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Gina Cornejo v. Ashwin Kansagra

May 30, 2012

GINA CORNEJO, PLAINTIFF-APPELLANT,
v.
ASHWIN KANSAGRA, M.D., AND RICHARD P. MACKESSY, M.D., DEFENDANTS-RESPONDENTS, AND JONATHAN LESTER, M.D., DEFENDANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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