GEORGINA SANTORA-NARGI v. DR. SKIP LYTLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0612-08T10612-08T1

GEORGINA SANTORA-NARGI,

Plaintiff-Respondent,

v.

DR. SKIP LYTLE, HEALTH FIRST CHIROPRACTIC CLINICS, INC.,

Defendants-Appellants.

________________________________

 

Argued: February 11, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-10014-06.

Michael F. Martino argued the cause for appellants (Stein, McGuire, Pantages & Gigl, LLP, attorneys; Mr. Martino, of coun sel; Mr. Martino and Gregory T. Keller, on the brief).

Arthur J. Murray argued the cause for respondent (Jacobs & Barbone, P.A., attor neys; Louis M. Barbone, of counsel; Mr. Murray, on the brief).

PER CURIAM

Defendants appeal from the portion of an August 15, 2008, order that denied their motion to dismiss plaintiff's complaint for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. That order barred Leo W. Burns, M.D., from offering opinion testimony on chiropractic standards or care or deviations therefrom. By order entered on September 30, 2008, we granted leave to appeal and now affirm.

I.

On August 25, 2006, plaintiff Georgina Santora-Nargi filed a complaint against defendants Dr. Skip Lytle (Lytle) and Health First Chiropractic Clinics, Inc. (collectively, defendants). The complaint alleged that on August 27, 2004, Lytle "proceeded to adjust and manipulate [plaintiff] with such force as to frac ture multiple ribs and otherwise serious[ly] hurt her shoulder." Plaintiff claimed that Lytle "failed to apply the required knowledge, skill and care in [her] treatment," and thus negli gently "deviat[ed] from that standard of chiropractic care nor mally exercised by chiropractors and/or specialists in their field." Defendants served their answer on November 27, 2006, denying that Lytle had acted negligently.

On December 28, 2006, plaintiff moved for a sixty-day exten sion to the time allowed to serve and file an affidavit of merit. The motion was unopposed and was granted on January 19, 2007. Plaintiff had until March 1, 2007, to file the affidavit of merit. On February 13, 2007, Dr. Burns signed an affida vit of merit for plaintiff, stating that he was a physician licensed to practice medicine in Delaware, had reviewed the institutional reports, and had concluded that there was a rea sonable probabil ity that defendants' care of plaintiff fell out side "the accept able professional standard of health care and practice." The affidavit was timely served and filed. Defen dants requested a copy of Dr. Burns' curriculum vitae on March 15, 2007, but did not at that time object that a physician was not qualified to opine on a deviation from the standards of chiropractic care. Plaintiff provided a copy on April 11, 2007.

Plaintiff answered interrogatories on April 10, 2007, and described the events at issue in the following manner:

Plaintiff went into the office to get adjusted and defendant Dr. Lytle was the doctor in the office. Plaintiff lay down on the table face down and Dr. Lytle began working up and down her spine. The doctor advised that plaintiff was "tight" and tried to "crack" plaintiff. He then pushed very hard and there was a "snap". Plaintiff screamed in pain, and began having diffi culty breathing, talking and crying. Defen dant Lytle advised plaintiff that he thought he had dislocated her ribs and wanted to put them back in place. The doctor took plain tiff's right arm and bent it in, put his knee and hands into plaintiff's back to push; then plaintiff could not move. Dr. Lytle had to pick plaintiff up off the table. Plaintiff made her way out to the reception area whereupon Elisa the recep tionist asked plaintiff if it was she who screamed and was crying. Plaintiff told Elisa it was. The doctor then wrote plain tiff a prescription slip for X-rays and told plaintiff that something happened, but he didn't know what. Dr. Lytle's instructions to plaintiff were to ice her back when she returned home because it had already started to swell.

She further stated that her injuries were two broken ribs, dis located right shoulder with internal derangement, torn muscles, and nerve damage in the right shoulder and arm. She described her resulting limitations and identified her health care providers.

Defendants took the deposition of plaintiff on August 28, 2007. She testified that she had an appointment with the Clinic for a periodic adjustment on August 27, 2004. She was lying on her stomach and Lytle began to adjust her spine, but soon com mented that she was "tight" and he could not get the middle of her back to crack. He applied pressure to her back with his knee and he manipulated her right arm to achieve the desired result. She heard a snap like a "turkey wishbone" and she could not breathe. Lytle said "I might have dislocated your . . . riblets" and stated that he was going to try to put them back. After he manipulated her again, she could not move, cry, breathe, or talk and felt as though something was in her lung. The pain was so bad that Lytle had to pick her up off the table and told her to go out front. Lytle came out and gave her a prescription for x-rays, told her to go home and put ice on it, and go for the x-rays the next day if the pain was no better.

Over six months after receiving Dr. Burns affidavit of merit and curriculum vitae, defendants filed their motion to dismiss on October 24, 2007, arguing that Dr. Burns was not qualified to execute an affidavit of merit under N.J.S.A. 2A:53A-27. They argued that his curriculum vitae revealed that Dr. Burns was not trained or knowledgeable regarding chiroprac tic standards of care, and thus could not meet the statutory requirement of having "particular expertise" in the general area or specialty in question. On November 16, 2007, the judge denied this motion without a written opinion; we have not been supplied with the transcript of the hearing. Thereafter, defen dants deposed Dr. Burns on March 25, 2008. He admitted that he had not received any chiropractic training and was generally unfamiliar with chiropractic theory and treatment.

Defendants filed a second motion to dismiss four months later, on July 30, 2008, again arguing that Dr. Burns did not possess the "particular expertise" required by N.J.S.A. 2A:53A-27. The motion was premised on Dr. Burns' admission that he had not received any chiropractic training and was unfamiliar with chiropractic theory and treatment. Plaintiff opposed the motion on August 7, 2008, arguing that a medical doctor was com petent to establish a standard of care for a chiropractor. Then, on August 11, 2008, four days before the return date of the motion, plaintiff "supplemented her discovery responses" by filing a new affidavit of merit, this time by Brian Atkisson, D.C., a licensed New Jersey chiropractor. Defendants objected on August 13, 2008, to the filing of the new affidavit and claimed that it was untimely "by more than 18 months."

On August 15, 2008, the judge heard oral argument on the mat ter and commented that defendants had been "called to defend a claim that, based on Dr. Burns' certification by itself, in my view, he should be called upon to defend." He noted that he had a certification from Dr. Atkisson that met the statutory crite ria. He acknowledged that the Affidavit of Merit Statute did not require defendants to show prejudice, but he also found that there was no prejudice to defendants and the claim had prima facie merit and, hence, was the type the Legislature contem plated should be defended. As a result, he denied the motion to dismiss and this appeal followed. At that time, discovery was scheduled to end on September 30, 2008, and defendants had retained a defense expert.

II.

Defendants contend on appeal that the judge erred as a mat ter of law in allowing a late affidavit of merit from Dr. Atkis son, which was not excused by any extraordinary circumstances. They also argue that the judge erred by requiring defendants to prove actual prejudice as a precondition to dismissal of plain tiff's complaint. Plaintiff, on the other hand, urges that the judge's ruling was the most equitable solution in light of the court's failure to conduct a Ferreira conference absent a waiver of same by plaintiff's counsel. She also contends that the doc trines of waiver, estoppel, and laches barred dismissal and that she substantially complied with the statutory requirements for an affidavit of merit within the time allowed. In the alterna tive, she seeks a remand for a decision on other issues not reached by the judge.

The scope of our review on a motion to dismiss where the facts are undisputed and the order entered was premised upon the application of law to the facts is plenary. Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal conse quences that flow from established facts are not entitled to any special deference.").

III.

Pursuant to the Affidavit of Merit Bill, L. 1995, c. 139 (codified at N.J.S.A. 2A:53A-26 to -29), in a case alleging neg ligence by a licensed professional, such an a chiropractor, the plaintiff must,

within 60 days following the date of filing of the answer to the complaint by the defen dant, provide each defendant with an affida vit 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.

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

The court may extend this time for another sixty days "upon a finding of good cause." Ibid. "[T]he person executing the affidavit shall . . . have particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice substan tially to the general area or specialty involved in the action for a period of at least five years." Ibid. A failure to pro vide the requisite affidavit "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. Chiropractors are "licensed professionals" entitled to the benefit of the statute's requirements. N.J.S.A. 2A:53A-26h.

The Affidavit of Merit Bill was intended to "'strike a fair balance between preserving a person's right to sue and control ling nuisance suits.'" Ferreira, supra, 178 N.J. at 149 (quot ing Office of the Governor, News Release 1 (June 29, 1995)). It applies to causes of action where the legally significant facts occurred on or after its effective date. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 236 (1998). The doctrine of sub stantial compliance may excuse technical defects in the affida vit of merit, such as a certification rather than an affidavit. Id. at 240. The qualifications of the person signing the affi davit are not required to be set forth therein. Id. at 242. A dismissal under N.J.S.A. 2A:53A-29 is with prejudice unless there are extraordinary circumstances. Id. at 246-47 (citing Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)).

However, in 2003, the Ferreira Court partially abrogated Cornblatt's holding. Ferreira observed that a rigid application of the statute's requirements did not serve the legislative goals, which were "to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from . . . many legitimate claims." 178 N.J. at 154. On the other hand, "[t]he statute was not intended to reward defendants who wait for a default before requesting that plain tiff turn over the affidavit of merit." Ibid. Thus, the Ferreira Court fashioned a two-part bright-line rule implement ing strictures on Cornblatt's general "dismissal with prejudice" holding. 178 N.J. at 154.

Under the Ferreira rule, if a plaintiff has an affidavit of merit "in hand" within the 120-day statutory period and serves the affidavit on the defendant after the period, but before the defendant has moved to dismiss, "the defendant shall not be per mitted to file such a motion based on the late arrival of the affidavit." Ibid. However, if the defendant files a motion to dismiss after the 120-day period has run and before the plain tiff 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." Ibid.

We do not find that the absence of a Ferreira conference determinative of the outcome of this matter. Plaintiff clearly was aware of the requirements for an affidavit of merit, having filed a motion to extend the time for compliance, and there were no procedural slip-ups in filing or service of Dr. Burns' affi davit. Furthermore, a Ferreira conference would not have reme died the defect defendants contend exists in that affidavit because the affidavit was not secured until the very end of the 120-day period. What was presented to the trial court was a defect in the qualifications of Dr. Burns, who had not devoted his practice to chiropractic care for a period of five years. This defect was patently obvious from his curriculum vitae, which plaintiff provided to defendants on April 11, 2007.

Plaintiff argues defendants should be barred by waiver, estoppel, or laches from objecting to the Burns affidavit. She asserts defendants sat on their rights by waiting until approxi mately six months after receiving Dr. Burns' curriculum vitae and seven and one-half months after receiving his affidavit of merit to file the first motion to dismiss. Therefore, she urges defendants should not now be heard to complain about the inade quacies of the affidavit. Defendants argue none of these equi table remedies are applicable because they never waived or neglected to assert their statutory rights.

We note, in this respect, that defendants had the affidavit of merit by March 1, 2007, and they received the curriculum vitae on April 13, 2007. They received plaintiff's answers to interrogatories in April, which clearly and concisely described the acts of malpractice and the resulting injuries, and took her deposition in August. They did not file their motion to dismiss until October 24, 2007, although it obviously could have been filed by the end of April 2007. They did not seek leave to appeal the November 16, 2007, denial of this motion. Rather, they took the deposition of Dr. Burns on March 28, 2008, and then waited until July 30, 2008, to file their motion to dis miss. The record of August 16, 2008, does not suggest that any discovery was due from plaintiff at that time except a report from Dr. Atkisson and his deposition. By then, plaintiff had clearly expended substantial effort in developing her case.

Waiver is "the voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003) (quot ing W. Jersey Title & Guar. Co. v. Indus. Trust Co., 27 N.J. 144, 152 (1958)). Waiver requires that a party have full knowl edge of his or her legal rights and demonstrate, expressly or through implication, the intent to waive them either by design or indifference. Ibid.

Equitable estoppel, on the other hand, is a doctrine "'founded in the fundamental duty of fair dealing imposed by law.'" Id. at 178 (quoting Casamasino v. City of Jersey City, 158 N.J. 333, 354, cross-appeal dismissed, 162 N.J. 123 (1999)). "The doctrine is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment." Ibid. (citing Mattia v. N. Ins. Co. of N.Y., 35 N.J. Super. 503, 510 (App. Div. 1955)). There fore, plaintiffs claiming that a defendant should be estopped from asserting a right must show that "defendant engaged in con duct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment." Ibid. (citing Miller v. Miller, 97 N.J. 154, 163 (1984)).

Finally, laches may be invoked "to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Id. at 180-81 (citing In re Kietur, 332 N.J. Super. 18, 28 (App. Div. 2000)). The "key factors" in a laches analysis are (1) length of the delay; (2) reasons for the delay; and (3) "'the changing conditions of either or both parties dur ing the delay.'" Id. at 181 (quoting Lavin v. Bd. of Educ. of Hackensack, 90 N.J. 145, 152 (1982)). However, the "core equi table concern" is whether a party has been harmed by the delay. Ibid. The Supreme Court has found that waiver, equitable estop pel, and laches principles may apply when a defendant fails to timely file a motion to dismiss under the statute. See id. at 174, 177-82.

In Knorr, the defendant conducted an "emergency surgical procedure" subsequent to a bowel resection. Id. at 174. The second procedure revealed "among other things, that [plaintiff] had developed multiple intra-abdominal abscesses in the area of the small bowel resection." Ibid. Knorr subsequently spent nineteen days in the hospital's intensive care unit, and after discharge was readmitted eight more times over a year and a half. Ibid. On July 1, 1999, Knorr filed a medical malpractice complaint against Dr. Smeal, Dr. Lockwood, and South Jersey Hospital System, Elmer Division. Id. at 175. On December 15, 1999, just after the 120-day statutory period, Dr. Lockwood filed his motion to dismiss; shortly thereafter, the hospital filed a similar motion. Ibid. Dr. Knorr received notice of both motions, but did not file his own dismissal motion until March 2, 2001, about fourteen months after the 120-day period for filing the affidavit. Id. at 175-176.

Addressing the issues of waiver, laches, and equitable estop pel, the Court first noted that "[d]efendants must act timely too; they cannot sleep on their rights." Id. at 173. The Court then held that waiver would not apply because "the Affidavit of Merit statute places no obligation on a defendant to file a dismissal motion within a set timeframe." Id. at 178. We are, as a result, satisfied that waiver provides plaintiff with no comfort here.

The Knorr Court next found that defendant was estopped from asserting his rights at that point. Id. at 180. "Certainly, plaintiffs would not have engaged in extensive discovery if they knew their cause of action was doomed due to their earlier fail ure to serve a timely affidavit." Ibid. The Court added that "if defendant's motion were to be granted, then the attorneys labored needlessly and the judicial system has expended its resources on a case that should not have been on the calendar had defendant acted timely." Ibid. Likewise, the Court held that laches was an additional bar to defendant's motion, as "defendant slept on his rights and that plaintiffs were harmed by the delay." Id. at 181.

Defendants here contend that plaintiff "can point to no conduct by defendant[s] which would have reasonably led plain tiff to believe that defendant conceded that Dr. Burns was a qualified applicant." However, as plaintiff points out, defen dants waited 239 days after receiving the Burns affidavit on February 27, 2007, before filing a motion to dismiss and have yet to offer an explanation for the delay. During that period of time, plaintiff obtained a report from her expert, answered interrogatories, produced documents, and submitted to her depo sition. Defendants did not inquire whether Dr. Burns had five years experience in chiropractic care when they first received his affidavit and did not seasonably put plaintiff on notice that they objected to his qualifications after receiving his curriculum vitae. After their motion to dismiss was denied on November 16, 2007, they did not seek leave to appeal. Even after they took Dr. Burns deposition on March 28, 2008, they waited four months before filing their July 30, 2008, second motion to dismiss. Although the record on appeal does not reveal whether plain tiff's treating physicians were deposed, they were listed in her answers to interrogatories and the time for discovery was to end on September 30, 2008, shortly after the motion to dismiss was heard.

 
As Knorr stated, laches "may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." 178 N.J. at 181. The record supports plaintiff's contention that defendants' unexplained delays caused her to believe in good faith that they had abandoned the dismissal motion and she acted in reliance thereon. Ibid. The purpose of requiring an affidavit of merit is to weed out nonmeritorious claims at an early stage. Ferreira, supra, 178 N.J. at 146. This claim is colorably meri tori ous; the purpose of the statute will not be served by its dis missal. We are, therefore, satisfied that equity can and should intervene to estop defendants from securing a dismissal of this colorably meritorious claim under the doctrines of equitable estoppel and laches.

Affirmed.

Ferreira v. Rancocas Ortho. Assocs., 178 N.J. 144 (2003).

(continued)

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April 24, 2009