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Rowena Balmaceda and Romeo Balmaceda, As Co-Administrators For the v. Marco A. Pelosi


September 25, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6535-10.

Per curiam.


Argued September 11, 2012

Before Judges Yannotti and Hoffman.

By leave granted, defendant Ahmad Khalili, M.D. appeals the trial court's orders denying his motion to dismiss and motion for reconsideration related to plaintiffs' complaint alleging that defendant committed malpractice in his capacity as a hospital administrator. Finding no abuse of discretion by the trial court, we affirm.


On November 30, 2010, plaintiffs, Rowena Balmaceda and Romeo Balmaceda, as co-administrators of the Estate of Ronamae Balmaceda, filed a medical malpractice complaint against various defendants, including Dr. Khalili, claiming that the death of their daughter, Ronamae, on January 6, 2010 was a result of substandard medical care at the time of her birth.

Ronamae was delivered on August 6, 1999 at Bayonne Medical Center by her mother's attending obstetrician, defendant Marco Pelosi, III, M.D. Plaintiffs claim Dr. Pelosi improperly performed a Caesarian section to deliver Ronamae by utilizing a vacuum extractor device to pull the infant's head out of the Caesarean incision. According to plaintiffs, the procedure was not required to ensure a safe delivery, was not recommended by the product manufacturer and was not in accordance with the standard of care. As a result of her traumatic birth, plaintiffs claim Ronamae suffered severe and permanent neurological injuries, which eventually caused her death.

Dr. Khalili was sued in his capacity as Chairman of the Obstetrics and Gynecology Department at Bayonne Hospital. Plaintiffs allege Dr. Khalili was negligent by failing to establish proper protocols and procedures for the appropriate use of a vacuum extractor.

Plaintiffs had filed a previous complaint naming Dr. Khalili as a defendant on April 17, 2009, wherein plaintiffs alleged he negligently treated Ronamae and her mother. The prior complaint made no mention of any claims against Dr. Khalili in his administrative capacity as department chairman. The dismissal of this prior complaint forms the basis of Dr. Khalili's appeal.

On June 21, 2010, Dr. Khalili filed an answer to plaintiffs' 2009 complaint. In the answer, he denied that "any injury or damage which plaintiffs may have suffered was the result of the act or acts of a third person or persons over whom" the defendant had control. Relevant to the instant appeal, Dr. Khalili claimed that he was "entitled to a dismissal pursuant to N.J.S.A. 2A:53A-40."

N.J.S.A. 2A:53A-40 provides in relevant part:

a. A health care provider named as a defendant in a medical malpractice action may cause the action against that provider to be dismissed upon the filing of an affidavit of noninvolvement with the court.

The affidavit of noninvolvement shall set forth, with particularity, the facts that demonstrate that the provider was misidentified or otherwise not involved, individually or through its servants or employees, in the care and treatment of the claimant, and was not obligated, either individually or through its servants or employees, to provide for the care and treatment of the claimant, and could not have caused the alleged malpractice, either individually or through its servants or employees, in any way. [Emphasis added.]

On July 22, 2010, counsel for Dr. Khalili filed an affidavit of non-involvement pursuant to N.J.S.A. 2A:53A-40. In the affidavit, he averred:

5. My review of plaintiffs' Bayonne Hospital records reveals that I did not have any involvement in their care and treatment on August 6, 1999 or any other date during their admission to Bayonne Hospital, which commenced on August 6, 1999.

7. Based upon my review of plaintiff's [sic] medical records, I was not involved with plaintiffs' care on August 6, 1999 at Bayonne Hospital that is at issue in this matter. Accordingly, I could not have committed the malpractice as is being alleged against me by the plaintiffs' Third Amended Complaint.*fn1

No motion to dismiss was filed along with the affidavit, as required by Rule 1:6-2(b)(2). Instead, a proposed form of order of dismissal with prejudice was submitted. When no opposition was filed within ten days of the filing of the affidavit, the trial court signed the dismissal order on August 2, 2010. Apparently the trial court, as well as counsel, were unaware of the amendment to Rule 1:6-2(b)(2) requiring a party seeking dismissal under N.J.S.A. 2A:53A-40(a) to file a motion along with the required affidavit.

Rule 1:6-2(b)(2) provides:

A party moving for dismissal of the action on the ground of non-involvement in the cause of action pursuant to N.J.S.A. 2A:53A-40 of the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to 42, shall annex to the notice of motion an affidavit on non-involvement that complies with R. 1:6-6. In the absence of opposition filed in accordance with R. 1:6-3, the court shall enter an order dismissing the action as to the moving party. If opposition is filed, the court shall proceed in accordance with this rule. [Emphasis added.]

On August 24, 2010, plaintiffs filed a motion for reconsideration of the order of dismissal. In the motion, plaintiffs requested: that an Order be entered to vacate the August 2, 2010 Order of Dismissal of the defendant, Ahmad Khalili, M.D., and that the Complaint against him be reinstated as the basis of the claims against him are based upon him having been the chairman of the Department of Obstetrics and Gynecology at Bayonne Medical Center at the time of the alleged incident and his failure to properly establish procedures and/or protocols or otherwise take action that would preclude defendant, Marco Pelosi, M.D., from routinely utilizing a vacuum extractor in the performance of a Caesarean Section.

As such, our clients' claims against defendant, Ahmad Khalili, M.D., are outside the content of his affidavit and as such, the claims should be reinstated.

The trial court entered an order denying plaintiffs' motion on September 16, 2010. The court's statement of reasons confirms the court was unaware of the procedural deficiency that resulted in the entry of the August 2, 2010 dismissal order. Because the trial court failed to follow the procedure set forth in Rule 1:6-2(b)(2), it is beyond dispute that the August 2, 2010 dismissal order was entered in error.

On October 7, 2010, plaintiffs filed a motion for leave to file an interlocutory appeal of the order denying plaintiffs' motion for reconsideration. See R. 2:2-4. On the same date, plaintiffs and the remaining defendants executed a consent order to dismiss without prejudice all claims, which was entered by the presiding civil judge on October 7, 2010. See R. 4:37-1. Dr. Khalili was not a party to or aware of the consent order. On November 1, 2010, we denied plaintiffs' motion for leave to appeal.

On November 30, 2010, plaintiffs filed a new complaint naming those defendants who had consented to the earlier dismissal as well as Dr. Khalili. In count three of the complaint, Dr. Khalili was specifically named in his role as Chairman of the Obstetrics and Gynecology Department at Bayonne Hospital. Dr. Khalili filed a motion to dismiss based upon res judicata, collateral estoppel, and the entire controversy doctrine.

On November 4, 2011, following oral argument, Judge Barry P. Sarkisian, J.S.C. denied Dr. Khalili's motion. Dr. Khalili filed a motion for reconsideration, which Judge Sarkisian denied on January 20, 2012. Dr. Khalili then filed a motion for leave to file an interlocutory appeal, which we granted on March 9, 2012.


A trial court's denial or grant of a party's motion to dismiss pursuant to Rule 4:6-2(e) is reviewed under the abuse of discretion standard. Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008). The trial court is instructed to search the complaint in depth and with liberality to determine if a cause of action can be gleaned even from an obscure statement. Printing Mart v. Sharp Elecs., 116 N.J. 739, 746 (1989). Further, a complaint should not be dismissed under the rule where a cause of action is suggested by the facts and a theory of actionability may be articulated by amendment of the complaint. Ibid.

A trial court is not obligated to "follow an erroneous or uncertain interlocutory ruling." Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356 (App. Div. 2003), aff'd 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006).

The principle of finality of judgments does not prevent a trial court from granting relief from interlocutory orders in appropriate circumstances. Ford v. Weisman, 188 N.J. Super. 614, 618 (App. Div. 1983). "[T]he trial court has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so." Ibid. As Judge Pressler explained in Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988):

[We hold] unequivocally that review of interlocutory orders by the court prior to final judgment is governed not by R. 4:50 but is rather a matter committed to the sound discretion of the court. While we thereby relieve the process of trial court review of its interlocutory orders from the constraints of R. 4:50, we nevertheless emphasize that the court's exercise of discretion is not subject to wanton invocation or unfettered judicial response. It is only for good cause shown and in the service of the ultimate goal of substantial justice that the court's discretion should be exercised. Although this standard is necessarily expressed in general terms, it nevertheless is, in our view, endowed with an unmistakable substantive content by the common understanding which underlies our jurisprudence of what is fair, right and just in the circumstances.

Applying this standard, we are satisfied that Judge Sarkisian engaged in a careful and thoughtful exercise of his discretion in denying Dr. Khalili's motion to dismiss.

When a rule provides for the dismissal of a party's action with prejudice, courts recognize that the "achievement of the salutary scheme of the . . . rule requires meticulous attention to its critical prescriptions, and particularly to those provisions which are intended to afford a measure of protection to the party who is faced with the ultimate litigation disaster of termination of his cause." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 376-77 (App. Div. 1992).

Dr. Khalili's submission of the affidavit of non-involvement did not comply with Rule 1:6-2(b)(2) because it was not presented as a motion. Plaintiffs therefore did not have an opportunity to oppose the request for dismissal.*fn2 The court's order in the first lawsuit dismissing the claims against Dr. Khalili was erroneously entered, and the trial court erred by denying plaintiffs' motion for reconsideration. There was nothing inappropriate in Judge Sarkisian acknowledging the previous error and not allowing the improperly-entered orders to cause an unjust result.

The orders from the previous lawsuit were clearly interlocutory, as plaintiffs recognized by filing a motion for leave to appeal. We reject Dr. Khalili's argument that the orders became final when the remaining claims in the first lawsuit were dismissed without prejudice.

The dismissal of the claims in the prior lawsuit without prejudice did not constitute a final judgment in the case. The parties clearly contemplated the reinstatement of the claims by the filing of a new lawsuit. Thus, the orders only had "the appearance of a final order." Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 461 (App. Div. 2008). Had plaintiffs filed an appeal based upon the order of dismissal without prejudice, it would have been dismissed as interlocutory.

Thus, the order dismissing the claims against Dr. Khalili in the previous lawsuit and the order denying plaintiffs' motion for reconsideration remained interlocutory orders. Accordingly, Judge Sarkisian in the pending lawsuit had the discretion to reconsider those orders.


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