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Gardner v. Farkas


December 15, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1423-05.

Per curiam.


Argued November 19, 2008

Before Judges Cuff, Fisher and Baxter.

In this medical malpractice action, plaintiffs Jeffrey S. Gardner and Carol J. Gardner appeal from the September 9, 2005 order that granted the dismissal motion of defendants Richard C. Hartwell, M.D. and John Sarris, M.D.*fn1 The judge held that because both defendants were neurosurgeons, the affidavit of merit plaintiff supplied from an anesthesiologist was inadequate as a matter of law because it failed to satisfy the applicable statute that requires a plaintiff to supply an affidavit of merit from a physician with a practice in the same specialty as that of the defendant. A year later, plaintiff unsuccessfully moved for reconsideration. Plaintiff appeals both orders, arguing the affidavit of merit statute is unconstitutionally vague and unconstitutionally violates the separation of powers doctrine. We reject these claims and affirm both orders.


Plaintiff underwent a lamenectomy, a neurosurgical procedure that was performed by defendants Hartwell and Sarris, who are neurosurgeons. Defendant Farkas was the anesthesiologist. On February 15, 2005, plaintiff filed suit against the three physicians and against the hospital where the surgery was performed, alleging that the blocks used by defendant neurosurgeons to position plaintiff on the operating table during the ten-hour surgery caused permanent disfigurement to plaintiff's legs and chest and numbness of his upper right thigh. Plaintiff made no allegations about the actual operative techniques used by Hartwell and Sarris during the surgery, but confined his claim to the injuries resulting from improper positioning of the blocks during the surgery.

On July 12, 2005, plaintiff served an affidavit of merit executed by Mitchell B. Sosis, M.D. Sosis's affidavit did not specify his field of practice or expertise. Instead, his affidavit merely stated that he "ha[s] particular expertise in the general area or specialty involved in the action" because he devotes his practice "substantially to the general area or specialty involved in the action." Based upon his review of plaintiff's surgical records, Sosis opined that the care, skill or knowledge exercised by defendants Farkas, Hartwell and Sarris fell outside acceptable professional standards.

After learning that Sosis is an anesthesiologist who has never practiced in the field of neurosurgery, has never completed an internship or residency in that field and is not credentialed by any hospital to perform the procedure at issue, defendants notified plaintiff of their intent to challenge the affidavit of merit provided by Sosis. When the 120-day statutory time period in which to serve an affidavit of merit expired on August 5, 2005, plaintiff had not filed any additional affidavits of merit. Consequently, defendants moved for dismissal alleging a violation of the affidavit of merit statute.

After oral argument, Judge Ford found that because Sosis "is not a neurosurgeon, does not have experience in neurosurgery, does not treat patients in that regard" and has a "function entirely different than one who is doing a neurological procedure," the affidavit of merit provided by Sosis did not satisfy the requirements of N.J.S.A. 2A:53A-41a, as applied to defendant neurosurgeons.

The September 9, 2005 order determining that the affidavit of merit was not filed by an "appropriate licensed person" resulted in dismissal of plaintiff's complaint in relation to defendants Hartwell, Sarris and Coastal Neurosurgery, P.A. in accordance with N.J.S.A. 2A:43A-29, which provides that failure to provide an affidavit of merit "shall be deemed a failure to state a cause of action."

In September 2006, a year after Judge Ford denied his earlier motion, plaintiff moved for reconsideration, arguing that Judge Ford "misunderstood [plaintiff's] argument in large measure" because "[i]t's not a question of the surgery [Hartwell and Sarris] performed, [but instead] how he was positioned on the table." After considering the arguments from both sides, Judge Foster denied plaintiff's motion for reconsideration, concluding that plaintiff had presented nothing new. Thereafter, plaintiff proceeded to trial against the remaining defendants, Farkas and St. Barnabas, resulting in a defense verdict.

On appeal, plaintiff does not challenge the substance of Judge Ford's determination that Sosis was not an "appropriate licensed person" within the meaning of N.J.S.A. 2A:53A-41a. Nor does plaintiff argue that because defendant neurosurgeons, in positioning plaintiff for surgery, had engaged in a role traditionally performed by anesthesiologists, his submission of the affidavit of an anesthesiologist was sufficient on the question of whether defendant neurosurgeons deviated from accepted practice in the manner in which they positioned plaintiff.

Instead, plaintiff argues on appeal: (1) the affidavit of merit statute is unconstitutionally vague, both facially and as applied; and (2) the statute is unconstitutional because it violates the separation of powers doctrine contained in N.J. Const. art. IV § 2, ¶ 3. Neither Judge Ford, nor Judge Foster on the motion for reconsideration, addressed plaintiff's constitutional claims, most likely because plaintiff never briefed them.


N.J.S.A. 2A:53A-26 to -41, commonly known as the affidavit of merit statute, requires a person suing certain licensed professionals, including physicians, to demonstrate within 120 days of the filing of an answer, a "reasonable probability" that the care or treatment rendered fell outside accepted professional standards. N.J.S.A. 2A:53A-27. Such showing must be in the form of an affidavit of merit. Ibid. The physician who provides the affidavit of merit must be credentialed by a hospital to treat patients for the medical condition that is the basis for the plaintiff's claim. Alternatively, the physician may also hold a board certification in the same specialty or subspecialty as the defendant physicians and actively devote his medical practice to the same specialty as the defendant(s) or teach that specialty at an accredited medical school, or both. N.J.S.A. 2A:53A-41a.

We turn first to plaintiff's claim that the affidavit of merit statute is unconstitutionally vague. In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998), the Court rejected that very claim when it held that "it is evident . . . due process considerations of vagueness do not threaten the statute's validity." Plaintiff presents no meritorious basis upon which to depart from the Court's ruling in Cornblatt, nor are we, as an intermediate appellate court, authorized to do so. Consequently, we reject his claim that the statute is unconstitutionally vague.

Defendant next argues that the affidavit of merit statute runs afoul of the separation of powers provisions of the New Jersey Constitution. He maintains--without elaboration--that by enacting the statute, the Legislature impermissibly invaded the decision-making responsibility entrusted to judges.

In N.J. State Bar Ass'n v. State, 387 N.J. Super. 24 (App. Div.), certif. denied, 188 N.J. 491 (2006), we rejected that very claim. We held that the affidavit of merit statute was "not invalid" and did not intrude upon the judiciary's power to determine what evidence is admissible. Id. at 39, 50. We pointed to "the escape clause [of N.J.S.A. 2A:53A-41c] under which a litigant may obtain judicial relief and utilize an expert who does not fit precisely within the parameters set down by the statute." Id. at 50. In doing so, we rejected the plaintiff's claim that by limiting the physicians deemed to possess expertise sufficient to execute the affidavit of merit, the statute impermissibly conflicted with the judiciary's right, set forth in N.J.R.E. 702, to determine the qualifications of experts. Ibid. In light of our decision in N.J. State Bar Ass'n, we conclude that plaintiff's separation of powers argument is also devoid of merit.


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