On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1150-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...