On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1667-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
Plaintiff Gina Cornejo appeals from a July 1, 2009 summary judgment dismissing her medical malpractice complaint against defendants Ashwin Kansagra, M.D., and Richard Mackessy, M.D.,*fn1 for failure to provide a sufficient affidavit of merit (AOM) pursuant to the Affidavit of Merit Statute (AOM Statute), N.J.S.A. 2A:53A-27 and -41, and from the denial of her subsequent motion for reconsideration. We now affirm.
This action arises out of medical services provided to plaintiff by defendants in 2006 after plaintiff fell while delivering mail and injured her left elbow, shoulder, and hip. She was diagnosed with thoracic outlet syndrome and treated by defendants. Ultimately, plaintiff underwent surgery at Massachusetts General Hospital to relieve her pain and remedy the disability in her left arm. She alleges that while treating her defendants committed malpractice in ordering physical therapy and authorizing her to return to work on modified duty, causing permanent damage to the nerves in her left arm. The specific treatments and allegations of malpractice are not relevant to our determination of this appeal.
Plaintiff filed her complaint on May 9, 2008, and defendants filed their separate answers toward the end of that year. The filing of those answers triggered an obligation under N.J.S.A. 2A:53A-27 on plaintiff's part to serve an AOM on defendants within sixty days.*fn2
Plaintiff obtained an AOM from Raphael Osheroff, M.D., who had diagnosed and treated her for the thoracic outlet syndrome, but was not the surgeon who operated on her. She served Dr. Osheroff's AOM on February 9, 2009. No one suggests this was outside the sixty-day period allowed by N.J.S.A. 2A:53A-27. On February 12, 2009, counsel to Dr. Mackessy promptly advised plaintiff's counsel that she did not "consider [her AOM] sufficient pursuant to N.J.S.A. 2A:53[A]-27." She did not specify the nature of the deficiency in her letter. On February 17, 2009, counsel for Dr. Kansagra objected to the sufficiency of the AOM, also without specifying the nature of the deficiency. Plaintiff's counsel took no action in response to these letters, awaiting a Ferreira*fn3 conference that was never scheduled by the trial judge or requested by plaintiff, even though the total 120-day period for serving a sufficient AOM expired as to Dr. Mackessy in March and as to Dr. Kansagra in April.
On or about March 30, 2009, after the time within which the AOM could be corrected or a new one could be secured from another physician, Dr. Mackessy moved for dismissal of the complaint for failure to provide a sufficient AOM.*fn4 On April 28, 2009, Dr. Kansagra "cross-moved" for the same relief,*fn5 also after the 120-day period had expired. Neither Dr. Mackessy nor Dr. Kansagra signed a certification in support of his motion. Rather, in support of Dr. Mackessy's motion, his attorney signed a certification in which he stated:
For the reasons set forth in the accompanying [b]rief, it is respectfully requested that the [c]court dismiss plaintiff's complaint with prejudice pursuant to [N.J.S.A.] 2A:53A-29 for failure to state a cause of action since Dr. Osheroff is not an appropriate licensed person to execute an [AOM] against Dr. Mackessy pursuant to [N.J.S.A.] 2A:53A-27.
In Dr. Mackessy's brief, he argued that his specialty was orthopedics and orthopedic surgery,*fn6 whereas Dr. Osheroff was not board certified in orthopedic surgery but was merely an internal medicine physician. As such, Dr. Osheroff was prohibited by N.J.S.A. 2A:53A-41 from executing an affidavit "'on the appropriate standard of practice or care . . .' in this case."*fn7
In support of Dr. Kansagra's motion, his attorney stated that "Dr. Kansagra is board certified in occupational medicine."*fn8
He further asserted, "Thus, since Dr. Osheroff does not specialize in the same specialty as Dr. Kansagra, Dr. Osheroff is not an appropriate physician to execute an [AOM] against Dr. Kansagra." Dr. Kansagra sought dismissal of the complaint pursuant to N.J.S.A. 2A:53A-27 and -29 and relied on the brief submitted by Dr. Mackessy. Plaintiff opposed both motions on May 8, 2009, advancing a number of arguments.
Dr. Kansagra's attorney by letter dated May 8, 2009, advised the judge that Dr. Kansagra was also a board-certified surgeon. Then, on May 12, 2009, Dr. Mackessy's attorney filed a reply letter brief to which he attached an internet printout from the Division of Consumer Affairs' website indicating that Dr. Mackessy was board certified by the American Board of Orthopaedic Surgery from July 26, 1986, to December 31, 2016, with a subspecialty in hand surgery. He submitted a similar document indicating that Dr. Osheroff was board certified by the American Board of Internal Medicine on June 21, 1972, with a subspecialty in nephrology, but the website had no information about the expiration of that initial certification and did not indicate any recertification. ...