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Estate of Smith v. State

United States District Court, D. New Jersey

March 11, 2019

THE STATE OF NEW JERSEY, etal. Defendants.


          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on a motion to dismiss brought by Defendant, Taj war Aamir, due to an insufficient Affidavit of Merit (AOM) (ECF No. 81). On July 7, 2018, this Court converted the motion to dismiss to a motion for summary judgment. (ECF No. 94). See Nuveen Mun. Tr. v. Withumsmith Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir. 2012). The Court permitted the parties to file additional briefing on the matter, and the Plaintiffs filed a motion for summary judgment (ECF No. 95). The Court has jurisdiction based on diversity of citizenship.


         Dr. Aamir is a board certified pediatrician who was practicing in her certified specialty, pediatric medicine, when the alleged abuse and neglect of decedent, Diamond Smith occurred. (Def.'s Statement of Undisputed Facts ("SUF") at 3, ECF No. 95-4). Prior to the decedent's death, Dr. Aamir attended to decedent on March 3, 2011 at the Lotus Clinic, a family practice center where Dr. Aamir was employed. (Def.'s Exhibit L, Diamond Smith Med. Record at 1, ECF No. 95-7; Def.'s SUF at 3). During the March 3, 2011 visit, Dr. Aamir recorded that the decedent had been suffering from a sore throat for seven days, and strep throat; and in addition Dr. Aamir prescribed antibiotics. (Diamond Smith Med. Record at 1). Although Dr. Aamir noted some type of rash when describing the decedent's skin at the time, there was no indication of bruising, scarring, or any other markings associated with abuse. Id.

         Decedent Diamond Smith later died on or about July 11, 2012 at the age of five. (Third Amended Complaint ("TAC"), ECF No. 69, at ¶ 3). She was reportedly not breathing the evening before she died, and was transported to the hospital for emergency medical attention, but she died at midnight. Id. at ¶ 8. Decedent was reportedly found with two "oozing" bruises across the entirety of one buttock, a bruised right eye and cheek, a circular burn on her right cheek reminiscent of a cigarette lighter, a "burn-like mark" on one of her feet, an unspecified number of nondescript "old" scars on her arms and legs, "prominent bruising" on her abdomen below the rib cage, a nondescript "bump" on her forehead, and evidence of malnutrition, including a distended belly and a body weight of 40 pounds. Id.

         This lawsuit, brought by the administrator of the decedent's estate and the decedent's two minor siblings (collectively "Plaintiffs"), allege over twenty causes of action against numerous defendants, including the State of New Jersey's Division of Child Protection and Permanency ("DCPP"), the decedent's two biological parents, several named employees of DCPP, Lotus Clinic P.C., and several medical professionals, including Dr. Aamir. Id. at ¶¶ 3-6. The Complaint generally alleges a cause of action against Dr. Aamir for medical malpractice as a result of failing to adequately examine the decedent's body for signs of abuse, and failure to report suspected abuse to the Division of Child Protection as required by statute (N.J.S.A. 9:6-8.10).[1] See Id. at ¶¶ 12-13.

         Since the cause of action alleged is medical malpractice, another statute requires plaintiff to provide an AOM early in the litigation. N.J. Stat. Ann. §2A:53A-27. More specifically, the statute requires that in cases of medical malpractice against "a licensed person in his profession or occupation, [plaintiffs] shall. . . provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised . . . fell outside acceptable professional or occupational standards or treatment practices." N.J. Stat. Ann. § 2A:53A-27. The AOM must be served within sixty days of the defendant's answer, though an additional sixty days may be granted by the court. See N.J. Stat. Ann. § 2A:53A-27.

         On August 10, 2016, Plaintiffs filed an AOM signed by Dr. Jeffrey Rednor. More specifically, Dr. Rednor, a practitioner of family medicine since 1992, swore in his affidavit that there was reasonable probability that Dr. Aamir's treatment of the decedent fell below acceptable professional standards. Id.

         Dr. Aamir moved for summary judgment arguing that the AOM against her was insufficient. (See ECF Nos. 81, 95). Dr. Aamir asserts that since she is a board certified pediatrician, Plaintiffs were required to submit an AOM from another certified pediatrician to satisfy the statutory requirements. See N.J. Stat. Ann. § 2A:53A-41. A family practitioner like Plaintiffs expert Dr. Rednor, she argues, lacks that expertise since Dr. Rednor is not a certified pediatrician.


         Summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         The purpose of N.J. Stat. Ann. § 2A:53A-27 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." Hubbard v. Reed, 774 A.2d 495, 500 (N.J. 2001). It was not intended "to create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims." May field v. Community Medical Associates, 335 A.2d. 237, 244-45 (N.J. App. Div. 2000). Rather, it just "requires plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early state of litigation." Cornblatt v. Baraw, 708 A.2d 401, 412 (N.J. 1998) (quoting In re Petition of Hall, 688 A.2d 81 (N.J. 1997)). Generally, the statute recognizes that the person submitting an AOM must have the same qualifications as the Defendant physician. N.J. Stat. Ann. § 2A:53A-41. That provision reads in part:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist. . . and the care or treatment at issue involves that specialty or subspecialty. . ., the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty.

         The statute further recognizes that there are some circumstances where the same qualification standard is not applicable, and ...

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