February 29, 2012
MICHAEL TORRES, PLAINTIFF-APPELLANT,
PALISADES MEDICAL CENTER, PALISADES EMERGENCY ROOM SERVICES, INC., AND DR. ALEX MOLINA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2681-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 29, 2011
Before Judges Espinosa and Kennedy.
Plaintiff, Michael Torres (Torres), appeals from a July 9, 2010 order for summary judgment dismissing his medical malpractice complaint against defendants, Palisades Medical Center, Palisades Emergency Room Services, Inc., and Alex Molina, M.D. (Dr. Molina), for failure to provide a sufficient affidavit of merit pursuant to the Affidavit of Merit Statute, N.J.S.A. 2A:53A-27 to -41, and from the denial of a subsequent motion for reconsideration. We affirm.
This action arises out of medical services provided to Torres on June 2, 2007. Torres sought and received medical services on that date in the emergency room at the Palisades Medical Center where he complained of injuries to his left forearm and hand as a consequence of an assault by an acquaintance. He was treated in the emergency room by the emergency room physician on duty, defendant Dr. Molina, whose "clinical impression" was that Torres sustained a laceration and subluxation of the left middle finger. Dr. Molina ordered an xray of the left hand and fingers and the x-ray report revealed a "fracture-dislocation at the third proximal interphalangeal joint." Dr. Molina sutured and dressed the laceration and told Torres to "follow-up with a hand surgeon or a private doctor" thereafter. Torres later consulted with an orthopedic specialist who found that the joint on the third finger of the left hand was "seriously dislocated" and operated on the hand on July 12, 2007.
Dr. Molina has been the attending emergency physician at the Palisades Medical Center Emergency Department since June 2005. From June 2000 through June 2005, he was a resident physician in the emergency department at the Yale-New Haven Hospital in Connecticut, and he became board-certified in emergency medicine in December 2007. Dr. Molina has been a member of the American College of Emergency Physicians since 1998 and between 1998 and 2005 was a member of the "Emergency Medicine Residents Association."
On May 28, 2009, Torres filed a pro se complaint in Hudson County against the Palisades General Hospital and Dr. Molina. Therein, Torres claimed that he was "in [the] emergency room under the care of Dr. Molina" when he suffered an injury due to the "medical negligence" of the defendants.
On February 16, 2010, Torres's present counsel filed a substitution of attorney in which he substituted as counsel of record for Torres. On the same day, he filed an affidavit of merit prepared by Dr. Robert Dennis, M.D., a "board-certified orthopedic surgeon." In the affidavit, Dr. Dennis noted that he had reviewed the medical records pertaining to "[plaintiff's] ER admission at Palisades Medical Center on June 2, 2007, where he was treated by Dr. Molina[.]" He concluded that the level of care provided by the defendants fell below professional medical standards and that there exists a "reasonable probability" that the care, skill and knowledge exhibited by the defendants fell below professional standards of medical practice.
On April 22, 2010, the trial court executed a consent order vacating a default against defendants Palisades Medical Center and Dr. Molina and permitted them to file an answer within twenty days. An answer to the complaint was filed on their behalf on April 28, 2010, denying the allegations of the complaint and demanding an affidavit of merit pursuant to statute.*fn1
On May 18, 2010, the parties attended a case management conference before the trial court. At that time, defense counsel advised Torres's attorney that the affidavit of merit was unacceptable because it had been executed by a physician with a specialty different from that of defendant, Dr. Molina. On May 25, 2010, the trial court entered a case management order which noted that plaintiff's counsel had filed an affidavit of merit and ordered service of the affidavit upon the defendants within five days. The order further provided that, "any objections to the affidavit of merit must be raised by [m]otion within thirty days." On the day the case management order was entered, defense counsel sent plaintiff's attorney correspondence objecting to the affidavit of merit provided by Dr. Dennis because "Dr. Dennis is a board-certified orthopedic surgeon and not an emergency room physician."
On or about June 1, 2010, defendants filed a notice of motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. At oral argument on July 9, 2010, Torres's counsel objected to the motion and noted that "the deviation that is at issue is orthopedic, it is not emergency based, it is orthopedic based[.]" The trial judge granted the motion explaining, in part, that "Dr. Dennis, who is a board-certified orthopedic surgeon, is not qualified to render opinions against the defendant because orthopedic surgery is not a specialty or sub-specialty of emergency medicine." Torres's counsel asked on the record if he could have additional time to provide an affidavit of merit from a board-certified emergency specialist and the court suggested that counsel file a notice of motion for such relief.
Rather than providing an affidavit of merit from an emergency room physician or filing a motion to extend the time to obtain such an affidavit, Torres's counsel filed a notice of motion for reconsideration of the trial court's order of dismissal. In support of that motion, counsel argued that Dr. Molina was not board-certified as of June 2, 2007, the date of the incident, and that "[t]he only care and treatment received by Michael Torres were orthopedic in nature" and that "none of the injuries [which are the] subject of the medical malpractice complaint concern emergency medicine." The trial judge rejected these arguments and denied the motion for reconsideration. Torres never obtained an affidavit from an emergency room physician and this appeal followed.
The Affidavit of Merit statute requires a plaintiff "in any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person" to provide an "affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment . . . that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. The affidavit is due within 60 days of a defendant's answer, but may be filed within one additional period, not to exceed 60 days, upon a finding of good cause. Ibid. In actions alleging malpractice, the person providing the affidavit must meet the requirements of N.J.S.A. 2A:53A-41, which was enacted as part of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, which modifies the Affidavit of Merit statute and applies to causes of action arising after July 7, 2004. "The 2004 amendments were part of a comprehensive package of tort reforms enacted to address the 'dramatic escalation in medical malpractice liability insurance premiums[.]'" Ryan v. Renny, 203 N.J. 37, 51-52 (2010) (quoting N.J. State Bar Ass'n. v. State, 387 N.J. Super. 24, 36 (App. Div.), certif. denied, 188 N.J. 491 (2006)). This statute provides "more detailed standards for a testifying expert and for one who executes an affidavit of merit, generally requiring the challenging expert to be equivalently qualified to the defendant[.]" Ibid.
N.J.S.A. 2A:53A-41 recognized three distinct categories of defendants entitled to require challenging experts to be "equivalently qualified":
(1) those who are specialists in a field recognized by the American Board of Medical Specialties (ABMS) but who are not board certified in that specialty; (2) those who are specialists in a field recognized by the ABMS and who are board certified in that specialty; and (3) those who are "general practitioners." [Buck v. Henry, 207 N.J. 377, 289 (2011).]
N.J.S.A. 2A:53A-41(a) addresses the first two categories:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified [other requirements apply].
Under this statute, "the first inquiry must be whether a physician is a specialist or general practitioner. If the physician is a specialist, then the second inquiry must be whether the treatment that is the basis of the malpractice action 'involves' the physician's specialty. When the treatment 'involves' the physician's specialty the equivalency requirements apply . . . . " Buck, supra, at 391.
There is no question that the services at issue in this case involved the specialty of emergency medicine. According to the American Board of Medical Specialties, emergency medicine focuses on the immediate decision making and action necessary to prevent death or any further disability both in the pre-hospital setting by directing emergency medical technicians and in the emergency department.
The emergency physician provides immediate recognition, evaluation, care, stabilization and disposition of a generally diversified population of adult and pediatric patients in response to acute illness and injury. [American Board of Medical Specialties, About Physician Specialties: Emergency Medicine, http://www.abms.org/Who_We_Help/ Consumers/About_Physician-Specialties/ emergency.aspx (last visited January 26, 2012).]
See also Buck, supra, 207 N.J. at 388, footnote 5.
Here, Torres sought and received medical treatment in the emergency department of Palisades General Hospital from the attending emergency care physician, defendant Dr. Molina. Dr. Molina saw Torres only in the emergency room, treated Torres on an emergency basis and released him to follow-up care with a physician of his own choosing. This, quite obviously, is care and treatment that "involves" the specialty of emergency medicine. Because the expert selected by Torres to provide the affidavit of merit was not a specialist in emergency medicine, he did not meet the requirements of N.J.S.A. 2A:53A-41(a), and the trial court properly granted the motion to dismiss.
N.J.S.A. 2A:53A-29 (failure to provide an affidavit of merit shall be deemed a "failure to state a cause of action"); Burt v. West Jersey Health Systems, 339 N.J. Super. 296, 304 (App. Div. 2001)("absent extraordinary circumstances, a failure to comply with the statute requires the complaint to be dismissed, with prejudice.").
Torres argues, in the alternative, that he should have been provided with an additional opportunity to provide an affidavit from an emergency room physician and that the date for providing the affidavit should have been calculated from June 29, 2010, the date in which the answer to the amended complaint was filed. We find this argument to be without sufficient merit to warrant a discussion in a written opinion, Rule 2:11-3(e)(1)(E), and we add only the following comments.
While the statute requires plaintiff to provide an affidavit within 60 days of the answer being filed, if it is provided within 61 to 120 days after the answer, the affidavit would be deemed timely so long as leave to provide the affidavit is sought and good cause is established. Paragon Contractors, Inc. v. Peachtree Condo Assoc., 202 N.J. 415, 426 (2010) (citing Burns v. Belafsky, 166 N.J. 466, 475-77 (2001)). Not only has Torres never provided an affidavit from an emergency room physician, but also defendants' answer to the original complaint dated April 28, 2010 demanded an affidavit of merit. Further, Torres was on notice since at least May 2010 that the affidavit of merit provided by Dr. Dennis was being challenged because that expert did not practice within the specialty of defendant, Dr. Molina. Finally, as of July 9, 2010, when the first order of dismissal was entered, Torres was explicitly invited by the trial judge to file a motion to extend the time to provide an affidavit of merit from an appropriately credentialed expert. Torres, however, chose simply to seek reconsideration of the court's earlier order and did so at his peril.