November 20, 2012
WILLIE TIMMONS AND GLORIA TIMMONS, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS,
DR. RONALDO DEGUZMAN AND/OR MEETINGHOUSE FAMILY PHYSICIANS, PA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-271-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 5, 2012
Before Judges Parrillo and Maven.
Plaintiff Willie Timmons*fn1 appeals from a February 3, 2012 order of the Law Division dismissing with prejudice his medical malpractice complaint against defendants Dr. Ronaldo DeGuzman and Meetinghouse Family Physicians, P.A., for failure to timely file an affidavit of merit. We affirm.
On January 13, 2011, plaintiff filed a medical malpractice complaint
against defendants alleging negligent delay in the diagnosis of his
prostate cancer and resultant injury. On August 12, 2011, defendants
filed their answer, which included a demand for an affidavit of merit.
On October 24, 2011, the trial judge convened a Ferreira*fn2
conference, at which a discussion was held about the December
10, 2011 (120-day) statutory deadline for filing of the affidavit of
merit. According to plaintiff, upon returning from the conference, his
attorney did not enter the deadline date in his calendar.
Consequently, on December 12, 2011, defendants moved to dismiss plaintiff's complaint pursuant to the affidavit of merit statute, N.J.S.A. 2A:53A-27. At plaintiff's counsel's request, the return date of the motion was adjourned from January 20, 2012 to February 3, 2012. Although plaintiff still had not provided the affidavit by the original return date, he did respond to the motion and on January 30, 2012, 171 days after defendants' answer was filed, submitted an affidavit of merit. On the return date of defendants' motion, after hearing argument, the judge entered an order dismissing plaintiff's complaint with prejudice, reasoning:
[In Ferreira,] the Court attempted to avoid the draconic consequences by at least alerting the counsel to the need to obtain that affidavit of merit. The Ferreira conference in this case occurred back in October. So, there was ample time to get the affidavit of merit.
Unfortunately, the affidavit of merit was not submitted until 171 days after the answer was filed, clearly outside the 120 day time frame.
And while the Burns [v. Belafsky, 166 N.J. 466 (2001)] case that was eluded to by Counsel for the plaintiff, talked about an extension for that second 60 day period, the Douglass [v. Obade, 359 N.J. Super. 159 (App. Div.), certif. denied, 177 N.J. 575 (2003)] case does make it abundantly clear, unfortunately, to this Court that there is a drop dead date of 120 days.
And the distinction that's argued by Counsel that in fact they did not have the affidavit in hand when the motion was argued 160 days after the answer was filed, Counsel for the defendants points out that this affidavit of merit is technically deficient in that the affidavit that was submitted does not identify the defendant doctors.
Accordingly, I think the Douglass case controls and I, frankly, have no alternative but to grant the relief sought by the defendants at this time and dismiss the plaintiff's complaint with prejudice at this time.
On appeal, plaintiff argues that the trial court erred in dismissing his complaint since he filed an affidavit of merit prior to the return date of the adjourned motion to dismiss. We disagree.
N.J.S.A. 2A:53A-27 mandates that in a personal injury action alleging malpractice by a licensed professional, "the plaintiff shall, within 60 days following the date of filing of the answer to the complaint[,]" serve an appropriate affidavit of merit. (Emphasis added). To underscore the significance of this procedural requirement, the statute further provides that "[t]he court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause." Ibid. (emphasis added). We construed this provision in Familia v. Univ. Hosp., 350 N.J. Super. 563 (App. Div. 2002), wherein we held:
We consider it significant that the statute speaks of granting "no more than one additional period", rather than in terms of "no more than one additional extension."
N.J.S.A. 2A:53A-27. We construe the language "one additional period" to indicate that the concern of the Legislature was to set an outer time limit of one hundred twenty days, beyond which no extension could be granted, rather than to limit the number of times an extension could be sought.
[Id. at 569 (emphasis added).]
Thus, the "end of the line . . . the drop-dead date, is 120 days." Douglass, supra, 359 N.J. Super. at 160 (internal quotation marks omitted).
Accordingly, if a plaintiff "fails to provide an affidavit or a statement in lieu thereof, pursuant to section 2 [, N.J.S.A. 2A:53A-27,] or 3 of this act, it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. In Cornblatt v. Barow, 153 N.J. 218 (1998), the Court held that "when a plaintiff fails to comply with a statute that creates a cause of action with both substantive and procedural requirements, . . . a dismissal for failure to comply with procedural requirements should be with prejudice unless there are 'extraordinary circumstances.'" Id. at 246. Pertinent here, it is well-settled that attorney inadvertence does not constitute "extraordinary circumstances." Tischler v. Watts, 177 N.J. 243, 246-47 (2003); Palangue v. Lambert-Woolley, 168 N.J. 398, 405 (2001).
Here, plaintiff served an affidavit of merit fifty-one days after expiration of the 120-day statutory limitation. He presents as an excuse mere attorney inadvertence, which is simply insufficient to satisfy the "extraordinary circumstances" standard to justify relaxing the otherwise mandatory temporal requirement of the affidavit of merit statute. Nor is the equitable doctrine of "substantial compliance" implicated on these facts, where plaintiff had not even filed an affidavit of merit by the original return date of the motion to dismiss, 161 days after defendants filed their answer. See Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 354-56 (2001). And lastly, this is not a "common knowledge" medical malpractice matter where an expert will not be called to testify that the care, skill or knowledge of the defendant fell outside acceptable professional standards. Hubbard v. Reed, 168 N.J. 387, 394-95 (2001).
Simply put, in the absence of extraordinary circumstances or substantial compliance, plaintiff's service of the affidavit of merit fifty-one days after the expiration of the 120-day statutory deadline mandates dismissal of his medical malpractice complaint with prejudice.