The opinion of the court was delivered by: Wolfson, United States District Judge
Before this Court is a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendant Carrier Clinic, Inc. ("Defendant" or "Carrier Clinic"). This case arises out of the electroconvulsive therapy ("ECT") that Felicia Vitale ("Mrs. Vitale") received while being treated for Obsessive Convulsive Disorder ("OCD") at Carrier Clinic. Plaintiffs Mrs. Vitale and Louis Vitale ("Mr. Vitale") bring this suit alleging medical malpractice against Carrier Clinic for its carelessness, recklessness, and negligence which caused Mrs. Vitale to sustain severe and permanent injuries and Mr. Vitale's lost companionship and consortium of his wife. Plaintiffs' Complaint alleges that Carrier Clinic failed to obtain Mrs. Vitale's informed consent and negligently diagnosed and treated Mrs. Vitale with ECT after Mrs. Vitale's complaints of adverse effects. Defendant, as a defense, raises Plaintiff's purported failure to comply with N.J.S.A. 2A:53A-27, which requires that an Affidavit of Merit be served by a plaintiff in a malpractice action against a licensed person. In accordance with the statute, Plaintiffs submitted an Affidavit of Merit by a general practitioner, Dr. Tedesco. Defendant, however, claims Dr. Tedesco's Affidavit of Merit does not meet the requirements under the statute because Dr. Tedesco is not a specialist in psychiatry. The Court has reviewed the parties' submissions, and for the reasons stated below, Defendant's Motion to Dismiss is granted.
I. BACKGROUND AND PROCEDURAL HISTORY
Since Defendant moves to dismiss Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(6), the following version of events assumes Plaintiffs' allegations to be true.
Carrier Clinic owns and operates a psychiatric hospital located in Belle Mead, New Jersey. Compl. ¶ 3. On June 2, 2006, Mrs. Vitale, began treatment at Carrier Clinic for OCD. Id. ¶ 10. Starting on June 5, 2006, Carrier Clinic began treating Plaintiff's OCD with ECT. Id. ¶ 11. She underwent nine bilateral ECT treatments, individually administered on June 5, 7, 9, 12, 14, 16, 19, and 23, 2006. Ex. B to Br. in Opp. ("Ex. B") ¶ 7. According to Carrier Clinic's medical records, at the time of her sixth ECT treatment on June 16, 2006, Plaintiff complained to Carrier Clinic of "some forgetfulness for small details." Compl. ¶ 12. On June 19, 2006, Carrier Clinic's officials documented Mrs. Vitale's short-term memory loss. Ex. B at 8. Despite this, Plaintiff alleges that Carrier Clinic continued to recommend and treat Plaintiff's disorder with ECT. Compl. ¶ 13. On June 23, 2006, Mrs. Vitale again complained of increased memory problems and that she was very upset with her deteriorating memory. Ex. B. ¶ 8.
On July 5, 2006, a conversation between Mr. Vitale and Carrier Clinic employees revealed that his wife continued to experience memory disturbance, and that she was unable to recall names of familiar acquaintances and directions to stores. Legal Brief in Opposition to Dismiss (Pl.'s Br. in Opp.) at 10. A Carrier Clinic note on July 18, 2006, attached to Mrs. Vitale's file, references another conversation with Mr. Vitale in which he indicated that he was very concerned with his wife's worsening memory. Id. That same note recommended that Mrs. Vitale continue to be treated with ECT. Id. At this time, Mr. and Mrs. Vitale discontinued Mrs. Vitale's treatment at Carrier Clinic. Id. A comprehensive neuropsychological evaluation was carried out at the Rusk Institute in July and October 2007. Ex. B. ¶ 9. The report concluded that following ECT treatment from Carrier Clinic: "Mrs. Vitale demonstrated significant global deficits in cognition, i.e. her attention, memory, psychomotor speed, executive functioning, and perceptual-motor abilities were all significantly impaired." Id. As a result, Plaintiffs decided against a return to Carrier Clinic for further ECT treatment. Id.
Plaintiff states three causes of action. First, Plaintiff claims that due to Carrier Clinic's carelessness, recklessness, and negligence that she sustained severe and permanent injuries, including among others things: cognitive defects, severe difficulty with concentration, difficulty with organization, difficulty with word finding, stress, depression, and migraine headaches, all of which are permanent in nature and continuing into the future. Compl. ¶ 18. Second, Plaintiffs allege that Carrier Clinic failed to properly obtain Plaintiff's informed consent for the treatment. Id. ¶ 21. Had she been properly informed about the risks of ECT, Plaintiff alleges that she would have forgone such treatment. Id. ¶ 22. Finally, Mr. Vitale alleges that as a result of his wife's condition, he was deprived of the society, companionship, and consortium of his wife, and was required to care for her and spend funds for her medical treatment. Id. ¶ 29.
Generally, N.J.S.A. 2A:53A-27 requires that a plaintiff in a medical malpractice action file an Affidavit of Merit against a licensed person. N.J.S.A. 2A:53A-27. Because a healthcare facility is considered a licensed person, the Affidavit of Merit must be signed by an "appropriate licensed person." N.J.S.A. 2A:53A-26(j). The signing expert must "have particular expertise in the general area or specialty involved." Cornblatt v. Barow, 153 N.J. 218, 241 (App. Div. 1997). In support of their claims, Plaintiff submitted an Affidavit of Merit from Dr. Salvatore Tedesco, M.D. ("Dr. Tedesco"), a board certified surgeon. Ex. A to Br. in Opp. ("Ex. A"). Dr. Tedesco concluded "there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment and practice that is the subject of the complaint, fell outside acceptable professional medical standards or treatment practices." Ex. A. In further support of their claims, Plaintiffs submitted a second Affidavit of Merit from Dr. Robert Goldstein, M.D. ("Dr. Goldstein"), a board certified psychiatrist.*fn1 Ex. B. Dr. Goldstein concluded that "there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment and practice that is the subject of the complaint, fell outside acceptable professional medical standards and treatment practices." Ex. B. At issue here is whether Dr. Tedesco, a general practitioner, qualifies under the statute as an "appropriate licensed peron."
Initially, Plaintiffs argue an affidavit from a board certified psychiatrist is unnecessary because ECT bears no connection to psychiatric board certification. Plaintiffs also invoke the common knowledge exception to the Affidavit of Merit Statute, which requires no Affidavit of Merit where a lay person could determine, without expert testimony, that Defendants' misconduct bespeaks negligence. Finally, Plaintiffs argue, notwithstanding Dr. Tedesco's lack of familiarity with psychiatry and ECT, that they substantially complied with the New Jersey Statute.
Defendant seeks dismissal of Complaint, arguing that: (1) Dr. Tedesco is not an appropriate licensed person to sign an Affidavit regarding the care provided by Carrier Clinic because he does not have education or experience in psychiatry; (2) the second Affidavit of Merit from Dr. Goldstein was untimely and not filed within the statutorily prescribed 120 days; (3) the common knowledge exception is not applicable here because a jury would need more than their ordinary understanding and experience to determine negligence as to how or why ECT caused the stated memory loss; and (4) Plaintiff has not substantially complied with the New Jersey Affidavit of Merit Statute because Plaintiff does not meet all elements of the test.
On July 11, 2008, Plaintiffs initiated this action in U.S. District Court in the District of New Jersey. On December 23, 2008, Defendant filed its Answer to Plaintiff's Complaint. Thereafter, Defendant filed the present Motion to Dismiss Plaintiffs' Complaint on May 20, 2009. For the reasons that ...