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Puerta v. Novello


October 6, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3512-07.

Per curiam.


Argued June 15, 2010

Before Judges Carchman and Parrillo.

Plaintiff Maria Puerta appeals from the order granting summary judgment and dismissing her personal injury claim for failure to comply with the treating physician permanency certification requirements of N.J.S.A. 39:6A-8(a). A motion to reconsider was similarly denied. We affirm.

The facts are simply stated. On February 14, 2006, plaintiff was injured when her vehicle was struck by a vehicle negligently operated by defendant Dennis Novello and owned by defendant Madeline Novello.*fn1 Plaintiff was treated by Richard Bossbally, D.C. and then Teofilo Duahajre, M.D. for her injuries. Despite repeated demands from plaintiff's counsel, Dr. Bossbally failed to provide either a report or copies of plaintiff's medical records. Dr. Duahajre did submit a report but failed to respond when requested to complete and execute a certification of permanency. In his report, Dr. Duahajre concluded that "[i]t is with a reasonable degree of medical probability that the patient has sustained residual permanency to her neck and lower back causally related to the motor vehicle accident of 2/14/06."

Unable to obtain the certification, plaintiff's counsel then referred plaintiff to Dr. Gregory Maslow who provided a counsel-prepared tort threshold certification on November 12, 2007, certifying that he was plaintiff's treating doctor. He further opined and certified that plaintiff suffered a permanent injury. He completed an extensive report dated November 12, 2007, and included references to the other physician's records. Apparently, a copy of the certification and report were forwarded to defense counsel within the same month. The matter proceeded through discovery and then arbitration resulting in an award to plaintiff. Following the November 6, 2008 arbitration award, defendant filed for a trial de novo.

On March 30, 2009, defendant conducted a de bene esse deposition of Dr. Maslow. Upon inquiry, the doctor stated that he had examined plaintiff once at the request of plaintiff's counsel and that he was not a treating physician. Within days, defendant filed a motion for summary judgment challenging Dr. Maslow's permanency certification. The motion judge granted the motion for summary judgment concluding that Dr. Maslow was not the treating physician, and plaintiff's suit could not proceed without the treating physician's certification. Plaintiff filed a motion for reconsideration, which was also denied. This appeal followed.

On appeal, plaintiff asserts that the judge erred in dismissing her complaint since she substantially complied with the statute. She further asserts that the doctrine of equitable estoppel applies as defendant unduly delayed raising the issue of Dr. Maslow's status as a treating physician until after discovery, arbitration and the fixing of a trial date. Finally, she claims that plaintiff is not subject to the verbal threshold.*fn2

The Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to -35 (AICRA), requires plaintiffs to "provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician." N.J.S.A. 39:6A-8a. The certification requirement is "procedural in nature related to the sufficiency of the pleadings" and is intended to combat fraud. Watts v. Camaligan, 344 N.J. Super. 453, 466-67 (App. Div. 2001).

N.J.S.A. 39:6A-8a provides in relevant part:

In order to satisfy the tort option . . . the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred by the treating physician. [(Emphasis added).]

The statute further requires a statement of the injury and notes that the certification is executed under penalty of perjury and if knowingly false exposes the doctor to prosecution for a fourth-degree crime.

The purposes of the certification procedure are explicit.

The physician certification provision has two purposes: to supply evidence that a plaintiff has, in fact, sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold and, to provide a legal foundation for a charge of perjury, should false swearing later be shown. [Casinelli v. Manglapus, 181 N.J. 354, 362 (2004).]

See also Konopka v. Foster, 356 N.J. Super. 223, 228 (App. Div. 2002); Watts v. Camaligan, 344 N.J. Super. 453, 466 (App. Div. 2001).

The Supreme Court has held that the "[p]hysician certification [is] statutorily essential to the continuance of the litigation . . . [and when] a plaintiff is unwilling or unable to produce a physician certification . . . the litigation cannot go forward and thus the complaint should be dismissed." Casinelli, supra, 181 N.J. at 364-65.

Here, plaintiff was unable to produce a competent physician's certification and sought relief from a physician who statutorily was not able to produce a complying certification of permanency. Despite Maslow's certification that he was a "treating physician," he readily admitted during his deposition that he was not a treating physician. Plaintiff failed to produce a treating physician and was not compliant with the terms of the statute.

Recently, the Supreme Court, in discussing the Affidavit of Merit requirement, N.J.S.A. 2A:53A-26 to -29, restated policy considerations that apply with equal force to the AICRA certification, and said:

The core purpose underlying the statute is "to require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early state of litigation." In re Petition of Hall, 147 N.J. 379, 391 (1997) (quoted in Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242 (1998), modified in part by, Ferreira, supra, 178 N.J. at 154). Importantly, "there is no legislative interest in barring meritorious claims brought in good faith." Ferreira, supra, 178 N.J. at 150-51 (citing Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359 (2000)). Indeed, "[t]he legislative purpose was not to 'create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.'" Id. at 151 (quoting Mayfield v. Cmty. Med. Assocs., 335 N.J. Super. 198, 209 (App. Div. 2000)). [Ryan v. Renny, ___ N.J. ___, slip op. at 13 (2010).]

We are mindful of the problems that may ensue if plaintiff is unable to secure a treating physician certification, yet plaintiff participated in the violation that followed. Plaintiff is charged with the knowledge that Maslow was not her treating physician. She traveled from Monmouth County to Camden County for a single visit to be examined by Maslow. We do not deem the treating physician certification requirement to be onerous nor do we deem it necessary to determine why the treating physicians here failed or refused to certify as to permanency. We do know that plaintiff failed to comply.

Plaintiff asserts that defendant should be barred from raising the issue because of the doctrine of equitable estoppel. A claim of equitable estoppel can be raised to bar dismissal for failure to comply with the physician certification requirement when defendant does not object in a timely manner. See Konopka, supra, 356 N.J. Super. at 232. In Konopka, the plaintiff did not submit the requisite physician's tort threshold certification until approximately fourteen months after the statutory deadline had passed. Id. at 226. Defendant objected to the delay one month later, after discovery had concluded, the statute of limitations on plaintiff's claim had run, and plaintiff had filed the physician's certification. The judge applied equitable estoppel to prevent defendant from relying on the delay in plaintiff's filing because defendant could have motioned for summary judgment earlier without prejudicing the plaintiff. Id. at 232.

Likewise, in Hernandez v. Stella, 359 N.J. Super. 415, 417 (App. Div. 2003), defendant did not file a motion for summary judgment for lack of physician's certification until after the conclusion of discovery and arbitration. The judge applied equitable estoppel to bar defendant from relying on plaintiff's failure to file a physician's certificate because defendant failed to move for summary judgment earlier in the proceedings, plaintiff was blameless for her attorney's error in not filing certification, and by waiting, defendant wasted judicial resources. Id. at 419.

Here, plaintiff could not obtain certification from her treating physicians because they either refused to submit certification or could not be reached. Only Maslow agreed to sign the certification. On November 12, 2007, Dr. Maslow certified that he was plaintiff's treating physician and that her injuries were permanent. It was not until his March 30, 2009 de bene esse deposition that Dr. Maslow acknowledged that he was not actually plaintiff's treating physician, but rather that he examined her only once and advised her about potential treatments. One day later, defendant moved for summary judgment.

Plaintiff's reliance on Casinelli, Hernandez, and Konopka is misplaced. As the motion judge correctly noted, this case "goes beyond the mere technical timing of the filing of the certification, but to the heart of the integrity of the certification."

Plaintiff also urges that Maslow's December 12, 2007 certification revealed that Maslow was not plaintiff's treating doctor, and that "everyone knew Dr. Maslow had only conducted a one-time examination of the plaintiff." However, Maslow's certification does not state how many times he met with plaintiff, but states, "I am the treating physician of the plaintiff[.]" Nothing in the record prior to Dr. Maslow's deposition indicates that he conducted just one examination.

At oral argument, plaintiff argued that the definition of "treating physician" should be broad enough to include Maslow. We leave for another day the issue of the parameters of the term "treating physician." Although the phrase "treating physician" may not be precise, it was sufficiently understood to allow Maslow to respond to the inquiry as to whether he was a treating physician in the negative.

We recognize that dismissal of a complaint is a harsh remedy, yet the policy considerations driving the enforcement of AICRA and its minimal requirement of a treating doctor certification support the conclusions reached by the motion judge. We conclude that she properly dismissed the complaint.


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