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Gilflores v. Choi


August 23, 2010


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1150-08.

Per curiam.


Argued February 22, 2010

Argued Telephonically May 5, 2010

Before Judges R. B. Coleman and Alvarez.

Plaintiff Felipe Gilflores appeals from an order dated May 13, 2009, which denied his motion to vacate the court's earlier orders dated March 23, 2009*fn1 and April 3, 2009. The March 23 order dismissed with prejudice plaintiff's complaint against defendant Soon Choi, M.D. for failure to comply with the provisions of the affidavit of merit statute, N.J.S.A. 2A:53A-26 to -29. The April 3, 2009 order, on the same grounds, dismissed plaintiff's complaint with prejudice as to all parties, including Dr. Choi, his practice group, defendant Central Jersey Orthopaedic Specialists, P.A., and defendant Muhlenberg Regional Medical Center (Muhlenberg). In this appeal, plaintiff contends the trial court erred because plaintiff substantially complied with the affidavit of merit statute and because extraordinary circumstances, namely, the failure of defendants to provide x-rays needed by plaintiff's expert, warranted at worse a dismissal without prejudice. We reject these contentions and affirm.

The facts of the case are not in dispute. On September 11, 2006, while riding his motorcycle, plaintiff was involved in an accident with a motor vehicle driven by Janka Dzunova and owned by Marian Farkas. As a result of that accident, plaintiff sustained serious personal injuries for which he was treated at Muhlenberg. He was discharged from Muhlenberg on September 14, 2006. Thereafter, he continued under the care of Dr. Choi and Central Jersey Orthopaedic Specialists.

The record discloses that plaintiff settled his personal injury claims against Dzunova and Farkas for $100,000, and he executed a general release in favor of those parties, dated March 2, 2007. More than a year later, on July 31, 2008, plaintiff filed his complaint in this action against defendants Dr. Choi, Central Jersey Orthopaedic Specialists and Muhlenberg alleging medical malpractice. Plaintiff alleges, among other things, that those defendants "negligently failed to exercise and deviated from the degree of care commonly and ordinarily exercised by physicians in like cases . . . when defendants failed to properly treat the injury to plaintiff's right ankle."

Counsel for plaintiff certified that he received the answer of Dr. Choi and Central Jersey Orthopaedic Specialists on September 5, 2008, and that Muhlenberg's answer was received on September 18, 2008. Accordingly, pursuant to N.J.S.A. 2A:53A-27, the initial sixty-day period within which plaintiff was required to file and serve an affidavit of merit expired as to Dr. Choi and Central Jersey Orthopaedic Specialists on November 4, 2008, and as to Muhlenberg, on November 17, 2008. The applicable statute permits the court to extend the period for the filing of an affidavit of merit for an additional sixty days upon a showing of good cause. Thus, assuming the existence of good cause, counsel for plaintiff acknowledged in his certification in support of the motion seeking to vacate the orders of dismissal that the extended time for plaintiff's affidavits of merit expired on January 4, 2009, and January 16, 2009, respectively.

Counsel for plaintiff further certified that he received notice from plaintiff's expert in November 2008 that the expert wanted to independently review plaintiff's actual x-rays, rather than simply rely on the medical notes supplied by defendants. Accordingly, on December 1, 2008, plaintiff served upon defendants Dr. Choi and Central Jersey Orthopaedic Specialists, pursuant to Rule 4:18, Plaintiff's First Request for Production of Documents. It requested that those defendants produce x-rays of various parts of plaintiff's body taken at Central Jersey Orthopaedic Specialists on various dates between September 19, 2006 and January 29, 2007.*fn2 On January 6, 2009, two days after the 120-day period applicable to the Choi defendants, counsel for plaintiff sent defendants a follow-up letter reiterating the request for the x-rays listed in the First Request for Production, noting that over thirty days had passed since the discovery request was served.*fn3 On January 8, 2009, Dr. Choi and Central Jersey Orthopaedic Specialists responded to plaintiff's Request for Production by providing plaintiff with a CD or CDs containing copies of the requested x-rays. According to the certification of plaintiff's counsel, this response to Plaintiff's First Request for Production was not received until January 12, 2009, after the expiration of the statutory period.

Thereafter, on February 25, 2009, plaintiff filed and served an affidavit of merit submitted by Dr. Kevin Aurori, a board certified orthopedic surgeon. That affidavit tracked the language of the statute, stating that "[i]n the within matter there exists a reasonable probability that the care, skill or knowledge exercised in the treatment, practice or work that is the subject of plaintiff's complaint fell outside of acceptable professional and occupational standards or treatment practices." With greater particularity, the affidavit continued "[i]t is also my opinion that the deviation from the standard of care aforesaid caused and/or aggravated Mr. Gilflores' injuries, including but not limited to delay of fracture healing of the lower extremity bones and development of lower extremity arthritis."

Noting that the affidavit of Dr. Aurori was dated February 7, 2009 but was not received until February 25, 2009, counsel for defendant Dr. Choi moved to dismiss plaintiff's complaint based on the untimely service of the affidavit of merit. That motion was granted, as was a subsequent motion filed on behalf of the remaining defendants.

The affidavit of merit statute provides, in pertinent part, as follows:

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. [N.J.S.A. 2A:53A-27.]

Thus, within 120 days of receipt of the answer of a defendant, a plaintiff must serve on that defendant an affidavit from an appropriate professional attesting that the claim is meritorious. Knorr v. Smeal, 178 N.J. 169, 173 (2003). "A plaintiff's failure to file a timely affidavit will result in dismissal of the claim, absent a justifiable excuse." Ibid.

It has been specifically recognized that a court in appropriate circumstances may "invoke the doctrine of substantial compliance 'to avoid technical defeats of valid claims.'" Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 239 (1998) (quoting Zamel v. Port of N.Y. Auth., 56 N.J. 1, 6 (1970)). "It is a doctrine based on justice and fairness, designed to avoid technical rejection of legitimate claims." Galik v. Clara Maas Med. Center, 167 N.J. 341, 352 (2001). The purpose of this doctrine is "to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose." Ibid.

It is this doctrine that plaintiff in this action seeks to invoke. Plaintiff acknowledges that he did not strictly comply with the requirements of the affidavit of merit statute in this case. Nevertheless, plaintiff contends that based upon the facts of the case, strict compliance should be excused because he substantially complied with the statute and because extraordinary circumstances should excuse his non-compliance. In order to invoke the substantial compliance doctrine, one must show "(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 strict compliance with the statute." Galik, supra, 167 N.J. at 352. Plaintiff asserts an absence of prejudice because the affidavit was delivered prior to the hearing of the motion to dismiss. He notes that there were no delays in the proceedings nor unnecessary expenses incurred by defendants as a result of the untimely filing of the affidavit. Plaintiff asserts that his timely hiring of an expert reflects steps taken in an effort to comply with the statute, and he asserts that the delay was not due to attorney or clerical error but rather to defendant's own failure to turn over the requested x-rays.

Defendants respond that plaintiff's first request for the x-rays did not come until after the initial sixty-day period permitted by N.J.S.A. 2A:53A-27 had already passed, and that plaintiff's failure to file a timely affidavit of merit is not attributable to obstinacy on the part of defendants. Muhlenberg points out that plaintiff made no request for the x-rays upon it, and that the designated x-rays were taken well after plaintiff had been discharged from the medical center. Moreover, Muhlenberg states that the affidavit makes no mention of it or of any conduct or omission attributable to it. Defendants note further that even after receiving the x-rays on January 12, 2009, plaintiff and his expert, though obviously aware of the statutory deadline, did not serve the affidavit of merit until February 25, 2009, about a month and a half later. Defendants also stress that the affidavit makes no reference to the x-rays, and the expert does not give any indication as to how the x-rays had any substantial bearing on the preparation of the affidavit or why the medical records already in his possession were not sufficient to permit him to offer an opinion as to the 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."

In addressing the issue on plaintiff's motion for reconsideration, the motion judge commented on the absence of any sense of urgency or timeliness in the plaintiff's submission of the affidavit of merit. The judge wrote:

Understanding the importance and consequences of failing to provide an Affidavit of Merit within the statutorily-prescribed time, it is unclear why such lengthy intervals of time were allowed to expire with[out] the Plaintiff taking some affirmative action to obtain the records. Plaintiff became aware of the need for the records in November 2008, did not forward a Notice to Produce until December, and then did not make a second request until January 6, 2009, a mere 12 days before the deadline for the Affidavit of Merit [as to Muhlenberg]. For instance, it is unclear why Plaintiff did not resort to motion practice with the Court to compel production of the records.

In addition, having decided not to avail itself of the benefits of a Motion to Compel, it is also unclear why Plaintiff's expert could not have produced an Affidavit of Merit with the notes in its possession pertaining to the requested x-rays.

We share the concerns expressed by the motion judge, but our focus reaches back to the time preceding the commencement of the malpractice suit. It is not uncommon and, indeed, it is prudent for a plaintiff contemplating a malpractice action to engage an expert and obtain at least a preliminary opinion on the reasonable probability that a deviation from the standard of care has occurred. See, e.g., Fink v. Thompson, 167 N.J. 551 (2001) (where a timely affidavit of merit was filed without listing by name an attending physician whose identity and conduct in three capacities were detailed in an extensive pre-suit expert report that was served upon the defendant). The Fink Court suggested that "[a]ttorneys should not rely on an intention to conduct later discovery to excuse noncompliance with N.J.S.A. 2A:53A-27, but rather, should begin discovery when facts are needed to comply with the requirements of the Affidavit of Merit statute." Id. at 564. See also Aster v. Shoreline Behavioral, 346 N.J. Super. 536, 538-39 (App. Div. 2002) (where plaintiff requested medical records well before the institution of suit and therefore before the running of the time for filing an affidavit of merit).

In this case, plaintiff was injured in September 2006. He clearly contemplated litigation and though he settled his claim against the principal tortfeasors who caused his injuries, the driver and owner of the motor vehicle involved in the accident, it is clear that at some point prior to the filing of his complaint in July 2008 that he came to suspect his medical providers had failed to provide proper care and treatment, thereby aggravating his injuries or causing further injuries.

Yet, plaintiff has not disclosed what effort he undertook to insure that he was able to comply with the mandate of the affidavit of merit statute. See, e.g., Ryan v. Renny, ___ N.J. ___, ___ (2010) (slip op. at 31-35) (recognizing that a moving party seeking a waiver of the same specialty requirement of the affidavit of merit statute must demonstrate to the satisfaction of the court that he has made a good faith effort to identify an expert in the same specialty as the defendant).

After all, "[t]he overall purpose of the [affidavit of merit] statute is 'to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of the litigation.'" Cornblatt, supra, 153 N.J. at 242 (quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). Thus, it was incumbent upon plaintiff to gain as much information as possible to support his suspicion if he intended to pursue a malpractice claim, and we are in agreement with the motion judge that plaintiff failed to satisfy his burden of explaining why he could not have sought the x-rays sooner or why the expert would not have produced the affidavit of merit with the medical notes in plaintiff's possession.

Plaintiff also contends, in the alternative, that the dismissal should have been without prejudice since the defendants' failure to provide the x-rays was an extraordinary circumstance that precluded his expert from filing a timely affidavit of merit. In advancing this argument, plaintiff cites Palanque v. Lambert-Woolley, 168 N.J. 398 (2001); Barreiro v. Morais, 318 N.J. Super. 461, 470 (App. Div. 1999); and Aster, supra, 346 N.J. Super. at 543. None of those cases supports a dismissal without prejudice in this case.

In Palanque, supra, though plaintiff emphasized that she had obtained an expert report prior to commencement of litigation to ensure that her claim had merit and fulfilled the legislative intent of curtailing frivolous litigation, the Court rejected her arguments that she had substantially complied with the statute and held that attorney inadvertence does not constitute extraordinary circumstances which will excuse missing the deadline for filing the affidavit. 168 N.J. at 403. Instead, the Court ruled that plaintiff could proceed under a common knowledge theory and therefore an affidavit was not required. Ibid.

In Barreiro, supra, we noted that generally a dismissal for failure to timely file an affidavit of merit is with prejudice, unless extraordinary circumstances justify an exception. 318 N.J. Super. at 469. We recognized that "[w]hat constitutes an 'extraordinary circumstance' will require a fact-sensitive analysis[,]" Id. at 471 (quoting Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)); and we remanded to give the plaintiff an opportunity to develop a factual basis for the claim of extraordinary circumstances. Id. at 473. We observed that a malpractice defendant may, "[by] procrastination, subtle or otherwise, . . . prevent a valid malpractice claim from reaching the courtroom." Id. at 470. In that case, the record disclosed that, unlike the plaintiff in this case, the plaintiff had requested hospital records prior to filing the complaint, had made a request for translation of illegible and indecipherable records which the hospital finally provided, but as to which the defendants did not provide the translations for more than 130 days after they filed their answers. We found that it was not clear what had caused the delays.

In Barreiro, we noted that the Legislature created an in-lieu-of-affidavit procedure, having anticipated the potential for an intransigent malpractice defendant to stall and thereby defeat a malpractice claim prematurely by failing to provide data necessary for an expert to render an affidavit of merit. Id. at 470. The in-lieu procedure permits a plaintiff to file a sworn statement in lieu of the affidavit where "'defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit,'" within forty-five days of plaintiff submitting "a properly addressed request to defendant[.]" Id. at 470-71 (quoting N.J.S.A. 2A:53A-28). Plaintiff did not and could not meet this statutory exception to the affidavit of merit requirement and has not shown that his failure to comply with the terms of the statute was due to extraordinary circumstances. Unlike the plaintiff in Barriero, the plaintiff in this case was given an opportunity to make such a showing and simply failed to do so.


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