Szemple v. Univ. of Med.

• Decision Date: 08 February 2016
• Docket Number: Civ. No. 10-258 (KM)
• Citation: 162 F.Supp.3d 423
• Parties: Craig Francis Szemple, Plaintiff, v. University of Medicine and Dentistry of New Jersey, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

162 F.Supp.3d 423

Craig Francis Szemple, Plaintiff,

v.University of Medicine and Dentistry of New Jersey, et al., Defendants.

Civ. No. 10-258 (KM)

United States District Court, D. New Jersey.

Signed February 8, 2016

Adrienne C. Rogove, Stephen M. Orlofsky, Blank Rome, LLP, Princeton, NJ, Jaret Nicholas Gronczewski, Blank Rome LLP, Philadelphia, PA, for Plaintiff.

Cyndee Lane Allert, Gary L. Riveles, Louis John Dughi, Jr., Anna Kitsos, Dughi Hewit & Domalewski, Cranford, NJ, Matthew Jon Lynch, State of New Jersey, Trenton, NJ, for Defendants.

OPINION

MCNULTY, U.S.D.J.

I. INTRODUCTION

Plaintiff Craig Francis Szemple, while an i n m a t e at the New Jersey State Prison in Trenton, developed a dental problem.¹ Dr. Charles Getzoff, D.D.S., an oral surgeon, performed a tooth extraction at the prison medical clinic. Szemple alleges t h a t Dr. Getzoff broke a filling, severed nerves, and cut a major blood vessel under the tongue. Afterward, bleeding continued, and Szemple lost some 1.5 liters of blood. He required hospitalization and transfusions, and suffered other medical consequences.

In 2010, Szemple brought this action alleging, inter alia, state law claims of dental malpractice.² Among the named defendants are Dr. Getzoff, the University of Medicine and Dentistry of New Jersey (“UMDNJ”, now part of Rutgers), and University Correctional Healthcare (“UCH”). Those Defendants have moved to dismiss the complaint.³ They contend that Szemple has not served a timely, proper Affidavit of Merit (“AOM”).

Defendants brought their motion as one to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6)

. An AOM, however, is not strictly speaking an element of a claim. In addition, the defendants' motion attaches exhibits and affidavits extraneous to the pleadings. (ECF Nos. 84, 85) I therefore invoked my discretion under Fed. R. Civ. P. 12(d) to convert the motion to one for summary judgment. (See Memorandum and Order, ECF No. 99, citing Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 303 n. 13 (3d Cir.2012) ). Because Szemple did not have fair warning that he was in jeopardy of summary judgment, I gave him 14 days to submit any additional proofs. He opted not to do so. (ECF No. 100) In the end, however, it matters little; as plaintiffs counsel implies, id. the issue is predominantly one of law, based on matters of procedural history.

II. DISCUSSION

In an action alleging professional malpractice, New Jersey requires an Affidavit of Merit (“AOM”). See the Affidavit of Merit Statute (“AMS”), N.J. Stat. Ann. §§ 2A:53A–26

to 29.⁴ Within 120 days after the defendant files an answer, the malpractice plaintiff must file such an affidavit from an appropriate licensed professional. That AOM must state, to a reasonable probability, that the defendant's conduct fell short of accepted standards in the relevant profession. If a proper, timely AOM is not filed, the case will be dismissed.

Here, the claim is one of dental malpractice. It is brought against, among others, Dr. Getzoff, who is a dentist specializing in oral surgery. The plaintiff, Szemple, filed and served an AOM on November 5, 2014. (ECF No. 79) That AOM, signed by Dr. Martin Giniger, DMD, MsD, PhD, FICD, states that there is “a reasonable probability that the skill, care, and knowledge exercised by the dental (and other) professional defendants during Mr. Szemple's tooth extraction and thereafter, fell below the accepted professional standard of care.” Id.

A. The AOM statutory scheme

The requirement of an AOM is intended to screen out meritless malpractice claims:

The core purpose underlying the [AMS] is to require plaintiffs ... to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation. Importantly, there is no legislative interest in barring meritorious claims brought in good faith. Indeed, [t]he legislative purpose was not to create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.

Ryan v. Renny, 203 N.J. 37, 999 A.2d 427, 435–36 (2010)

(internal quotations and citations omitted).

The AMS sets forth the basic AOM requirement as follows:

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. Stat. Ann. § 2A:53A–27

. A plaintiff's failure to file an AOM from an appropriate licensed person, unless excused by extraordinary circumstances, is grounds for dismissal of the complaint with prejudice. See N.J. Stat. Ann. § 2A:53A–29 ; Palanque v. Lambert

–

Wool

l

ey, 168 N.J. 398, 774 A.2d 501, 505 (2001).

The AMS defines the class of cases in which an AOM must be filed. An AOM is required, not just in medical cases, but in “all actions for damages based on professional malpractice,” Ryan, 999 A.2d at 435

, brought against “a licensed person in his profession or occupation,” N.J. Stat. Ann. § 2A:53A–27. The AMS specifies sixteen such professions and occupations.⁵ As relevant here, a covered professional includes “a dentist licensed under [N.J. Stat. Ann. §] 45:6-1

” as well as “a health care facility.” N.J. Stat. Ann. § 2A:53A–26. Business organizations of licensed professionals are likewise covered. See

Martin v. Perinni Corp., 37 F.Supp.2d 362, 366 (D.N.J.1999).

The AMS imposes time limits. The AOM must be filed within 60 days after the filing of the defendant's answer. The court, on a showing of good cause, may extend that deadline for an additional 60 days. N.J. Stat. Ann. § 2A:53A–27

.

The AMS also states who is qualified to be an affiant on an AOM. For that purpose, N.J. Stat. Ann. § 2A:53A–27

draws a distinction between medical malpractice cases and others:

In the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L.2004, c.17 [N.J. Stat. Ann. § 2A:53A–41

].

In all other cases, 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 [sic in original].

N.J. Stat. Ann. § 2A:53A–27

(emphasis and paragraph break added for clarity).

As to medical malpractice cases, then, § 2A:53A–27

incorporates by reference a separate statute. That statute, N.J. Stat. Ann. § 2A:53A–41, sets a high standard of eligibility to be an AOM affiant:

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L.1995, c. 139 [N.J. Stat. Ann. § 2A:53A–26 et seq.

] on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board

of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the parry against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and 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 either:

(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the

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