NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2011 - Decided
Before Judges Sapp-Peterson and Fasciale.
Michael Falco is an inmate at Southwoods State Prison who commenced a medical malpractice action against defendants on behalf of his deceased mother who succumbed as a result of congestive heart failure and other complications on October 4, 2006. Falco filed a complaint against defendant, Princeton Healthcare System, on February 10, 2009. Defendant filed its answer on May 26. In accordance with N.J.S.A. 2A:53A-27, plaintiff was required to file an Affidavit of Merit within sixty days after defendant filed its answer. The court scheduled a Ferreira*fn3 conference for September 1. It is unclear whether the conference actually took place, but the court granted plaintiff an extension of time within which to file an Affidavit of Merit until November 9. However, plaintiff failed to file the affidavit during that extended time period. Defendant moved to dismiss plaintiff's complaint for failure to file the Affidavit of Merit. The court granted the motion, finding it was undisputed that the document had not been filed and there were no extraordinary circumstances presented that justified granting plaintiff relief from the statutory requirements. The present appeal followed.
On appeal, plaintiff claims that an Affidavit of Merit was not required because the allegations against defendant are subject to the common knowledge exception to the statutory requirements and that he has "shown a good faith effort to comply with the statute."
We have carefully considered these arguments in light of the record, the briefs, and the applicable legal principles, and we conclude that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
The claims against defendant involve the care and management of multiple medical conditions, including prescribing and administering various medications, all of which implicate the exercise of judgment, as distinguished from a medical mistake so clearly evident that non-physicians can substitute their common sense for reasonable medical probability. See, e.g., Palanque v. Lambert-Woolley, 168 N.J. 398, 406-07 (2001), (expert testimony not required where physician acknowledged misreading specimen identification number on lab report); Anderson v. Somberg, 158 N.J. Super. 384, 389 (App. Div.) (broken instrument left inside patient's surgical site), certif. denied, 77 N.J. 509 (1978); Magner v. Beth Israel Hosp., 120 N.J. Super. 529 (App. Div. 1972) (patient suffering burns during an operation), certif. denied, 62 N.J. 199 (1973); Tramutola v. Bortone, 118 N.J. Super. 503, 510 (App. Div. 1972) (visible needle display on x-ray not disclosed to patient), rev'd on other grounds, 63 N.J. 9 (1973).
Finally, plaintiff's evidence that he has substantially complied with the Affidavit of Merit statute consists of an affidavit authored by plaintiff, rather than a licensed physician, as required by the statute. N.J.S.A. 2A:53A-27.