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Gina Cornejo v. Ashwin Kansagra


May 30, 2012


On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1667-08.

Per curiam.


Argued January 3, 2011 - Decided September 19, 2011.

Motion for reconsideration granted.

Resubmitted January 30, 2012

Before Judges A. A. Rodriguez and Ashrafi.

On September 19, 2011, we affirmed the dismissal of plaintiff Gina Cornejo's medical malpractice complaint for failure to comply with the affidavit of merit requirements of N.J.S.A. 2A:53A-27 and -41. Cornejo v. Kansagra, A-1572-09 (App. Div. Sept. 19, 2011). On October 6, 2011, we granted plaintiff's motion for reconsideration because the Supreme Court had recently issued a potentially relevant decision, Buck v. Henry, 207 N.J. 377 (2011).

Having now reviewed the Supreme Court's decision in conjunction with the record of this appeal, we adhere to our original holding and affirm.*fn1

Plaintiff filed a complaint on May 9, 2008, alleging that Drs. Kansagra and Mackessy committed malpractice in their diagnosis and treatment of injuries she suffered to her shoulder, elbow, and wrist after a fall. She alleged that her condition was subsequently diagnosed as thoracic outlet syndrome and that defendants' failure to make that diagnosis promptly or to render the appropriate treatment caused permanent nerve damage to her arm.

On June 8, 2008, the trial court entered a case management order stating that the affidavit of merit statutes applied to plaintiff's complaint and reciting the time limits for plaintiff to serve "an affidavit of an appropriate licensed person" attesting to the merit of her malpractice claims. Dr. Mackessy filed an answer to plaintiff's complaint on November 21, 2008. Dr. Kansagra filed an answer on December 5, 2008. Both defendants demanded an affidavit of merit.

Plaintiff served an affidavit of one of her treating doctors on February 6, 2009. The affidavit stated:

I, Raphael Osheroff, MD, being duly sworn, depose and state that:

1. I am a physician licensed in the state of New Jersey and board certified in internal medicine.

2. This affidavit is filed with regards to the above captioned case.

3. I have been treating Gina Cornejo for injuries suffered as a result of a fall.

4. There exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the aforementioned complaint, fell outside of acceptable professional or occupation standards or treatment practices.

The attorneys for defendant doctors wrote to plaintiff's attorney on February 12 and 17, 2009, stating without elaboration that Dr. Osheroff's affidavit was not sufficient to comply with the requirements of the affidavit of merit statutes.

The trial court did not hold a case management conference within ninety days of the filing of defendants' answers, as required by Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 154-55 (2003). The purpose of such a "Ferreira conference" is to address issues pertaining to compliance with the affidavit of merit requirements. Ibid. Neither plaintiff nor defendants requested that the court hold a Ferreira conference.

After the statutory maximum 120 days passed for service of an affidavit of merit, N.J.S.A. 2A:53A-27, defendants moved successfully to dismiss plaintiff's complaint with prejudice on the ground that the affidavit of Dr. Osheroff did not comply with the provisions of N.J.S.A. 2A:53A-41. The latter statute requires that the doctor who executes an affidavit of merit "be equivalently-qualified to the defendant" physician. Ryan v. Renny, 203 N.J. 37, 52 (2010). The trial court held that Dr. Osheroff was not qualified to provide an affidavit of merit because he did not practice and was not board certified in the same specialty as either defendant.

In our September 19, 2011 opinion, we affirmed the trial court's decision in that regard. Cornejo v. Kansagra, supra, slip op. at 8-9, 14. Relying upon the Supreme Court's holding in Paragon Contractors, Inc. v. Peachtree Condominium Association, 202 N.J. 415, 425 (2010), we also held that the trial court's failure to hold a Ferreira conference did not toll the running of the 120 maximum period for serving an acceptable affidavit of merit. Cornejo v. Kansagra, supra, slip op. at 10-12. In her motion for reconsideration before us, plaintiff argues that Buck now requires that we remand to the trial court to hold a Ferreira conference and to resolve disputes about the adequacy of Dr. Osheroff's affidavit.

In Paragon Contractors, supra, 202 N.J. at 426, the Court stated: "lawyers and litigants should understand that, going forward, reliance on the scheduling of a Ferreira conference to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted and will not serve to toll the statutory time frames." In Buck, supra, 207 N.J. at 382, the Court did not abandon that holding, but it addressed again the trial court's failure to hold a Ferreira conference, specifically in the context of the plaintiff's good faith attempt to serve an affidavit within the statutory deadlines but without sufficient information about the defendant-doctor's area of specialty.

Counsel in Buck had served affidavits of two doctors, a psychiatrist and a physician specializing in emergency medicine. Id. at 384, 386. The defendant doctor in Buck moved to dismiss the complaint on the ground that his treatment of the plaintiff was not in psychiatry or emergency medicine but in a different specialty, family practice, and that neither affiant was equivalently qualified as the defendant to provide an affidavit of merit. Id. at 386-87. The trial court dismissed the complaint on that ground, and we affirmed in an unpublished opinion. Id. at 388. The Supreme Court granted leave to appeal and reversed dismissal of the plaintiff's complaint. It remanded to the trial court to hold a belated Ferreira conference and to "decide anew the adequacy of plaintiff's affidavits of merit." Id. at 395. The Court added that, for future cases, a defendant doctor in a medical malpractice case must indicate in his answer what specialty he was practicing, if any, in his treatment of the plaintiff. Id. at 396.

Here, plaintiff argues that the holding of Buck is directly on point and that she was denied the opportunity through a Ferreira conference to resolve the adequacy of Dr. Osheroff's affidavit. She emphasizes that defendants did not indicate the nature of their objections to Dr. Osheroff's affidavit through counsel's February 2009 letters, and that Buck requires that a Ferreira conference be held to resolve disputes such as the one in this case. We disagree that Buck controls the outcome of this appeal.

The purposes of a Ferreira conference are: (1) to avoid inadvertent and technical errors in timely service of the affidavit, e.g., Ferreira, supra, 178 N.J. at 148 (counsel's inadvertent failure to serve upon opposing counsel an affidavit of merit that had been timely executed within the statutory deadline); and (2) to reveal promptly the parties' positions on application of the affidavit of merit statutes, e.g., Paragon Contractors, supra, 202 N.J. at 420 (counsel's unawareness that affidavit of merit was necessary in case filed originally as breach of contract complaint). In this case, only the second purpose would have been served by a Ferreira conference, but plaintiff already knew the necessary information to file a compliant affidavit.

Unlike Buck, plaintiff and her counsel were fully aware of the specialties of Drs. Kansagra and Mackessy. In her complaint, plaintiff alleged that Dr. Kansagra "holds himself out to the general public as a specialist in occupational medicine." Plaintiff asserted that Dr. Kansagra deviated from "the standards of a licensed physician specializing in occupational medicine" and that he "did not exercise the degree of care or skill or possess the degree of knowledge ordinarily exercised or possessed by others of this specialty." (Emphasis added). In addition, in response to defendants' motion to dismiss, plaintiff submitted evidence from the website of the Division of Consumer Affairs indicating that Dr. Kansagra was board certified by the American Board of Surgery.

As to Dr. Mackessy, plaintiff's complaint alleged that Dr. Mackessy "holds himself out to the general public as a specialist in orthopedic surgery." It claimed that Dr. Mackessy "did not exercise the degree of care or skill or possess the degree of knowledge ordinarily exercised or possessed by others of this specialty." (Emphasis added).

Unlike Buck, defendant doctors did not dispute that plaintiff had accurately described their specialties or that their treatment of plaintiff had been within their specialties. In fact, Dr. Mackessy's answer expressly admitted the allegation of plaintiff's complaint describing his specialty as orthopedic surgery. Thus, Dr. Mackessy's answer complied with the prospectively applicable requirement established in Buck, supra, 207 N.J. at 396, that physicians indicate in their pleadings the specialty, if any, involved in their treatment of the plaintiff.

With knowledge of the doctors' specialties, plaintiff and her attorney should also have understood the requirement of N.J.S.A. 2A:53A-41 that an affidavit of merit must be executed by an "an equivalently credentialed physician." Buck, supra, 207 N.J. at 382. Dr. Osheroff's board certification in internal medicine did not meet the requirements of N.J.S.A. 2A:53A-41.

Also, in Buck, supra, 207 N.J. at 393, the Court assumed that the plaintiff was capable of providing a "a judicially acceptable affidavit" and only required notice of the doctor's specialty to do so. In this case, plaintiff has never offered to obtain an affidavit of merit from a doctor within the acknowledged specialties of Drs. Kansagra and Mackessy. Rather, plaintiff seeks a Ferreira conference only to pursue yet again her claim that Dr. Osheroff's affidavit is sufficient because her treatment was not within the doctors' specialties but part of the general practice of medicine.

In our prior decision, we affirmed the trial court's conclusion that an affiant with similar specialties as Drs. Kansagra and Mackessy was required because the treatment of her injury was within their fields of specialty. Plaintiff's own complaint alleged that the doctors deviated from standards within their specialties. We did not grant plaintiff's motion for reconsideration to revisit our prior conclusion that plaintiff was required by the statutes to provide an affidavit of merit from a doctor board certified in or practicing the same specialty as defendant doctors but only to consider whether Buck is contrary to our holding that a remand for a Ferreira conference is not warranted. It is not.

Again, we affirm the orders of the trial court dismissing plaintiff's complaint with prejudice for failure to comply with N.J.S.A. 2A:53A-27 and -41.


ASHRAFI, J.A.D., concurring:

I write separately to add the following observations regarding the Supreme Court's attempts to quell the "sideshows" of litigation that the affidavit of merit statutes have engendered. Buck v. Henry, 207 N.J. 377, 394 (2011); Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003). Plaintiff relies upon the following language from Buck to argue that the affidavit of merit dispute in this case should have been "resolved" by means of a Ferreira conference: "The Ferreira conference is intended to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit . . . ." Buck, supra, 207 N.J. at 383. The implication of plaintiff's argument is that the Supreme Court extended the original purpose of the Ferreira conference to a point that I believe is impractical and procedurally improper. The dispute in Buck involved whether the affidavits served by the plaintiff met the requirements of N.J.S.A. 2A:53A-41 for an "equivalently-qualified" physician, Ryan v. Renny, 203 N.J. 37, 52 (2010), but the Court's decision focused on the inadequacy of information provided to the plaintiff before the statutory time limit had passed regarding the specialty of the defendant doctor, Buck, supra, 207 N.J. at 392-93.

The statutory time limit for serving a compliant affidavit is 120 days from the filing of the defendant's answer. N.J.S.A. 2A:53A-27. The Supreme Court has carved out exceptions for extraordinary circumstances, Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998); Tischler v. Watts, 177 N.J. 243, 246-47 (2003); for substantial compliance with the statutory requirements, Fink v. Thompson, 167 N.J. 551, 564-65 (2001); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 357 (2001); for equitable estoppel and laches, Knorr v. Smeal, 178 N.J. 169, 180-81 (2003); and for technical deficiencies in the contents or service of the affidavit that could have been cured within the statutory time limit, Ferreira, supra, 178 N.J. at 154.

The Ferreira opinion, however, did not state that the court could dispense with the 120-day time limit for the purpose of correcting substantive deficiencies in the plaintiff's affidavit of merit. In fact, it implied that the time limit would apply. Id. at 154-55. That implication was confirmed in Paragon Contractors, supra, 202 N.J. at 424, when the Court stated succinctly: "At issue here is what effect the failure to hold a Ferreira conference will have on the time limits prescribed in the statute. The answer is none." The Court has not stated that the 120-day deadline can be extended to resolve a substantive dispute regarding whether the malpractice claimant is in compliance with the statutory requirements. See Buck, supra, 207 N.J. at 398, 400 (Hoens, J., dissenting).

In Ferreira, supra, 178 N.J. at 155, the Court noted that case management conferences are often utilized "to resolve potential discovery problems before they become grist for dueling motions." The Court proposed "early court intervention in the discovery process" in all malpractice cases as a means of resolving "discovery related issues," a description that the Court equated with failure in that case to make timely service of an affidavit of merit that the plaintiff's counsel had in hand within the statutory deadline. Id. at 154-55. The Court required that the trial judge remind the plaintiff to comply with the statute if an affidavit had not yet been served and to require the defendant to indicate the nature of his objections if an affidavit had been served. Id. at 155.

The Ferreira conference, however, does not seem procedurally appropriate to resolve substantive disputes regarding the sufficiency of an affidavit of merit. Where the parties express a vital and substantive difference as to the application of the statutes and the case law to specific facts, the trial court will be hard-pressed to resolve their dispute informally by means of a conference, and within the statutory deadline. Moreover, it would be inappropriate for the court to resolve a factual or legal dispute without an adequate record in conformity with Rule 1:6-6 and with briefs addressing the legal issues. The parties should have a formal opportunity to be heard, and the court will often need to study the record and the law. The proceedings and the record that are necessitated will likely not fit within the time-frame contemplated in Ferreira and the 120-day maximum deadline of N.J.S.A. 2A:53A-27, in particular, if discovery is necessary to address contested factual issues.

Here, for example, motion practice over several months was needed for the trial court to address and decide the substantive dispute regarding the adequacy of Dr. Osheroff's affidavit. Defendants filed their motions to dismiss in March and April 2009, with supporting briefs. The court heard oral argument and then permitted supplemental briefing. The court issued a letter-opinion of ten single-spaced pages several months later, on July 1, 2009. After plaintiff filed a motion for reconsideration, the court issued a second written opinion of four pages in length on September 25, 2009. The court's decisions could not have been made immediately and informally in the course of a case management conference, without briefing, research, and careful consideration, and within 120 days from the filing of defendants' answers. Cf. Ryan, supra, 203 N.J. at 45-48 (motion practice was required to resolve disputed substantive issue of whether the plaintiff met the requirements for a waiver in accordance with N.J.S.A. 2A:53A-41(c) from the "equivalently-qualified" requirement). A case management conference does not seem suited to resolve the kinds of issues presented in this case. In addressing the collateral litigation spawned by the affidavit of merit statutes, the Court may wish to consider a solution other than that attempted by Ferreira.

At the time that Ferreira was decided, three members of the Court favored a different approach. Speaking for the three, Justice Long stated in a concurring and dissenting opinion that the litigation "sideshows" bemoaned by the Court emanate from the Court's earlier decision in Cornblatt. Ferreira, supra, 178 N.J. at 156 (Long, J., concurring and dissenting). In Cornblatt, supra, 153 N.J. at 247, the Court held that failure to comply with the affidavit of merit statute will result in dismissal of the claim with prejudice unless extraordinary circumstances are shown. The dissenting viewpoint in Ferreira would have modified Cornblatt and converted the presumptive result to a dismissal of the malpractice claim without prejudice except where "a plaintiff cannot or will not produce an affidavit of merit . . . ." Ferreira, supra, 178 N.J. at 157.

Justice Long's opinion recognized a distinction between "the inability of a plaintiff to produce an affidavit regarding deviation" and the "procedural slip-ups in filing or service or . . . curable technical deficiencies." Ibid. For the reasons I have stated, I believe that a Ferreira conference is useful in preventing "pitfalls" of the latter type faced by malpractice plaintiffs. Buck, supra, 207 N.J. at 383, 392. I believe such a conference is inappropriate as the procedural means of resolving a disputed issue of whether a malpractice claimant has produced a substantively compliant affidavit of merit.

The Court's reasoning in Cornblatt on the question of dismissal with or without prejudice is not unassailable. The Legislature chose to use language in the affidavit of merit statutes that mirrors an analogous procedural rule from our Rules Governing the Courts of the State of New Jersey. Under N.J.S.A. 2A:53A-29, the plaintiff's failure to serve a compliant affidavit of merit "shall be deemed a failure to state a cause of action." At the time the statute was enacted, similar language was contained in Rule 4:6-2(e), identifying generally in civil cases a defense of "failure to state a claim upon which relief can be granted." Moreover, at the time the affidavit of merit statute was enacted, the Supreme Court had already held in Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 771-72 (1989), that dismissals under Rule 4:6-2(e) for failure to state a claim should be without prejudice "barring any other impediment such as a statute of limitations . . . ." The Legislature was presumably aware of both the rule and the Supreme Court's application of the rule when it used similar language in the affidavit of merit statutes. See DiProspero v. Penn, 183 N.J. 477, 494 (2005); N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002); Brewer v. Porch, 53 N.J. 167, 174 (1969).

Also, the case authority cited in Cornblatt did not compel dismissals with prejudice. In Velasquez v. Franz, 123 N.J. 498, 501-02 (1991), discussed by the Court in Cornblatt, supra, 153 N.J. at 245-46, the plaintiff was precluded from filing an identical complaint in New Jersey state court after dismissal of his federal complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Supreme Court applied concepts of res judicata and stated that dismissals under the federal rule were ordinarily with prejudice unless the court indicated that they were without prejudice. Velasquez, supra, 123 N.J. at 507-08. Under our State Rule 4:6-2(e), however, dismissals are ordinarily without prejudice. Smith v. SBC Communs., Inc., 178 N.J. 265, 282 (2004); Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009).

In Hartsfield v. Fantini, 149 N.J. 611, 613, 616-17 (1997), also cited by the Court in Cornblatt, supra, 153 N.J. at 246-47, a cause of action for personal injury resulting from an automobile accident was dismissed and could not be reinstated after arbitration because neither party made a timely request for a trial de novo under Rule 4:21A-6(b)(1). Neither Velasquez nor Hartsfield involved an application of Rule 4:6-2(e), and neither compelled the holding of Cornblatt that a dismissal under N.J.S.A. 2A:53A-29 must be with prejudice unless extraordinary circumstances are shown.

It would not have been unreasonable to attribute to the Legislature the intent, when it enacted N.J.S.A. 2A:53A-29, that a plaintiff's failure to produce a satisfactory affidavit of merit would close the courthouse door, but not necessarily forever. If the plaintiff remained non-compliant with the statute, the court would not entertain a malpractice claim. If, however, the plaintiff was later able to produce a satisfactory affidavit of merit, the Legislature may have intended the court to re-open the door - provided that the cause of action as supported by a valid affidavit was brought within the statute of limitations.

As Justice Long wrote in her separate opinion in Ferreira, dismissal without prejudice would conform with other dismissals for insufficiency of pleadings or inability to proceed under our court rules. Ferreira, supra, 178 N.J. at 158. On the other hand, "where a plaintiff is unable to provide an affidavit at all, the omission should be considered substantive, resulting in a merits-dismissal with prejudice." Id. at 157. In the latter circumstances, a dismissal with prejudice would be consistent with Rule 4:6-2(e), which permits dismissal with prejudice if the litigant has shown no prospect of curing the deficiency of the pleading, Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008).

Justice Long's approach would meet the Court's concerns in Buck and Ferreira that a meritorious malpractice claim not be permanently foreclosed because of inadvertence or confusion about satisfying the affidavit of merit statutes. More to the point, it might dampen the "sideshow" litigation that has grown only because "Cornblatt . . . stands in the way" of permitting correction of an inadequate affidavit of merit. Ferreira, supra, 178 N.J. at 158.

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