Ferreira v. Rancocas Orthopedic Assoc.

• Decision Date: 24 November 2003
• Citation: 178 N.J. 144,836 A.2d 779
• Parties: Agostino FERREIRA and Margarida Ferreira, h/w, Plaintiffs-Appellants, v. RANCOCAS ORTHOPEDIC ASSOCIATES and Bruce W. Wulfsberg, M.D., Defendants-Respondents.
• Court: New Jersey Supreme Court

836 A.2d 779

178 N.J. 144

Agostino FERREIRA and Margarida Ferreira, h/w, Plaintiffs-Appellants, v. RANCOCAS ORTHOPEDIC ASSOCIATES and Bruce W. Wulfsberg, M.D., Defendants-Respondents.

Supreme Court of New Jersey.

Argued March 3, 2003.

Reargued September 22, 2003.

Decided November 24, 2003.

Mark R. Cuker, Philadelphia, PA, argued the cause for appellants (Williams Cuker & Berezofsky, attorneys).

Jeremy P. Cooley, Lawrenceville, argued the cause for respondents (Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey, attorneys).

Abbott S. Brown, argued the cause for amicus curiae, Association of Trial Lawyers of America-New Jersey (Bendit Weinstock, attorneys, West Orange).

Justice ALBIN delivered the opinion of the Court.

The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, requires a plaintiff in a malpractice action to serve on a defendant within 120 days of receipt of the answer an expert's sworn statement attesting that there exists a "reasonable probability" that the professional's conduct fell below acceptable standards. The Legislature enacted the statute with the laudatory purpose of weeding out frivolous lawsuits early in the process. The statute does not impose overly burdensome obligations. The plaintiff must keep an eye on the calendar and obtain and serve the expert's report within the statutory timeframe. This seemingly simple scheme has generated a tide of litigation and a new area of jurisprudence as this Court and our appellate courts have grappled with the derelictions of plaintiffs' counsel, who have filed well-grounded complaints, but have neglected to file technically correct or timely affidavits. The failure to deliver a proper affidavit within the statutory time period requires a dismissal of the complaint with prejudice. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242, 708 A2d 401, 413 (1998).

Beginning with Cornblatt, we have fashioned equitable remedies to mitigate the harshness of a rigid application of the statute that would result in the dismissal of an otherwise meritorious cause of action. In this case, plaintiff's attorney possessed an affidavit of merit ten days after the receipt of the answer—well within the time permitted by the statute to serve the affidavit on opposing counsel. The validity of the complaint is not at issue. Due to inadvertence, plaintiff's attorney served the affidavit eighteen days out-of-time, but before defendants moved to dismiss the complaint for failure to comply with the statutory deadline. We hold that this case is a suitable candidate for equitable relief.

This case brings to mind the adage that an ounce of prevention is worth a pound of cure. Therefore, going forward, we will require case management conferences in the early stage of malpractice actions to ensure compliance with the discovery process, including the Affidavit of Merit statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.

I.

Plaintiff Agostino Ferreira, represented by Mark Cuker, Esq., filed a medical malpractice complaint against defendants Dr. Bruce Wulfsberg and Rancocas Orthopedic Associates. The complaint alleged that defendants' negligent treatment of plaintiff for a fractured left heel caused an infection and the fracture not to heal properly. As a consequence, plaintiff suffered pain and economic hardship. The complaint, which detailed with specificity the acts of malpractice, alleged that defendants failed to use due care in (1) performing the surgery on plaintiff's left leg; (2) diagnosing the infection and bone fragments impinging on nerves; (3) removing bone fragments during surgery; (4) closing the wound; (5) prescribing antibiotics; (6) not consulting an appropriate infectious disease specialist; and (7) instructing the physical therapists on post-operative care. Additionally, plaintiff's wife asserted a per quod claim for loss of consortium.

Several months before filing suit, Cuker retained Dr. Gregory B. Shankman, a board certified orthopedic surgeon, to review plaintiff's medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards. In the pre-suit stage, Dr. Shankman advised Cuker by telephone that, in his opinion, there was a reasonable probability that only defendants were negligent in their care of plaintiff, thereby eliminating two other potential defendants from being named in the complaint. During this period, Cuker sent Dr. Shankman an affidavit of merit to review and sign.

On May 31, 2000, the complaint was filed. On August 17, 2000, defendants filed their answer, which asserted several affirmative defenses and demanded the production of a "medical expert affidavit." Cuker claims that the answer and the case information statement were misfiled in his office and not reviewed by him until January 2001. Within ten days of the filing of the answer, Cuker received Dr. Shankman's signed affidavit of merit, which, due to inadvertence, he failed to forward to defense counsel.

Discovery proceeded in the ordinary course. Plaintiff had 120 days after the filing of the answer in which to forward to defendants the affidavit of merit. During this 120-day period, defense counsel made no further request for the "medical expert affidavit" and did not participate in a telephonic case management conference. On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, Cuker had a telephone conversation with defense counsel, who brought to Cuker's attention that defendants had not received a medical affidavit. Within hours of that conversation, Cuker faxed Dr. Shankman's affidavit to defense counsel.

On January 17, 2001, defendants moved to dismiss the complaint with prejudice for failure to comply with the Affidavit of Merit statute. The trial court granted the motion to dismiss, and the Appellate Division affirmed in an unpublished decision. We granted certification, 174 N.J. 193, 803 A.2d 1164 (2002), and now reverse.

II.

The Affidavit of Merit 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. 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 statute was one of five bills passed as part of a 1995 tort reform package designed to "`strike[] a fair balance between preserving a person's right to sue and controlling nuisance suits.'" Palanque v. Lambert-Woolley, 168 N.J. 398, 404, 774 A.2d 501, 505 (2001) (quoting Office of the Governor, News Release 1 (June 29, 1995)); Cornblatt, supra, 153 N.J. at 228, 708 A. 2d at 405-06.¹ The statute imposes a set of procedural requirements in order for a plaintiff to maintain a professional malpractice action. Cornblatt, supra, 153 N.J. at 228-29, 708 A.2d at 405-06. First, the plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the "reasonable probability" of professional negligence. N.J.S.A. 2A:53A-27; Palanque, supra, 168 N.J. at 404, 774 A.2d at 505. Second, the affidavit must be provided to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. N.J.S.A. 2A:53A-27; Burns v. Belafsky, 166 N.J. 466, 470-71, 766 A.2d 1095, 1097-98 (2001). Third, the plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice. N.J.S.A. 2A:53A-29; Palanque, supra, 168 N.J. at 404, 774 A.2d at 505; Cornblatt, supra, 153 N.J. at 247, 708 A.2d at 415.

The statute also places certain burdens on the defendant to provide the documents necessary for the preparation of the affidavit by the plaintiff's expert. In the absence of compliance with a document request, the plaintiff may provide a sworn statement, in lieu of the affidavit, certifying that the necessary records were not made available. N.J.S.A. 2A:53A-28. The Legislature did not intend to give medical malpractice defendants the power to destroy a meritorious malpractice action by refusing to provide the very records the expert would need to prepare the affidavit. Barreiro v. Morais, 318 N.J.Super. 461, 470, 723 A.2d 1244, 1248 (App.Div.1999).

Our cases have repeatedly emphasized the dual purpose of the Affidavit of Merit statute: "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, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001); see Palanque, supra, 168 N.J. at 404,

774 A.2d at 505 (stating that Legislature intended "to curtail frivolous litigation without preventing access to the courts for meritorious claims"); Galik v. Clara Maass Medical Center, 167 N.J. 341, 359, 771 A.2d 1141, 1152 (2000) ("there is no legislative interest in barring meritorious claims brought in good faith"). The legislative purpose was not to "create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims." Mayfield v. Community Med. Assocs., P.A., 335 N.J.Super. 198, 209, 762 A.2d 237, 244 (App.Div.2000).

We have...