On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-405-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
In this medical malpractice matter, plaintiff, Jerald D. Albrecht, appeals the dismissal of his complaint for failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 (the statute). We affirm.
Plaintiff filed a complaint against defendants, Dennis M. Nugent and
Saint Francis Medical Center, and later filed an amended complaint
adding Ravi Chokshi and Nimitt Patel as co-defendants.*fn2
The complaint arose from post-operative complications
plaintiff sustained following a right kidney pyeloplasty,*fn3
performed on February 15, 2008, which included insertion of a
right urethral stent. A subsequent physical examination revealed a
"post-op [right] [f]lank inc[i]sional hernia[,]" and following a
"surgery consult[,]" plaintiff's hernia was further described as
consisting of a "[w]ide defect[,] easily palpable[,] and is unlikely to obstruct and/or
Defendants filed answers to the complaint, which answers included a demand that plaintiff file an Affidavit of Merit (affidavit). Plaintiff failed to file the affidavit within sixty days of defendants' respective answers to the complaint, and the court granted plaintiff's motion to extend the time in which to serve the affidavit for an additional sixty days. The court conducted the requisite Ferreira*fn4 conference, during which plaintiff's obligation to serve the affidavit was addressed. Notwithstanding the extension, plaintiff failed to serve the affidavit.
Defendants moved to dismiss plaintiff's complaint for non-compliance with the statute. In opposing the motions, plaintiff acknowledged that he failed to serve the affidavit and that expert testimony was necessary to establish the requisite standard of care. Plaintiff also agreed that in the absence of an affidavit, he could not maintain an action against defendants based upon medical malpractice, negligent supervision, negligent care, or negligent infliction of emotional distress. Nonetheless, plaintiff argued compliance with the statute was unnecessary to advance his claims that Dr. Nugent failed to: (1) diagnose the post-operative incisional hernia, (2) follow the recommendation for corrective surgery, and (3) obtain his informed consent to operate.
The motion judge granted defendants' motions, noting on each order that the motion was opposed, the "tentative decision accepted," and reasons were placed on the record.*fn5 The ensuing appeal followed.
On appeal, plaintiff raises the following points for our consideration:
AN AFFIDAVIT OF MERIT IS NOT REQUIRED FOR CLAIMS INVOLVING OBVIOUS FAILURES TO DIAGNOSE OR TREAT WHERE, AS HERE, PREVIOUS PHYSICIANS HAD ALREADY DIAGNOSED APPELLANT'S POST-OPERATIVE INCISIONAL HERNIA AND WHERE THE FAILURE TO TREAT INVOLVED NOTHING MORE THAN A WILLFUL REFUSAL ON THE PART OF DR. NUGENT TO FOLLOW THE RECOMMENDATION OF THE CONSULTING SUR[GE]ON.
NO AFFIDAVIT OF MERIT IS REQUIRED WHEN THE ISSUE OF INFORMED CONSENT IS ONE THAT CAN BE DETERMINED ...