MELODY FAITH MAZUR, as ATTORNEY-IN-FACT for DORIS ELIZABETH ARMSTRONG, Plaintiff-Appellant,
CRANE'S MILL NURSING HOME, CRANE'S MILL OAK HEALTH CENTER, THE OAKS AT CRANE'S MILL, THE HEALTH CENTER AT CRANE'S MILL, LUTHERAN SOCIAL MINISTRIES OF NJ, and PRADIP SUKHAL SHAH, M.D., Defendants-Respondents
Submitted June 2, 2015.
Approved for Publication June 11, 2015.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2703-14.
Failla & Banks, LLC, attorneys for appellant ( Vincent J. Failla, on the briefs).
Vasios, Kelly & Strollo, P.A., attorneys for respondent Pradip Sukhal Shah, M.D. ( Rowena M. Duran, of counsel; Linda Fulop-Slaughter, on the brief).
Burns White LLC, attorneys for respondents Lutheran Social Ministries at Crane's Mill, Inc. (incorrectly pleaded as " Crane's Mill Nursing Home" ) and Lutheran Social Ministries of New Jersey, Inc. ( Brian D. Pagano and Taisha K. Tolliver, on the brief).
Before FISHER, NUGENT and ACCURSO,
[441 N.J.Super. 171] NUGENT, J.A.D.
This is a medical malpractice action. Plaintiff has filed these appeals, which we consolidate for purposes of this opinion, from trial court orders dismissing the complaint on the ground that the affidavit of merit plaintiff served on defendants was deficient. Because the trial court based its disposition of defendant Pradip Sukhal Shah's motion on false statements in his answer, his attorney's certification, and his brief, as well as incompetent evidence, we reverse and remand for further proceedings. We also reverse the order dismissing the complaint against defendants Lutheran Social Ministries at Crane's Mill, Inc., and Lutheran Social Ministries of New Jersey, Inc., (collectively, LSM), which owned and operated the facility where the malpractice allegedly occurred. The arguments of the LSM defendants are essentially the same as Dr. Shah's and are based on either incompetent evidence on the motion record or unsupported statements in their brief. We remand this case to the trial court for further proceedings consistent with this opinion.
The facts of record are essentially undisputed. Plaintiff Melody Mazur is the attorney-in-fact for her mother, Doris Elizabeth Armstrong. Doris Elizabeth Armstrong (the patient) was eighty-one years old when she was admitted to the LSM facility in November 2012 to undergo rehabilitation following her hospitalization for a fractured pelvis. According to an LSM attorney's certification - which will be discussed later - the LSM facility was [441 N.J.Super. 172] a " full-service assisted living, skilled nursing and rehabilitation facility equipped to provide the rehabilitative needs that [the patient] required." During her stay at the LSM facility, the patient suffered a severe stroke, the event that precipitated this lawsuit.
Plaintiff filed a five-count complaint against Dr. Shah, LSM, and numerous fictitiously named defendants on April 17,
2014, and an affidavit of merit on May 7, 2014. Although the complaint alleged causes of action for negligence, malpractice, negligent hiring, negligent supervision, and negligent training, the core allegation was that defendants' untimely diagnosis and treatment of the patient's stroke fell outside acceptable professional standards of care and caused the patient to suffer debilitating injuries. For example, the negligent hiring count incorporates the allegations as to Dr. Shah and then asserts the LSM defendants were negligent for hiring him because they knew or should have known he was not qualified to fill the position for which he was hired. The only factual allegations supporting that proposition are those that Dr. Shah deviated from an accepted medical standard when caring for the patient. Significantly, plaintiff alleged that Dr. Shah and the other medical providers who cared for the patient were agents or employees of LSM.
Plaintiff's affidavit of merit (AOM), prepared by Dr. Ira Mehlman, stated that the patient's care at the LSM facility on November 23, 2012, " did not meet the standard of care." In the doctor's opinion, the clinical nursing team's and Dr. Shah's alleged deviations from professional standards of care caused or contributed to the patient's final debilitating condition. Dr. Mehlman was board certified in emergency and internal medicine.
The month after plaintiff filed the complaint, Dr. Shah filed an answer on May 15, 2014, which included this statement: " Dr. [441 N.J.Super. 173] Shah's field of specialty is [g]eriatrics [m]edicine and he is [b]oard [c]ertified in [g]eriatrics. The doctor's treatment of the plaintiff involved the specialty of [g]eriatrics." The statement that Dr. Shah was board certified was false; although Dr. Shah had once been board certified in geriatric medicine, he had not been so certified for several years or more before he began to treat the patient at the LSM facility.
On July 2, 2014, the trial court sent a letter to plaintiff's counsel scheduling a Ferreira  conference for October 16, 2014 and directing plaintiff's counsel to notify the other parties. The conference was thus to occur more than 120 days after Dr. Shah filed his answer on May 15, 2004. Meanwhile, LSM had filed an answer on June 19, 2014. The Ferreira conference was scheduled to be conducted 119 days after the LSM answer was filed; however, eight days before the conference, counsel for LSM obtained a consensual adjournment to October 29, 2014, 132 days after LSM filed its answer.
A month before the Ferreira conference occurred, Dr. Shah's counsel sent a letter to plaintiff's counsel pointing out that Dr. Ira Mehlman, in the AOM,
certifies that he is boarded in [e]mergency [m]edicine and [i]nternal [m]edicine but has been practicing [e]mergency [m]edicine since 1992. Dr. Shah was treating [the patient] as a board certified geriatric specialist. Accordingly, it is our position that both pursuant to the case law and the statute, Dr. Mehlman is not qualified to render an affidavit of merit as to Dr. Shah. Accordingly, we will not be withdrawing our motion to dismiss.
Counsel's assertion that Dr. Shah was " treating [the patient] as a board certified geriatric specialist" was false.
By the time the Ferreira conference was conducted on October 29, 2014, Dr. Shah had filed a second motion to dismiss, returnable November 7, 2014. When informed by counsel of the pending [441 N.J.Super. 174] motion, the court responded: " Okay. There's nothing for me to do then because I'll decide that on the [return date of Dr. Shah's motion]." The court made no determination at the Ferreira conference as to whether plaintiff's affidavit of merit was deficient.
On November 7, 2014, the court heard oral argument on Dr. Shah's motion to dismiss. Plaintiff's counsel did not appear. Dr. Shah's motion was supported by a certification of counsel, exhibit, and brief. The certification and brief repeated the false assertion that Dr. Shah was board certified in geriatric medicine. The " exhibit" was a printout of a New Jersey Health Care Profile from an internet site stating that Dr. Shah's board certification in internal medicine expired on December 31, 2006 and his board certification in geriatric medicine expired on December 31, 2008. The court and counsel apparently overlooked those dates.
The court noted that Dr. Shah's " motion is indicating that [plaintiff's AOM] doesn't comply inasmuch [as plaintiff's] expert . . . is not board certified in geriatrics, or geriatric medicine." Citing precedent requiring that the AOM author be board certified in the same specialty as the defendant being criticized, the court granted Dr. Shah's motion and dismissed the complaint as to him with prejudice. On leave granted, plaintiff appealed under A-2072-14 from the confirming order.
The following month, December 2014, the LSM defendants filed a motion to dismiss the complaint. In support of the motion, counsel for the LSM defendants submitted a certification that the LSM facility was a " full-service assisted living, skilled nursing and rehabilitation facility equipped to provide the rehabilitative needs that [the patient] required." Citing the allegation in plaintiff's complaint that defendants " failed to adhere to accepted medical and/or nursing standards," and referencing the court's dismissal with prejudice of the complaint against Dr. Shah, the LSM defendants sought a dismissal with prejudice " ...