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Bacsenko v. CFG Health Systems, LLC

United States District Court, D. New Jersey

January 23, 2018

JENNIFER BACSENKO, Plaintiff,
v.
CFG HEALTH SYSTEMS, LLC, BENJAMIN ROBINSON, MD, ROBERT EDSON, LPN, TIFFANY SCHWEITZER, RN, COUNTY OF ATLANTIC, NEW JERSEY, et al., Defendants.

          JULIE E. NUGENT WEISS & PAARZ PC ON BEHALF OF PLAINTIFF

          STEPHEN D. HOLTZMAN JEFFREY S. MCCLAIN HOLTZMAN & MCCLAIN, PC ON BEHALF OF DEFENDANTS CFG HEALTH SYSTEMS, LLC, BENJAMIN ROBINSON, MD, ROBERT EDSON, LPN, TIFFANY SCHWEITZER, RN

          JAMES T. DUGAN ON BEHALF OF COUNTY OF ATLANTIC

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the motion of Plaintiff to deem adequate the “affidavit of merit” she has provided pursuant New Jersey's Affidavit of Merit statute, N.J.S.A. 2A:53A-26, et seq. For the reasons expressed below, Plaintiff's motion will be denied on procedural grounds.

         BACKGROUND & DISCUSSION

         Plaintiff, Jennifer Bacsenko, claims, inter alia, [1] that on July 2, 2016 while she was serving a sentence at Atlantic County Justice Facility, Defendants Benjamin Robinson, MD, Tiffany Schweitzer, RN, and Robert Edson, LPN, deviated from acceptable standards of care in failing to properly evaluate, diagnose and treat a spinal infection, which ultimately resulted in Plaintiff becoming quadriplegic.

         In a case such as this one which alleges medical malpractice under New Jersey law, a plaintiff must comply with New Jersey's Affidavit of Merit statute.[2] The statute provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.[3] The 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.

N.J.S.A. 2A:53A-27. The New Jersey Legislature enacted the Affidavit of Merit statute for a dual purpose: “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.” Ferreira v. Rancocas Orthopedic Associates, 836 A.2d 779, 782-83 (N.J. 2003). The failure to submit an appropriate affidavit ordinarily requires dismissal of the complaint with prejudice, although there are exceptions based on equitable considerations. Meehan v. Antonellis, 141 A.3d 1162, 1169 (N.J. 2016) (citation omitted).

         Specifically in a medical malpractice case, “the person providing the affidavit must meet the requirements of N.J.S.A. 2A:53A-41, a provision of the New Jersey Medical Care Access and Responsibility and Patients First Act, which was enacted in 2004.” Buck v. Henry, 25 A.3d 240, 246-47 (N.J. 2011). “The basic principle behind N.J.S.A. 2A:53A-41 is that ‘the challenging expert' who executes an affidavit of merit in a medical malpractice case, generally, should ‘be equivalently-qualified to the defendant' physician.” Id. at 247 (quoting Ryan v. Renny, 999 A.2d 427 (N.J. 2010)). The statute sets forth three categories embodying this kind-for-kind rule: (1) those who are specialists in a field recognized by the American Board of Medical Specialties (ABMS) but who are not board certified in that specialty; (2) those who are specialists in a field recognized by the ABMS and who are board certified in that specialty; and (3) those who are “general practitioners.” Id. at 247.

         In this case for the time period at issue, Defendant Dr. Benjamin Robinson was a “general practitioner.” Thus, the relevant provision of N.J.S.A. 2A:53A-41 provides:

If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:
(1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, ...

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