SHERRIE DORNBERGER v. UNDERWOOD MEMORIAL HOSPITAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2206-07T22206-07T2

SHERRIE DORNBERGER,

Plaintiff-Appellant,

v.

UNDERWOOD MEMORIAL HOSPITAL,

STEVEN W. JACKMUFF, F.A.C.H.E.,

EILEEN K. CARDILE, M.S., R.N.,

C.N.A., JOSEPH J. MIKE, M.D.,

DAVID S. WERNSING, M.D., GENERAL

VASCULAR SURGICAL SPECIALISTS, P.A.,

and CYRUS MORGAN, M.D./D.O,

Defendants,

and

JORGE A. PRIETO, M.D. and DIMARINO-KROOP-

PRIETO GASTROINTESTINAL ASSOCIATES, P.A.,

Defendants-Respondents.

______________________________________________________________

 

Argued April 2, 2008 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1751-04.

Bruce G. Cassidy argued the cause for appellants (Bruce G. Cassidy & Associates, P.A., attorneys; Mr. Cassidy, on the brief).

Jean Chetney argued the cause for respondents (Blumberg & Linder, LLC, attorneys; Jay J. Blumberg, of counsel; Ms. Chetney, on the brief).

PER CURIAM

We granted plaintiff Sherrie Dornberger leave to appeal interlocutorily from the November 8, 2007, order that dismissed her complaint as to defendants Jorge A. Prieto, M.D. (Prieto), and his gastro-intestinal practice group, DiMarino, Kroop, Prieto, G.I., P.A. (DKP), with prejudice. We now reverse and reinstate plaintiff's complaint as to these parties.

The procedural history is quite convoluted. Plaintiff's complaint alleged medical malpractice against these defendants and numerous other parties as a result of bowel resection surgery and resulting complications. On October 20, 2004, plaintiff filed her original complaint and these defendants filed answers on February 7, 2005. Plaintiff filed an amended complaint on May 26, 2005, which concerned defendants other than Prieto or DKP. On June 17, 2005, the judge held a case management conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2001). The order entered as a result required plaintiff to serve an affidavit of merit as to defendant Michael C. DiMarino by July 20, 2005, and other affidavits of merit by July 27, 2005.

On July 13, 2005, plaintiff served an affidavit of merit prepared by Harold L. Lipsky, M.D., that opined that DKP's care of plaintiff "fell outside acceptable professional standards of care for internists." The affidavit did not express any opinion as to Prieto individually. On December 11, 2005, plaintiff voluntarily dismissed her complaint, without prejudice and apparently with defendant's consent, against Prieto and two other defendant doctors.

The circumstances surrounding the dismissal and what the parties intended as a result is open to debate and certainly is not documented to any extent by the record itself. Plaintiff contended at oral argument before the motion judge, and again before us, that difficulty in reading the largely illegible hospital records resulted in an inability to ascertain which, if any, particular doctors may have deviated from professional standards of care. Indeed, the case management order entered in July references the need to have the records, particularly as to the "gastro-intestinal doctors" transcribed. Plaintiff also cited the numerous times Prieto's deposition was adjourned at his request as a reason for the delay in being able to proceed against him.

Defendants, however, disagreed with this characterization of events and insisted that difficulties in reading the records did not have anything to do with the dismissal of Prieto from the case. Moreover, defendants argued that if indeed that was the reason for plaintiff's voluntary dismissal, the matter could have been easily addressed through the court's intervention or by preliminary discovery that could have clarified the contents of the records. Before the motion judge, Prieto argued that the dismissal without prejudice was simpler and less costly than filing a motion to dismiss based upon a failure to comply with the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:56A-26 to -29.

In any event, it is impossible to reconstruct what was in the minds of the attorneys involved at the time, and we need not do that in order to reach the proper result. It suffices to say that both sides could have taken steps to resolve what ever difficulties were presented and crystallize the issues and parties actually in dispute at a much earlier time but did not do so.

Discovery continued under the supervision of the judge, who entered a series of additional case management orders culminating in a fourth such order dated June 26, 2006. It provided that plaintiff was to serve her expert reports by September 1, 2006, and set the discovery end date as January 31, 2007. On or about November 29, 2006, plaintiff served an affidavit of merit critical of Prieto individually, and immediately thereafter moved to file a second amended complaint reinstating him as a defendant.

In his opposition to the motion, Prieto objected to being added at such a late date, after summary judgment motions had been filed by co-defendants, and he further objected based upon the fact that he was never served with an affidavit of merit while he was a previously-named defendant. Prieto also noted that plaintiff had yet to serve an expert's report critical of him individually or DKP collectively. The judge permitted amendment of the complaint, thus reinstating Prieto to the action, she denied a further discovery extension sought by plaintiff without prejudice, and she reserved the issue regarding any lack of an affidavit of merit for another date.

On February 8, 2007, DKP moved for summary judgment based on the lack of any expert report critical of its conduct. Plaintiff opposed the motion, noting that discovery had been extended to April 30, 2007, and arguing that an expert's report would be furnished immediately after Prieto was deposed. That deposition took place on April 18, 2007.

On May 18, 2007, the judge entered an order granting DKP summary judgement. Plaintiff served an expert report, authored by Edward C. Weissman, M.D., critical of Prieto on May 29, 2007. On or about June 13, 2007, Prieto moved to dismiss plaintiff's amended complaint for failure to comply with the AMS. The judge who had been hearing the matter and managing the case recused herself from the litigation because of a possible conflict of interest. On July 5, 2007, she vacated her prior order granting DKP summary judgment and assigned the litigation to another judge.

On October 19, 2007, the parties orally argued Prieto's motion to dismiss, and re-argued DKP's summary judgment motion, before the judge newly assigned to the case. DKP argued that it had not been served with an expert's report within the discovery period, even though it had since been served with a report critical of its principal, Prieto. It essentially urged the judge to reaffirm the prior judge's grant of summary judgment because the expert's report was not served in a timely fashion. Prieto argued that the complaint against him ought to be dismissed with prejudice because he was never served with an affidavit of merit in a timely fashion during the time the first complaint was in existence and prior to its dismissal without prejudice.

In a written opinion dated November 8, 2007, the motion judge concluded DKP was entitled to summary judgment because it had not been served with any expert's report criticizing its conduct. The judge did not specifically address plaintiff's respondeat superior theory of liability, though DKP had acknowledged at oral argument that plaintiff was proceeding on a theory of "vicarious liability" against the practice.

As to Prieto individually, the judge likened the case to Fink v. Thompson, 167 N.J. 551 (2001), and concluded that plaintiff had failed to timely comply with the AMS before the dismissal of the complaint without prejudice, had no reasonable basis for her non-compliance, and had not substantially complied with the statute's requirements. He entered an order dismissing the complaint against Prieto with prejudice. We granted plaintiff's motion for leave to appeal.

We first consider the grant of summary judgment to DKP. Since the original order was vacated, when the issue came before the second judge, he was required to consider whether plaintiff had marshaled sufficient proof to withstand the motion at that time. By then, plaintiff had served Weissman's expert report critical of Prieto, a principal of DKP, and her theory of liability against the practice was limited solely to application of the doctrine of respondeat superior. Therefore, applying summary judgment standards to the motion record that then existed, the judge was required to accord plaintiff the benefit of all favorable evidence, and the inferences therefrom, and decide whether a reasonable fact finder could find in her favor. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995). The existence of an expert's report against Prieto should have resulted in the denial of the motion.

The motion could only have been granted if the judge accepted DKP's argument that Weissman's expert report was not admissible for purposes of opposing summary judgment because it was furnished after discovery ended on April 30, 2007, approximately four weeks before the report was served. The judge never reached such a conclusion, nor would we.

First, it is clear that the initial judge did not foreclose plaintiff from seeking further discovery extensions when she granted plaintiff's motion to amend the complaint. Second, the expert report was furnished within a few months of plaintiff amending her complaint and naming Prieto, once again, as a defendant. Therefore, if at the time the judge decided the summary judgment motion, the complaint was extant as to Prieto, and the expert report as to him had been furnished, we fail to see how it should not have been considered by the motion judge at the time he made his decision.

Having said this, our remarks should not be construed as some tacit approval of plaintiff's conduct. Discovery delays, the ostensible reason cited by plaintiff for the late filing of both the amended complaint and expert report as to Prieto, can be addressed within the context of the court rules. Yet, the record is silent as to any efforts by plaintiff to do so. Moreover, as the discovery end date approached, plaintiff had an affirmative obligation to seek an extension to file an expert's report but failed to do so.

Nevertheless, despite these transgressions, the fact remains that plaintiff had produced a report, critical of Prieto who had recently been again added to the litigation. Based upon the theory of respondeat superior liability, the judge was required to consider the contents of the report in deciding the summary judgment motion. Any "procedural violations" by plaintiff's counsel in failing to reopen discovery should not lead to the "ultimate sanction" of dismissal of plaintiff's claim against DKP. Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003). Given the record that then existed, the grant of summary judgment as to DKP was error, and we therefore must reverse.

We next consider the decision to grant Prieto's motion to dismiss plaintiff's complaint as to him individually because of failure to comply with the AMS. The essential issue is what effect, if any, ought to be given to the period of time during which the complaint against Prieto was voluntarily dismissed. Plaintiff clearly complied with the time frames of the AMS after she filed her second amended complaint because she served Prieto with an affidavit of merit even before the amended complaint was filed. Just as obviously, plaintiff failed to meet the statutory timeframes when she first filed her complaint. Once defendant answered the complaint in February 2005, plaintiff had to serve him with an affidavit of merit by early June, i.e., within 120 days of his answer, or by the extended date provided in the case management order, July 27, 2005. Having failed to do so, her complaint was subject to being dismissed with prejudice. N.J.S.A. 2A:53A-29; Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001). However, Prieto never moved to dismiss the complaint, and, in December 2005 consented to the dismissal without prejudice despite the fact that by then an additional six months had elapsed beyond the 120 day statutory time limit.

Plaintiff argues that the failure on defendant's part to move for dismissal makes this case like Knorr v. Smeal, 178 N.J. 169 (2003), in which the Court utilized equitable estoppel and laches to foreclose an attempt by defendant to dismiss a malpractice complaint where defendant delayed in bringing the motion to dismiss. However, we do not find the circumstances to be so similar as to require the same result for the same reasons. As of December 2005, the complaint had already been dismissed against Prieto, and while he could have filed a motion some months earlier, we cannot conclude that his failure to act while the case was dismissed should somehow inure to his detriment. Prieto clearly acted quickly by moving to dismiss the amended complaint in a timely fashion.

However, by that time, Prieto was in possession of both an affidavit of merit and an expert's report. We therefore consider the issue as resolved by the Supreme Court's holding in Ferreira, supra, 178 N.J. 144. There, the Court set forth a bright line test regarding motions to dismiss for failure to file an affidavit of merit as follows:

In a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit. If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply. That formulation places strong incentives on both plaintiffs' and defense counsel to act diligently.

[Id. at 154.]

We realize that the interim dismissal without prejudice in this case presents a procedural history quite idiosyncratic and makes it incapable of being placed in any particular conceptual pigeonhole. Nonetheless, the spirit of the Court's holding dictates that having served Prieto with an affidavit of merit, as well as an expert's report, before any motion was brought to dismiss the complaint, plaintiff should be permitted to pursue her case.

This conclusion may seem harsh since Prieto, originally named in the complaint in October 2004, dismissed a little more than a year later, and subsequently reinstated more than a year after that, essentially had to wait more than two years before having a qualified expert opine that he allegedly deviated from the professional standard of care. Such a delay hardly serves the overall goals of the AMS. See Hubbard v. Reed, 168 N.J. 387, 395 (2001) (noting the purpose of the AMS is to "weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court").

However, Prieto controlled whether the original dismissal of the complaint was with, or without, prejudice. Certainly he could have filed a motion to dismiss after plaintiff failed to file an affidavit by July 27, 2005, the date set forth in the case management order. While plaintiff may have argued then that the illegibility of the hospital records, or other obstacles in the discovery process, excused her delay, at least the issue could have been appropriately addressed by the judge. Because defendant actually knew of the complaint, and had answered it, this case is entirely distinguishable from our decision in Czepas v. Schenk, 362 N.J. Super. 216 (App. Div.), certif. denied, 178 N.J. 374 (2003). There, plaintiffs filed their complaint in order to comply with the statute of limitations, but they failed to issue a summons and serve the complaint until they could procure an affidavit of merit. We noted the prejudice associated with such a procedure in light of the policy behind both the AMS and the statute of limitations. Id. at 224-26. Because defendant here could have acted, but chose not to, any claim of prejudice seems self-inflicted.

Moreover, we note that plaintiff's dismissal of the original complaint as to Prieto was explicitly without prejudice. Given the posture of the litigation, and pursuant to Rule 4:37-1(b), plaintiff's request could only be granted "by leave of court and upon such terms and conditions as the court deem[ed] appropriate." Thus, defendant had the opportunity to object to the dismissal "without prejudice" in the first instance, or, alternatively, could have required that a condition of the dismissal be that plaintiff comply with the AMS within some stated time period. He took no such course of action.

The dismissal without prejudice is clearly not an adjudication of any of the issues involved, and "does not itself constitute a bar to reinstitution of the action, subject . . . to the constraints of the statute of limitations." Pressler, Current N.J. Court Rules, comment 1.2 on R. 4:37-1 (2008). Therefore, we see no reason to conclude that plaintiff's initial failure to comply with the AMS, absent any affirmative action by Prieto, should now be used as a basis to dismiss her complaint with prejudice after she has fully complied.

Reversed and remanded. We do not retain jurisdiction.

The record contains two copies of the judge's order as to DKP and none with respect to Prieto. However, it is clear from the judge's written opinion and the parties have acknowledged through their briefs that the dismissal was entered as to both the practice and Prieto individually.

N.J.S.A. 2A:53A-27.

The judge's order, entered February 6, 2006, actually denied the motion to amend as to Prieto, "without prejudice," though it is clear from the judge's short letter opinion, and the manner in which the parties conducted themselves thereafter, that plaintiff's complaint against Prieto individually was reinstated subject to the judge's eventual consideration of defendant's motion to dismiss for failure to comply with the AMS.

We have not been provided with any transcript of the proceedings that resulted in this order, and the parties dispute the basis for the judge's grant of summary judgment. Plaintiff contends that the judge determined that since Prieto was now a defendant, there was no need to have DKP remain a defendant on the theory of respondeat superior. Defendants contend that the judge determined that the lack of any expert report as to DKP required dismissal of the complaint. In light of what transpired after the entry of the May 18, 2007, order, the different contentions are of no moment.

The same defense counsel has represented both Prieto and DKP throughout the litigation.

We acknowledge defendants' assertion that discovery ended at an earlier time and that the April 30, 2007, date was simply a "computer-generated" date issued as a result of plaintiff filing her second amended complaint.

(continued)

(continued)

15

A-2206-07T2

April 22, 2008