February 23, 2011
HACKENSACK ANESTHESIOLOGY ASSOCIATES, P.A., PLAINTIFF-RESPONDENT,
PETER RES, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
DR. ALI SECKIN, THIRD-PARTY DEFENDANT-RESPONDENT, AND AETNA HEALTH, INC. THIRD-PARTY DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9231-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically October 27, 2010
Before Judges Payne, Baxter and Koblitz.
Defendant, counterclaimant and third-party plaintiff, Peter Res, appeals from an order dismissing his counterclaim against Hackensack Anesthesiology Associates, P.A. (HAA) and his third-party complaint against Dr. Ali Seckin alleging medical malpractice. The dismissal occurred as the result of the failure by Res to timely file an affidavit of merit as required by N.J.S.A. 2A:53A-27. On appeal, Res makes the following arguments:
I. THE COURT BELOW ERRED IN DISMISSING THE MALPRACTICE CLAIM FOR FAILURE TO PROVIDE AN AFFIDAVIT OF MERIT BECAUSE A FERREIRA CONFERENCE WAS NOT HELD.
A. The Ruling in Paragon Which
Clarifies the Purpose of the Ferreira Conference is Prospective. As This Case Was Filed Prior to this Opinion It Must be Remanded to the Superior Court Consistent with the Paragon Jurisprudence.
B. The Decision in Paragon Does Not
Bar the Court from Reversing the Decision Below Because the Underlying Facts Are Distinguishable from Paragon and Subject to the Elements of Ferreira Which Remain Intact.
II. THE COURT MUST DENY THE MOTION TO DISMISS WITH PREJUDICE BECAUSE APPELLANT'S FAILURE TO SUPPLY AN AFFIDAVIT OF MERIT IS EXCUSED BY EXTRAORDINARY CIRCUMSTANCES.
III. THE COURT MUST DETERMINE THAT APPELLANT SUBSTANTIALLY COMPLIED WITH N.J.S.A. 2A:53A-28 BY CONSTRUING APPELLANT'S ACTIONS SUFFICIENT TO CONSTITUTE A SWORN STATEMENT.
IV. THE COURT MUST NOT ALLOW APPELLANT'S GOOD FAITH EFFORT TO COMPLY WITH THE ENTIRE CONTROVERSY DOCTRINE [TO] INADVERTENTLY DEFEAT HIS MERITORIOUS MALPRACTICE CLAIM.
V. THERE IS NO REQUIREMENT FOR A PLAINTIFF TO FILE AN AFFIDAVIT OF MERIT FOR A CASE FILED IN SPECIAL CIVIL PART, THEREFORE THE DEADLINES ESTABLISHED FOR THE FILING OF THE AFFIDAVIT ARE INCORRECT AND THE DISMISSAL MUST BE VACATED FOR ERROR.
VI. THE DOCTRINE OF ESTOPPEL BARS COUNTER-DEFENDANT FROM SEEKING DISMISSAL OF RES'S CASE BASED UPON HIS TACIT AGREEMENT TO DELAY THE FILING OF THE AFFIDAVIT OF MERIT.
VII. THE PROSPECTIVE RULING OF PARAGON WHICH ELIMINATES THE MANDATE FOR A FERREIRA CONFERENCE RENDERS THE STATUTE UNCONSTITUTIONAL AND IT MUST BE OVERTURNED.
A. The Affidavit of Merit Statute Creates a Pleading Requirement Which is Constitutionally Infirm.
B. The Affidavit of Merit Statute is Unconstitutional Because it Denies Victims of Malpractice in New Jersey the Right of Due Process Under the Law.
Following knee surgery, Res was prescribed Percocet for pain. When the pain did not diminish, Res's surgeon referred him to HAA for pain management, where he was treated by Dr. Seckin who prescribed drugs that included Fentanyl and Dilaudid. Res became addicted and underwent detoxification and substance abuse treatment at the Betty Ford Clinic in Rancho Mirage, California.
Thereafter, a billing dispute arose between Res's carrier, Aetna Health, Inc. (Aetna), and Res regarding payment for HAA's services. When the dispute was not resolved, on January 20, 2009, HAA filed a collection action against Res in the Bergen County Special Civil Part seeking $2,150. Res responded to the complaint pro se, filing a third-party complaint against Aetna as the result of its nonpayment of the claim, as well as a counterclaim against HAA and a third-party complaint against Dr. Seckin for medical malpractice.
HAA answered the counterclaim on April 17, 2009. Thus, pursuant to N.J.S.A. 2A:53A-27, Res was required to file an affidavit of merit with respect to his claim against it by June 16, 2009. If the period for service had been properly extended, the affidavit would have been due on or before August 15, 2009. Dr. Seckin answered the third-party complaint on May 15, 2009. Thus, an affidavit addressing claims against him would have been due on July 14, 2009 or September 13, 2009 if the deadline were extended.
It is significant that, although Res claims that the parties' failure to produce complete discovery prohibited him from filing an affidavit of merit, he received his medical records from Dr. Seckin on May 7, 2009; the complete records maintained by HAA were produced on June 16, 2009. Dr. Seckin's answers to Form C(3) medical malpractice interrogatories were served on June 23, 2009. No motion to compel production of additional documents or more specific interrogatory responses was filed against either party.
On September 11, 2009, the collection and medical malpractice actions were transferred to the Law Division, although Res, now represented by his wife, an attorney, had sought bifurcation, with the collection action remaining in the Special Civil Part. On October 6, 2009, a case management conference was held in chambers before a Law Division judge who, when informed of the absence of a timely-filed affidavit of merit, directed the parties to file motions to dismiss the malpractice action.
On October 7, 2009, Aetna and HAA filed cross-motions for summary judgment in the collection action; Dr. Seckin and HAA moved to dismiss the malpractice action. One month later, on November 7, 2009, Res filed opposition to the motions, moved to compel discovery from Aetna, and moved to extend the time for filing an affidavit of merit. On November 20, 2009, all motions were denied with the exception of Res's motion addressing the affidavit of merit. An additional thirty-day period was awarded, requiring that the affidavit be filed by December 20, 2009, a date more than eight months after HAA had answered Res's counterclaim and more than seven months after Dr. Seckin answered Res's third-party complaint.
On December 5, 2009, Res's counsel requested a Ferreira*fn1 conference to discuss discovery. On December 14, she moved for reconsideration of the denial of her discovery motion against Aetna. Additionally, on December 14, counsel moved for an additional sixty days in which to file an affidavit of merit. HAA and Dr. Seckin renewed their motions for dismissal of the malpractice action.
The parties' motions were heard on January 7, 2010. Prior to the hearing, Aetna agreed to pay HAA's outstanding bill, and as a result, the discovery motion against it was withdrawn. HAA's and Dr. Seckin's motions to dismiss the malpractice action against them were granted, and a motion for reconsideration, denominated a motion to "amend," was denied. This appeal followed.
The Affidavit of Merit 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. [N.J.S.A. 2A:53A-27.]
N.J.S.A. 2A:53A-28 provides that, if a defendant has failed to produce medical or other records or information "having a substantial bearing on preparation of the affidavit," if a written request for the documents has been made, and if forty-five days has elapsed since the request without receipt of the requested documents, a plaintiff may, in lieu of serving an affidavit of merit, provide a sworn statement attesting to the absence of discovery despite plaintiff's compliance with the statute's discovery conditions.
Significantly, N.J.S.A. 2A:53A-29 provides that if a plaintiff fails to timely serve an affidavit of merit or statement pursuant to N.J.S.A. 2A:53A-28, "it shall be deemed a failure to state a cause of action." See also Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001) (interpreting noncompliance, pursuant to N.J.S.A. 2A:53A-29, to require dismissal with prejudice unless extraordinary circumstances are demonstrated); Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998) (same).
In the present case, counsel for Res served neither an affidavit of merit nor a certification pursuant to N.J.S.A. 2A:53A-28, thereby potentially triggering the statutory remedy of dismissal with prejudice. In Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2001), the Supreme Court recognized two equitable remedies "that temper the draconian results of an inflexible application of the statute." Id. at 151. The Court noted that in prior decisions it had held "[a] complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute" and, alternatively, "a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance." Ibid. However, Res cannot demonstrate either substantial compliance or extraordinary circumstances.
To establish substantial compliance, Res would have to 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 v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2000) (quoting Bernstein v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977)). Substantial compliance has been demonstrated when plaintiff's attorney failed to timely file an affidavit of merit, but before commencing suit, served two detailed expert reports on defendants' insurers that established the claim as legitimate. Id. at 347-48, 351-57. Substantial compliance has also been found when a timely-served affidavit and an extensive expert's report focused on defendant's conduct, while not identifying him by name, and a subsequently served affidavit identified defendant as an allegedly culpable party. Fink v. Thompson, 167 N.J. 551, 561-64 (2001). Likewise, substantial compliance has been found when plaintiff's attorney served a certification instead of an affidavit. Cornblatt, supra, 153 N.J. at 240. What these decisions have in common is the fact that, in each, the targeted defendants were timely informed that an expert was willing to attest, as a threshold matter, to the legitimacy of claims against them. Thus, the statute's purpose was advanced of "weed[ing] out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 395 (2001). Such a showing cannot be made in the present case, since no expert opinion has been expressed regarding the merits of Res's claim.
We further find no facts that would support Res's argument that substantial compliance with the safe harbor provisions of N.J.S.A. 2A:53A-28 occurred, particularly since all medical records of Dr. Seckin and HAA were produced early in the litigation and long before the due date established for the filing of Res's affidavit of merit. Although those records have not been furnished on appeal, we have been offered nothing to suggest that they were inadequate to provide a foundation for the sort of threshold opinion required by the Affidavit of Merit statute.
In Ferreira, the Court observed that "we have yet to define the full scope of extraordinary circumstances as an equitable remedy for failure to comply with the statute," but it held "we do know that attorney inadvertence is not a circumstance entitling plaintiff to a remedy of dismissal of a complaint without prejudice." Ferreira, supra, 178 N.J. at 152 (citing Palanque, supra, 168 N.J. at 405). In the present case, Res claims extraordinary circumstances exist to excuse counsel's failure to obtain the necessary affidavit. In that connection, Res complains that he had difficulties obtaining Dr. Seckin's records. However, as we have previously noted, the complete records of that doctor were served on him on May 7, 2009, and HAA's records were served on June 16, 2009, along with Dr. Seckin's interrogatory answers.
We are satisfied from our review of the record that, by mid-June 2009, HAA and Dr. Seckin had produced sufficient discovery to permit Res to obtain an affidavit of merit. Indeed, counsel for Res conceded at oral argument on the parties' motions to dismiss, held on January 7, 2010, that discovery available to her as the result of responses by Dr. Seckin and HAA in May and June 2009*fn2 was sufficient for her to have obtained a threshold opinion that a reasonable probability existed that Dr. Seckin's care, skill or knowledge fell outside acceptable professional standards or treatment practices. What she apparently sought was sufficient discovery upon which an exhaustive expert's report could be based. Counsel demonstrated her misunderstanding of the requirements of an affidavit of merit when she argued at the January 7 motion to dismiss:
The affidavit of merit in this case is not only -- is not only to provide a minimum threshold. If it was just for a minimum threshold, Your Honor, I've got it. The man went to see a doctor for pain medication and to not get addicted. Five months later, the doctor is telling him you've got to go to detox, man.
The affidavit of merit wants an expert to show or to state where the physician deviated from the standard of care.
I can get an expert to say look, just based on the fact that you were taking this much narcotic and the doctor more than doubled the amount of narcotic in your system we think that there's a likelihood that a judge -- a jury would find that there was an absence from the normal standard of care.
But to be honest with you, Your Honor, I am trying to do this properly.
We are unaware of any precedent that holds a misunderstanding of the law of the type demonstrated by counsel in this case constitutes extraordinary circumstances. Indeed, the Supreme Court has held "that parties are presumed to know the law and are obliged to follow it." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 424 (2010) (citing Emanuel v. McNell, 87 N.J.L. 499, 504 (E. & A. 1915)).
Res also claims a delay in the transfer of the matter to the Law
Division as a contributing factor in her claim of extraordinary
circumstances. However, despite a demand for damages in excess of the
jurisdictional limit of the Special Civil Part, Rule 6:1-2(a)(1), Res
did not move for transfer following the filing of his answer,
counterclaim and third-party complaint on March 20, 2009.*fn3
Indeed, transfer does not appear to have been considered
until it was suggested by a Special Civil Part judge at a conference
held on August 18, 2009. Res then filed the necessary motion, which
was heard and granted on September 11, 2009, at which time the Special
Civil Part judge also arranged for a Ferreira conference to be held in the Law
Res argues that the thwarting of his informal attempts to obtain discovery constituted extraordinary circumstances. However, the Court has held: "Attorneys . . . should begin discovery promptly when facts are needed to comply with the Affidavit of Merit statute. . . . We urge counsel to time their discovery - with court intervention, if necessary - so that facts necessary to comply with N.J.S.A. 2A:53A-27 are available by the statutory deadlines." Fink, supra, 167 N.J. at 564. As we previously noted, Res never filed a motion to compel the discovery he sought or served the affidavit required by N.J.S.A. 2A:53A-28. Additionally, as we have also previously noted, the discovery produced in May and June 2009 was concededly sufficient to have formed a foundation for the necessary affidavit.
Additionally, Res contends that discovery regarding the collection action was not provided, and that "[t]he conduct of Aetna's Counsel was also irregular." But Res does not explain how any actions in connection with the debt collection and insurance coverage matters affected his medical malpractice claim. Similarly, issues involving the arbitration of the insurance claim, which was held on December 15, 2009, are of no relevance to the present dispute.
Res also asserts that the illness of his wife as the result of shingles in the summer of 2009 constituted an extraordinary circumstance. However, she had recovered sufficiently by August 18, 2009 to attend a court conference held on that date. Further, as the result of a court-ordered extension, the affidavit of merit was not due until December 20, 2009. Four months intervened between counsel's recovery and that due date during which time statutory compliance could have been effected.
In summary, we find none of the circumstances upon which Res relies to establish extraordinary circumstances is sufficient to have done so.
In Ferreira, the Court held:
To ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system -- to shepherd legitimate claims expeditiously to trial --we propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. [Ferreira, supra, 178 N.J. at 154.]
At that conference, potential discovery problems could be informally resolved, counsel could be reminded of the need to serve an affidavit of merit, and if one had been served, any deficiencies could be addressed. Ibid.
Such a conference was scheduled in the Special Civil Part on August 18, 2009.*fn4 However, because the damages asserted for medical malpractice exceeded the jurisdictional maximum of the court, the conference did not occur, but rather, was scheduled in the Law Division for October 6, 2009, a date after the deadlines for service of affidavits of merit had passed. At the conference, Res's lack of timely compliance with the Affidavit of Merit statute became apparent, and motions to dismiss by Dr. Seckin and HAA were invited. In response, Res sought an extension of time to submit his affidavit, and he moved to compel discovery from Aetna. Significantly, he did not move to compel any discovery from either Dr. Seckin or HAA.
As we have previously noted, all motions were denied, with the exception of Res's motion to extend the time for filing of his affidavit. Thus, although a timely Ferreira conference was not held in this matter, Res was put on notice that an affidavit of merit was required, he was afforded a period of time in which to formally seek any additional discovery necessary to establish a foundation for that affidavit (although he did not do so), and he was given an extension of time in which service of the affidavit could occur. We thus do not find the absence of a Ferreira hearing to have prejudiced Res in the prosecution of his claim.
We do not regard the Supreme Court's decision in Paragon as requiring a different result. In Paragon, the Court held that failure to conduct a Ferreira conference did not toll the expiration of the period for submission of an affidavit of merit. Paragon, supra, 202 N.J. at 424. In reaching that conclusion, the Court noted the divergence among our opinions regarding the effect of the failure to hold such a conference. Id. at 425 (citing Saunders ex rel. Saunders v. Capital Health Sys., 398 N.J. Super. 500, 510-11 (App. Div. 2008) (permitting case to proceed in absence of affidavit when Ferreira conference had not been held) and Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 542 (App. Div. 2009) (reaching contrary conclusion)). It then observed: "We take from that divergence that lawyers also may have been unclear regarding the import of the failure to hold a Ferreira conference and, incorrectly as it turns out, may have assumed that the absence of the conference provided a safe harbor from the Affidavit of Merit statute's requirements." Ibid. Accordingly, the Paragon Court made its ruling prospective. Id. at 542-43. Here, however, Res could not have been misled because, in response to his motion for additional time to serve an affidavit of merit, he was granted an extension to December 20, 2009. Thus, Res knew with certainty the deadline for statutory compliance and could not have been misled regarding the effect of the failure to hold a timely Ferreira conference.
Res argues additionally that the conduct of HAA's and Dr. Seckin's counsel lulled him into believing that no affidavit of merit was required until the action was transferred to the Law Division, and thus they should have been equitably estopped from seeking dismissal of his suit. We reject this argument. Even if opposing counsel lulled Res into concluding that an affidavit of merit need not be served until the action was transferred to the Law Division, Res still was afforded an additional four months to produce that affidavit, and he failed to do so by the established deadline.
In sum, we find no legal or equitable ground that would permit the reversal of the order of dismissal from which Res appeals. We decline to address Res's constitutional arguments, determining that they are of insufficient merit in the context of the present action to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).