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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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