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Tuesday, October 4, 2016

Med Mal - Torts - Reid v. St. Barnabas Hospital (A-4723-08T2)

JAMES REID AND RIGINA REID Plaintiffs-Appellants
v.
ST. BARNABAS HOSPITAL, Defendant-Respondent.
_______________________________
Argued March 22, 2010 - Decided May 26, 2010
Before Judges Reisner and Chambers.On appeal from Superior Court of New Jersey,Law Division, Essex County, Docket No. L-4769-08.
Abbott S. Brown argued the cause for appellants (Bendit Weinstock, attorneys; James Reid and Rigina Reid, on the pro sebrief).
Patrick J. Clare argued the cause for respondent (Hardin, Kundla, McKeon & Poletto, attorneys; Mr. Clare, of counsel;Chad B. Sponder, on the brief).
PER CURIAM
The trial court dismissed this medical malpractice action because plaintiff failed to file a proper affidavit of merit within the time periods provided by N.J.S.A. 2A:53A-27.  We reverse and remand, concluding that under the peculiar fact presented, there was substantial compliance with the requirements of the statute.

                               I

     This action was commenced on June 12, 2008, by a pro se complaint filed by James Reid and his daughter, Rigina Reid named as "guardian in limin[e]."1      The complaint asserts that defendant St. Barnabas Hospital was negligent in its care and treatment of James Reid from June 10 to 12, 2006.Defendant filed its answer on July 31, 2008.
  Within sixty days of the filing of defendants answer,plaintiff was required to file an affidavit of merit pusuant to N.J.S.A. 2A:53A-27.  That statute 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 offiling 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 exerciseor exhibited in the treatment, practice or

1
  The record indicates that James Reid has subsequently passed away. We note that Rigina Reid has continued to prosecute this appeal and has retained counsel to do so. The record before us does not indicate what formal legal capacity she has to asserther fathers rights. On remand, that question should be resolved, and the caption should be amended to reflect the correct status of plaintiff. For uniformity, we will refer to plaintiff in the singular throughout this opinion.



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 work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more that one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause. In the case of an action for medical mal practice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in section 7 of P.L. 2004, c. 17 (C. 2A:53A- 41). In all other cases, 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 persons 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.
            [N.J.S.A. 2A:53A-27.]

Plaintiff did not meet this deadline.

    In late October 2008, after the sixty days had expired,plaintiff filed a motion to extend the time to file an affidavit of merit. The statute allows the court to grant an extension
   Accordingly, the trial not to exceed another sixty days.       Ibid. court granted the motion.    However, rather than run the additional sixty days from the date on which the affidavit of merit was due, the trial court by order dated November 7, 2008,

erroneously extended the time period for sixty days from the date of the order to January 7, 2009, thereby exceeding the time period for an extension permitted by statute.

    On January 7, 2009, plaintiff served a report of a board- certified general internist who expressed his opinion that within a reasonable degree of medical certainty, defendants staff deviated from the standard of care and committed medical malpractice in its treatment of James Reid. The report set forth the factual basis for this conclusion and identified the deviations from the accepted standards of care. The report however was not submitted under oath.

    On February 10, 2009, the trial court sent out its notice scheduling a Ferreira conference in the case for March 12, 2009. The notice stated that the conference was required by Ferreira v. Rancocas Orthopedic Assocs.,
178 N.J. 144 (2003), in order to address issues concerning the affidavit of merit and any discovery issues.   This conference however, was scheduled too late to serve its purpose.   The Supreme Court has required that the Ferreira conference be scheduled within ninety days of service of the answer in all malpractice cases so that if there is any deficiency in the affidavit of merit, plaintiff has timeId. at 154-55.   In this case, the Ferreira
to correct it. conference was scheduled over seven months after the answer was

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filed and more than two months after plaintiffs extended deadline.   While plaintiff sought to waive the conference, defendant did not.

    Defendant filed a motion to dismiss the complaint for
failure to satisfy the affidavit of merit statute on the basis that the experts report was not in affidavit form and that it did not implicate the defendant hospital.     Plaintiff argued substantial compliance.   Plaintiff also submitted an additional copy of the expert report that had been signed by the expert
before a notary.

    By order dated March 20, 2009, the trial court granted
defendants motion to dismiss.     It concluded that because the expert report was not under oath, plaintiff had not substantially complied with the affidavit of merit statute.

    Finally, on April 13, 2009, plaintiff obtained a signed
certification from the expert placing his report under oath and moved for reconsideration.   That motion was denied by the trial court by order dated April 17, 2009, and this appeal followed.

Among other arguments, plaintiff contends that she has
substantially complied with the affidavit of merit statute.

                              II

    After a careful review of the record, arguments of the parties and the relevant law, we conclude that under the

circumstances here, plaintiff substantially complied with the affidavit of merit statute.   Under the doctrine of substantial compliance, a plaintiff is deemed to have substantially complied with the affidavit of merit statute where the following criteria are met:

  (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 petitioners  claim, and (5) a reasonable explanation wh there was not a strict compliance with the statute.
 [Galik v. Clara Maass Med. Ctr. 167 N.J.
 341, 353 (2001) (quoting Bernstein v. Bd. of
 Trs. of the Teachers Pension & Annuity  Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977)).]

    Here defendant can demonstrate no prejudice in plaintiffs delay in providing a compliant affidavit of merit.   Defendant was provided within the time period extended by the court order with a doctors report containing the substantive information that the affidavit of merit statute is designed to provide to
the defense.   Plaintiff undertook a series of steps in order to comply with the statute.   She provided the report within the time period permitted by the court order.   That report, however, was defective because it was not submitted under oath.    When the problem was brought to the attention of the plaintiff, she provided a notarized copy of the report apparently under the
mistaken belief that would comply.   Once she understood that an actual oath was required, plaintiff obtained the report under oath from the doctor.

    Thus, the reason for noncompliance with the statute was due to a misunderstanding of the technical requirements of an affidavit and not a substantive issue of an expert unqualified to give the report or unwilling to give the report under oath or of the failure to provide the substantive information from a doctor within the requisite timeframe.   Finding substantial compliance under the circumstances here is consistent with thepurpose of the affidavit of merit statute which is "to require plaintiffs in malpractice cases to make a threshold showing that their claim is meritorious."   In re Petition of Hall,  147 N.J. 379, 391 (1997).

    Further, we note that this outcome is supported by ourdecision in Mayfield v. Community Medical Associates, P.A.,
335 N.J. Super. 198, 207-09 (App. Div. 2000), wherein we found substantial compliance although the doctors report was not under oath, noting that by writing the report on his letterhead, the doctor had "put his reputation on the line as assuredly as if he had sworn to the truth of the document" and noting that
the content of the report met the statutory requirement

    We recognize that in dismissing the complaint the trial
court relied on our decision in Tunia v. St. Francis Hospital,363 N.J. Super. 301 (2003).     In Tunia, plaintiff, represented bycounsel, submitted a statement signed by a doctor that was notarized but not under oath.    Id. at 303-04.      Further, the doctor did not have the requisite five years experience requireby the statute to provide an affidavit of merit. Id. at 304.

The trial court found the document insufficient to meet theaffidavit of merit statute and dismissed the claims against the defendant physician.   Ibid.    Plaintiff then submitted a second "affidavit of merit" by another doctor who did have the Id. at 304-05.     However, thatrequisite years of experience. affidavit was submitted beyond the statutory 120 days and it was not under oath, although it was notarized.      Ibid.    The case proceeded against the hospital.       Id. at 305.   Two years later,
plaintiff sought reconsideration of the dismissal as to the

The trial court denied the motion, defendant physician.   Ibid. and we affirmed, concluding that the notarized report did not satisfy the affidavit of merit statute because the doctors statement was not under oath.    Id. at 305-07.

    We distinguish the circumstances before us from Tunisbecause in Tunia the plaintiff never corrected the problem and never presented an expert report under oath.        Further, theinitial report that was submitted within the statutory 120-day timeframe in Tunia was from a doctor unqualified to provide at Id. at 304.     Finally, in Tunia, theaffidavit of merit. plaintiff waited two years before seeking to overturn the dismissal of his claim against the defendant physician. Id. At 305.    None of these factors are present here.

       In conclusion, we conclude that under the particularcircumstances here, plaintiff has substantially complied with the affidavit of merit statute.

       Reversed.




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