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Janice Taylor, As Administratrix of the Estate of Deborah Conroy v. Community Medical Center

January 21, 2011

JANICE TAYLOR, AS ADMINISTRATRIX OF THE ESTATE OF DEBORAH CONROY, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
COMMUNITY MEDICAL CENTER, SAINT BARNABAS HEALTH CARE SYSTEMS, DANNA GLORE MICHELLE DELA CRUZ, M.D., DEBORAH WINN-VAN HISE, APN-C, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND OCEAN HEALTH INITIATIVES, DEFENDANT-RESPONDENT, AND CVS CAREMARK CORP. AND PHARMACISTS FOR CVS PHARMACY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9606-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2010 - Decided

Before Judges R. B. Coleman and Lihotz.

In this medical malpractice matter, plaintiff Janice Taylor, the Administratrix of the Estate of Deborah Conroy, challenges the dismissal of her complaint for failure to properly comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 and the subsequent order denying reconsideration. Defendants St. Barnabas Health Care Systems and Community Medical Center (collectively the Community defendants), Danna Glore Michelle Dela Cruz, M.D. and Deborah Winn-Van Hise, APN-C, have filed a defensive cross-appeal, challenging the qualifications of plaintiff's putative affiant. As in other matters, we again "grappled with the derelictions" of plaintiff's counsel, who may have "filed [a] well-grounded complaint[], but [] neglected to file [a] technically correct or timely affidavit[]." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003). Following our review, we affirm.

Plaintiff commenced a wrongful death action against defendants Dr. Dela Cruz, Ocean Health Initiatives (Ocean Health), Winn-Van Hise, the Community defendants, and CVS Caremark Corp., seeking damages as a result of alleged professional negligence in prescribing medications to decedent, which caused her death on November 16, 2005. In part, plaintiff's claims were based on the Ocean County Medical Examiner's report following an autopsy of decedent, which concluded the cause of death was "[c]ardio respiratory failure[,] which resulted from a combination of prescription drug reaction[,] severe pulmonary fibrosis and desquamative changes." Decedent had been a patient of the Community defendants and Ocean Health for years before her death and Dr. Dela Cruz and Winn-Van Hise prescribed numerous medications when treating decedent. Plaintiff alleged Dr. Dela Cruz and Winn-Van Hise were negligent in "their supervision and care" of decedent "in writing prescriptions and the use of same" as "decedent was prescribed approximately 3,380 pills" in 2005. Further, plaintiff asserted Ocean Health and the Community defendants breached the standard of "care, monitoring and dispensing of medication."

Prior to a case management conference held in compliance with Ferreira, supra, 178 N.J. at 147, plaintiff moved for additional time to file an affidavit of merit as required by N.J.S.A. 2A:53A-27. The motion was granted.

On June 25, 2008, to support the viability of the claims of medical malpractice, plaintiff submitted a four paragraph "affidavit" of Charles J.F. McHugh, M.D. Dr. McHugh stated he was a licensed medical doctor for more than twenty years and had "been board certified in the area of emergency medicine" since 1992. After a review of decedent's medical records, Dr. McHugh opined, "there exists a reasonable probability that the care, skill and knowledge exercised and exhibited in the care and treatment provided by the physicians and staff identified in the complaint in this matter fell below acceptable professional standards." The document was neither notarized nor conforming to the requisites of R. 1:4-4(b). It is not clear whether a case management conference was held after plaintiff's submission.*fn1

Defendants filed a series of letters and motions challenging Dr. McHugh's affidavit. On July 22, 2008, Winn-Van Hise sent plaintiff a letter asserting Dr. McHugh's "Affidavit of Merit was legally insufficient." The correspondence did not elaborate on that assertion. On July 28, 2008, the Community defendants filed a motion to dismiss the complaint, arguing the affidavit failed to "meet the statutory criteria to offer an Affidavit of Merit against a physician Board Certified in Internal Medicine, such as Dr. [Dela Cruz]" because Dr. McHugh was a specialist in emergency medicine. The motion was denied. On August 21, 2008, Ocean Health sent correspondence to plaintiff challenging the propriety of Dr. McHugh's affidavit "on the grounds that Dr. McHugh is not a registered professional nurse, such as [] Winn-Van Hise, and the [a]ffidavit is not notarized nor does it comply with N.J.S.A. 2A:53A-41."

On October 2, 2008, the Community defendants filed a second motion to dismiss the complaint because of the failure to provide an affidavit of merit. That motion was also denied because the court saw "no reason to rule that [a] board certified emergency room doctor would not be able to certify that there is merit to the claim being asserted by [] plaintiff."

Discovery commenced. The court granted Ocean Health's motion to dismiss the complaint for plaintiff's failure to provide answers to interrogatories and supplemental interrogatories, or respond to its request for a statement of damages and notices to produce documents. The motion was granted. By consent, dismissal was vacated on February 3, 2009.

On January 16, 2009, Winn-Van Hise moved to dismiss the complaint because "plaintiffs ha[d] failed to serve an appropriate and sufficient [affidavit of merit] as to Winn-Van Hise." Ocean Health filed a cross-motion to dismiss the complaint, relying on Winn-Van Hise's arguments.

While these motions were pending, plaintiff amended Dr. McHugh's affidavit. The amended affidavit was substantially similar to the original, except it now contained the statement "sworn and subscribed before me this 10th day of ...


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