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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...