A.T. v. Cohen

• Decision Date: 14 December 2017
• Docket Number: 077821,A–12 September Term 2016
• Citation: 231 N.J. 337,175 A.3d 932
• Parties: A.T., an infant by her mother and natural guardian, T.T., and T.T., individually, Plaintiffs–Appellants, v. M. COHEN, M.D., Khalid Savaged, M.D., Cindy Galeota, C.N.M., Julio Caban, M.D., Baohuong Tran, M.D., and Newark Beth Israel Medical Center, Defendants–Respondents.
• Court: New Jersey Supreme Court

231 N.J. 337

175 A.3d 932

A.T., an infant by her mother and natural guardian, T.T., and T.T., individually, Plaintiffs–Appellants,

v.M. COHEN, M.D., Khalid Savaged, M.D., Cindy Galeota, C.N.M., Julio Caban, M.D., Baohuong Tran, M.D., and Newark Beth Israel Medical Center, Defendants–Respondents.

A–12 September Term 2016

077821

Supreme Court of New Jersey.

Argued September 25, 2017

Decided December 14, 2017

Alan W. Roth argued the cause for appellants (Bendit Weinstock, attorneys; Alan W. Roth and Nikhil S. Agharkar, on the briefs).

Lauren M. Strollo argued the cause for respondents (Vasios, Kelly & Strollo, attorneys; Lauren M. Strollo, of counsel and on the briefs, and Douglas M. Singleterry, on the briefs).

Thomas M. Comer argued the cause for amicus curiae New Jersey Association for Justice (Lomurro, Munson, Comer, Brown & Schottland, attorneys; Thomas M. Comer and Abbott S. Brown, of counsel and on the brief, and Christina Vassiliou Harvey, on the brief).

Eric S. Poe argued the cause for amicus curiae New Jersey Physicians United Reciprocal Exchange (Eric S. Poe, of counsel and on the brief, and Abbey True Harris, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

T.T., individually and on behalf of her three-year-old daughter, A.T., filed this medical malpractice action seeking damages from a hospital and several medical professionals for injuries caused during the child's birth.¹ The trial court granted summary judgment to defendants and dismissed the action with prejudice because plaintiff failed to serve a timely affidavit of merit. The Appellate Division affirmed, rejecting plaintiff's argument that the circumstances should have supported entry of a dismissal without prejudice under Rule 4:37–1(b). A.T. ex rel. T.T. v. Cohen, 445 N.J. Super. 300, 303, 137 A.3d 1218 (App. Div. 2016).

One panel member dissented, maintaining that a dismissal based on a failure to comply with the affidavit of merit requirement should not invariably be with prejudice when appropriate circumstances are present. Id. at 310, 137 A.3d 1218 (Fisher, P.J.A.D., dissenting). The dissent found appropriate circumstances present in respect of the tort claims involving this minor child.

We now reverse the grant of summary judgment to defendants and remand the matter for further proceedings. A combination of circumstances, not the least of which was the failure to schedule a pretrial conference to address the affidavit of merit requirement as our case law directed, warrants allowing the untimely affidavit to be filed. The equities militate in favor of permitting a facially meritorious action to proceed here, particularly because any prejudice to defendants may be addressed through costs imposed by the trial court.

We decline to approve recourse to a voluntary dismissal without prejudice under Rule 4:37–1(b) as an appropriate avenue for addressing failures to comply with the affidavit of merit requirement, including when a minor is involved. Rather, we will require modification of the Judiciary's electronic filing and notification case management system to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties' compliance with requirements under the Affidavit of Merit Statute (AMS or the statute), N.J.S.A. 2A:53A–26 to –29, in furtherance of the statutory policy goals.

I.

As alleged in the complaint, T.T. gave birth to A.T. at Newark Beth Israel Hospital (the Hospital) on May 19, 2011. At the Hospital, T.T. and A.T. were under the care of Morris Cohen, M.D., Khalid Savaged, M.D., Cindy Galeota, C.N.M., Julio Caban, M.D., and Bauhuong Tran, M.D. (collectively, with the Hospital, defendants). As a result of defendants' care, A.T. suffered a birth injury known as Erb's Palsy, also described as a right brachial plexus injury. In her amended complaint filed on September 25, 2013, plaintiff alleges that defendants' treatment of T.T. and A.T. fell below the accepted standard of care and caused A.T.'s injury and birth defects. Plaintiff further alleges that defendants' negligence caused T.T. the loss of A.T.'s society, companionship, and support.

Defendants² filed an answer on December 5, 2013, denying the allegations set forth in the amended complaint and demanding, among other things, that plaintiff produce an affidavit of merit (AOM) pursuant to the AMS.³ Under the statute, plaintiff had sixty days from that date—or 120 with leave of the court—to file an AOM with respect to each defendant.

By February 3, 2014, sixty days had elapsed since defendants filed their answer, and plaintiff had not served defendants with an AOM. In the interim, plaintiff never sought leave of the trial court to extend the AOM deadline. At no time prior to the sixty-day mark or at any time thereafter did any court personnel attempt to convene a Ferreira ⁴ conference, and at no time was one requested or waived by counsel. This Court's direction that such a conference be conducted unless waived by the parties, see Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 424, 997 A.2d 982 (2010), appears to have been overlooked. By April 4, 2014, 120 days had elapsed since defendants filed their answer, and plaintiff still had not supplied defendants with an AOM.

Three days later, on April 7, 2014, defendants filed a motion for summary judgment. In support, defendants relied on plaintiff's failure to produce an AOM within the statutorily mandated time frame and claimed entitlement to dismissal with prejudice. Plaintiff opposed defendants' motion. In opposition papers filed on May 30, 2014, plaintiff claimed that the need to obtain medical records, which she did not receive in full until May 5, 2014 according to attached emails, impeded her ability to secure a timely AOM. With those papers, plaintiff submitted an AOM dated May 22, 2014.

A hearing was held on defendants' motion on June 20, 2014. Prior to argument on the underlying motion, plaintiff's then-current counsel made an oral application for a voluntary dismissal without prejudice pursuant to Rule 4:37–1(b). Counsel revealed, for the first time, that plaintiff's failure to timely submit an AOM was due to counsel's own oversight, which stemmed from plaintiff's stipulation granting defendants extra time to file an answer. After a colloquy between counsel and the court, the court carried defendants' summary judgment motion in order to permit the engagement of a co-counsel, who was present but not yet retained and who was experienced in handling medical malpractice matters involving New Jersey's AMS requirements. Thereafter, present counsel, Alan Roth, Esq., entered an appearance for plaintiff and filed a written motion for voluntary dismissal without prejudice.

On July 25, 2014, the court heard argument on both plaintiff's motion for dismissal without prejudice to permit the matter to be refiled with an AOM and defendants' motion for summary judgment based on plaintiff's failure to submit a timely AOM. With regard to the former, plaintiff argued that the failure to hold a Ferreira conference and the former attorney's oversight were extraordinary circumstances that would justify the court's use of its discretion to grant a voluntary dismissal without prejudice. Plaintiff also advanced a constitutional argument, contending that the AMS constitutes a violation of the principle of separation of powers. In response, defendants noted that if the court were to permit voluntary dismissal without prejudice, the court would be enabling a circumvention of the AMS, which requires the court to dismiss with prejudice when a plaintiff has failed to timely submit an AOM.

The court declined to rule on the constitutionality issue and denied plaintiff's motion for a voluntary dismissal. The court granted defendants' motion for summary judgment and dismissed the action with prejudice.

In explaining its finding that no extraordinary circumstances excused the noncompliance in this matter, the court interpreted Paragon to foreclose the possibility that failure to conduct a Ferreira conference ever would amount to an extraordinary circumstance unless the circumstances of the case demonstrated some substantial attempt at compliance with the AMS. Moreover, the court reasoned that neither an attorney's admitted confusion about the time requirements of the AMS nor the minor status of plaintiff A.T. gave rise to an extraordinary circumstance. Determining that there was no attempt to comply substantially with the AMS, the court rejected the request for a dismissal without prejudice:

The plaintiff seeks a dismissal without prejudice, on terms that if [the case] gets re-filed then the [AOM] would be with it. That's basically ... engaging in a fiction to make it look like I'd be doing something that was allowed, that really wasn't allowed, which would be extending the time beyond the 120 days. And no matter how you dressed it up and no matter how many orders I put around it, that is essentially what I would be doing.... And so the [c]ourt believes that to grant the plaintiff's motion of a dismissal without prejudice, would essentially be to engage in a fictional practice aimed at making it look like the [c]ourt was complying with the legislative directive, when in fact it was not.

Plaintiff filed a motion for reconsideration, reiterating that a dismissal without prejudice was appropriate given A.T.'s minor status and suggesting that the court set conditions for re-filing in order to mitigate potential prejudice to defendants. The court rejected those arguments and again declined to reach plaintiff's argument that the AMS is unconstitutional, noting the argument was not properly before the court.

Plaintiff appealed, arguing that (1) the trial court erred in dismissing the case with prejudice; and (2) the AMS is unconstitutional. Plaintiff asserted that the trial court should have granted a dismissal without prejudice under Rule 4:37–1(b) because there were many years remaining on the statute of...