SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2714-98T2
MICHELLE PALANQUE,
Plaintiff-Appellant,
v.
MARGARET LAMBERT-WOOLLEY, M.D.,
Defendant-Respondent.
Submitted December 15, 1999 - Decided January 5, 2000
Before Judges Stern, Wefing and Steinberg.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County.
Shebell & Shebell, attorneys for appellant
(Thomas F. Shebell, III, on the brief).
Grossman, Kruttschnitt, Heavey & Jacob,
attorneys (Richard A. Grossman, on the brief).
The opinion of the court was delivered by
STERN, P.J.A.D.
This is an appeal from an order entered on December 4, 1998,
dismissing "with prejudice" plaintiff's complaint against
defendant "for failure to comply with N.J.S.A. 2A:53A-26," the
"Affidavit of Merit" statute.See footnote 11 On this appeal, plaintiff
contends that the dismissal was inappropriate, particularly as it
was entered "with prejudice," because she had the expert's report
before filing her medical malpractice complaint and, in any
event, did not need an expert's report given the nature of the
claim.
It is alleged, and we must accept as true given the pretrial
dismissal and the expert report, that defendant misread a
laboratory report and read the specimen identification numbers as
the results of the blood tests. Therefore, according to the
expert, "[w]ith reasonable medical certainty the misreading as
positive of the pregnancy tests [led] to the incorrect diagnosis
of ectopic pregnancy," and "[t]his deviation led to the
performance of surgery which was not needed." According to
plaintiff, she had the report before filing the complaint and
submitted the affidavit of merit before the statute of
limitations ran. In any event, as already noted, plaintiff also
asserts that an affidavit of merit was not needed because this
was the type of malpractice case which could be "proven without
the need for expert opinion as to a standard of care or deviation
because a jury can reasonably infer that the harm would not have
occurred but for the defendant's misreading of the report."
Judge Patrick McGann dismissed the case because the
affidavit was received by defendant "far after the maximum 120
day period that is specified under the affidavit of merit
statute." Plaintiff appeals contending, as noted, that an
affidavit of merit was not required because she obtained
a report from an expert prior to instituting
suit, and thereafter obtain[ed] an affidavit
of merit prior to the running of the statute
of limitations, demonstrat[ing] that the
action was not frivolous and was filed in
good faith, so that even if dismissal was
appropriate, the circumstances taken in their
totality are so extraordinary as to have
required that dismissal be without prejudice.
Plaintiff cites Barreiro v. Morais,
318 N.J. Super. 461 (App.
Div. 1999), and Hyman Zamft & Manard v. Cornell, L.L.C.,
309 N.J.
Super. 586 (App. Div. 1998), for the proposition that there
should be a "fact sensitive analysis" concerning application of
an exception to the Cornblatt requirement that the dismissal be
"with prejudice." See Alan J. Cornblatt, P.A. v. Barow,
153 N.J. 218, 242-47 (1998).
Defendant contends that the dismissal "with prejudice"
should be affirmed because the affidavit of merit was not served
within 60 days (or even 120 days) of the answer as required by
statute.See footnote 22 She further submits that the "extraordinary
circumstances [exception permitted by case law] have to do with
either the intransigence of defendants in supplying needed
medical records, or lulling [plaintiffs] into believing that the
records are forthcoming," which does not apply here, see also
N.J.S.A. 2A:53A-28, and that the statute does not provide for an
exception to the filing of an affidavit of merit for any type of
malpractice case. Finally, she argues that "an affidavit of
merit is required to be filed and served by a plaintiff in every
case involving an allegation of negligence against a professional
licensed defendant." Defendant therefore takes issue with
Janelli v. Keeper,
317 N.J. Super. 309, 313 (Law Div. 1998),
which "concludes that in a res ipsa loquitur or common knowledge
case where expert testimony will not be utilized and is not
required at trial, the affidavit of merit statute does not
apply."
N.J.S.A. 2A:53A-27 provides:
Affidavit required in certain actions against
licensed persons
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.
For purposes of this appeal, we will assume, without
deciding, that no affidavit is required where expert testimony is
not required and the malpractice can be established as a matter
of common sense. See Levinson v. D'Alfonso & Stein,
320 N.J.
Super. 312, 321 (App. Div. 1999) (Wecker, J.A.D., concurring).
However, even under that rationale, an affidavit must be served
within the sixty-day period unless the proofs would permit
application of the common sense or common knowledge exception to
the need for expert testimony. Here, however, some expert proof
would be required to explain that the surgery was not medically
necessary and to explain the impact of the misreading of the
laboratory report in this regard.See footnote 33 Plaintiff does not explain
how she would actually present admissible evidence of malpractice
or professional negligence. Nor does she explain how she would
survive a motion at the end of her case in the absence of such
testimony.See footnote 44
Moreover, the fact plaintiff had an expert report in her
possession before filing suit does not satisfy the statute. No
affidavit was presented "within 60 days following the date of
filing of the answer to the complaint by the defendant" or even
within 60 days thereafter. Nor was any notice given within that
time period to the effect that plaintiff thought no affidavit was
required. As intermediate appellate judges, we cannot carve out
an exception to the Cornblatt "with prejudice" requirement
because plaintiff had an expert report in her possession. The
statute requires that the plaintiff furnish an "affidavit of
merit" in a timely fashion.See footnote 55 The Supreme Court in Cornblatt made
clear that the plaintiff's failure to comply with the statute's
procedural requirement requires dismissal of the complaint with
prejudice:
We have recognized that when a plaintiff
fails to comply with a statute that creates a
cause of action with both substantive and
procedural requirements, consistent with
imputed legislative intent, a dismissal for
failure to comply with procedural
requirements should be with prejudice unless
there are "extraordinary circumstances." In
Hartsfield v. Fantini,
149 N.J. 611,
695 A.2d 259 (1997), and the companion case Wallace v.
JFK Hartwyck at Oak Tree, Inc.,
149 N.J. 605,
695 A.2d 257 (1997), the Court considered a
statute mandating automobile arbitration,
N.J.S.A. 39:6A-24 to -35, that required that
a motion for a trial de novo be filed within
thirty days and that the failure to file
within that time period would result in
dismissal of any future court actions.
Hartsfield, supra, 149 N.J. at 615,
695 A.2d 259. The Court held that, despite the
language of the statute, a late motion would
be permitted if the failure to file within
thirty days was due to "extraordinary
circumstances." Id. at 618,
695 A.2d 259.
We perceive no basis for not imputing a
similar legislative intent in the enactment
of the Affidavit of Merit Bill. We conclude
that a dismissal under the statute based on a
violation of the affidavit requirement would
be without prejudice only if there are
extraordinary circumstances. Absent
extraordinary circumstances, a failure to
comply with the statute that requires a
dismissal would be with prejudice.
[Cornblatt, supra, 153 N.J. at 246-47.]
Moreover, in the Hartsfield and Wallace cases cited in Cornblatt,
an attorney's "mere carelessness" or "lack of proper diligence"
in failing to meet the time limit could not be deemed
"extraordinary circumstances." Wallace, supra, 149 N.J. at 607.
See also Burns v. Belafsky, __ N.J. Super. __ (App. Div. 1999)
("[g]iven 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"
even though plaintiffs possessed an expert report before filing
their complaint; in Burns the dismissal was reversed, however,
because the expert's report and affidavit were served on
defendants within 120 days of their answer). We add that,
pursuant to N.J.S.A. 2A:53A-29, the failure "to provide an
affidavit or a statement in lieu thereof," pursuant to N.J.S.A.
2A:53A-27, "shall be deemed a failure to state a cause of
action." Thus, the failure to comply with the statute is
substantive, as emphasized in Cornblatt, 153 N.J. at 246, as well
as procedural, and we are not dealing with the mere relaxation of
a procedural rule.
As plaintiff had an expert report before filing the
complaint, the delay in obtaining discovery could not be a reason
for tardy submission of the affidavit, and plaintiff did not so
argue in her motion brief in the Law Division. As a result, the
"extraordinary circumstances exception," which required a remand
in Barreiro, supra, 318 N.J. Super. at 471 (decided by the trial
judge before the Supreme Court's opinion in Cornblatt), is not
compelling in these circumstances. Moreover, this case does not
have the complicated procedural history involved in Hyman Zamft
that included an "order of mediation . . . staying further
proceedings" and the agreement of counsel "[w]ithin the sixty-day
statutory grace period . . ." to file new pleadings. Hyman
Zamft, supra, 309 N.J. Super. at 594. We therefore hold that
under these circumstances the failure to provide an affidavit of
merit to support an existing expert's report within the 120 days
statutory period cannot constitute "extraordinary circumstances"
to avoid the dismissal with prejudice as required by the statute
and Cornblatt.
We recognize that plaintiff may have had a viable medical
malpractice case and that her counsel prudently obtained an
expert report before filing her complaint. We nevertheless can
find no basis in light of the Supreme Court's opinion in
Cornblatt to reverse the trial judge's dismissal "with
prejudice."
Accordingly, the judgment is affirmed.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2714-98T2
MICHELLE PALANQUE,
Plaintiff-Appellant,
v.
MARGARET LAMBERT-WOOLLEY, M.D.,
Defendant-Respondent.
STEINBERG, J.A.D. (concurring)
I write separately because, like my colleagues, I am
concerned that what appears to be a potential meritorious claim
is dismissed with prejudice because of the failure of counsel to
comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to
-29. In good conscience I cannot dissent because, as my
colleagues correctly point out, Alan J. Cornblatt, P.A. v. Barow,
153 N.J. 218 (1998) requires that the dismissal be with
prejudice, in the absence of extraordinary circumstances. As my
colleagues correctly recognize, the Supreme Court in Cornblatt,
supra, relied upon Hartsfield v. Fantini,
149 N.J. 611 (1997),
and the companion case of Wallace v. J.F.K. Hartwyck at Oak Tree,
Inc.,
149 N.J. 605 (1997) where the Court in considering a
statute mandating automobile arbitration that required a motion
for a trial de novo be filed within thirty days, concluded that
the failure to file within that time period requires a dismissal
with prejudice, in the absence of "extraordinary circumstances".
Furthermore, in Hartsfield, supra, and Wallace, supra, the Court
held that an attorney's mere carelessness or lack of proper
diligence in timely filing a request does not constitute
"extraordinary circumstances". Based on those authorities, I am
constrained to agree with my colleagues that the failure in this
case to timely file an affidavit of merit requires a dismissal
with prejudice.
However, if I were able to decide this case with a clean
slate, I would conclude that the shortcomings of counsel in
failing to timely file the affidavit of merit should not be
visited upon his client where, as here, counsel had an expert's
report attesting to the potential merit of plaintiff's claim
prior to filing the complaint, but failed to serve the required
affidavit of merit timely. The Affidavit of Merit act was part
of a package of five tort reform bills signed by Governor
Christine Todd Whitman on June 29, 1995. In her accompanying
news release, Governor Whitman said that the purpose of the bill
was to "bring common sense and equity to the state's civil
litigation system". According to the release, "the laws fulfill
the Governor's 1994 promise to revamp the system and provide more
access to the courts". Governor Whitman further stated that the
legislation "strikes a fair balance between preserving a persons'
right to sue and controlling nuisance suits that drive up the
cost of doing business in New Jersey". Governor Whitman
concluded by observing that "[b]oth consumers and businesses will
benefit from these reforms".
If the legislative intent in enacting the Affidavit of Merit
act was to eliminate groundless malpractice filings, that intent
is not furthered where, as here, the attorney has in his
possession, prior to filing the lawsuit, an expert's report, but
inadvertently, or negligently, fails to comply with the filing
requirements of the statute. On the contrary, the legislative
intent was indeed satisfied because the expert's report was
obtained before the complaint was filed and therefore the lawsuit
that was filed had potential merit. A dismissal with prejudice
in this case denies plaintiff access to the court, not because
she filed a suit without having an expert's report prior to
filing the complaint indicating her cause had potential merit,
which is the primary purpose of the statute, but because her
attorney failed to timely file the appropriate affidavit of
merit. Moreover, a dismissal with prejudice in this case does
not promote the purpose of the legislation to strike "a fair
balance between preserving a person's right to sue and
controlling nuisance suits". This suit is obviously not a
nuisance suit, yet plaintiff is denied her right to sue due to a
technical non-compliance with the statute. Significantly,
defendant waited for approximately seven months after her answer
was filed before moving to dismiss the complaint, thereby
assuring the fact that the defect could not have been cured.
Under these circumstances, although I do not consider them
"extraordinary", I believe that the sanction of a dismissal
without prejudice, thereby necessitating the filing of a new
complaint with a new filing fee, is sufficient. Defendant may be
entitled to an award of other sanctions such as counsel fees
incurred in filing the motion, together with costs. If
complaints are repeatedly filed without complying with the
statute, the remedy of a dismissal with prejudice is always
available. If I were permitted to decide the issue on my own, I
would distinguish a dismissal for failure to comply with the time
requirements for seeking a trial de novo, which means the
complaint itself was not timely filed, from a dismissal for
failing to accompany a timely filed complaint with the required
affidavit of merit. However, because I believe my colleagues
correctly concluded that Cornblatt, supra, Hartsfield, supra, and
Wallace, supra, require a dismissal with prejudice, I, with
reluctance, join in that result.
Footnote: 1 1The trial judge subsequently entered an order, striking the defenses "without prejudice," but we deem that order to be irrelevant given the dismissal of plaintiff's case. Footnote: 2 2The answer, dated March 24, 1998, was filed pursuant to a "Stipulation Extending Time for Answer," dated April 20, 1998. There is no dispute that the motion to dismiss "with prejudice," for failure to comply with the Affidavit of Merit statute, was dated November 2, 1998. Defendant asserted that "[p]ursuant to N.J.S.A. 2A:53A-29 plaintiff has failed to state a cause of action and her complaint must be dismissed with prejudice." On November 17, 1998, the report of plaintiff's expert was sworn to and a jurat was added. It was served before defendant's motion was argued on December 4, 1998. While the critical documents in the plaintiff's appendix before us do not indicate actual filing dates, there is no dispute that the affidavit of merit was not provided to defendant for far more than 120 days after defendant's answer was filed. Footnote: 3 3The author of this opinion, speaking only for himself, adds that he believes this approach is consistent with his vote in Levinson in which the majority did not address the view of the concurrence that no medical expert testimony was necessary in that case. Footnote: 4 4Plaintiff points to "responses to the Demand for Admissions" which reflect an acknowledgment that "the qualitative B-HCG on the [laboratory] report in question [was] less than 5.0 MIU/ML" while her "understanding was that the December 12, 1996 B-HCG reading was 1145 MIU/ML." We believe that any discovery such as these responses obtained from defendant more than 120 days after service of the answer could be used in asserting that no expert was required. However, we do not believe that these admissions by themselves would permit plaintiff to survive a motion at the end of her case. Footnote: 5 5Plaintiff served the report on November 3, 1998, in answers to interrogatories outside the 120 day period. We need not pass upon whether service of the expert report within 60 or 120 days would change the result, even in the absence of an affidavit, and plaintiff does not contend that defendant had an obligation to file any type of motion within the 60 or 120 day period in order to trigger the statute. We recognize that another panel of this court has just held that where an affidavit of merit was served in response to a motion to dismiss filed within 120 days of the answer, the "good cause" provision of the statute was satisfied. Burns v. Belafsky, __ N.J. Super. __, __ (App. Div. 1999). Hence, there defendant's motion to dismiss may have saved the plaintiff's case, but given the purpose of the legislation as developed in Cornblatt, we cannot find a basis for placing a burden on defendant to file a motion to dismiss within the 120 day period. After all, the Supreme Court has considered N.J.S.A. 2A:53A-27 substantive as well as procedural, and see R. 4:6-2(e) and R. 4:6-3 with respect to motions to dismiss for failure to state a claim.