On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3791-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...