April 8, 2009
JOHN P. DINOIA, PLAINTIFF-APPELLANT,
JACQUES F. TOHME, M.D., DEFENDANT-RESPONDENT, AND THE OSTEOPOROSIS CENTER OF RIDGEWOOD, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4924-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 23, 2009
Before Judges Stern and Payne.
Plaintiff, John P. DiNoia, appeals from a final judgment of November 21, 2007, dismissing his medical malpractice action. In his two-page rider to the final judgment Judge Joseph S. Conte concluded that an affidavit of merit was required in the case and that "not only has Plaintiff failed to timely file and serve an Affidavit, but Plaintiff has failed to serve an Affidavit altogether."*fn1
On this appeal, plaintiff argues that (1) the trial judge "circumvented a Supreme Court mandate" in "rescheduling the case management conference, and then allowing defendant to file a dismissal motion prior to the rescheduled conference," (2) "in refusing [another] adjournment of a dismissal motion, yet ordering a [seventy-seven day] adjournment of the case management conference, Judge Conte abused his discretion," (3) "the factual content of the record below supports claims for ordinary negligence, including reckless and intentional negligence, which are not the subject of the Affidavit of Merit Statute," (4) "the complaint sets forth facts from which a finding a professional negligence can be made based on a common knowledge theory of negligence," (5) "defendant failed to answer or otherwise challenge all of the averments that were pled in avoidance of [the affidavit of merit statute and] such failure is tantamount to a default and precludes application of [the statute]" and (6) "the complaint sets forth, or attempts to set forth a claim for equitable relief, and such claims are not subject to [the affidavit of merit statute]." Plaintiff seeks reinstatement of his complaint against defendants with the ability to amend same, and the entry of default judgment against defendant Endocrine Associates, P.A.*fn2
N.J.S.A. 2A:53A-27 requires an affidavit of merit to be filed no later than 120 days after the filing of an answer. Defendant Dr. Thome's answer was filed on June 5, 2007,*fn3 and defendant claims that a pretrial case management conference, complying with Ferreira v. Rancocas Orthopedic Assoc., 178 N.J. 144 (2003), was conducted on August 28, 2007, well within the 120-day period and within the 90-day period required by Ferreira. However, no order was entered that day. Accordingly, we will assume no conference was conducted that day, as plaintiff contends, and that it was adjourned to November 16, 2007, a date outside the 90-day period and a date after defendant's motion to dismiss was originally made returnable.
We do not understand how the adjournment of the "mandatory" case management conference could have prejudiced plaintiff because he was clearly aware of the affidavit of merit requirement even though he contends an affidavit wasn't required in his case. See Ferreira, supra, 178 N.J. at 147, 154-55; Compare Saunders v. Capital Health Care Sys. at Mercer, 398 N.J. Super. 500, 510-11 (App. Div. 2008). Plaintiff expressly pled that an affidavit wasn't required in this case. His complaint included the following paragraph:
AFFIDAVIT OF MERIT STATUTE
With reference to the various facts pleaded herein, the Affidavit of Merit Statute is inapplicable on grounds that the defendants to which AMS would otherwise apply, have obviously deviated from the pertinent standards of care which they had a duty to comply with.
AMS is furthermore inapplicable in this action on grounds that it was drafted, signed into law and promulgated with full knowledge of the cohesiveness characterizing the medical community, and by which individual practitioners are inclined to protect others within the medical profession, and to that extent the AMS unconstitutionally limits plaintiff's access to the courts.
AMS is furthermore inapplicable to the extent that the complaint seeks equitable relief, and includes claims other than medical malpractice.
Nor does plaintiff demonstrate, or even suggest how the failure to provide another adjournment of the motion to dismiss prejudices him.*fn4 He merely alleges he was not able to prepare and essentially acknowledges he was not going to obtain an affidavit of merit. Indeed he contended from the outset that it wasn't necessary, and continues to so argue.
What this case comes down to is the contention that "in the present case, the complaint sets forth a factual setting which supports a claim for ordinary negligence, and which does not require proof of deviation from a medical standard of care," so no affidavit of merit is necessary. Plaintiff asserts that defendant Thome's action as an endocrinologist referring him to a gastroenterologist "constitutes ordinary negligence which impeded the diagnostic process and injured the Plaintiff, which is not subject to the AMS," and that the "common knowledge doctrine is applicable." He also asserts a "medical conspiracy of silence" has prevented him from obtaining a forensic expert, and irrespective of the malpractice, his claims for negligence, equitable relief and fraud may proceed.
We reject these contentions. The claims require proof of the proper standard of care and deviation, and an affidavit of merit was required. See Couri v. Gardner, 173 N.J. 328, 340 (2002). Plaintiff believes he does not have a malabsorption syndrome or vitamin D deficiency, as defendant has diagnosed, but that is why ― as a non professional ― he needs an affidavit of merit that defendant is wrong and he is correct. There is no "common knowledge" involved.
Finally, the plaintiff is correct that equitable actions do not require an affidavit of merit, and his complaint seeks equitable relief as well as damages. However, even if we could compel a private practitioner to treat or keep a patient, but see Couch v. Visiting Home Care Serv. of Ocean County, 329 N.J. Super. 47, 52-53 (App. Div. 2000), without the affidavit of merit plaintiff cannot show what type of specialist he needs.
The judgment is affirmed substantially for the reasons expressed by Judge Conte in his rider to the judgment of November 21, 2007, as supplemented herein.