On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1751-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
We granted plaintiff Sherrie Dornberger leave to appeal interlocutorily from the November 8, 2007, order that dismissed her complaint as to defendants Jorge A. Prieto, M.D. (Prieto), and his gastro-intestinal practice group, DiMarino, Kroop, Prieto, G.I., P.A. (DKP), with prejudice.*fn1 We now reverse and reinstate plaintiff's complaint as to these parties.
The procedural history is quite convoluted. Plaintiff's complaint alleged medical malpractice against these defendants and numerous other parties as a result of bowel resection surgery and resulting complications. On October 20, 2004, plaintiff filed her original complaint and these defendants filed answers on February 7, 2005. Plaintiff filed an amended complaint on May 26, 2005, which concerned defendants other than Prieto or DKP. On June 17, 2005, the judge held a case management conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2001). The order entered as a result required plaintiff to serve an affidavit of merit as to defendant Michael C. DiMarino by July 20, 2005, and other affidavits of merit by July 27, 2005.*fn2
On July 13, 2005, plaintiff served an affidavit of merit prepared by Harold L. Lipsky, M.D., that opined that DKP's care of plaintiff "fell outside acceptable professional standards of care for internists." The affidavit did not express any opinion as to Prieto individually. On December 11, 2005, plaintiff voluntarily dismissed her complaint, without prejudice and apparently with defendant's consent, against Prieto and two other defendant doctors.
The circumstances surrounding the dismissal and what the parties intended as a result is open to debate and certainly is not documented to any extent by the record itself. Plaintiff contended at oral argument before the motion judge, and again before us, that difficulty in reading the largely illegible hospital records resulted in an inability to ascertain which, if any, particular doctors may have deviated from professional standards of care. Indeed, the case management order entered in July references the need to have the records, particularly as to the "gastro-intestinal doctors" transcribed. Plaintiff also cited the numerous times Prieto's deposition was adjourned at his request as a reason for the delay in being able to proceed against him.
Defendants, however, disagreed with this characterization of events and insisted that difficulties in reading the records did not have anything to do with the dismissal of Prieto from the case. Moreover, defendants argued that if indeed that was the reason for plaintiff's voluntary dismissal, the matter could have been easily addressed through the court's intervention or by preliminary discovery that could have clarified the contents of the records. Before the motion judge, Prieto argued that the dismissal without prejudice was simpler and less costly than filing a motion to dismiss based upon a failure to comply with the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:56A-26 to -29.
In any event, it is impossible to reconstruct what was in the minds of the attorneys involved at the time, and we need not do that in order to reach the proper result. It suffices to say that both sides could have taken steps to resolve what ever difficulties were presented and crystallize the issues and parties actually in dispute at a much earlier time but did not do so.
Discovery continued under the supervision of the judge, who entered a series of additional case management orders culminating in a fourth such order dated June 26, 2006. It provided that plaintiff was to serve her expert reports by September 1, 2006, and set the discovery end date as January 31, 2007. On or about November 29, 2006, plaintiff served an affidavit of merit critical of Prieto individually, and immediately thereafter moved to file a second amended complaint reinstating him as a defendant.
In his opposition to the motion, Prieto objected to being added at such a late date, after summary judgment motions had been filed by co-defendants, and he further objected based upon the fact that he was never served with an affidavit of merit while he was a previously-named defendant. Prieto also noted that plaintiff had yet to serve an expert's report critical of him individually or DKP collectively. The judge permitted amendment of the complaint, thus reinstating Prieto to the action, she denied a further discovery extension sought by plaintiff without prejudice, and she reserved the issue regarding any lack of an affidavit of merit for another date.*fn3
On February 8, 2007, DKP moved for summary judgment based on the lack of any expert report critical of its conduct.
Plaintiff opposed the motion, noting that discovery had been extended to April 30, 2007, and arguing that an expert's report would be furnished immediately after Prieto was ...