On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1118-06.
The opinion of the court was delivered by: Lintner, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Sabatino and Alvarez.
Plaintiff Montreal Saunders, individually, and as guardian ad litem for her daughter,*fn1 Montee, appeals from a Law Division order dismissing her malpractice complaint against defendants Capital Health System at Mercer (Capital) and its employee Marietta Cahill, a registered nurse and licensed midwife, for failing to provide defendants with an Affidavit of Merit. Plaintiff alleged that Montee sustained trauma, specifically, "[s]houlder dystocia (Erb's Palsy)," as a result of Cahill's negligence while serving in her capacity as a midwife during Montee's birth. The central issue posed by this appeal is whether an Affidavit of Merit, pursuant to N.J.S.A. 2A:53A-27 (Affidavit of Merit Statute), is required in a personal injury suit for alleged acts of malpractice against a person serving as a licensed midwife. We hold that a licensed midwife is not a "licensed person" under the Affidavit of Merit Statute as enumerated in N.J.S.A. 2A:53A-26. We also reverse the order insofar as it dismissed plaintiff's complaint against Capital.
The relevant facts are substantially undisputed. On August 28, 2002, Montreal gave birth to Montee at defendant Capital's facility in Trenton. Capital's records indicate that the baby was vaginally delivered and Cahill was the attending midwife.
According to Cahill's curriculum vitae, she has a Bachelor's and Master's degree in nursing, a Master's degree in public health, and a Nurse-Midwifery Certification. Following the delivery, Cahill noted that Montee suffered from shoulder dystocia, affecting her left arm.
Plaintiff's complaint was filed on April 28, 2006. Defendants answered on June 19, 2006, demanding production of an Affidavit of Merit. Plaintiff provided defendants with answers to interrogatories, which asserted the following allegations respecting Montee's delivery:
Defendant, Marietta Cahill, as a Certified Nurse-Midwife, failed to recognize impending complications which could adversely affect the delivery and failed to call in an obstetrician for immediate evaluation, assessment and treatment.
Montee Saunders experienced twisting during birth and lack of oxygen while being forcibly pulled and twisted from her mother. Montee Saunders experienced shoulder [dystocia], brachial plexis injury and decreased movement and flaccidity of the left arm.
On September 21, 2006, plaintiff's counsel wrote a letter to defendants' counsel, inquiring about the status of defendants' answers to interrogatories. He also telephoned defense counsel on October 13, 2006, to discuss the case, at which time defense counsel did not mention anything about an Affidavit of Merit.
On November 1, 2006, defendants moved to dismiss plaintiff's complaint for failure to file an Affidavit of Merit. Upon receipt of defendant's motion, plaintiff's counsel realized that he had neglected to provide defendant with the Affidavit of Merit in his file. Dr. Richard L. Luciani had executed an Affidavit of Merit on January 31, 2006, implicating Cahill and Capital. Plaintiff's counsel mistakenly believed that he had provided a copy of Luciani's affidavit in May 2006 with plaintiff's summons and complaint. Upon reviewing defendants' motion on November 6, 2006, plaintiff's counsel immediately faxed defendants' counsel a copy of Luciani's affidavit.
Dismissing plaintiff's complaint with prejudice, the motion judge rejected plaintiff's reliance on substantial compliance and extraordinary circumstances, as well as her argument that had a case management conference been held in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), counsel would have remedied the inadvertent failure to submit Luciani's affidavit. In her motion for reconsideration, plaintiff maintained that the Affidavit of Merit Statute does not include midwife as a covered profession. Plaintiff asserted that midwifery and nursing are separate categories under the law, that "the circumstances of . . . Cahill's care and treatment . . . is specifically with regard to her duties, responsibilities, and licensure as a midwife," and "[t]here is no evidence that any of her actions . . . had anything to do [with] her responsibilities as a nurse." Plaintiff also reiterated her contention regarding the failure to hold a case management conference. Defendants countered that Cahill is certified as a Nurse-Midwife, "a nurse first," and thus qualifies as a person licensed under the Affidavit of Merit Statute. Denying plaintiff's motion for reconsideration, the judge found that the Court in Ferreira "merely proposes" a case management conference and does not require it. The judge also concluded that N.J.S.A. 2A:53A-26 should not be deemed to exclude licensed medical professionals not listed, such as those who administer anesthesia and repair lacerations, as well as midwives.
On appeal, plaintiff asserts that the judge erred in dismissing the case with prejudice because midwives, as opposed to nurses, are not covered by the Affidavit of Merit Statute and the court did not hold a Ferreira case management conference. Plaintiff also maintains that she substantially complied with the Affidavit of Merit Statute, extraordinary circumstances existed, and defendant is estopped from moving to dismiss. She claims that any dismissal should be without prejudice. Defendants reprise their arguments that, as a nurse-midwife, Cahill falls under the auspices of the Affidavit of Merit Statute and Ferreira does not require a case management ...