(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued January 29, 2001 -- Decided May 10, 2001
LONG, J., writing for a unanimous Court.
The issue in this appeal is whether plaintiff's conduct satisfies the Affidavit of Merit statute. N.J.S.A
2A:53A-27.
On December 26, 1995, eighty-year-old Vivian Galik slipped and fell in her kitchen, striking the back of
her head and her neck on a radiator. She was taken to Clara Maass Medical Center and admitted. During the weeks
she spent at the Hospital, Galik progressively lost function in her limbs. She was discharged on January 31, 1996,
virtually quadriplegic. On February 23, 1996, Galik was admitted to Mountainside Hospital where she was
diagnosed with a fractured cervical spine. She died of pneumonia and respiratory arrest on February 29, 1996.
Vivian Galik's daughter, Simone, executrix of Vivian's estate, retained an attorney to investigate the
possibility of a malpractice action. The attorney retained a Board Certified Neurosurgeon, Dr. Francis J. Pizzi, to
review Galik's medical records. In a written report dated November 11, 1996, Pizzi stated that there was a
substantial deviation from the standard of medical care given to Galik at the Clara Maass Medical Center. He
criticized the doctors by speciality, but not by name, identifying the errors committed by each of the specialists
involved in Galik's treatment. Dr. Pizzi also concluded that had Galik received the appropriate, timely treatment,
she would have survived.
Pizzi prepared a more detailed report on March 12, 1997, making particularized allegations of malpractice
against four named doctors, including Galik's attending physician, Dr. Shivashankar, the radiologist who read the
MRI, Dr. Fusco, the neurologist, Dr. DeLuca and the orthopaedist, Dr. Greifinger. Galik's attorney sent the reports
to defendants' insurance carriers on July 29, 1997, demanding a global settlement. In addition to the doctors
identified above, the attorney's cover letter also identified the psychiatrist involved in Galik's care, Dr. Gangemi,
and the radiologist who performed the x-rays, Dr. Acosta.
Efforts to settle the case were unsuccessful, and plaintiff filed her malpractice action on November 19,
1997. Dr. Fusco was not named in the original complaint but was added later by amendment. The complaint
against Fusco was later dismissed on statute of limitations grounds. Doctors DeLuca and Greifinger answered the
complaint on January 13, 1998, Dr. Acosta on January 26, 1998, Dr. Gangemi on March 10, 1998, and Dr.
Shivashankar on March 23, 1998.
Defendants moved to dismiss based on plaintiff's failure to provide an affidavit of merit. On May 28,
1998, plaintiff filed a cross-motion for a sixty-day extension within which to file the affidavit. Plaintiff argued that
the motion was made within the 120-day window provided in N.J.S.A. 2A:53A-27 as to Drs. Gangemi and
Shivashankar and that, in any event, Dr. Pizzi's reports, which were served on the carriers long before the filing of
the complaint, constituted substantial compliance with the Affidavit of Merit statute.
On June 2, 1998, before the trial court ruled on the pending motions, plaintiff filed and served an affidavit
of merit prepared by Dr. Pizzi. The affidavit simply stated Pizzi's conclusion that there was a deviation from the
accepted standards of care by the doctors, and identified each by name.
The trial court dismissed the complaint against Drs. Acosta, DeLuca, Gangemi and Greifinger based on the
failure to file an affidavit of merit or seek an extension therefrom within sixty days of the answers filed by those
defendants. In addition, the trial court held that dismissal regarding defendants Acosta and Gangemi was warranted
on substantive grounds because plaintiff's expert reports failed to sufficiently indicate that they had deviated from
accepted standards of medical care. Thereafter, Dr. Shivashankar filed a similar motion to dismiss that was granted.
Plaintiff appealed the dismissals, and the Supreme Court directly certified the appeal.
HELD: Plaintiff's affidavit of merit was timely filed for those defendants whose answers were filed less than 120
days before the affidavit. As to the other defendants, the unsworn expert reports served on their insurance carriers
prior to the filing of the complaint constitute substantial compliance with the statute. Cornblatt v. Barow,
153 N.J. 218 (1998), has been widely misunderstood as a rather narrow authorization of the use of “substantial compliance.”
1. The Court's recent decisions have identified the purpose underlying the Affidavit of Merit statute - to weed out
frivolous lawsuits at an early stage and to allow meritorious cases to go forward. In Burns v. Belafsky,
166 N.J. 466
(2001), a case decided after the trial court proceedings in this matter, this Court held that if a plaintiff files a motion
to extend time, establishing good cause for the late filling, and also files the affidavit within the overall 120-day
window provided in N.J.S.A. 2A:53A-27, those actions will be deemed timely. Plaintiff moved for an extension
within 120 days of the answers of Drs. Gangemi and Shivashankar on the ground that the expert report had been
served on defendants' carriers and was the basis of ongoing settlement negotiations. In the face of those conceded
facts, good cause for late filing was established and the affidavit of merit was timely filed as to those doctors. (Pp.
10-12)
2. The purpose of the equitable doctrine of substantial compliance is to avoid the harsh consequences that flow
from technically inadequate actions that nonetheless meet a statute's underlying purpose. Substantial compliance
depends on a lack of prejudice to the defending party; a series of steps taken to comply with the statute; general
adherence to the purposes of the statute; reasonable notice of the claim; and a reasonable explanation of why there
was not strict compliance. (Pp. 12-16)
3. The Court's decision in Cornblatt v. Barow,
153 N.J. 218 (1998), has been widely misunderstood as a rather
narrow authorization of substantial compliance in the affidavit of merit setting. By declaring that there was no
legislative intent to the contrary, Cornblatt authorized the application of the substantial compliance doctrine in any
affidavit of merit case in which its use is justified by the facts. (Pp. 16-19)
4. There is no evidence in this record that any defendant has been prejudiced by plaintiff's filing of an unsworn and
uncertified expert's report approximately eight months before filing the complaint. Plaintiff also took a series of
steps to comply with the statute and generally met its purpose by retaining an expert before filing suit, obtaining
expert reports, and forwarding them to defendants' carriers who notified defendants and attempted to settle on
defendants' behalf. Plaintiff's counsel explained that he believed he had exceeded his obligation under the statute.
At least in part, because his actions were taken in previously uncharted waters, that explanation is reasonable. (Pp.
19-22)
5. Although Dr. Pizzi's unsworn reports are sufficient to meet the time constraints in the Affidavit of Merit statute
regarding Dr. Acosta, there remains the issue whether they are substantively adequate regarding that defendant.
Although Dr. Acosta was not named in the reports, it is undisputed that he was Galik's radiologist for the cervical
spine x-rays. The fair import of the reports is that Dr. Acosta had committed malpractice by omitting certain x-rays,
but Dr. Pizzi left open the possibility that Dr. Acosta, at some later point, could explain the omission. That reading
of the initial report is supported by Dr. Pizzi's belated affidavit of merit, which states that Dr. Acosta deviated from
acceptable medical standards of care. (Pp. 22-23)
The judgment under review is REVERSED, and the matter is REMANDED for trial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA, and ZAZZALI join
in JUSTICE LONG's opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
13 September Term 2000
SIMONE GALIK, Executrix of
the ESTATE OF VIVIAN GALIK,
her mother, deceased and
SIMONE GALIK, Individually,
Plaintiff-Appellant,
v.
CLARA MAASS MEDICAL CENTER a
hospital corporation, its
servants, agents, or
employees, JOSEPH M. FUSCO,
M.D., RICHARD ROE, JANE DOE
and MARY ROE,(fictitious
names intending to designate
physicians and/or nurses
involved in the care,
management, diagnosis, and
treatment) and each of them
jointly, severally or in the
alternative,
Defendants,
and
MATTHEW DeLUCA, M.D.,
KESHAVMURTHY SHIVASHANKAR,
M.D., ROBERT ACOSTA, M.D.,
DAVID GREIFINGER, M.D. and
EDWIN GANGEMI, M.D.,
Defendants-Respondents.
Argued January 29, 2001 -- Decided May 10, 2001
On appeal from the Superior Court, Law
Division, Essex County.
Terry L. Shapiro argued the cause for
appellant (Mandel Berezin Shapiro & Sawyer,
attorneys).
Edward J. Dauber argued the cause for
respondents Matthew DeLuca, M.D.,
Keshavmurthy Shivashankar, M.D., Robert
Acosta, M.D. and David Greifinger, M.D.
(Greenberg, Dauber, Epstein & Tucker,
attorneys; Michael J. Lunga, David P. Weeks
and James R. Korn, of counsel; Karen M.
Lerner, Susan A. Dragone, Michael R.
Ricciardulli and Julia A. Klubenspies, on the
briefs).
Kenneth M. Brown argued the cause for
respondent Edwin Gangemi, M.D. (Reiseman
Sharp Kelsey & Brown, attorneys; Jane S.
Kelsey, of counsel; Everett E. Gale, III, on
the brief).
The opinion of the court was delivered by
LONG, J.
We are called upon once more to evaluate the sufficiency of
a plaintiff's conduct in attempting to satisfy the Affidavit of
Merit statute. N.J.S.A. 2A:53A-27.
I
On December 26, 1995, eighty-year-old Vivian Galik slipped
and fell in her kitchen, striking the back of her head and her
neck on a radiator. She was taken to the Emergency Department of
Clara Maass Medical Center, and later admitted. Galik was
treated at Clara Maass by Dr. Robert Acosta (radiologist), Dr.
Matthew DeLuca (neurologist), Dr. Edwin Gangemi (physiatrist),
Dr. David Greifinger (orthopaedist), and Dr. Keshavmurthy
Shivashankar (primary care/internist). During the weeks she
spent at the Hospital, Galik progressively lost function in her
limbs. She was discharged on January 31, 1996 “virtually
quadriplegic [and] requiring total care.” On February 23, 1996,
Galik was admitted to Mountainside Hospital where she was
diagnosed with a fractured cervical spine. She died of pneumonia
and respiratory arrest on February 29, 1996.
Galik's daughter, Simone, the executrix of her estate,
retained an attorney to investigate the possibility of
instituting a malpractice action in connection with her mother's
death. The attorney, in turn, provided Mrs. Galik's records to a
Board Certified Neurosurgeon, Dr. Francis. J. Pizzi. Pizzi
prepared a report for the lawyer on November 11, 1996 that
stated:
It is my considered medical opinion that
there was a substantial deviation from the
standard of medical care given to this
patient at the Clara Maass Medical Center.
The correct diagnosis at that time was
fractured cervical spine with instability.
The x-rays of the cervical spine taken were
only two views. Flexion/extension x-rays
were not taken to see if there was an
unstable spine to account for her
neurological picture. In that the clinical
presentation was suggestive of a brachial
plexus injury this oversight (not taking
flexion/extension views) may be excusable.
An MRI scan of the cervical spine was ordered
on 1/5 but not performed until 1/6. This, by
my review as well as in the radiologist's
report, shows a subluxation of C5 on C6 with
a severe compromise of the spinal canal at
that level. This study has motion artifact
but still is very suggestive of dislocation.
This very worrisome finding went unrecognized
by all the physicians caring for her. On
1/11/96 she began showing signs of
progression of her spinal cord injury when
she required straight catheterization for her
urine and then the installation of an
indwelling Foley catheter. Both the
neurologist and the orthopaedist found that
her neurological status had changed with her
unable to move her legs and her upper
extremity. This is documented also by the
Rehabilitation Department where the motor
power in both lower extremities is zero over
five and in the upper extremities proximal
motions are one out of five on the right, two
out of five on the left and zero out of five
in the more distal arm muscles. Despite this
dramatic change in status still no one has
put this together with the subluxation seen
at the C5-C6 level on the MRI scan done two
days before she became quadriplegic. This is
inexcusable.
When the MRI report and films became
available on 1/6/96 the patient was still
neurologically quite viable and had she been
evaluated and treated appropriately then she
would not have become essentially
quadriplegic and helpless, which condition
led to her demise. Upon getting the results
of the MRI scan a repeat MRI with sedation to
minimize the motion artifact was an option as
was a cervical spine series with lateral
flexion and extension views or a CT scan of
the cervical spine. This would have
identified the dislocation and unstable spine
at the C5-C6 level. Appropriate treatment to
stabilize her spine would have prevented her
subsequent spinal cord damage which led to
her severe quadriparesis and death.
In a supplemental report dated March 12, 1997, Dr. Pizzi added
particularized allegations against Doctors DeLuca, Greifinger and
Shivashankar by name:
I carefully reviewed the Clara Maass Medical
Center records on the above mentioned patient
once again.
Once again, I do feel that there was
substantial deviation from the standard of
care in the treatment of this patient.
Her attending physician, Dr. K.
Shiva[shankar], failed to recognize that this
patient had a cerival fracture dislocation
and as a result of her lack of treatment for
this she became quadriplegic during her
hospital stay and subsequently died as a
result of complications that elderly
quadriplegics get. An MRI scan was ordered
by the neurologist on l/5 but, according to
the MRI report, the transcription was not
done until 1/9. On 1/10 Dr. Shiva[shankar]
wrote an order to “get results of MRI scan.”
The report clearly states that there is
fracture dislocation at the C5-C6 level but
the study is limited. There is no indication
in the records that Dr. Shiva[shankar] did in
fact get the results of the MRI scan and
acknowledge that there was an abnormality
which required treatment.
Dr. DeLuca, the neurologist, ordered the MRI
scan of the cervical spine yet did not follow
through on obtaining the results and
recommending appropriate treatment for this.
The findings on the MRI scan more than
accounted for the patient's symptoms of pain
in her neck and findings on examination of
weakness of her right extremity, all
occurring as a result of head and neck trauma
in an elderly person.
Dr. Greifinger, the orthopaedist, also in his
notes indicated that he would be interested
to see the results of the MRI scan of her
cervical spine yet no follow-up on his part
was done to get the results of the MRI scan
so that appropriate treatment could be
rendered for her fracture dislocation.
The Progressive Imaging Center did perform an
MRI scan on 1/5/96. The report was
transcribed on 1/9/96 and I presume
transferred to the hospital on 1/10/96 at the
request of Dr. Shiva[shankar]. The four day
gap in transcribing this report and getting
the information to the hospital is a
substantial deviation in a patient with neck
trauma with neurological deficit who has an
abnormal cervical spine examination. Dr.
Fusco,See footnote 11 the radiologist who read the study at
some time between 1/5/96 and 1/9/96 when it
was transcribed, deviated from the standard
of care in not verbally reporting by
telephone to either the attending physician
or the consultants that there was a fracture
dislocation at the C5-C6 level in a patient
who was suspected of having a cervical spine
injury.
By letter dated July 29, 1997, plaintiff's counsel forwarded
Dr. Pizzi's reports to Princeton Insurance Company, the carrier
for Doctors Gangemi and Greifinger, and Medical Inter-Insurance
Exchange of N.J., the carrier for Doctors Acosta, DeLuca and
Shivashankar, simultaneously advising the carriers of his
client's demand for a “global settlement” for Mrs. Galik's
“conscious pain and suffering” and “premature, untimely wrongful
death.” The July 29, 1997 letter specifically names all five of
the physicians who treated Mrs. Galik:
Enclosed herewith you will please find
the report of Dr. Francis Pizzi,
neurosurgeon, dated November 11, 1996.
Dr. Pizzi discusses the medical
negligence of Dr. Acosta (radiologist) Dr.
Shivashankar (primary physician) Dr. DeLuca
(neurologist) Dr. Greifinger (orthopaedist)
and Dr. Gangemi (physiatrist).
In the opinion of Dr. Pizzi, Ms. Galik
died based upon the failure of each
specialist to diagnose the subluxations of
the cervical, vertebral unstable spine
resulting in the spinal cord lesion
quadraplegia [sic] and death.
[Emphasis added.]
Again on October 8, 1997, plaintiff's counsel notified the
insurance carriers by letter of plaintiff's intent to file suit
“unless this matter is amicably resolved by October 23, 1997" and
again enclosed a copy of Dr. Pizzi's March 12 report.
Efforts to settle the case were unsuccessful and on November
19, 1997, plaintiff, Simone Galik, individually and as executrix
of the estate of her mother, filed a malpractice action against
Drs. Acosta, DeLuca, Gangemi, Greifinger and Shivashankar, the
hospital and a number of John Doe defendants, alleging
malpractice. Doctors DeLuca and Greifinger answered on January
13, 1998, Dr. Acosta on January 26, 1998, Dr. Gangemi on March
10, 1998, and Dr. Shivashankar on March 23, 1998. Drs. Acosta,
DeLuca, Gangemi and Greifinger filed motions to dismiss based on
plaintiff's failure to provide an affidavit of merit as required
by N.J.S.A. 2A:53A-27.
On May 28, plaintiff filed a cross-motion for a sixty-day
extension within which to file the affidavit. Plaintiff argued
that the motion was made within the 120-day window provided in
N.J.S.A. 2A:53A-27 relative to Drs. Gangemi and Shivashankar and
that, in any event, Dr. Pizzi's reports, served on the carriers
long before the filing of the complaint, constituted substantial
compliance with the Affidavit of Merit statute. In addition, on
that date, plaintiff served all parties with Dr. Pizzi's reports
in connection with answers to interrogatories.
On June 2, 1998, before the trial court ruled on the pending
motions, plaintiff filed and served an affidavit of merit
completed by Dr. Pizzi. That affidavit provided in pertinent
part:
Based upon the record of hospital confinement
of the Plaintiff's decedent at Clara Maass
Medical Center from December 26, 1995 to
January 31, 1996 and at Mountainside Hospital
from February 23 to the date of her death on
February 29, 1996, I have concluded that
there is a reasonable medical probability
that there was a [deviation] from the
accepted standards of care, treatment,
observation and medical management of
Plaintiff's decedent, Vivian Galik by the
Defendants, Edmond [sic] Gangemi, M.D.
(Physiatrist), Matthew DeLuca (Neurologist),
Robert Acosta, M.D. (Radiologist), David
Greifinger, M.D. (Orthopedist), Keshavmurthy
Shivashankar, M.D. (Internist), and that such
deviation resulted in the failure to diagnose
and treat the decedent's spinal cord lesion
caused by a fracture dislocation and or
subluxation of the vertebrate from C5 onto C6
and resulted in progressive quadriparesis,
pulmonary infection and pneumonia, and
respiratory arrest and death on February 29,
1996.
On June 26, 1998, the trial court dismissed the complaint
against Drs. Acosta, DeLuca, Gangemi and Greifinger based on
plaintiff's failure to file an affidavit of merit or seek an
extension therefrom within sixty days of the answers filed by
those defendants. The trial court denied plaintiff's request for
an extension or, in the alternative, a finding of substantial
compliance. In addition, the trial court held that dismissal
regarding defendants Acosta and Gangemi was warranted on
substantive grounds because plaintiff's unsworn expert reports
failed to sufficiently indicate that Doctors Acosta and Gangemi
deviated from accepted standards of medical care. Thereafter,
Dr. Shivashankar filed a similar motion to dismiss that was
granted. On January 22, 1999, Clara Maass Medical Center was
also dismissed. Plaintiff appealed from the dismissals of
Doctors Acosta, DeLuca, Gangemi, Greifinger and Shivashankar and
we directly certified the appeal.
165 N.J. 525 (2000).
Plaintiff now contends that service of two expert reports on
defendants' medical malpractice insurance carriers before the
filing of the complaint constitutes substantial compliance with
N.J.S.A. 2A:53A-27. Alternatively, plaintiff contends that
counsel's “good faith belief that the spirit of the statute had
been satisfied [by service on the carriers] and that no motion
would be filed to dismiss the complaint for failing to put the
opinion of Dr. Pizzi in affidavit form” demonstrated
“extraordinary circumstances.”
II
N.J.S.A. 2A:53A-27 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 purpose underlying the statute has been fully explicated in
our recent decisions. Burns v. Belafsky,
166 N.J. 466, 474-75
(2001) and Cornblatt v. Barow,
153 N.J. 218, 242 (1998). It was
designed as a tort reform measure and requires a plaintiff in a
malpractice case to make a threshold showing that the claims
asserted are meritorious. It is designed to weed out frivolous
lawsuits at an early stage and to allow meritorious cases to go
forward. Cornblatt, supra, 153 N.J. at 242. See generally Peter
Verniero, Chief Counsel to the Governor, Report to the Governor
on the Subject of Tort Reform (Sept. 13, 1994)(noting that
“[r]epresentatives of hospitals, medical professionals, and
medical-malpractice insurers support[ed] the certificate-of-merit
requirement as a way of weeding out meritless lawsuits (and of
identifying truly culpable defendants)”). Here we are faced with
the issue of whether plaintiff's conduct before and after filing
of the complaint either satisfied the Affidavit of Merit statute
directly or complied with it substantially. Because different
legal standards apply to various defendants, we will serially
address the issues on the basis of the circumstances germaine to
the various defendants.
III
In Burns v. Belafsky, a case decided after the trial court
proceedings in this matter, we rejected a defendant's contention
that an application for a sixty-day extension must be made within
the first sixty-day period prescribed by the statute, declining
to superimpose that precondition on the statute because it would
neither advance the legislative purpose nor conform with well-
established principles of statutory interpretation. Burns,
supra, 166 N.J. at 475-77. Accordingly, if a plaintiff files a
motion to extend time, establishing good cause for the late
filing, and also files an affidavit of merit within the overall
120-day window provided in N.J.S.A. 2A:53A-27, those actions will
be deemed timely.
Here, within 120 days of the answers of Drs. Gangemi and
Shivashankar, plaintiff moved for an extension on the ground that
the expert report, in unsworn form, had not only been served on
defendants' carriers prior to the filing of suit, but was the
basis of ongoing settlement negotiations. In the face of those
conceded facts, good cause for late filing was established and
the affidavit of merit filed and served therewith was timely
under Burns. The complaint against Doctors Gangemi and
Shivashankar thus should not have been dismissed.
IV
Neither plaintiff's motion for an extension nor the
affidavit of merit was filed within 120 days of the answers of
Drs. Acosta, DeLuca and Greifinger. Thus, whether the claims
against those physicians can survive defendants' motions to
dismiss will depend on whether Dr. Pizzi's unsworn reports that
were served on the carriers constitute substantial compliance
with the statute.
The equitable doctrine of substantial compliance has deep
roots in English common law, Neil v. Morgan, 1
862 WL 3359, at *3
(Ill. 1862), and has received
repeated recognition in our own cases (McCarty v.
Boulevard Comm'rs of Hudson Co.,
91 N.J.L. 137, 142,
106 A. 219 (Sup. Ct. 1918), aff'd,
92 N.J.L. 519,
106 A. 891 (E. & A. 1918); Travis Highlands,
136 N.J.L. 199, 202,
55 A.2d 109 (Sup. Ct. 1947) as well as in
cases elsewhere. See Ray v. City of Birmingham,
275 Ala. 332,
154 So.2d 751, 752-753 (1963); Burmek v.
Miller Brewing Co.,
2 Wis.2d 330,
86 N.W.2d 629, 630-
631 (1958); Brickell v. Kansas City, Mo.,
364 Mo. 679,
265 S.W.2d 342, 344-345 (1954); Perry v. City of High
Point,
218 N.C. 714,
12 S.E.2d 275, 278 (1940); cf.
Giovanniello v. City of New York,
163 Misc. 868,
296 N.Y.S. 886, 888 (Sup. Ct. 1936); Knight v. City of New
York,
249 App. Div. 635,
291 N.Y.S. 291, 292 (1936).
[Zamel v. Port of N.Y. Auth.,
56 N.J. 1, 5-6
(1970).]
Its purpose is to avoid the harsh consequences that flow from
technically inadequate actions that nonetheless meet a statute's
underlying purpose. Anske v. Borough of Palisades Park,
139 N.J.
Super. 342, 347 (App. Div. 1976). It is a doctrine based on
justice and fairness, designed to avoid technical rejection of
legitimate claims. Zamel, supra, 56 N.J. at 6.
In Zamel, supra, we resorted to the doctrine of substantial
compliance to excuse the failure of the plaintiff to file a
timely notice of claim with a public agency where that agency had
in hand, within the 60-day period provided by statute,
substantially all of the information that would have been
provided in the notice. 56 N.J. at 7. Rejecting defendant's
contention that substantial compliance is inapplicable to a claim
with respect to which notice is a statutory pre-condition to the
maintenance of suit, we stated:
In any event the matter before us is simply one of
legislative understanding and contemplation; we find
nothing whatever in the pertinent statutory history or
terminology to indicate that our Legislature ever meant
to exclude the highly just doctrine of substantial
compliance which is so well designed to avoid technical
defeats of valid claim. Cf. City of Birmingham v.
Hornsby,
242 Ala. 403,
6 So.2d 884 (1942):
Our authorities are uniform to the effect
that technical accuracy is not required.
Substantial compliance suffices. There was
no intention on the part of the law makers
that such a statute should be used as a
stumbling block or pitfall to prevent
recovery by meritorious claimants.
[Id. at 6.]
Since then the doctrine has been applied by our courts in a wide
array of contexts. See Negron v. Llarena,
156 N.J. 296, 305
(1998)(finding widow's wrongful death action timely filed where
she substantially complied with Wrongful Death Act statute of
limitations); In re Will of Ranney,
124 N.J. 1, 11-15
(1991)(invoking doctrine of substantial compliance to find that
will may be admitted to probate under circumstances where it does
not literally comply with statutory attestation requirements);
Cole v. Township of Roxbury,
257 N.J. Super. 108, 116 (App. Div.
1992)(holding township's chief financial officer substantially
complied with statutory requisites for achieving tenure pursuant
to N.J.S.A. 40A:9-140.8); Stegmeier v. St. Elizabeth Hosp.,
239 N.J. Super. 475, 481-83 (App. Div. 1990)(finding substantial
compliance with time requirements on service of motion for new
trial where motion was timely filed and delivered to independent
messenger service within ten-day time period); Gerzsenyi v.
Richardson,
211 N.J. Super. 213, 217 (App. Div. 1986)(applying
doctrine of substantial compliance where motion for trial de novo
was filed one business day late); Speer v. Armstrong,
168 N.J.
Super. 251, 257 (App. Div. 1979)(finding third-party action filed
by non-public defendants constituted substantial compliance with
plaintiff's notice requirement under the Tort Claims Act);
Bernstein v. Board of Trustees of the Teachers' Pension and
Annuity Fund,
151 N.J. Super 71, 76 (App. Div. 1977)(holding
former teacher, who filed application for disability retirement
benefits 26 days late substantially complied with statutory
requisites).
To be sure, not every non-complying act is salvageable under
the substantial compliance doctrine. In Bernstein, supra, where
the doctrine was invoked by the court in the pension context, its
elements were set forth with specificity:
A canvass of the cases dealing with the application of
the equitable doctrine of substantial compliance
indicate the following considerations: (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. See generally, Zamel v.
Port of N.Y. Auth.,
56 N.J. 1,
264 A.2d 201 (1970);
McCarty v. Boulevard Commr's of Hudson Cty.,
91 N.J.L. 137, 142,
106 A. 219 (Sup. Ct. 1918), aff'd 92 N.J.L.
519,
106 A. 891 (E. & A. 1918); Travis v. Highlands,
136 N.J.L. 199, 202,
55 A.2d 109 (Sup. Ct. 1947); Ray
v. City of Birmingham,
275 Ala. 332,
154 So.2d 751,
752-753 (Sup. Ct. 1963); Burmek v. Miller Brewing Co.,
2 Wis.2d 330,
86 N.W.2d 629, 630-631 (Sup. Ct. 1958);
Brickell v. Kansas City, Mo.,
364 Mo. 679,
265 S.W.2d 342, 344-345 (Sup. Ct. 1954); Perry v. City of High
Point,
218 N.C. 714,
12 S.E.2d 275, 278 (Sup. Ct.
1940).
[151 N.J. at 76-77.]
Satisfying those elements guarantees that the underlying purpose
of the statute is met and that no prejudice is visited on the
opposing party. In each case, the court is required to assess
the facts against the clearly defined elements to determine
whether technical non-conformity is excusable.
In Cornblatt, supra, we were faced with the applicability of
the Affidavit of Merit statute to causes of action where the
legally significant facts arose prior to the effective date of
the statute.
153 N.J. 218. We held that the statute does not
apply in such circumstances and, more particularly, that it did
not apply in the Cornblatt case. Id. at 236. We then addressed
the status of a certification filed in lieu of an affidavit and
concluded that the doctrine of substantial compliance could be
invoked to excuse technical non-compliance with the Affidavit of
Merit statute.
We began our analysis by answering the pivotal question:
whether there is a legislative intent to preclude a substantial
compliance analysis in the affidavit of merit setting. We
answered that question in the negative:
In light of the doctrine of substantial compliance,
which requires reasonable effectuation of the statute's
purpose . . . 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.
[Id. at 240.]
Then, applying the five Bernstein criteria (although not by
name), we detailed how a plaintiff could sustain a substantial
compliance claim in a case involving a timely certification
instead of an affidavit:
Those circumstances would also include at the very
least the timely filing of a certification otherwise
complying with all of the specifications for an
affidavit of merit; an adequate and reasonable
justification and convincing explanation of just cause
and excusable neglect for submitting a certification
rather than an affidavit; and, further, that the
adverse party was not prejudiced and obtained the
requisite notice in that the certification contained
the quality and level of information contemplated by
the affidavit requirement. Further, a relevant
circumstance would involve the plaintiff undertaking
prompt measures to comply fully with the statute,
including specifically the filing of an affidavit or
the agreement of an adversary that the certification
provided fully meets the substantive requirements of
the statute. We determine that under such
circumstances, the statutory requirement for the
affidavit of merit would be deemed to have been met by
the initial filing of a certification instead of an
affidavit of merit.
[Ibid.]
Cornblatt has been widely misunderstood as a rather narrow
authorization of substantial compliance in the affidavit of merit
setting. As a result, the Appellate Division is split over its
meaning in the context of an unsworn expert's report. See Ricra
v. Barbera,
328 N.J. Super. 424 (App. Div. 2000); Mayfield v.
Community Med. Assocs., P.A.,
335 N.J. Super. 198 (App. Div.
2000). In Ricra, the court held that Cornblatt's invocation of
the doctrine of substantial compliance was narrowly limited to
cases in which a plaintiff seeks to satisfy the statute with a
certification. 328 N.J. Super. at 430. Thus, Ricra denied a
plaintiff the right to base a substantial compliance claim on an
unsworn expert's report. Id. at 431-32. Mayfield, supra,
reached a different conclusion, interpreting Cornblatt as
addressing that particular complex of facts but allowing the
invocation of substantial compliance in any case in which the
elements of the doctrine are satisfied without regard to the
nature of the underlying report. 335 N.J. Super. at 206-09.
Mayfield correctly interpreted Cornblatt. We did not intend
in that case to restrict the power of our courts to apply the
doctrine of substantial compliance when appropriate. What Ricra
conceived as a limit imposed by Cornblatt is nothing more than a
restatement of the template for a substantial compliance case.
In Cornblatt, Justice Handler, writing for the Court, did exactly
what precedent required. He declared that the Legislature did
not intend to prohibit use of substantial compliance in the
affidavit of merit setting and he then tested the facts of
Cornblatt against the five elements of the doctrine. The Court's
analysis was neither restrictive nor expansive. By declaring
that there was no legislative intent to the contrary, Cornblatt
authorized the application of the substantial compliance doctrine
in any affidavit of merit case in which its use is justified by
the facts.
To be sure, in Cornblatt we discussed the way in which the
affidavit/certification quandary could be resolved by resort to
the elements of substantial compliance, but there is no reason to
conclude that the doctrine should be limited to that factual
scenario. In the absence of a contrary legislative intent,
Mayfield properly determined that the doctrine of substantial
compliance is applicable so long as the facts of the case satisfy
the elements of the doctrine. Indeed, the very notion of
substantial compliance requires a fact-sensitive analysis
involving the assessment of all of the idiosyncratic details of a
case to determine whether “reasonable effectuation of the
statute's purpose” has occurred. Cornblatt, supra, 153 N.J. at
240. This case demonstrates, on its facts, that the elements of
substantial compliance have been satisfied.
Here, there is no evidence in the record that any defendant
has been prejudiced by plaintiff's filing of an unsworn and
uncertified expert's report approximately eight months before
filing the complaint. As Mayfield concluded:
First, . . . we see no prejudice whatever that
would result to defendants, other than that they would
have to defend against a potentially meritorious claim,
which is not legal prejudice. Certainly, there has
been no showing of prejudice to defendants that would
outweigh the strong preference for adjudication on the
merits rather than final disposition for procedural
reasons, or would warrant visiting on the innocent
clients an error of their attorney. Moreover, with
respect to prejudice, we have not been told, for
example, of any loss of evidence or undue additional
defense costs that could result from allowing
plaintiffs' case to proceed.
[Id. at 207 (citations omitted).]
Indeed, one might fairly argue that it was plaintiff who was
prejudiced where, as here, defendants relied on Dr. Pizzi's pre-
complaint reports to engage in settlement efforts through their
carriers and then, without warning, moved to dismiss for failure
to file an affidavit of merit.
The second and third elements of substantial compliance -
that the plaintiff took a “series of steps” to comply with the
statute and generally met its purpose - are also satisfied.
Plaintiff retained an expert before filing suit, forwarded the
medical records to the expert, obtained both an initial and a
supplementary expert report, and sent both to defendants'
carriers who attempted to settle the case on defendants' behalf.
That constituted a substantial good faith effort to comply with
the statute and to satisfy its underlying purpose. The carriers
obviously notified the insureds, on whose behalf they engaged in
settlement negotiations, thus satisfying the fourth prong.
Finally, plaintiff's attorney explained that he acted as he did
because of his belief that he was doing more than what the
statute required.
In sum, this is a classic substantial compliance case.
Regarding Drs. Acosta, DeLuca and Greifinger, Dr. Pizzi's unsworn
reports satisfy the temporal requirements of the Affidavit of
Merit statute. Moreover, because they identify Drs. DeLuca and
Greifinger by name and describe their malpractice with
specificity, they satisfy the salutary purposes of the statute
regarding those defendants.
Going forward, in every case attorneys should file a timely
and substantively appropriate affidavit of merit, not only to
avoid litigation like this, but to avert dismissal of meritorious
cases. As we have indicated, substantial compliance depends on a
lack of prejudice to the defending party; a series of steps taken
to comply with the statute; general adherence to the purposes of
the statute; reasonable notice of the claim; and a reasonable
explanation of why there was not strict compliance. Bernstein,
supra, 151 N.J. Super. at 76-78 (citing Zamel, supra, 56 N.J. at
6-7). Establishing those elements is a heavy burden. It was met
in this case because plaintiff's counsel obtained a detailed
expert's report verifying the legitimacy of the claim long before
filing the complaint, immediately shared it with defendant's
carriers, and engaged in settlement discussions with defendants
based on the report. Indeed, plaintiff's counsel explained that
he believed that he had exceeded his obligation under the
Affidavit of Merit statute. At least in part, because his
actions were taken in previously uncharted waters, that
explanation was reasonable.
Dr. Pizzi did not name any physician in the November 11, 1996 report and named only Drs. DeLuca, Fusco, Greifinger and Shivashankar in the March 12, 1997 supplement. Nevertheless, it is undisputed that Dr. Acosta was Mrs. Galik's radiologist, at least for the original cervical spine X ray. In that connection, in the initial report, Dr. Pizzi stated that there was a substantial deviation from the standard of medical care; that the initial radiologist (Dr. Acosta) should have taken flexion- extension X rays; that not doing so was an “oversight”; and that that oversight “may be excusable” if the flexion-extension views were not taken because of a possible brachial plexus injury (injury to the group of nerves at the armpit and base of the neck that leads to the nerves in the arms and hands). The fair import of Dr. Pizzi's report is that he believed, on the basis of the records before him, that Dr. Acosta had committed malpractice by omitting flexion-extension X rays but that he was leaving open the possibility that Dr. Acosta, at some later point, could explain the omission.
That reading of the initial report is supported by Dr. Pizzi's belated affidavit of merit. Although that affidavit was untimely and thus could not vault plaintiff over the temporal threshold of the statute, it can be resorted to as post-hoc evidence of what Dr. Pizzi's initial report was meant to establish: that by a reasonable probability a meritorious claim exists against Dr. Acosta. Given that there is no legislative interest in barring meritorious claims brought in good faith, the initial report of Dr. Pizzi, although not a model of clarity, passes substantive muster under the Affidavit of Merit statute.
VI
The judgment under review is reversed. The complaint is reinstated against Drs. Acosta, DeLuca, Gangemi, Greifinger and Shivashankar. The case is remanded for trial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA and ZAZZALI join in JUSTICE LONG's opinion. JUSTICE VERNIERO did not participate.
NO. A-13 SEPTEMBER TERM 2000
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
SIMONE GALIK, Executrix of
the ESTATE OF VIVIAN GALIK,
her mother, deceased and
SIMONE GALIK, Individually,
Plaintiff-Appellant,
v.
CLARA MAASS MEDICAL CENTER a
hospital corporation, etc., et al.
Defendants,
and
MATTHEW DeLUCA, M.D., et al.,
Defendants-Respondents.
DECIDED May 10, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1Dr. Fusco, who was added to the Complaint by amendment and later dismissed on statute of limitations grounds, is not the subject of this opinion.