On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-4810-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 27, 2008
Before Judges Axelrad and Sapp-Peterson.
Plaintiff Lawrence Short appeals from orders dismissing his medical malpractice suit against defendants, AtlantiCare Regional Medical Center (ARMC) and Dr. Michael J. Savini, and Atlantic Bone & Joint Surgeons, LLC (ABJS) and Dr. Lawrence Naame, for failure to satisfy the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-27, and denying his motion for reconsideration. We affirm substantially for the reasons set forth by Judge Nugent in his written decisions dated February 2, 2007 and April 19, 2007, and articulated on the record on March 2, 2007.
On May 31, 2005, plaintiff underwent a left hip arthroplasty, performed by Dr. Naame, a board-certified orthopedic surgeon employed by ABJS, at the ARMC facility. Dr. Savini, also an orthopedic surgeon employed by ARMC, assisted Dr. Naame with the procedure. On June 15, 2006, plaintiff filed a medical malpractice action against the physicians and their employers alleging the physicians were negligent while performing the hip replacement surgery. More particularly, plaintiff alleged that during the surgery, Dr. Naame noted that plaintiff's sciatic nerve was tight across the posterior aspect of his left hip but chose to continue the operation, resulting in a permanent injury that left plaintiff with a left foot drop and unable to extend his left ankle and toes.
On July 26, 2006, plaintiff filed an affidavit of merit prepared by Gregory P. Papa, D.O., a general practitioner who specializes in family practice and cardiovascular disease. Dr. Papa certified he had "particular knowledge and/or expertise in the general area of orthopedic surgery, including hip replacement surgery" and opined there existed "a reasonable probability that the care, skill and/or knowledge exercised or exhibited in the treatment, practice or work rendered to Mr. Short by Lawrence Naame, M.D. at the Atlantic Regional Medical Center, fell outside of the acceptable professional standards and treatment practices." Defendants' counsel notified plaintiff that Dr. Papa's affidavit was insufficient as he was a family practitioner and his affidavit did not name Dr. Savini as a physician whose treatment falls outside of acceptable standards of care. The court conducted a conference on November 16, 2006 and extended to January 15, 2007 the deadline for plaintiff to file either a supplemental affidavit or an additional affidavit of merit to cure any claimed deficiencies, which was memorialized in an order. Plaintiff, however, did not avail himself of the opportunity, choosing to rely solely on Dr. Papa's affidavit as submitted.
On January 17, 2007, Dr. Savini and ARMC filed a motion to dismiss the complaint on the ground that plaintiff failed to produce an affidavit of merit relating to Dr. Savini as required by the AMS even within the time extended by the court. On January 19, 2007, Dr. Naame and ABJS filed a motion for summary judgment based on plaintiff's failure to timely serve an appropriate affidavit of merit because Dr. Papa did not specialize in orthopedic surgery and did not have the necessary credentials particularly mandated by the 2004 amendment to the AMS, N.J.S.A. 2A:53A-41.
On February 2, 2007, Judge Nugent granted Dr. Savini's and ARMC's motion on the papers, dismissing with prejudice plaintiff's complaint against them based on plaintiff's failure to comply with the mandatory statutory requirement of the AMS that he file and serve an affidavit "attesting to the reasonable probability that the care, skill or knowledge exercised by defendants AtlantiCare and Savini during their care and treatment of him fell outside acceptable professional or occupational standards or treatment practices." The court noted that despite being given the opportunity to comply with the statute following the case management conference, plaintiff did not obtain an affidavit "from an appropriate, licensed expert attesting to the 'reasonable probability' of defendants' professional negligence that his complaint against them is meritorious." The court found plaintiff's reliance upon the "substantial compliance" doctrine to be misplaced, recognizing plaintiff did not comply with the statute at all, let alone substantially comply with it. The decision was memorialized in an order dated February 7, 2007.
On March 2, 2007, following oral argument, the court granted summary judgment in favor of Dr. Naame and ABJS, memorialized in an order of that date. The court noted Dr. Naame was a board-certified orthopedic surgeon and the operation involved that specialty. It found Dr. Papa, by his own certified statement in his affidavit of merit against Dr. Naame, did not meet the heightened requirements of the 2004 amendment to the AMS because he did not specialize in orthopedics and was not credentialed by a hospital to perform hip replacement surgery or board-certified as an orthopedic surgeon as mandated by N.J.S.A. 2A:53A-41a(1) and (2).*fn2 The court rejected plaintiff's reliance on subsection "b" of the statute, namely that Dr. Papa had an active clinical practice purportedly encompassing the medical condition or including performance of the procedure that was the basis for the action, noting the subsection expressly applies to a defendant who is a general practitioner, not a specialist.*fn3 Judge Nugent also found unavailing plaintiff's contention that he satisfied the statute's requirements under the doctrine of substantial compliance, stating "[t]he statutory requirements with respect to the credentials of a doctor criticizing a board certified physician are mandatory[;] [t]he criticizing physician or the author of the affidavit of merit as the case may be must meet the requirements of N.J.S.A. 2A:53A-41a[;] . . . the statute mandates compliance, not substantial compliance." On his motion for reconsideration, plaintiff reargued that Dr. Papa was an "appropriate licensed person" under the AMS because he satisfied the requirements of N.J.S.A. 2A:53A-41b and that the doctrine of substantial compliance excused technical noncompliance with the AMS. The court rejected this argument in an opinion and order of April 19, 2007. This appeal ensued.
On appeal, plaintiff renews the arguments made to the trial court, emphasizing he is not obligated to prove the merits of his claim at this stage but is merely required under the AMS to make a threshold showing that his claims have merit. According to plaintiff, the submission of Dr. Papa's affidavit does precisely that, even though Dr. Papa is not a board-certified orthopedic surgeon, because he is a general practitioner who possesses sufficient knowledge and expertise qualifying him to opine whether defendants committed malpractice in performing the hip replacement surgery that permanently injured plaintiff. Plaintiff claims the court ignored the AMS' important purpose of permitting meritorious plaintiffs to have their day in court. He urges that because Dr. Papa's affidavit, though perhaps not in strict compliance with the literal requirements of the 2004 amendment, sufficiently placed defendants on notice of the nature of his claim, and thus he should be permitted to proceed under the doctrine of substantial compliance. Plaintiff further argues that if the Legislature intended to overrule the doctrine of substantial compliance by the 2004 amendments, it would have expressly done so.
We are not persuaded by any of plaintiff's arguments and affirm substantially for the reasons articulated by Judge Nugent. We add the following brief comments. Plaintiff was informed of the deficiencies in his affidavit and provided more than ample opportunity to supplement the affidavit of merit as to Dr. Savini and to provide additional affidavits in compliance with N.J.S.A. 2A:53A-41a. Plaintiff, however, chose to rely on Dr. Papa's affidavit as submitted and cannot now complain about the consequences. Moreover, plaintiff made absolutely no showing of a good faith effort to obtain an affidavit of merit from another orthopedic surgeon and presentation of Dr. Papa's credentials to invoke the waiver provision of N.J.S.A. 2A:53A-41c.*fn4
As Judge Nugent explained in detail, the 2004 amendment to the AMS, known as the New Jersey Medical Care Access and Responsibility and Patient's First Act, heightened the requirements for the AMS by mandating that if the defendant is a specialist and the care or treatment at issue involves that specialty, the expert providing the affidavit must practice in that same specialty. N.J.S.A. 2A:53A-41a. If the defendant is board-certified, certain additional requirements are imposed on the expert witness. Ibid. These requirements are contained in express and unequivocal language in the statute. Contrary to plaintiff's assertions, the Legislature's directives for a criticizing physician or author of an affidavit of merit are substantive, not technical mandates of the statute. Dr. Papa, a general practitioner who specializes in family practice and cardiovascular disease, is not statutorily competent to opine on whether Dr. Naame, a board-certified orthopedic surgeon, deviated from accepted standards of practice under the heightened ...