May 26, 2010
JAMES REID AND RIGINA REID, PLAINTIFFS-APPELLANTS,
ST. BARNABAS HOSPITAL, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4769-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 22, 2010
Before Judges Reisner and Chambers.
The trial court dismissed this medical malpractice action because plaintiff failed to file a proper affidavit of merit within the time periods provided by N.J.S.A. 2A:53A-27. We reverse and remand, concluding that under the peculiar facts presented, there was substantial compliance with the requirements of the statute.
This action was commenced on June 12, 2008, by a pro se complaint filed by James Reid and his daughter, Rigina Reid named as "guardian in limin[e]."*fn1 The complaint asserts that defendant St. Barnabas Hospital was negligent in its care and treatment of James Reid from June 10 to 12, 2006. Defendant filed its answer on July 31, 2008.
Within sixty days of the filing of defendant's answer, plaintiff was required to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-27. That statute provides:
In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L. 2004, c. 17 (C. 2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case. [N.J.S.A. 2A:53A-27.]
Plaintiff did not meet this deadline.
In late October 2008, after the sixty days had expired, plaintiff filed a motion to extend the time to file an affidavit of merit. The statute allows the court to grant an extension not to exceed another sixty days. Ibid. Accordingly, the trial court granted the motion. However, rather than run the additional sixty days from the date on which the affidavit of merit was due, the trial court by order dated November 7, 2008, erroneously extended the time period for sixty days from the date of the order to January 7, 2009, thereby exceeding the time period for an extension permitted by statute.
On January 7, 2009, plaintiff served a report of a board-certified general internist who expressed his opinion that within a reasonable degree of medical certainty, defendant's staff deviated from the standard of care and committed medical malpractice in its treatment of James Reid. The report set forth the factual basis for this conclusion and identified the deviations from the accepted standards of care. The report however was not submitted under oath.
On February 10, 2009, the trial court sent out its notice scheduling a Ferreira conference in the case for March 12, 2009. The notice stated that the conference was required by Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), in order to address issues concerning the affidavit of merit and any discovery issues. This conference however, was scheduled too late to serve its purpose. The Supreme Court has required that the Ferreira conference be scheduled within ninety days of service of the answer in all malpractice cases so that if there is any deficiency in the affidavit of merit, plaintiff has time to correct it. Id. at 154-55. In this case, the Ferreira conference was scheduled over seven months after the answer was filed and more than two months after plaintiff's extended deadline. While plaintiff sought to waive the conference, defendant did not.
Defendant filed a motion to dismiss the complaint for failure to satisfy the affidavit of merit statute on the basis that the expert's report was not in affidavit form and that it did not implicate the defendant hospital. Plaintiff argued substantial compliance. Plaintiff also submitted an additional copy of the expert report that had been signed by the expert before a notary.
By order dated March 20, 2009, the trial court granted defendant's motion to dismiss. It concluded that because the expert report was not under oath, plaintiff had not substantially complied with the affidavit of merit statute.
Finally, on April 13, 2009, plaintiff obtained a signed certification from the expert placing his report under oath and moved for reconsideration. That motion was denied by the trial court by order dated April 17, 2009, and this appeal followed. Among other arguments, plaintiff contends that she has substantially complied with the affidavit of merit statute.
After a careful review of the record, arguments of the parties and the relevant law, we conclude that under the circumstances here, plaintiff substantially complied with the affidavit of merit statute. Under the doctrine of substantial compliance, a plaintiff is deemed to have substantially complied with the affidavit of merit statute where the following criteria are met:
(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not a strict compliance with the statute. [Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001) (quoting Bernstein v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977)).]
Here defendant can demonstrate no prejudice in plaintiff's delay in providing a compliant affidavit of merit. Defendant was provided within the time period extended by the court order with a doctor's report containing the substantive information that the affidavit of merit statute is designed to provide to the defense. Plaintiff undertook a series of steps in order to comply with the statute. She provided the report within the time period permitted by the court order. That report, however, was defective because it was not submitted under oath. When the problem was brought to the attention of the plaintiff, she provided a notarized copy of the report apparently under the mistaken belief that would comply. Once she understood that an actual oath was required, plaintiff obtained the report under oath from the doctor.
Thus, the reason for noncompliance with the statute was due to a misunderstanding of the technical requirements of an affidavit and not a substantive issue of an expert unqualified to give the report or unwilling to give the report under oath or of the failure to provide the substantive information from a doctor within the requisite timeframe. Finding substantial compliance under the circumstances here is consistent with the purpose of the affidavit of merit statute which is "to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious." In re Petition of Hall, 147 N.J. 379, 391 (1997).
Further, we note that this outcome is supported by our decision in Mayfield v. Community Medical Associates, P.A., 335 N.J. Super. 198, 207-09 (App. Div. 2000), wherein we found substantial compliance although the doctor's report was not under oath, noting that by writing the report on his letterhead, the doctor had "put his reputation on the line as assuredly as if he had sworn to the truth of the document" and noting that the content of the report met the statutory requirement.
We recognize that in dismissing the complaint the trial court relied on our decision in Tunia v. St. Francis Hospital, 363 N.J. Super. 301 (2003). In Tunia, plaintiff, represented by counsel, submitted a statement signed by a doctor that was notarized but not under oath. Id. at 303-04. Further, the doctor did not have the requisite five years experience required by the statute to provide an affidavit of merit. Id. at 304. The trial court found the document insufficient to meet the affidavit of merit statute and dismissed the claims against the defendant physician. Ibid. Plaintiff then submitted a second "affidavit of merit" by another doctor who did have the requisite years of experience. Id. at 304-05. However, that affidavit was submitted beyond the statutory 120 days and it was not under oath, although it was notarized. Ibid. The case proceeded against the hospital. Id. at 305. Two years later, plaintiff sought reconsideration of the dismissal as to the defendant physician. Ibid. The trial court denied the motion, and we affirmed, concluding that the notarized report did not satisfy the affidavit of merit statute because the doctor's statement was not under oath. Id. at 305-07.
We distinguish the circumstances before us from Tunia because in Tunia the plaintiff never corrected the problem and never presented an expert report under oath. Further, the initial report that was submitted within the statutory 120-day timeframe in Tunia was from a doctor unqualified to provide an affidavit of merit. Id. at 304. Finally, in Tunia, the plaintiff waited two years before seeking to overturn the dismissal of his claim against the defendant physician. Id. at 305. None of these factors are present here.
In conclusion, we conclude that under the particular circumstances here, plaintiff has substantially complied with the affidavit of merit statute.