December 28, 2011
KHADIJA ALIMJAN A/K/A KHADIJA NASIR ALIMJAN, ARZU ALIMJAN, OMID ALIMJAN AND JAVAID ALIMJAN, PLAINTIFFS-APPELLANTS,
SAINT CLARE'S HOSPITAL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2135-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2011
Before Judges Carchman and Nugent.
In this medical malpractice action, the trial court granted the unopposed motion of defendant, Saint Clare's Hospital, to dismiss the complaint of plaintiffs Khadija Alimjan a/k/a Khadija Nasir Alimjan, Arzu Alimjan, Omid Alimjan, and Javaid Alimjan because they did not file an affidavit of merit as required by N.J.S.A. 2A:53A-27. The trial court entered the dismissal order on January 21, 2011, and thereafter denied plaintiffs' motion for reconsideration. Plaintiffs appeal from the April 20, 2011 order denying reconsideration of the January 21, 2011 order. We affirm.
We derive the factual and procedural history from the motion record in the trial court. Mohammed Alimjan, plaintiff Khadija Alimjan's husband and the father of plaintiffs Arzu, Omid and Javaid Alimjan, was first admitted to defendant's intensive care unit on March 25, 2009, where he was evaluated for possible tuberculosis, and discharged on March 31, 2009. He was admitted again on October 25, 2009. On October 27, 2009, Mr. Alimjan was found unresponsive on the floor of his room. He died at 7:40 a.m. that same day.
Plaintiffs filed a sixteen-count complaint against defendant and fictitiously named individuals alleging that defendant and the others deviated from prevailing medical standards during their care and treatment of Mr. Alimjan. Plaintiffs do not dispute that the various theories of liability they pleaded in the complaint, including their wrongful death and survival actions, were based on the medical negligence allegedly committed by defendant and others. Plaintiffs filed their complaint on July 1, 2010.
Defendant filed its answer on August 13, 2010. Plaintiffs were required to file an affidavit of merit within sixty days thereafter, by October 12, 2010. N.J.S.A. 2A:53A-27. However, the trial court extended the filing deadline by sixty days as permitted by the statute, and scheduled a Ferreira*fn1 conference to discuss with the parties the affidavit of merit requirement. Although the court sent notices to the parties scheduling the conference for October 22, 2010, well before the extended filing deadline of December 11, 2010, plaintiffs' counsel did not appear for the conference because he claims he was unaware of it. At the request of plaintiffs' counsel, the court adjourned the conference to January 14, 2011.
Plaintiffs failed to submit an affidavit of merit by the extended deadline and their attorney failed to appear at the January 14, 2011 Ferreira conference, even though the court's staff called his office on January 10, 2011, and left a message reminding him of the conference. Apparently he was involved in a trial elsewhere.
Defendant subsequently filed a motion to dismiss the complaint because plaintiffs had failed to file an affidavit of merit. Plaintiffs did not oppose the motion. The court granted defendant's motion on January 21, 2011. Thereafter, plaintiffs received a report dated February 9, 2011, from an attending physician at Hackensack University Medical Center (the expert). Based on his review of various medical records and his "experience as [a] board certified, emergency medicine physician," the expert wrote in his report:
Patient had recent past medical history of respiratory failure requiring mechanical ventilation and admission to intensive care unit 3/25/09-3/31/09. During hospital admission 10/25/09-10/27/09 he was admitted to a medical/surgical floor but he may have benefitted from admission to a telemetry monitored bed where his vital signs and nursing care would have been more closely monitored. He was found lying in a pool of blood on the floor of his hospital room for an unknown period of time. He had no signs of life when found in the morning.
Per Pulmonary Consult, dated 10/25/09, bronchoscopsy was considered if his hemoptysis persisted for the next 48 to 72 hours. Patient may have benefitted from more aggressive care/testing.
After my review of the aforementioned records and documents, I have concluded there is a reasonable probability that the care would be a deviation of the standard of care.
On February 14, 2011, plaintiffs filed a motion for reconsideration. The court denied the motion on April 20, 2011. This appeal followed.
Plaintiffs contend that the trial court abused its discretion when it denied their motion for reconsideration after they submitted their expert's report. They argue that the submission of their expert's report substantially complied with N.J.S.A. 2A:53A-27. They also argue that they had insufficient time to obtain the medical records that their expert had to review before he could render an opinion, and that the delay in obtaining the records constituted an extraordinary circumstance justifying a further extension of time in which to file the affidavit.
In light of the record, we conclude that plaintiffs' arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
Our scope of review of a trial court's denial of a motion for reconsideration is governed by an abuse of discretion standard. Davis v. Devereux Found., 414 N.J. Super. 1, 17 (App. Div. 2010) (citing Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997)), certif. granted, 205 N.J. 78 (2011).
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (the Statute), requires that a plaintiff alleging malpractice against a licensed professional file within sixty days following the filing of an answer "an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised" by a defendant "fell outside acceptable professional" standards. N.J.S.A. 2A:53A-27. The court may grant one extension, not exceeding sixty days, based upon good cause. Ibid. A plaintiff's failure to provide an affidavit "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. The Statute applies to medical malpractice actions filed against physicians or hospitals. See N.J.S.A. 2A:53A-26(f) and (j).
The Supreme Court has recognized two equitable remedies --substantial compliance and extraordinary circumstances -- that protect a plaintiff against dismissal of a malpractice complaint for failure to timely file an affidavit of merit. Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422-23 (2010). The trial court rejected the application of both remedies in this case. In doing so, the trial court did not abuse its discretion.
Plaintiffs did not substantially comply with N.J.S.A. 2A:53A-27. They made no effort to file an affidavit within 120 days of defendant filing its answer, failed to attend Ferreira conferences, and belatedly filed an expert's report that is not an affidavit as required by the Statute. Nor have plaintiffs demonstrated extraordinary circumstances based on their inability to timely obtain medical records.
If plaintiffs were unable to timely obtain medical records, they should have resorted to the remedy provided by the Statute. Specifically, N.J.S.A. 2A:53A-28 provides that an affidavit shall not be required if the plaintiff provides a sworn statement that: (1) the defendant has failed to provide medical records having a substantial bearing on preparation of the affidavit; (2) the plaintiff has made a written request for the records accompanied, if necessary, by an appropriate authorization, by certified mail or personal service; and (3) forty-five days have elapsed since defendant received the request. Having failed to seek the relief afforded under N.J.S.A. 2A:53A-28, plaintiffs have not established extraordinary circumstances based on their inability to timely obtain medical records.