Mayfield v. COMMUNITY MED. ASSOC., PA,

• Decision Date: 28 November 2000
• Citation: 335 N.J. Super. 198,762 A.2d 237
• Parties: Billy Dean MAYFIELD and Karen Mayfield, Plaintiffs-Respondents, v. COMMUNITY MEDICAL ASSOCIATES, P.A., Joseph W. Schauer, III, M.D., Joseph W. Schauer, Jr., M.D., Ina J. Kelemer, M.D., Keith J. Keefer, M.D., Deepak Taneja, M.D., and Neil Agrawal, M.D., Defendants-Appellants.
• Court: New Jersey Superior Court

762 A.2d 237

335 N.J. Super. 198

Billy Dean MAYFIELD and Karen Mayfield, Plaintiffs-Respondents, v. COMMUNITY MEDICAL ASSOCIATES, P.A., Joseph W. Schauer, III, M.D., Joseph W. Schauer, Jr., M.D., Ina J. Kelemer, M.D., Keith J. Keefer, M.D., Deepak Taneja, M.D., and Neil Agrawal, M.D., Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued November 8, 2000.

Decided November 28, 2000.

Lauren H. Walter argued the cause for appellants (Ronan, Tuzzio & Giannone, Tinton Falls, attorneys; Ms. Walter, of counsel and on the brief).

John F. McLaughlin argued the cause for respondents (Auerbach, Ryan, McLaughlin & Genz, attorneys; Philip G. Auerbach, Red Bank, of counsel; Mr. McLaughlin, on the brief).

Before Judges PRESSLER, KESTIN, and ALLEY. The opinion of the court was delivered by ALLEY, J.A.D

This appeal presents another opportunity for interpretation and application of the affidavit of merit statute, N.J.S.A. 2A:53A-27. It arises in the context of a medical malpractice action and involves both an affidavit of merit timely filed but not

served, and an expert's report timely served but not sworn.

Plaintiffs' complaint was filed on April 14, 1999. It alleges that Billy Dean Mayfield was a patient of defendant Community Medical Associates and of various doctors in that practice, that they engaged in medical malpractice by failing to assist him in timely renewing a prescription for a particular anti-coagulant medication, and that, as a result, he suffered severe medical problems, hospitalization, and substantial economic loss. His wife asserts a per quod claim.

On April 28, 1999, plaintiffs' counsel filed with the court an affidavit of merit signed by Salvatore Bernardo, Jr., M.D. Solely through inadvertence of counsel, the affidavit was not served on defense counsel until almost one year later, on April 6, 2000. The document, specifically designated as an "affidavit of merit," appears to have been duly sworn to and subscribed by Dr. Bernardo before a notary public of New Jersey on February 26, 1999, and reads in material part as follows:

SALVATORE BERNARDO, JR., M.D., OF FULL AGE BEING DULY SWORN ACCORDING TO LAW UPON HIS OATH, DEPOSES AND SAYS:

1. I am a physician licensed in the State of New Jersey. I have been licensed since 1994 and have been board certified in family medicine since 1996.

2. I am a member of a medical group which has six offices in Monmouth County. I recently started treating Billy Dean Mayfield.

3. I am aware of what occurred to Mr. Mayfield while he was a patient at Community Medical Associates. He has discussed the matter with me and in my view, assuming everything he said is accurate, there is definitely merit in this suit against the doctors in question and their staff.

4. I have no financial interest in the outcome of this matter.

The answer of all defendants was filed July 28, 1999. Plaintiffs' counsel provided an expert's report to defense counsel on September 24, 1999. The report, dated September 7, 1999, is unsworn and uncertified, but appears to be signed by Henry D. Berkowitz, M.D., and is addressed to plaintiff's counsel. It states:

At your request I am responding to your letter of 08/24/99.

Mr. Mayfield has been my patient for some time and has undergone very complicated vascular surgery related to multiple graft occlusions of his right leg. He was found to have a hypercoagular state and because of this was placed on long-term anticoagulation with Coumadin. Apparently Mr. Mayfield's prescription for Coumadin expired and when he called his primary care physicians they refused to renew the prescription for reasons which are completely unclear to me. As a result Mr. Mayfield thrombosed his vein graft which then had to be opened with lytic therapy and then we had to correct some underlying vein graft abnormalities.

Mr. Mayfield was known by his primary care physicians to be on long-term anticoagulations [sic] and the failure to renew his prescription was a significant deviation from the standard of medical care.

Defendants filed a motion on April 5, 2000, seeking an order dismissing the complaint with prejudice for failure to produce an affidavit of merit. The next day, plaintiffs' counsel, having learned that the filed affidavit of merit had not been served, then sent it on to defense counsel. The motion court ruled that plaintiffs had substantially complied with the statute and denied defendants' motion to dismiss. Defendants now appeal that interlocutory order pursuant to leave granted. We affirm.

I

We start with the language of the pertinent section of the affidavit of merit statute itself, which 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. The person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substantially to the general area or specialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

[N.J.S.A. 2A:53A-27.]

Substantial rights are put in issue by a motion that asserts a failure to comply with this provision, because under another section of the statute, "[i]f the plaintiff fails to provide an affidavit or a statement in lieu thereof, it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. The motion court invoked the doctrine of substantial compliance in denying the motion to dismiss, relying on Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998), where the Supreme Court stated:

Courts invoke the doctrine of substantial compliance to "avoid technical defeats of valid claims." Zamel v. Port of New York Authority, 56 N.J. 1, 6, 264 A.2d 201 (1970). In Zamel, the plaintiffs had failed to comply with the notice of claim requirement. Id. at 5, 264 A.2d 201. The plaintiffs had, however, informally communicated to the defendant all the information required in a formal notice of claim. Id. at 6-7, 264 A.2d 201. The Court applied the doctrine of substantial compliance, finding "nothing whatever in the pertinent statutory history or terminology to indicate that [the] Legislature ever meant to exclude the highly just doctrine of substantial compliance...." Id. at 6, 264 A.2d 201. Because the defendants were not prejudiced by the plaintiffs' failure to comply strictly and the defendants had the relevant information, the Court ruled the plaintiffs were in substantial compliance with the notice of claim requirement. Id. at 6-7, 264 A.2d 201.

The doctrine of substantial compliance requires that the defaulting party show the following:

(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not a strict compliance with the statute. [Bernstein v. Board of Trustees of Teachers' Pension & Annuity Fund, 151 N.J.Super. 71, 76-77, 376 A.2d 563 (App.Div.1977).]

[153 N.J. at 239,708 A.2d 401]

The attorney in Cornblatt had provided to the defense, not an affidavit of merit, but a certification conforming to R. 1:4-4(b), which provides that "[i]n lieu of the affidavit required by these rules, the affiant may submit the following certification...." The Supreme Court held that the statute "is the exclusive authority governing the document to be filed ..." but that "... it does not follow that the Legislature intended that under no circumstances could the filing of a certification satisfy the statutory requirement or, stated differently, that the filing of a certificate instead of an affidavit would always constitute a fatal failure of compliance mandating the dismissal of the action." [Ibid., 153 N.J. at 238, 239, 708 A.2d 401]

In determining that the certification provided in Cornblatt substantially complied with the statute, the Court stated:

Despite the Legislature's clear language requiring an affidavit, there is nothing reflective in the objectives of the Affidavit of Merit Bill or its history that suggests the Legislature intended to foreclose the familiar doctrine of substantial compliance in the affidavit of merit context.

In light of the doctrine of substantial compliance, which requires reasonable effectuation of the statute's purpose, as in Zamel, and the existing practices in this general area that attempt to reconcile convenience and truth under Rule 1:4-4(b), there is no reason to infer that the Legislature intended that the statute be applied literally and strictly, rather than in a manner that would assure substantial compliance with its essential provisions. Thus, we recognize that, under certain circumstances, a certification could satisfy the purpose of the affidavit requirement as well as the general purpose of the statute. Those circumstances would also include at the very least the timely filing of a certification otherwise complying with all of the specifications for an

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