LAWRENCE P. SHORT v. ATLANTICARE REGIONAL MEDICAL CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5015-06T25015-06T2

LAWRENCE P. SHORT,

Plaintiff-Appellant,

v.

ATLANTICARE REGIONAL MEDICAL

CENTER a/k/a, d/b/a ATLANTIC

CITY MEDICAL CENTER, MAINLAND

DIVISION, and LAWRENCE J.

NAAME, M.D., and MICHAEL J.

SAVINI, M.D., and ATLANTIC

BOND AND JOINT SURGEONS, L.L.C.,

Defendants-Respondents.

__________________________________

 

Argued: February 27, 2008 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-4810-06.

Michael R. Logue argued the cause for appellant (Edelstein & Steinberg, LLP, attorneys; Kevin B. Steinberg and Mr. Logue, of counsel and on the brief).

Epiphany McGuigan argued the cause for respondents AtlantiCare Regional Medical Center and Michael J. Savini, M.D. (Fox Rothschild, LLP, attorneys; Ms. McGuigan, of counsel and on the brief).

Timothy M. Crammer argued the cause for respondents Lawrence J. Naame, M.D. and Atlantic Bone and Joint Surgeons (Crammer, Bishop, Marczyk & O'Brien, attorneys; Mr. Crammer, on the brief).

PER CURIAM

Plaintiff Lawrence Short appeals from orders dismissing his medical malpractice suit against defendants, AtlantiCare Regional Medical Center (ARMC) and Dr. Michael J. Savini, and Atlantic Bone & Joint Surgeons, LLC (ABJS) and Dr. Lawrence Naame, for failure to satisfy the Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-27, and denying his motion for reconsideration. We affirm substantially for the reasons set forth by Judge Nugent in his written decisions dated February 2, 2007 and April 19, 2007, and articulated on the record on March 2, 2007.

On May 31, 2005, plaintiff underwent a left hip arthroplasty, performed by Dr. Naame, a board-certified orthopedic surgeon employed by ABJS, at the ARMC facility. Dr. Savini, also an orthopedic surgeon employed by ARMC, assisted Dr. Naame with the procedure. On June 15, 2006, plaintiff filed a medical malpractice action against the physicians and their employers alleging the physicians were negligent while performing the hip replacement surgery. More particularly, plaintiff alleged that during the surgery, Dr. Naame noted that plaintiff's sciatic nerve was tight across the posterior aspect of his left hip but chose to continue the operation, resulting in a permanent injury that left plaintiff with a left foot drop and unable to extend his left ankle and toes.

On July 26, 2006, plaintiff filed an affidavit of merit prepared by Gregory P. Papa, D.O., a general practitioner who specializes in family practice and cardiovascular disease. Dr. Papa certified he had "particular knowledge and/or expertise in the general area of orthopedic surgery, including hip replacement surgery" and opined there existed "a reasonable probability that the care, skill and/or knowledge exercised or exhibited in the treatment, practice or work rendered to Mr. Short by Lawrence Naame, M.D. at the Atlantic Regional Medical Center, fell outside of the acceptable professional standards and treatment practices." Defendants' counsel notified plaintiff that Dr. Papa's affidavit was insufficient as he was a family practitioner and his affidavit did not name Dr. Savini as a physician whose treatment falls outside of acceptable standards of care. The court conducted a conference on November 16, 2006 and extended to January 15, 2007 the deadline for plaintiff to file either a supplemental affidavit or an additional affidavit of merit to cure any claimed deficiencies, which was memorialized in an order. Plaintiff, however, did not avail himself of the opportunity, choosing to rely solely on Dr. Papa's affidavit as submitted.

On January 17, 2007, Dr. Savini and ARMC filed a motion to dismiss the complaint on the ground that plaintiff failed to produce an affidavit of merit relating to Dr. Savini as required by the AMS even within the time extended by the court. On January 19, 2007, Dr. Naame and ABJS filed a motion for summary judgment based on plaintiff's failure to timely serve an appropriate affidavit of merit because Dr. Papa did not specialize in orthopedic surgery and did not have the necessary credentials particularly mandated by the 2004 amendment to the AMS, N.J.S.A. 2A:53A-41.

On February 2, 2007, Judge Nugent granted Dr. Savini's and ARMC's motion on the papers, dismissing with prejudice plaintiff's complaint against them based on plaintiff's failure to comply with the mandatory statutory requirement of the AMS that he file and serve an affidavit "attesting to the reasonable probability that the care, skill or knowledge exercised by defendants AtlantiCare and Savini during their care and treatment of him fell outside acceptable professional or occupational standards or treatment practices." The court noted that despite being given the opportunity to comply with the statute following the case management conference, plaintiff did not obtain an affidavit "from an appropriate, licensed expert attesting to the 'reasonable probability' of defendants' professional negligence that his complaint against them is meritorious." The court found plaintiff's reliance upon the "substantial compliance" doctrine to be misplaced, recognizing plaintiff did not comply with the statute at all, let alone substantially comply with it. The decision was memorialized in an order dated February 7, 2007.

On March 2, 2007, following oral argument, the court granted summary judgment in favor of Dr. Naame and ABJS, memorialized in an order of that date. The court noted Dr. Naame was a board-certified orthopedic surgeon and the operation involved that specialty. It found Dr. Papa, by his own certified statement in his affidavit of merit against Dr. Naame, did not meet the heightened requirements of the 2004 amendment to the AMS because he did not specialize in orthopedics and was not credentialed by a hospital to perform hip replacement surgery or board-certified as an orthopedic surgeon as mandated by N.J.S.A. 2A:53A-41a(1) and (2). The court rejected plaintiff's reliance on subsection "b" of the statute, namely that Dr. Papa had an active clinical practice purportedly encompassing the medical condition or including performance of the procedure that was the basis for the action, noting the subsection expressly applies to a defendant who is a general practitioner, not a specialist. Judge Nugent also found unavailing plaintiff's contention that he satisfied the statute's requirements under the doctrine of substantial compliance, stating "[t]he statutory requirements with respect to the credentials of a doctor criticizing a board certified physician are mandatory[;] [t]he criticizing physician or the author of the affidavit of merit as the case may be must meet the requirements of N.J.S.A. 2A:53A-41a[;] . . . the statute mandates compliance, not substantial compliance." On his motion for reconsideration, plaintiff reargued that Dr. Papa was an "appropriate licensed person" under the AMS because he satisfied the requirements of N.J.S.A. 2A:53A-41b and that the doctrine of substantial compliance excused technical noncompliance with the AMS. The court rejected this argument in an opinion and order of April 19, 2007. This appeal ensued.

On appeal, plaintiff renews the arguments made to the trial court, emphasizing he is not obligated to prove the merits of his claim at this stage but is merely required under the AMS to make a threshold showing that his claims have merit. According to plaintiff, the submission of Dr. Papa's affidavit does precisely that, even though Dr. Papa is not a board-certified orthopedic surgeon, because he is a general practitioner who possesses sufficient knowledge and expertise qualifying him to opine whether defendants committed malpractice in performing the hip replacement surgery that permanently injured plaintiff. Plaintiff claims the court ignored the AMS' important purpose of permitting meritorious plaintiffs to have their day in court. He urges that because Dr. Papa's affidavit, though perhaps not in strict compliance with the literal requirements of the 2004 amendment, sufficiently placed defendants on notice of the nature of his claim, and thus he should be permitted to proceed under the doctrine of substantial compliance. Plaintiff further argues that if the Legislature intended to overrule the doctrine of substantial compliance by the 2004 amendments, it would have expressly done so.

We are not persuaded by any of plaintiff's arguments and affirm substantially for the reasons articulated by Judge Nugent. We add the following brief comments. Plaintiff was informed of the deficiencies in his affidavit and provided more than ample opportunity to supplement the affidavit of merit as to Dr. Savini and to provide additional affidavits in compliance with N.J.S.A. 2A:53A-41a. Plaintiff, however, chose to rely on Dr. Papa's affidavit as submitted and cannot now complain about the consequences. Moreover, plaintiff made absolutely no showing of a good faith effort to obtain an affidavit of merit from another orthopedic surgeon and presentation of Dr. Papa's credentials to invoke the waiver provision of N.J.S.A. 2A:53A-41c.

As Judge Nugent explained in detail, the 2004 amendment to the AMS, known as the New Jersey Medical Care Access and Responsibility and Patient's First Act, heightened the requirements for the AMS by mandating that if the defendant is a specialist and the care or treatment at issue involves that specialty, the expert providing the affidavit must practice in that same specialty. N.J.S.A. 2A:53A-41a. If the defendant is board-certified, certain additional requirements are imposed on the expert witness. Ibid. These requirements are contained in express and unequivocal language in the statute. Contrary to plaintiff's assertions, the Legislature's directives for a criticizing physician or author of an affidavit of merit are substantive, not technical mandates of the statute. Dr. Papa, a general practitioner who specializes in family practice and cardiovascular disease, is not statutorily competent to opine on whether Dr. Naame, a board-certified orthopedic surgeon, deviated from accepted standards of practice under the heightened requirements of the existing AMS. Thus, as plaintiff failed to produce an affidavit of merit as required by N.J.S.A. 2A:53A-27, even within the time extended by the court, he is not entitled as a matter of law to proceed with his malpractice claims against defendants.

Affirmed.

 

Mr. Crammer participated in oral argument telephonically.

N.J.S.A. 2A:53A-41, Requirements for person giving expert testimony, executing affidavit, provides, in pertinent part:

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L. 1995, c. 139 (C. 2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to . . . . (emphasis added).

N.J.S.A. 2A:53A-41b further provides that such licensed physician who gives expert testimony or executes an affidavit of merit must meet either or both of the following criteria:

If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:

(1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or

(2) the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed[.] (emphasis added).

N.J.S.A. 2A:53A-41c provides:

A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.

(continued)

(continued)

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A-5015-06T2

March 26, 2008