On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-10014-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 11, 2009
Before Judges Cuff, C.L. Miniman and King.
Defendants appeal from the portion of an August 15, 2008, order that denied their motion to dismiss plaintiff's complaint for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. That order barred Leo W. Burns, M.D., from offering opinion testimony on chiropractic standards or care or deviations therefrom. By order entered on September 30, 2008, we granted leave to appeal and now affirm.
On August 25, 2006, plaintiff Georgina Santora-Nargi filed a complaint against defendants Dr. Skip Lytle (Lytle) and Health First Chiropractic Clinics, Inc. (collectively, defendants). The complaint alleged that on August 27, 2004, Lytle "proceeded to adjust and manipulate [plaintiff] with such force as to fracture multiple ribs and otherwise serious[ly] hurt her shoulder." Plaintiff claimed that Lytle "failed to apply the required knowledge, skill and care in [her] treatment," and thus negligently "deviat[ed] from that standard of chiropractic care normally exercised by chiropractors and/or specialists in their field." Defendants served their answer on November 27, 2006, denying that Lytle had acted negligently.
On December 28, 2006, plaintiff moved for a sixty-day extension to the time allowed to serve and file an affidavit of merit. The motion was unopposed and was granted on January 19, 2007. Plaintiff had until March 1, 2007, to file the affidavit of merit. On February 13, 2007, Dr. Burns signed an affidavit of merit for plaintiff, stating that he was a physician licensed to practice medicine in Delaware, had reviewed the institutional reports, and had concluded that there was a reasonable probability that defendants' care of plaintiff fell outside "the acceptable professional standard of health care and practice." The affidavit was timely served and filed. Defendants requested a copy of Dr. Burns' curriculum vitae on March 15, 2007, but did not at that time object that a physician was not qualified to opine on a deviation from the standards of chiropractic care. Plaintiff provided a copy on April 11, 2007.
Plaintiff answered interrogatories on April 10, 2007, and described the events at issue in the following manner:
Plaintiff went into the office to get adjusted and defendant Dr. Lytle was the doctor in the office. Plaintiff lay down on the table face down and Dr. Lytle began working up and down her spine. The doctor advised that plaintiff was "tight" and tried to "crack" plaintiff. He then pushed very hard and there was a "snap". Plaintiff screamed in pain, and began having difficulty breathing, talking and crying. Defendant Lytle advised plaintiff that he thought he had dislocated her ribs and wanted to put them back in place. The doctor took plain-tiff's right arm and bent it in, put his knee and hands into plaintiff's back to push; then plaintiff could not move. Dr. Lytle had to pick plaintiff up off the table. Plaintiff made her way out to the reception area whereupon Elisa the receptionist asked plaintiff if it was she who screamed and was crying. Plaintiff told Elisa it was. The doctor then wrote plaintiff a prescription slip for X-rays and told plaintiff that something happened, but he didn't know what. Dr. Lytle's instructions to plaintiff were to ice her back when she returned home because it had already started to swell.
She further stated that her injuries were two broken ribs, dislocated right shoulder with internal derangement, torn muscles, and nerve damage in the right shoulder and arm. She described her resulting limitations and identified her health care providers.
Defendants took the deposition of plaintiff on August 28, 2007. She testified that she had an appointment with the Clinic for a periodic adjustment on August 27, 2004. She was lying on her stomach and Lytle began to adjust her spine, but soon commented that she was "tight" and he could not get the middle of her back to crack. He applied pressure to her back with his knee and he manipulated her right arm to achieve the desired result. She heard a snap like a "turkey wishbone" and she could not breathe. Lytle said "I might have dislocated your . . . riblets" and stated that he was going to try to put them back. After he manipulated her again, she could not move, cry, breathe, or talk and felt as though something was in her lung. The pain was so bad that Lytle had to pick her up off the table and told her to go out front. Lytle came out and gave her a prescription for x-rays, told her to go home and put ice on it, and go for the x-rays the next day if the pain was no better.
Over six months after receiving Dr. Burns affidavit of merit and curriculum vitae, defendants filed their motion to dismiss on October 24, 2007, arguing that Dr. Burns was not qualified to execute an affidavit of merit under N.J.S.A. 2A:53A-27. They argued that his curriculum vitae revealed that Dr. Burns was not trained or knowledgeable regarding chiropractic standards of care, and thus could not meet the statutory requirement of having "particular expertise" in the general area or specialty in question. On November 16, 2007, the judge denied this motion without a written opinion; we have not been supplied with the transcript of the hearing. Thereafter, defendants deposed Dr. Burns on March 25, 2008. He admitted that he had not received any chiropractic training and was generally unfamiliar with chiropractic theory and treatment.
Defendants filed a second motion to dismiss four months later, on July 30, 2008, again arguing that Dr. Burns did not possess the "particular expertise" required by N.J.S.A. 2A:53A-27. The motion was premised on Dr. Burns' admission that he had not received any chiropractic training and was unfamiliar with chiropractic theory and treatment. Plaintiff opposed the motion on August 7, 2008, arguing that a medical doctor was competent to establish a standard of care for a chiropractor. Then, on August 11, 2008, four days before the return date of the motion, plaintiff "supplemented her discovery responses" by filing a new affidavit of merit, this time by Brian Atkisson, ...