On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2233-09.
The opinion of the court was delivered by: Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, C.L. Miniman and LeWinn.
The opinion of the court was delivered by
Plaintiff Jerald D. Albrecht appeals on leave granted from an interlocutory order dismissing his complaint as to defendant Correctional Medical Services (CMS) under the provisions of the Affidavit of Merit Statute (AOM Statute), N.J.S.A. 2A:53A-26 to -29. We conclude that CMS is not entitled to the protection of that statute and reverse and remand for reinstatement of plaintiff's complaint.
While plaintiff was committed to the custody of the Department of Corrections (DOC), he came under the care of defendants George Achebe, M.D., and Raymundo Tagle, M.D. At that time, CMS was the sole provider of medical care to prisoners pursuant to a contract with the DOC. Plaintiff thereafter filed a complaint alleging that all three defendants failed to properly diagnose and treat his medical condition.
In answering the complaint, each defendant demanded an affidavit of merit (AOM). Plaintiff supplied an AOM as to Achebe and Tagle, but not as to CMS. Instead, plaintiff demanded a copy of CMS's Department of Health and Senior Services (DHSS) license, but CMS did not produce one.
CMS moved to dismiss the complaint for failure to file an AOM, claiming that it was entitled to the protection of the AOM Statute because it was a "health care facility." CMS did not include any evidence, such as certifications and authenticated documents, in support of its motion.*fn1 In plaintiff's opposition papers, he included discovery materials from other cases where representatives of CMS averred that the doctors it retains are independent contractors to whom it issues Forms 1099 and that, as an entity, it does not provide any medical services. Rather, its independent-contractor physicians do so, using their medical skill and judgment.*fn2 CMS did not seek to rebut this discovery nor did it file any reply certifications or other materials concerning its status as a health care facility or explaining its corporate structure.
Plaintiff argued that the record was insufficient for CMS to show it was entitled to the protection of the AOM Statute. The judge disagreed and concluded that plaintiff was required to serve an AOM on CMS because it was a "health care facility." He also rejected plaintiff's claim that an AOM was rendered unnecessary by the common-knowledge exception. An order dismissing plaintiff's complaint as to CMS was entered on August 6, 2010.
Plaintiff contends on appeal that the judge erred in dismissing his complaint because the AOM Statute applies only to licensed persons or licensed health care facilities and that CMS is not licensed. He further argues that CMS is not covered by the exceptions from licensure created by Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, 416 N.J. Super. 1, 26-27 (App. Div. 2010), and Nagim v. N.J. Dep't of Transit, 369 N.J. Super. 103, 109 (Law Div. 2003).
CMS argues that it did not have to prove that it was licensed because it is a "health care facility" and thus entitled to the protection of the AOM Statute. It also contends that it is entitled to the protection of the AOM Statute under the Shamrock and Nagim exceptions.
Because plaintiff presented factual material in opposition to the Rule 4:6-2 dismissal motion and the judge did not exclude it, the motion became one for summary judgment. R. 4:6-2. In reviewing an order on such a motion, we apply the same standards as the trial court. Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Thus, where the materials submitted to the court are insufficient to show that the moving party is entitled to judgment as a matter of law, the motion ...