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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...