SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-489-98T3
DENISE L. BURNS and
MATTHEW BURNS,
Plaintiffs-Appellants,
v.
MARK L. BELAFSKY, M.D.,
ROBERT B. BELAFSKY, M.D.,
BELAFSKY & BELAFSKY, M.D., P.A.,
IRA STARK, D.O., and SOUTH
JERSEY IMAGING CENTER,
Defendants-Respondents.
_________________________________
Argued telephonically October 19, 1
999 Decided December 20, 1999
Before Judges Havey, Rodriguez and Lintner.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County.
John J. Del Casale, argued the cause for
appellants (M. Mark Mendel, attorney; Mr. Del
Casale, on the brief).
Mary Elizabeth Gazi, argued the cause for
respondents Mark L. Belafsky, M.D., Robert
Belafsky, M.D. and Belafsky & Belafsky, P.A.
(Thomas B. Leyhane, attorney; Ms. Gazi, on
the brief).
Steven M. Horn, argued the cause for
respondent Ira Stark, D.O. (Paarz, Master,
Koernig, Crammer, O'Brien, Bishop & Horn,
attorneys; Mary Ann C. O'Brien, on the
brief).
The opinion of the court was delivered by
LINTNER, J.S.C. (temporarily assigned)
The central issue posed by this appeal is whether the
Affidavit of Merit statute, N.J.S.A. 2A:53A-27, requires a party
seeking an extension of time to file a motion during the initial
sixty day period. We hold that there is no such limitation, and
that a motion to extend may be made within 120 days.
In December 1995, plaintiff, Denise L. Burns, began
experiencing pain in the left side of her face. Her family
doctor referred her to defendants, Drs. Mark L. and Robert B.
Belafsky, who in turn referred her to defendants, Dr. Ira Stark
and South Jersey Imaging Associates P.A., on or about December
22, 1995, for various radiological studies including a CT scan,
MRI and MRA of the neck. Dr. Stark reviewed the radiological
studies and determined that plaintiff was suffering from a soft
tissue mass in the left side of her neck situated in the left
parapharyngeal space.
On or about December 29, 1995, as an office procedure, Dr.
Mark BelafskySee footnote 1 attempted a needle aspiration of a parapharyngeal
mass in plaintiff's neck, the results of which were inconclusive.
On January 5, 1996, Dr. Mark Belafsky attempted a direct
laryngoscopy, left cervical node biopsy, and fine needle
aspiration of the mass, and again the results were inconclusive.
Thereafter, plaintiff was admitted to Rancocas Hospital on
January 24, 1996, where Dr. Mark Belafsky and Dr. Robert Belafsky
performed additional procedures, in an attempt to remove the
mass. Plaintiffs contend that, as a result of these procedures,
Mrs. Burns suffered paralysis of the 9th, 10th and 12th cranial
nerves, as well as other permanent damage to her head, neck,
throat and vocal cords.
On April 1, 1996, Mrs. Burns underwent a pre-operative work
up at Wills Eye Hospital and thereafter, on April 2, 1996, was
admitted to Pennsylvania Hospital, where a benign left glomus
vagale tumor was removed by Drs. Rosenwasser, Keane and Rosen.
Subsequent to the surgery, plaintiffs submitted all medical
records to Dr. Michael Salcman, a neurosurgeon. Dr. Salcman
completed a report, dated June 6, 1997, in which he opined that
defendants Belafsky and Stark deviated from accepted medical
standards with respect to their diagnosis, treatment and care of
plaintiff.
Mr. and Mrs. Burns instituted this medical malpractice
action by filing a complaint against the Drs. Belafsky and Stark
on October 6, 1997. Dr. Stark filed an answer on December 18,
1997, and Drs. Belafsky filed their answer on December 29, 1997.
Although plaintiffs' counsel had Dr. Salcman's report in his
possession since June 1997, he admits that, through inadvertence,
he failed to obtain and file an Affidavit of Merit from Dr.
Salcman as required by N.J.S.A. 2A:53A-27 within the sixty day
period following the filing of Dr. Stark's and Drs. Belafsky's
answers. On March 4, 1998, a motion to dismiss the complaint for
failure to file the required Affidavit of Merit was filed on
behalf of Dr. Stark. On March 23, 1998, during the pendency of
Dr. Stark's motion to dismiss, plaintiffs filed Dr. Salcman's
Affidavit of Merit incorporating his report of June 6, 1997.
Plaintiffs' counsel also filed a response brief which, in part,
argued that the March 23 filing was in compliance with the sixty
day extension provisions of the statute. The Affidavit of Merit
was filed thirty-five days late with regard to Dr. Stark and
twenty-five days late with respect to Drs. Belafsky. Dr. Stark's
counsel responded that the Affidavit of Merit filed by plaintiffs
was out of time, plaintiffs had not filed a motion to extend the
time for an additional sixty day period within the first sixty
day period, plaintiffs could not establish good cause required to
obtain a sixty day extension, and Dr. Salcman was not
appropriately licensed, as required by the statute, to give an
opinion regarding radiology.
At a hearing held on April 3, 1997, the motion judge
indicated he would delay ruling on the motion until counsel and
the court had an opportunity to review the recently released
Supreme Court decision in Cornblatt v. Barow,
153 N.J. 218
(1998). On May 1, 1998, the judge entered an order dismissing
plaintiffs' claims as to Dr. Stark, concluding that plaintiffs
had failed to comply with the Affidavit of Merit statute. In
reaching his conclusion the judge said:
I am entirely satisfied that the statute is
clear and unequivocal, unambiguous, that an
affidavit of merit has to be filed within 60
days of the filing of the answer. That if it
is not, then an application has to be made
within that 60 days [sic] period to extend
for another 60 days. Even in the absence of
that, there is no indication here of good
cause as to why the affidavit of merit was
filed without the 60 day period, that is
outside the initial 60 day period.
The motion judge never reached a determination of whether
plaintiffs' expert was appropriately licenced to render an
opinion. On June 22, 1998, defendants Drs. Belafsky filed their
motion to dismiss plaintiffs' complaint for failure to comply with
the Affidavit of Merit statute. In a response motion, plaintiffs
argued that they substantially complied with the statute and Drs.
Belafsky were barred by the doctrines of waiver, laches, and
estoppel from moving to dismiss at that time. In support of their
argument plaintiffs contended Drs. Belafsky: (1) failed to demand
an Affidavit of Merit in its answer; and (2) knew about the late
filing of the affidavit because of Dr. Stark's March 7, 1998,
motion to dismiss. As a result of their delay in moving to
dismiss, plaintiffs maintained that they relied upon Drs.
Belafsky's silence and continued to move forward with their
claims, incurring expenses.
Drs. Belafsky's counsel countered, contending he never
received Dr. Stark's motion to dismiss, pointing out that he was
omitted from the motion's counsel list. Moreover, defense
counsel argued he did not learn of the motion to dismiss until he
received the court's May 1, 1998, order dismissing the complaint
against Dr. Stark. The motion judge again found plaintiffs had
failed to comply with the sixty day requirement of the statute
and, accordingly, entered an order dismissing plaintiffs' claims
with prejudice for failure to state a cause of action.
On appeal, plaintiffs contend that their late service of the
Affidavit of Merit should be excused in accordance with the
doctrine of substantial compliance. We disagree. The doctrine
of substantial compliance was invoked by our Supreme Court in
Cornblatt, supra, 153 N.J. at 218, to justify adequate notice
under the Affidavit of Merit statute where a certification was
used in lieu of an affidavit. The Supreme Court set forth the
requisite circumstances justifying invocation of the substantial
compliance doctrine including at the very least the timely
filing of a certification otherwise complying with all the
specifications for an Affidavit of Merit; an adequate and
reasonable justification and a convincing explanation of just
cause and excusable neglect for submitting a certification rather
than an affidavit . . . . Id. at 240 (emphasis added).
In order to constitute excusable neglect a mistake must be
honest such that it is compatible with proper diligence.
Baumann v. Marinaro,
95 N.J. 380, 394 (1984). Failure on the
part of an attorney through mere inadvertence or lack of proper
diligence is insufficient. Ibid. Plaintiffs' counsel has
admitted that his failure to file an Affidavit of Merit within
the initial sixty day period was inadvertent. As such, absent a
convincing explanation of both just cause and excusable neglect,
plaintiffs cannot invoke substantial compliance to avoid
counsel's failure to file a timely Affidavit of Merit.
At oral argument before us, plaintiffs' counsel urged that
the dismissal should have been without prejudice because there
exists extraordinary circumstances to justify a relaxation of the
statutory requirement of dismissal with prejudice. Counsel
argued that the Legislative intent was to prevent the filing of
meritless malpractice claims and not to impose a statute of
limitations. Counsel further reasoned that extraordinary
circumstances existed to justify a relaxation of the required
dismissal with prejudice because Dr. Salcman's report, which was
served within the 120 day period for which an extension could
have been given, clearly showed that plaintiffs' claim was
meritorious. Again we disagree.
In Cornblatt, supra, 153 N.J. at 242, the Supreme Court held
that a dismissal for failure to comply with the procedural
requirements of N.J.S.A. 2A:53A-27 should be with prejudice,
unless extraordinary circumstances exist, in which case the
dismissal is without prejudice. In Hyman Zamft and Manard v.
Cornell,
309 N.J. Super. 586, 593 (App. Div. 1998), we pointed
out that a court is required to enter into a fact-sensitive
analysis to determine whether extraordinary circumstances exist
to permit relaxation of the required dismissal with prejudice.
We indicated in Hyman Zamft, that the same standard applies when
considering the existence of extraordinary circumstances as that
required by the late notice of claim provisions of the New Jersey
Tort Claims Act, N.J.S.A. 59:8-9. Ibid. Accordingly, we
concluded that [c]arelessness, lack of circumspection, or lack
of diligence on the part of counsel are not extraordinary
circumstances which will excuse missing a filing deadline. Ibid.
Given the fact that the failure here to comply with the statutory
requirements was the result of lack of diligence on the part of
counsel, plaintiffs cannot rely on the existence of extraordinary
circumstances to avoid the statutory requirements. See also
Flagg v. Township of Hazlet,
321 N.J. Super. 256, 258-59 (App.
Div. 1999); Rivera v. Atlantic Coast Rehabilitation & Health Care
Ctr.,
321 N.J. Super. 340, 347-48 (App. Div. 1999).
The lack of a factual record establishing substantial
compliance and extraordinary circumstances does not end our
inquiry. N.J.S.A. 2A:53A-27 provides in pertinent part that,
[t]he 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. Plaintiffs dispute the judge's
determination that the motion to extend must be filed during the
initial sixty day period. The statute is silent as to when a
motion to extend must be filed.
We conclude that the reason enunciated by the motion judge
in his denial of plaintiffs' motion to extend was flawed. Dr.
Salcman's report and affidavit were filed and served upon
defendants within 120 days of the filing of their answers.
From a timeliness standpoint, the affidavit should have been
treated as filed as of March 23, 1998; the argument on the motion
having been held subsequent to the time of the actual filing.
Our Supreme Court has held that, from a statute of limitations
time of filing point of view, an amended complaint filed out of
time naming new defendants who had been previously named in a
third party complaint filed within time relates back to the time
of the filing of the third party complaint. Lawlor v. Cloverleaf
Mem. Park, Inc.,
56 N.J. 326, 343 (1970); see also Ioannou v. Ivy
Hill Park Section Four, Inc.,
112 N.J. Super. 28, 32-33 (Law Div.
1970). Thus, the motion judge's emphasis should have been on the
issue of good cause, not on the failure of the plaintiff to
file a motion to extend within the initial sixty day period.
While carelessness and inadvertence on the part of an
attorney is insufficient grounds for the establishment of
excusable neglect, such is not necessarily the case when it comes
to a determination of whether good cause exists to excuse late
filings. In Martindell v. Martindell,
21 N.J. 341 (1956), our
Supreme Court dealt with the issue of good cause in determining
whether or not to excuse an attorney's inadvertent failure to
file a notice of appeal within the time period required by the
rules. Notwithstanding the general proposition that a litigant
is bound by the mistakes of his or her attorney, the Supreme
Court in Martindell held that inadvertence of counsel may justly
be deemed to constitute good cause where the delay does not
prejudice the adverse party and a rational application under the
circumstances present favors a determination that provides
justice to the litigant. Id. at 349. Absent demonstrable
prejudice, it is neither necessary nor proper to visit the sins
of the attorney upon his blameless client. Jansson v. Fairleigh
Dickinson Univ.,
198 N.J. Super. 190, 196 (App. Div. 1985); see
also Parker v. Marcus,
281 N.J. Super. 589, 594 (App. Div. 1995).
A review of the record fails to indicate that the defendants
suffered any demonstrable prejudice by counsel's twenty-five to
thirty-five day delay in filing. It is necessary to look at the
overall purpose of the statute to determine whether good cause
exists to justify an extension of time thereby excusing counsel's
failure to file the Affidavit of Merit within the initial sixty
day period. The overall purpose of the Affidavit of Merit
statute is to require plaintiffs in malpractice cases 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. In re Petition of Hall,
147 N.J. 379, 391 (1997)
(citing Peter Verniero, Chief Counsel to the Governor, Report to
the Governor on the Subject of Tort Reform (Sept. 13, 1994)).
Given the stated purpose of the statute is to prevent the
filing of meritless claims, it follows that the sixty day filing
requirement is not intended to establish a period of limitation
beyond which claims should be barred. Inadvertence of counsel
would not qualify as good cause to excuse a failure to file
within the period set by a statute of limitations, as it would
thwart the expressed purpose of the statute. A statute of
limitations has the primary purpose of eliminating stale claims
by setting forth a time beyond which a claim cannot be brought.
Union City Housing Auth. v. Commonwealth Trust Co.,
25 N.J. 330,
335 (1957). Such is not the case with the Affidavit of Merit
statute.
Here, counsel's neglect qualifies as good cause thereby
establishing the right to an extension because the affidavit
filed sets forth a threshold showing of malpractice and was
filed within the extension time period permitted by the statute.
To hold otherwise would be contrary to the stated purpose of the
statute and unfairly punish a litigant for the mistake of
counsel. We therefore hold that plaintiffs have established good
cause and the time that plaintiffs filed Dr. Salcman's Affidavit
of Merit relates back to March 23, 1995, notwithstanding the
failure of counsel to move for an extension during the initial
sixty day period.
Finally, Dr. Stark contends that plaintiffs' affiant, a
neurosurgeon, was not qualified to evaluate a radiologist. The
motion judge found it unnecessary to rule on the issue of Dr.
Salcman, in light of his ruling on plaintiffs' failure to file
within the initial sixty day period. In order to complete our
review of the matter before us, we find it necessary to make the
following observations. R. 2:10-5.
The Supreme Court determined in Cornblatt, supra, 153 N.J.
at 242, that a description of an affiant's qualifications need
not be included in the body of the affidavit so long as they are
presented in conjunction with it in such a way that the defendant
has the opportunity for review. In Wacht v. Farooqui,
312 N.J.
Super. 184, 188 (App. Div. 1998), we held that an orthopedic
surgeon was qualified to submit an Affidavit of Merit regarding
the conduct of a board certified radiologist, where his
curriculum vitae included citations to scientific papers he had
authored dealing with various radiological diagnosis imaging
techniques. It seems unlikely that a neurosurgeon would not be
qualified to discuss various radiological diagnosis techniques,
given the need to locate the area and determine the type of
surgical intervention needed. The bibliography section of Dr.
Salcman's curriculum vitae demonstrates at least three papers
authored by him dealing with CT, MRI and radiological diagnosis
techniques. We hold that Dr. Salcman has established his
qualifications and the Affidavit of Merit submitted with
plaintiffs' motion papers on March 23, 1998, complies with
N.J.S.A. 2A:53A-27.
Reversed and remanded for further proceedings.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-489-98T3
DENISE L. BURNS and
MATTHEW BURNS,
Plaintiffs-Appellants,
v.
MARK L. BELAFSKY, M.D.,
ROBERT B. BELAFSKY, M.D.,
BELAFSKY & BELAFSKY, M.D.,
P.A., IRA STARK, D.O., and
SOUTH JERSEY IMAGING CENTER,
Defendants-Respondents.
_________________________________________
RODRÍGUEZ, A. A., J.A.D. concurring.
I concur that, under the circumstances presented here,
plaintiffs' complaint should not be dismissed on the grounds of
untimeliness in filing the affidavit of merit or the motion for a
sixty-day extension pursuant to N.J.S.A. 2A:53A-27. However, I
express no view on the challenge to Dr. Michael Salcman's
(plaintiffs' affiant) qualifications to evaluate the allegation of
malpractice against Dr. Ira Stark. That issue was not addressed by
the trial judge based on the ruling on the timeliness issue. I
disagree that pursuant to R. 2:10-5 we should exercise original
jurisdiction to decide this issue. Such exercise of original
jurisdiction and a concomitant factual finding on Dr. Salcman's
77qualification to execute the affidavit of merit are not
"necessary to the complete determination of [the] matter on
review." R. 2:10-5. I would leave that fact finding to the trial
judge.
Footnote: 1Although not in appellate briefs, plaintiffs' complaint specified which Belafsky defendant performed specific procedures.