(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 June 21, 2001
Poritz, C.J., writing for a unanimous Court.
In this appeal, the Court relies on its reasoning in Hubbard v. Reed, N.J. , (2001), decided the
same day, to hold that an affidavit of merit, pursuant to N.J.S.A. 2A:53A-27, is not required in a common
knowledge malpractice case.
Plaintiff sought medical treatment from the defendant for heavy menstrual bleeding. Defendant ordered a
pregnancy test to determine whether plaintiff was pregnant, a possible cause of the condition. Defendant misread
the test results and decided that plaintiff was pregnant when she was not. After an ultrasound test did not confirm
plaintiff's pregnancy, defendant ordered another pregnancy test. The pregnancy test confirmed that plaintiff was
not pregnant. However, defendant misread the test results for the second time and mis-diagnosed an ectopic
pregnancy. Defendant recommended surgery and plaintiff underwent both a dilation and curettage procedure and a
laparoscopy. Those procedures revealed that plaintiff was not pregnant.
Plaintiff retained an attorney to investigate whether she had an actionable claim against the defendant. The
attorney obtained plaintiff's medical records and discovered that the defendant had read the pregnancy test results as
1145 and 1421, numbers that were actually the specimen identification numbers on the laboratory report. The
records were submitted for evaluation to an expert, who confirmed that defendant had read the identification
numbers incorrectly as the test results. The expert issued a report stating that defendant had deviated from the
standard of care and concluding that the misreading as positive of the pregnancy tests led to the incorrect diagnosis
of ectopic pregnancy and to the performance of unnecessary surgery.
Plaintiff filed a complaint. After the time for filing an affidavit of merit had passed, defendant admitted in
response to requests for admission that the test results were “now known” to be less than 5.0 MIU/ML, but that her
earlier “understanding was that the . . . reading was 1145 [and 1421] MIU/ML.” Defendant also admitted that she
believed the lab reports were consistent with ectopic pregnancy or moler pregnancy.
The following month, defendant moved to dismiss plaintiff's complaint with prejudice for failure to file an
affidavit of merit. In response, plaintiff served on defendant an affidavit by the expert in which he affirmed his
earlier report. The court dismissed plaintiff's complaint nonetheless because the affidavit of merit had not been
filed within 120 days of defendant's answer.
The Appellate Division affirmed, denying plaintiff's claims that extraordinary circumstances prevented her
from filing an affidavit of merit and, in the alternative, that she was not required to file an affidavit of merit under
an exception to the statute for common knowledge cases. The court found unpersuasive plaintiff's claim that
extraordinary circumstances existed because she obtained an expert report prior to filing suit and filed an affidavit
of merit before the statute of limitations expired, and further found that counsel's inadvertent failure to file an
affidavit of merit was not an extraordinary circumstance. In respect of plaintiff's claim of a common knowledge
exception to the affidavit of merit requirement, the court assumed without deciding that such an exception existed.
The court concluded, however, that plaintiff would need expert testimony to explain that the surgery was not
medically necessary and to explain the impact of the misreading of the laboratory report. Without this expert
testimony, the Appellate Division did not believe plaintiff could survive a motion to dismiss at the end of trial.
Because expert testimony was required, the court held that the case fell outside of any common knowledge
exception.
HELD: Plaintiff's claims of extraordinary circumstances and substantial compliance were properly denied.
However, plaintiff can proceed with her case under a common knowledge theory without filing an affidavit of merit.
1. The Affidavit of Merit Statute requires plaintiffs asserting claims of professional malpractice to provide an
affidavit from an appropriate licensed professional attesting to the merit of the claims. That requirement was
intended by the Legislature to curtail frivolous litigation without preventing access to the courts for meritorious
claims. A plaintiff must file an affidavit of merit within sixty days of a defendant's answer, but may file after sixty
days and up to 120 days of the answer for good cause shown. If a plaintiff fails to file the affidavit within 120 days,
her complaint will be dismissed with prejudice unless extraordinary circumstances prevented the filing. (Pp. 7-8).
2. Attorney inadvertence does not constitute extraordinary circumstances that will excuse missing the
statutory deadline for filing the affidavit of merit. (Pp. 8-9).
3. The doctrine of substantial compliance requires (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. Plaintiff failed to take a series of steps that notified the defendant about the merits of the malpractice
claim. Although she obtained an expert report prior to filing the complaint, she did not provide the report or an
affidavit to the defendant. (Pp. 9-10).
4. In Hubbard v. Reed, also decided today, the Court held that a plaintiff is not required to file an affidavit of
merit in a common knowledge malpractice case, i.e., a case in which jurors' common knowledge as lay persons is
sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence
without the benefit of the specialized knowledge of experts. In such a case, the threshold of merit can be
determined on the face of the complaint. Requiring an affidavit of merit is not necessary to achieve the primary
goal of the statute; that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous
litigation. Indeed, recognition of the common knowledge exception allows meritorious claims to move forward
without the added and unnecessary cost of hiring an expert to execute an affidavit when that expert will not testify at
trial. (Pp. 10-12).
5. Here, it would appear that a person of ordinary understanding and experience can judge whether defendant
acted with reasonable care when she misread the specimen identification numbers as the test results and erroneously
determined that plaintiff had an ectopic pregnancy. Plaintiff contends that both defendant's deviation from the
standard of care and proximate cause can be inferred by a jury without expert testimony. In those circumstances,
the Court leaves to plaintiff the presentation of her case and declines to anticipate whether she can survive a motion
to dismiss when that presentation is complete. The Court emphasizes that the wise course of action in all
malpractice cases is for plaintiffs to provide affidavits even when they do not intend to rely on experts at trial. (Pp.
12-13).
6. Although no expert will be permitted to testify in support of plaintiff's case-in-chief, if an expert for
defendant provides evidence refuting plaintiff's common knowledge case, plaintiffs will be permitted to respond
with expert testimony for rebuttal purposes. (Pp. 13).
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings.
JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI join in CHIEF JUSTICE
PORITZ' opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
16 September Term 2000
MICHELLE PALANQUE,
Plaintiff-Appellant,
v.
MARGARET LAMBERT-WOOLLEY,
M.D.,
Defendant-Respondent.
Argued January 29, 2001 -- Decided June 21, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
327 N.J. Super. 158 (2000).
David P. Corrigan argued the cause for
appellant (Hobbie, Corrigan, Bertucio &
Tashjy, attorneys; Mr. Corrigan and Michael
R. Hobbie, on the brief).
Richard A. Grossman argued the cause for
respondent (Grossman, Kruttschinitt, Heavey
& Jacob, attorneys).
William L. Gold submitted a brief on behalf
of amicus curiae, Association of Trial
Lawyers - New Jersey (Bendit Weinstock,
attorneys; (Mr. Gold and Abbott S. Brown, on
the brief).
The opinion of the Court was delivered by
Poritz, C.J.
This case is substantially like Hubbard v. Reed, ___ N.J.
___ (2001), also decided today. We rely therefore on much of
what we said in Hubbard in holding that an affidavit of merit is
not required in a common knowledge malpractice case.
On December 12, 1996, plaintiff Michelle Palanque sought medical treatment from defendant Dr. Margaret Lambert-Woolley because plaintiff was experiencing mennorhagia, a heavy menstrual bleeding. Defendant ordered a BhCG test to determine whether plaintiff was pregnant, a possible cause of her condition, but misread the test results and determined that plaintiff was pregnant when she was not. After a subsequent ultrasound test did not confirm plaintiff's pregnancy, defendant ordered another BhCG test that, again, confirmed plaintiff was not pregnant. Yet defendant misread the results again, and this time mis-diagnosed an ectopic pregnancy.See footnote 11 She recommended surgery and plaintiff underwent both a dilation and curettage procedure and a laparoscopy.See footnote 22 Those procedures revealed that plaintiff was not pregnant.
Plaintiff retained an attorney to investigate whether she had an actionable malpractice claim against defendant. The attorney obtained plaintiff's medical records and discovered that defendant had read the BhCG test results as 1145 and 1421, numbers that were actually the specimen identification numbers on the laboratory report. The records were submitted for evaluation to Dr. Albert G. Thomas who confirmed that defendant had read the identification numbers incorrectly as the test results. Dr. Thomas issued a report, dated January 23, 1998, stating that defendant Lambert-Woolley had deviated from the standard of care and concluding that “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.” In October 1998, after plaintiff had filed a complaint and after the time for filing an affidavit of merit had passed, defendant admitted in response to requests for admissions that the BhCG test results were “now known” to be less than 5.0 MIU/ML, but that her earlier “understanding was that the . . . reading was 1145 [and 1421] MIU/ML.” Defendant also admitted that she “believed the lab reports were consistent with ectopic pregnancy or moler pregnancy.”
On November 2, 1998, defendant moved to dismiss plaintiff's complaint with prejudice for failure to file an affidavit of merit. In response, Dr. Thomas affirmed his January 1998 report, a jurat was added, and the affidavit, dated November 17, 1998, was served on defendant before the court heard arguments on the motion to dismiss. The court dismissed plaintiff's complaint with prejudice nonetheless because her affidavit of merit had not been filed within 120 days of defendant's answer.
The Appellate Division affirmed, denying plaintiff's claims that extraordinary circumstances prevented her from filing an affidavit of merit and, in the alternative, that she was not required to file an affidavit of merit under an exception to the statute for common knowledge cases, that is, cases in which malpractice can be determined without the aid of expert testimony. Palanque v. Lambert-Woolley, 327 N.J. Super. 158, 162, 164 (2000). The court found unpersuasive plaintiff's claim that extraordinary circumstances existed because she obtained an expert report prior to filing suit and filed an affidavit of merit before the statute of limitations expired. Id. at 160-61, 163. The court further found that counsel's inadvertent failure to file an affidavit was not an extraordinary circumstance. Id. at 164.
On the issue whether an affidavit is required in a common knowledge malpractice case, the Appellate Division “assum[ed], without deciding” that a malpractice case in which the jury can determine negligence without the aid of expert testimony does not require an affidavit of merit. Id. at 162. However, the court concluded that plaintiff would need expert testimony “to explain that the surgery was not medically necessary and to explain the impact of the misreading of the laboratory report.” Ibid. Without that testimony, the Appellate Division did not believe that plaintiff could survive a motion to dismiss at the end of trial. Id. at 162-63. Because expert testimony was required, the court held that the case fell outside of a common knowledge exception to the Affidavit of Merit Statute.
We granted certification on October 4, 2000, 165 N.J. 602, and now reverse.
Before this Court, plaintiff argues that the Appellate Division erred when it denied her claim of extraordinary circumstances. She contends that she substantially complied with the statute by obtaining an expert report prior to the commencement of litigation. By seeking early review by an expert she ensured that her claim had merit and fulfilled the legislative intent underlying the statute, the curtailment of frivolous litigation. Plaintiff argues in the alternative that this is a common knowledge case and therefore does not require an affidavit of merit.
Defendant maintains that the Appellate Division correctly decided that plaintiff's case does not meet either the extraordinary circumstances standard or the common knowledge exception, if one exists. Defendant reasons that the Legislature deliberately chose not to include a common knowledge exception because the nature of the claim might not become known until well beyond sixty or 120 days after a defendant's answer. If common knowledge could be asserted after the time for filing an affidavit had passed, the purpose of the statute -- to eliminate frivolous litigation early -- could be circumvented.
We now reverse. Although we agree with the Appellate Division that plaintiff's claims of extraordinary circumstances and substantial compliance should be denied, we disagree with the panel's determination that plaintiff cannot proceed with her case under a common knowledge theory generally described today in Hubbard, supra, ___ N.J. at ___ (slip op. at 2-3).
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 statute was enacted as part of a tort reform package designed
to “strike[] a fair balance between preserving a person's right
to sue and controlling nuisance suits.” Office of the Governor,
News Release 1 (June 29, 1995). In professional malpractice
actions plaintiffs are required to provide an affidavit from an
appropriate licensed professional attesting to the merit of
plaintiffs' claims. That requirement was intended by the
Legislature to curtail frivolous litigation without preventing
access to the courts for meritorious claims. Peter Verniero,
Chief Counsel to the Governor, Report to the Governor on the
Subject of Tort Reform (Sept. 13, 1994).
A plaintiff must file an affidavit of merit within sixty
days of a defendant's answer, but may file after sixty days and
up to 120 days of the answer for good cause shown. N.J.S.A.
2A:53A-27; Burns v. Belafsky,
166 N.J. 466, 470-71 (2001). If a
plaintiff fails to file the affidavit within 120 days, her
complaint will be dismissed with prejudice unless extraordinary
circumstances prevented the filing. Cornblatt v. Barow,
153 N.J. 218, 247 (1998). Plaintiff filed Dr. Thomas's affidavit of merit
well after the 120 day period had elapsed.
First, we briefly address plaintiff's claim that she has demonstrated extraordinary circumstances and should be allowed to file an affidavit of merit out-of-time. Plaintiff contends that because she obtained an expert prior to filing suit, and provided an affidavit within the time frame of the applicable statute of limitations, she has met the extraordinary circumstances standard. Plaintiff's attorney has represented to the Court that the failure to file an affidavit was the result of simple inadvertence. In Burns, we found it unnecessary to discuss whether attorney inadvertence constituted extraordinary circumstances. However, the Appellate Division in that case considered the issue and concluded that “'carelessness, lack of circumspection, or lack of diligence on the part of counsel are not extraordinary circumstances which will excuse missing a filing deadline.'” Burns v. Belafsky, 326 N.J. Super. 462, 470 (1999) (quoting Hyman Zamft & Manard v. Cornell, 309 N.J. Super. 586, 593 (App. Div. 1998)). Implicit in our holding in Burns was our agreement with the Appellate Division on that issue, i.e., that attorney inadvertence will not support the extraordinary circumstances standard set forth in Cornblatt, supra, 153 N.J. at 247.
Nor has plaintiff substantially complied with the statute. The doctrine of substantial compliance is used by courts to “avoid technical defeats of valid claims,” Zamel v. Port of New York Auth., 56 N.J. 1, 6 (1970), and requires: “(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.” Galik v. Clara Maass Med. Ctr., ___ N.J. ___, ___ (2001) (slip op. at 15). In Galik, supra, the Court found that there had been substantial compliance with the statute where plaintiff served unsworn expert reports on the defendants eight months prior to litigation. Id. at ___ (slip op. at 20). The Court also found substantial compliance in Fink v. Thompson, where the defendant was served with an affidavit that did not name him, but where he was on notice of the claim against him because the plaintiff had provided an expert report that discussed the defendant's role in the alleged malpractice. ___ N.J. ___, ___ (2001) (slip op. at 15).
In both Galik, supra, and Fink, supra, the plaintiffs took a series of steps that notified the defendants about the merits of the malpractice claims filed against them. Here, no such action was taken. Plaintiff obtained an expert report but did not provide the report or an affidavit to defendant. The action taken by plaintiff falls short of meeting the elements of substantial compliance. We find, therefore, that plaintiff has neither presented a sustainable claim of extraordinary circumstances, nor substantially complied with the statute. Disposition of this case therefore rests on whether plaintiff can rely on a common knowledge exception to the Affidavit of Merit Statute.
In Hubbard, supra, decided today, we held that a plaintiff is not required to file an affidavit of merit in a common knowledge malpractice case, a case in which “'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'” ___ N.J. at ___ (slip op. at 9) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)). In a common knowledge case, whether a plaintiff's claim meets the threshold of merit can be determined on the face of the complaint. Because defendant's careless acts are quite obvious, a plaintiff need not present expert testimony at trial to establish the standard of care. Chin, supra, 160 N.J. at 469-70. In other words, because the issue is not “peculiarly within the knowledge of a medical . . . practitioner,” the case is treated as an ordinary negligence action in which a jury can determine without the aid of experts whether a defendant acted with reasonable care. Id. at 469, 470. As we said in Hubbard, supra, requiring an affidavit of merit in such a case is not necessary to achieve the primary goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation. Indeed, recognition of the common knowledge exception allows meritorious claims to move forward without the added, and in those cases unnecessary, cost of hiring an expert to execute an affidavit when that expert will not testify at trial.
Here, plaintiff has asserted that she will rely on the common knowledge doctrine. She points out that medical records she obtained prior to filing suit reveal that Dr. Lambert- Woolley's diagnosis was based on a mistaken reading of the laboratory report. It would appear that a person of ordinary understanding and experience can judge whether defendant acted with reasonable care when she misread the specimen identification numbers as the test results and erroneously determined that plaintiff had an ectopic pregnancy. Yet, the court below believed that
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. 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.
[Palanque, supra, 327 N.J. Super.
at 162-63 (footnotes omitted).]
We note, as has the Appellate Division, id. at 163, n.4, that
defendant has acknowledged misreading plaintiff's laboratory
results. Plaintiff's theory is that defendant's deviation from
generally accepted medical standards was a proximate cause of her
injuries and that both the deviation and causation are inferable
by a jury without expert testimony. In those circumstances, we
leave to plaintiff the presentation of her case and decline to
anticipate whether she can survive a motion to dismiss when that
presentation is complete.
Finally, we emphasize the concerns expressed today in
Hubbard, supra, that “the wise course of action in all
malpractice cases would be for plaintiffs to provide affidavits
even when they do not intend to rely on experts at trial.” ___
N.J. at ___ (slip op. at 13). In this case, extraordinary
circumstances have not been demonstrated and an affidavit may not
be submitted out of time. If, at some later point, an expert for
defendant provides evidence refuting plaintiff's common knowledge
case, plaintiffs will be permitted to respond with expert
testimony for rebuttal purposes. See Tousignant v. St. Louis
County,
615 N.W.2d 53, 60 (Minn. 2000) (stating that plaintiff
was not required to file expert affidavit in common knowledge
case even though “expert testimony may . . . at some point be
necessary to refute evidence presented by respondents at trial”).
An expert will not be permitted to testify in plaintiff's case-
in-chief.
The judgment of the Appellate Division is reversed and the matter is remanded to the trial court for further proceedings.
JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI join in CHIEF JUSTICE PORITZ's opinion. JUSTICE VERNIERO did not participate.
NO. A-16 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
MICHELLE PALANQUE,
Plaintiff-Appellant,
v.
MARGARET LAMBERT-WOOLLEY,
M.D.,
Defendant-Respondent.
DECIDED June 21, 2001
Chief Justice Poritz PRESIDING
OPINION BY Chief Justice Poritz
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1In an ectopic pregnancy, the implantation and development of a fertilized ovum takes place outside of the uterus. The American Heritage Stedman's Medical Dictionary 252 (1995). Footnote: 2 2Dilation and curettage is a “surgical procedure in which the cervix is expanded using a dilator and the uterine lining scraped with a curette.” The American Heritage Stedman's Medical Dictionary 231-32 (1995). A laparoscopy is a procedure in which a slender, tubular medical instrument is used to visually examine the interior of a patient's abdomen. Id. at 266, 453.