BASIL C. OKOCHA v. MEDICAL & SOCIAL SERVICES FOR THE HOMELESS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3274-05t23274-05T2

BASIL C. OKOCHA,

Plaintiff-Appellant,

v.

MEDICAL & SOCIAL SERVICES

FOR THE HOMELESS,

Defendant-Respondent,

and

ST. LUCY'S SHELTER,

Defendant.

________________________________________________________________

 

Argued September 27, 2006 - Decided October 12, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-2854-05.

Appellant Basil C. Okocha argued the

cause pro se.

Monica Vir argued the cause for respondent

(Lindabury, McCormick, Estabrook & Cooper,

attorneys; Jaime C. Longo, on the brief).

PER CURIAM

Plaintiff, Basil Okocha, pro se, seeks reversal of Judge O'Connor's order dismissing, with prejudice, his malpractice complaint for failing to file an affidavit of merit. We affirm.

Plaintiff alleged that while under the care of defendant Medical and Social Services for the Homeless and living at defendant St. Lucy's Shelter, he was injected with ["l]ive HIV," the human immunodeficiency virus. Plaintiff claimed that he went to the "hospital to do a TB test" when defendants' nurse "picked up a syringe half filled with blood infected with HIV

. . . and proceeded to inject [t]he blood into plaintiff." Plaintiff's complaint charged defendant Medical and Social services for the Homeless with failure to "supervise its employees," failure to properly "protect patient rights and safety," "failure to exercise reasonable professional care by an employee," and "[i]nflicting plaintiff with permanent damage, pain and suffering due [t]o [a] medical malpracti[c]e in its facility."

In a case management order, Judge O'Connor directed plaintiff to file an affidavit of merit, to be obtained from a medical doctor, no later than September 12, 2005. When plaintiff failed to comply with this deadline, the judge granted a final extension until December 22, 2005. By February 2006, plaintiff had not filed the affidavit. Consequently, the judge granted defendants' motion and dismissed plaintiff's complaint with prejudice on February 3, 2006. This appeal followed.

For all medical malpractice complaints, N.J.S.A. 2A:53A-27 requires that "the plaintiff shall, within 60 days following the date of filling of the answer to the complaint by the defendant, provide each defendant with an affidavit." The affidavit must be prepared by "an appropriate licensed person" and must indicate "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." Ibid. Pursuant to the statute, the trial 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." Ibid. If the plaintiff fails to provide an affidavit within the required time period, or fails to provide a timely sworn statement in lieu thereof, the case should be dismissed for "failure to state a cause of action." N.J.S.A. 2A:53A-29.

The statute requires plaintiffs to make a threshold showing that their claims have merit "at an early stage of the litigation." Fink v. Thompson, 167 N.J. 551, 559 (2001) (citing In re Petition of Hall, 147 N.J. 379, 391 (1997)). The statute bars "such claims from going forward unless an expert promptly confirms" the potential legitimacy of the claim." Kritzberg v. Tarsny, 338 N.J. Super. 254, 259 (App. Div. 2001) (citing Cornblatt v. Barow, 153 N.J. 218 (1998)).

Plaintiff argues that he was prevented from filing an affidavit of merit by defendants unjustified thwarting of his many attempts to obtain interrogatory answers. He claims that he filed "a sworn statement in lieu of the affidavit setting forth that the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit." N.J.S.A. 2A:53A-28.

Plaintiff's statement, however, merely demanded answers to the interrogatories. The statement did not explain how defendants' failure to answer interrogatories had "a substantial bearing on preparation of the affidavit." Ibid. Plaintiff's explanation at oral argument was based upon hearsay statements by the expert he allegedly consulted and was insufficient and untimely. Moreover, plaintiff was awake during the claimed malpractice, able to observe what was happening to him, and according to defendants, had obtained the pertinent medical records. Our review of the motion record, therefore, leads us to conclude that he had sufficient information for a physician to prepare the required affidavit of merit. His failure to obtain such an affidavit, despite the extensions and courtesy accorded him by the trial court, we ascribe to his claim's lack of merit. Therefore, we have no choice but to affirm the trial court's dismissal of plaintiff's claim for "failure to state a cause of action." N.J.S.A. 2A:53A-29.

Affirmed.

 

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5

A-3274-05t2

RECORD IMPOUNDED

 

October 12, 2006