Knorr v. Smeal

• Citation: 836 A.2d 794,178 N.J. 169
• Parties: Eleanor KNORR and Harold Knorr, her husband, Plaintiffs-Appellants, v. Brian C. SMEAL, M.D. and South Jersey Hospital Systems, Elmer Division, Defendants-Respondents, and Curtis L. Lockwood, John Does 1 through 7 and John Doe, Inc. 1 through 7 jointly severally and/or in the alternative, Defendants.
• Decision Date: 24 November 2003
• Court: United States State Supreme Court (New Jersey)

836 A.2d 794

178 N.J. 169

Eleanor KNORR and Harold Knorr, her husband, Plaintiffs-Appellants, v. Brian C. SMEAL, M.D. and South Jersey Hospital Systems, Elmer Division, Defendants-Respondents, and Curtis L. Lockwood, John Does and John Doe, Inc. jointly severally and/or in the alternative, Defendants.

Supreme Court of New Jersey.

Argued September 22, 2003.

Decided November 24, 2003.

Paul R. Melletz, Cherry Hill, argued the cause for appellants.

Michael E. McGann, argued the cause for respondent Brian C. Smeal, M.D., (Amdur, Maggs & McGann, attorneys).

Mary Grace Callahan, submitted a letter in lieu of brief on behalf of respondent South Jersey Hospital Systems, Elmer Division (Grossman, Kruttschnitt, Heavey & Jacob, attorneys, Brick). Justice ALBIN delivered the opinion of the Court.

On repeated occasions, we have addressed the obligation of plaintiffs who file malpractice actions to conform to the procedural requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. In such cases, within 120 days of receipt of the answer, a plaintiff must serve on defendant an affidavit from an appropriate professional attesting that the claim is meritorious. A plaintiff's failure to file a timely affidavit will result in dismissal of the claim, absent a justifiable excuse. N.J.S.A. 2A:53A-27; Burns v. Belafsky, 166 N.J. 466, 470-71, 766 A.2d 1095, 1097-98 (2001). Defendants must act timely too; they cannot sleep on their rights. In the companion case of Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 836 A.2d 779 (2003), decided today, we held that a defendant who filed a motion to dismiss after receipt of an untimely affidavit of merit forfeited his right to relief. In that case, we concluded that the equities required defendant to file his motion before he possessed the disputed affidavit. In this case, defendant let pass the deadline for receipt of the affidavit without filing a dismissal motion. Instead, defendant engaged in the exchange of interrogatories, deposed plaintiffs and submitted to a deposition, obtained plaintiffs' expert report, and had plaintiff physically examined. Fourteen months after the deadline had passed and after the merits of plaintiffs' claims had been established, defendant filed his motion to dismiss because of the missing affidavit. We now must determine whether the remedies of waiver, equitable estoppel, and laches should bar defendant's right to bring a dismissal motion so late in the process.

I.

In June 1997, following a fall, Eleanor Knorr, seventy-one years old, suffered persistent swelling of the lower right side of her body. Ms. Knorr consulted with defendant Brian C. Smeal, M.D., who, after conducting preliminary tests, admitted her to South Jersey Hospital System, Elmer Division.

On July 1, 1997, defendant performed a surgical exploration of Ms. Knorr's right groin for biopsy of enlarged groin nodes. On July 7, defendant and Curtis L. Lockwood, D.O., conducted further exploratory surgery during which they repaired an injury to the small bowel by performing a bowel resection. On July 14, defendant, while performing an emergency surgical procedure on Ms. Knorr, discovered among other things that she had developed multiple intra-abdominal abscesses in the area of the small bowel resection. Thereafter, Ms. Knorr spent nineteen days in the hospital's intensive care unit before her transfer to a nursing care facility. On September 17, 1997, Ms. Knorr was admitted to Underwood Hospital suffering from dehydration, sepsis, acute renal failure and short-gut syndrome. She was discharged from the hospital less than a month later, but was readmitted eight more times between October 1997 and April 1999. In July 1999, Ms. Knorr underwent a final surgical bowel resection procedure.

On July 1, 1999, Ms. Knorr and her husband (per quod) filed a medical malpractice action in which they alleged that Dr. Smeal and Dr. Lockwood negligently performed the first two surgeries. Plaintiffs named Dr. Smeal, Dr. Lockwood and South Jersey Hospital System, Elmer Division, as defendants in the action. Defendants filed answers in which each demanded service of an affidavit of merit pursuant to N.J.S.A. 2A:53A-26.

On December 15, 1999, just over 120 days after filing his answer, Dr. Lockwood moved to dismiss the complaint because of plaintiffs' failure to serve him with an affidavit of merit. The court granted Dr. Lockwood's motion. Less than two weeks later, the hospital filed a similar motion. That motion was denied because the hospital failed to supply medical records requested by plaintiffs. Defendant had received notice of both motions, and though in possession of interrogatory answers and documents provided by plaintiffs, he had yet to receive an affidavit of merit.¹ Nevertheless, he did not file a dismissal motion.

Instead, defendant continued with the discovery process. Between January 20, 2000 and February 15, 2001, the trial court entered a case management order; plaintiffs filed their expert's report detailing how defendant's conduct deviated from the standard of care and fell below acceptable medical standards; plaintiffs and defendant were deposed; the trial court heard argument concerning where Ms. Knorr was to submit to a physical examination by a defense expert; and a defense expert physically examined Ms. Knorr.

In accordance with the case management order, the 450-day discovery period was to be completed by October 16, 2000 and dispositive motions were to be filed no later than November 17, 2000. See R. 4:24-1(a). On January 26, 2001, the court granted a motion for summary judgment in favor of the hospital because no expert report had been filed demonstrating the hospital's liability.

On March 2, 2001, more than fourteen months after plaintiffs' deadline for filing an affidavit of merit and more than four months after the deadline for filing dispositive motions, defendant moved to dismiss the complaint based on plaintiffs' failure to comply with the statute. The trial court granted defendant's motion and the Appellate Division affirmed.

On January 30, 2003, we granted plaintiffs' petition for certification, Knorr v. Smeal, 175 N.J. 431, 815 A.2d 478 (2003), on the limited issue of whether the doctrines of waiver, estoppel, or laches barred defendant's belated motion to dismiss the complaint because of plaintiffs' failure to file an affidavit of merit.

II.

Our decision in Ferreira describes in some detail the mechanics and purpose of the Affidavit of Merit statute. The statute's essential goal is to put to rest unmeritorious and frivolous malpractice lawsuits at an early stage of litigation while allowing worthy claims to proceed through discovery and, if warranted, to trial. Palanque v. Lambert-Woolley, 168 N.J. 398, 404, 774 A. 2d 501, 505 (2001). To that end, a plaintiff must file an affidavit of merit within 120 days of the filing of the answer or face dismissal of the complaint with prejudice, absent some equitable justification. Tischler v. Watts, 177 N.J. 243, 246, 827 A.2d 1036, 1038 (2003). The salutary benefit to both sides in eliminating a non-genuine malpractice claim early on is the conservation of resources. Plaintiffs and defendants should not be dragged through an expensive and burdensome discovery process that includes the taking of emotionally draining depositions if the plaintiffs cannot produce an expert to support their claims. As we discussed in Ferreira, we place a premium on prompt action by both plaintiffs and defendants. In this way, the resources and time of the parties will not be wasted by the continuation of unnecessary litigation. It is difficult to fathom that the Legislature, in enacting the Affidavit of Merit statute, contemplated that a defendant would run a plaintiff through the discovery process, learn that the complaint was supported by competent evidence and an expert's report, and only then move to dismiss on the technical ground that the plaintiff failed to clothe the expert opinion in the form of an affidavit.

Defendant may have been entitled to a dismissal of the complaint had he acted within a reasonable time after the statutory deadline. The question that we confront, however, is whether granting defendant's motion so late in the litigation process—after defendant is in full possession of discovery and has verified the merit of plaintiffs' claims—would work an injustice and pervert the true purpose of the Affidavit of Merit statute. We consider whether plaintiffs are entitled to claim the protection of the equitable doctrines of waiver, estoppel, or laches.

Waiver

Plaintiffs contend that defendant waived his right to enforcement of the statute by his inordinate delay in filing the dismissal motion. Waiver is the voluntary and intentional relinquishment of a known right. W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 152, 141 A.2d 782, 786 (1958). An effective waiver requires a party to have full knowledge of his legal rights and intent to surrender those rights. Id. at 153, 141 A.2d at 787. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. See Merchs. Indem. Corp. of N.Y. v. Eggleston, 68 N.J.Super. 235, 254, 172 A.2d 206, 216 (App.Div.1961),

aff'd,

37 N.J. 114, 179 A.2d 505 (1962). The party waiving a known right must do so clearly, unequivocally, and decisively. Country Chevrolet, Inc. v. Township of N. Brunswick Planning Bd., 190 N.J.Super. 376, 380, 463 A.2d 960, 962 (App.Div.1983).

Defense counsel certainly was aware of his client's right to file a motion to dismiss the complaint because of plaintiffs' failure to comply with the statute. He knew that co-defendant, Dr. Lockwood, was granted a dismissal for that very reason. Inexplicably, defendant did not move to dismiss the complaint until after all discovery had been completed and more than a year after his...