and the Supreme Court denied plaintiff's petition for certification. Hawkins v. Muhlenberg Reg'l Med. Ctr., 192 N.J. 70 (2007).

On February 2, 2007, the trial court granted the Garden State defendants' and Dr. Syrek's motions to dismiss the Middlesex complaint with prejudice on res judicata grounds. On March 2, 2007, plaintiff moved for leave to appeal and we granted the motion on April 2, 2007.

In this appeal, plaintiff argues that (1) the Middlesex complaint should be reinstated because it differs from the Union complaint and res judicata is inapplicable; (2) there are disputed material issues of fact; and (3) it is against public policy to bar the medical malpractice complaint because "of a purported technical deficiency related to the Affidavit of Merit filing."

Plaintiff argues that the Union complaint did not involve identical parties and did not result from the same cause of action as the Middlesex complaint. Specifically, plaintiff notes that Garden State was not named as a defendant in the Union complaint. Dr. Syrek, however, is a defendant in both cases and is a member of the Garden State Surgical Associates. Consequently, she is in privity with Garden State. Moreover, to the extent we can determine the allegations in the Union complaint, they are the same as those alleged in the Middlesex complaint.

"The term 'res judicata' refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). Three elements must be met for res judicata to apply: "[1] the judgment relied upon must be valid, final and on the merits; [2] the parties in the two actions must be either identical or in privity with one another; [3] the claims [in the subsequent case] must grow out of the same transaction or occurrence." Olds v. Donnelly, 291 N.J. Super. 222, 232 (App. Div.), aff'd, 150 N.J. 424 (1997) (citing Watkins v. Resorts Int'l Hotel and Casino, Inc., 124 N.J. 398 (1991)). "For the purposes of res judicata, causes of action are deemed part of a single 'claim' if they arise out of the same transaction or occurrence." Watkins, supra, 124 N.J. at 413. A litigant must present all theories in the first action when seeking to remedy a single wrong. Ibid.

In medical malpractice cases, plaintiff is required to "provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability" that the doctor's treatment "fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. Plaintiff has sixty days from the date the answer is filed to provide the affidavit and the court may grant no more than one extension up to sixty days. N.J.S.A. 2A:53A-27. Plaintiff's failure "to provide an affidavit or a statement in lieu thereof . . . shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. Absent extraordinary circumstances, plaintiff's failure to comply with the Affidavit of Merit statute requires dismissal with prejudice. Cornblatt v. Barrow, 153 N.J. 218, 247 (1998). As such, the dismissal of the Union complaint with prejudice is a final adjudication on the merits as to the defendants named in the Union complaint and the claims made in that complaint.

While the facts alleged in the Union complaint are sparse, plaintiff attached a handwritten statement to the complaint adding further allegations regarding defendants' treatment of her husband. When we compare the Union complaint and its appended statement with the Middlesex complaint, it is clear that the allegations stem from the same circumstances and alleged conduct by the defendants. Consequently, the medical malpractice allegations against Dr. Syrek, Garden State Surgical Associates and its other members are res judicata and cannot be raised in any other complaint.

We do not even reach the issue of disputed material facts because the failure to serve a proper Affidavit of Merit is deemed a failure to state a cause of action. N.J.S.A. 2A:53A-29.

Plaintiff further argues that dismissing the Union complaint because of "a purported technical deficiency related to the Affidavit of Merit" is against public policy and legislative intent. We disagree.

"The Affidavit of Merit statute 'is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint,' but with whether there is some objective threshold merit to the allegations. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). Only the 'affidavit of an appropriate licensed person' satisfies the merit requirement," N.J.S.A. 2A:53A-27. Cornblatt, supra, 153 N.J. at 292-93. "The risk of having a case dismissed because no affidavit was filed is easily avoided. A timely filed affidavit would prevent the risk of a later dismissal." Id. at 294.

The Affidavit of Merit statute was part of "a package of five tort reform bills to 'bring common sense and equity to the state's civil litigation system.'" Cornblatt, supra, 153 N.J. at 228 (quoting Office of the Governor, News Release 1 (June 29, 1995)). "The overall purpose of the statute is 'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.'" Id. at 242 (quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). "That initial 'threshold showing' of a meritorious claim is what the statute requires of the Affidavit of Merit." Ibid. In considering whether a certification was acceptable in lieu of an affidavit, the Court stated:

[W]e recognize that, under certain circumstances, a certification could satisfy the purpose of the affidavit requirement as well as the general purpose of the statute.

Those circumstances would also include at the very least the timely filing of a certification otherwise complying with all of the specifications for an Affidavit of Merit; an adequate and reasonable justification and a convincing explanation of just cause and excusable neglect for submitting a certification rather than an affidavit; and, further, that the adverse party was not prejudiced and obtained the requisite notice in that the certification contained the quality and level of information contemplated by the affidavit requirement. Further, a relevant circumstance would involve the plaintiff undertaking prompt measures to comply fully with the statute, including specifically the filing of an affidavit or the agreement of an adversary that the certification provided fully meets the substantive requirements of the statute. [Id. at 240.]

We are, therefore, convinced that dismissal of the complaint for failure to file a timely and sufficient Affidavit of Merit is consistent with the public policy and the intent of the legislature in adopting the Affidavit of Merit statute.

In short, we find no basis upon which to reverse the Middlesex order dismissing the complaint on the grounds of res judicata. The Affidavit of Merit statute is clear and unequivocal. Dismissal of the Union complaint for failure to comply with the statute is a dismissal with prejudice for failure to state a cause of action. N.J.S.A. 2A:53A-29. The dismissal of the Union complaint forever bars plaintiff from bringing an action against the same defendants arising out of the same facts and alleging the same conduct.



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