MICHAEL PARKER, Administrator and Administrator ad Prosequendum for the Estate of MILDRED PARKER, and MICHAEL PARKER, Individually, Plaintiffs-Appellants,
BASEL BATARSEH, M.D., WARREN MARESCA, M.D., CARDIOLOGY ASSOCIATES, MICHAEL BIEHL, M.D., CARDIOLOGY CONSULTANTS OF NORTH JERSEY, ADVANCED CARDIOLOGY PRACTICE, LORRAINE CORNWELL, M.D., MOHAMED RABBAT, M.D., ALI ZAHRAN, M.D., ST. JOSEPH MEDICAL CENTER, and LABCORP, INC., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2082-11.
Barbara K. Lewinson argued the cause for appellants (Ms. Lewinson, attorney; Jeffrey Zajac, on the brief).
Pamela C. Castillo argued the cause for respondent Basel Batarseh, M.D. (Reiseman, Rosenberg, Jacobs & Heller, PC, attorneys; Ms. Castillo, on the brief).
Mary Grace Callahan argued the cause for respondent Michael Biehl, M.D., and Cardiology Consultants of North Jersey, P.A. (Callan, Koster, Brady & Brennan, LLP, attorneys; Ms. Callahan, on the brief).
Eric L. Grogan argued the cause for respondents Warren Maresca, M.D. and Cardiology Associates, LLC (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Rogan, Walter F. Kawalec, III, and Justin F. Johnson, on the brief).
Rowena M. Duran argued the cause for respondent Lorraine Cornwell, M.D. (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Duran, of counsel; Linda Fulop-Slaughter, on the brief).
Charles E. Murray argued the cause for respondents Mohamed Rabbat, M.D., Ali Zahran, M.D. and St. Joseph's Regional Medical Center (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Jennifer S. Gianetti, on the brief).
Before Judges Sabatino and Fasciale.
In this medical malpractice case, plaintiffs appeal from three orders dismissing the complaint against defendants for failure to comply with the Affidavit of Merit statute (AMS), N.J.S.A. 2A:53A-26 to -29. Our opinion particularly focuses on the following individual doctors, excluding Zahran: Batarseh (an internist and infectious disease doctor), Rabbat (an infectious disease physician), Maresca (a cardiologist), Biehl (a cardiologist), and Cornwell (a thoracic and cardiovascular surgeon) (collectively referred to as "the doctor defendants").
It is undisputed that plaintiffs failed to serve a timely affidavit of merit (AOM) on the doctor defendants, except for Cornwell. Plaintiffs' counsel, who presents herself as a solo practitoner,  certified that she did not serve timely AOMs due to her own injuries which required two hospitalizations and interrupted her ability to work for eight weeks.
The appeal presents questions regarding estoppel and laches, substantial compliance, extraordinary circumstances, and whether plaintiffs served AOMs from individuals who possess the requisite statutory qualifications. Although we reject the application of estoppel and laches as to the doctor defendants except Cornwell, we conclude that plaintiffs have demonstrated substantial compliance with the AMS by serving AOMs from qualified experts and therefore reverse the orders as to the individual doctors.
On April 29, 2011, plaintiffs filed the complaint. Plaintiffs allege that an infected cardiac pacemaker device caused decedent Mildred Parker's continued chills and fever and ultimate demise, and that the doctor defendants failed to diagnose that infection timely. We discern the alleged facts from the pleadings, briefs, and record on appeal, subject to the proofs that may be adduced at a trial.
In 1998, Biehl implanted a pacemaker in decedent as a result of her history of rheumatic heart disease and congenital complete heart block. In February 2009, decedent complained of dizziness and tiredness, fullness in her throat and chest, and recurrent night sweats. That month, her pacemaker was evaluated at St. Joseph's and Biehl prescribed Augmentin.
In March 2009, decedent complained to Biehl that she was experiencing palpitations and continued dizziness. Biehl recommended an ear, nose, and throat consult and testing to assess her cardiac rhythm. On March 16, 2009, Biehl diagnosed decedent with a junctional rhythm, pacemaker syndrome. At that time, decedent complained of increasingly worse and recurrent palpitations as well as an uncomfortable choking sensation. Biehl requested that decedent follow up with him in four weeks.
On March 27, 2009, decedent was admitted to St. Joseph's as a result of fever and chills. Biehl recommended a transesophageal echocardiogram and an infectious disease consult for her fever. On April 13, 2009, decedent continued to complain to Biehl that she had a fever and chills. Biehl then recommended a blood culture and a consult with Rabbat. Decedent was discharged but her symptoms of fever and chills returned, which were then suppressed with Tylenol. Decedent also complained of leg numbness, low tolerance for exercise, and blue nails and lips.
In April 2009, decedent was re-admitted to St. Joseph's because her fever and chills persisted. Her blood culture was positive for staphylococcus auricularis. Batarseh referred decedent to Biehl, who then recommended an infectious disease consultation. The record does not reflect the upshot of that consultation. On or about April 29, 2009, decedent underwent surgery and died within hours.
On appeal, plaintiffs argue that defendants are estopped and barred by the doctrine of laches from moving to dismiss the complaint, and that the judge erred by failing to find that plaintiffs demonstrated substantial compliance and extraordinary circumstances. Before we analyze these contentions, we summarize some well-settled general principles regarding the AMS.
In Ferreira v. Rancocas Orthopedic,
178 N.J. 144, 150 (2003), the Court stated that the dual purpose of the AMS statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." (Internal quotation marks omitted); see also Buck v. Henry, 207 N.J. 377, 383 (2011) (indicating that "[t]he purpose of the [AMS] is to weed ...