CHARLOTTE BRUEN v. MORRISTOWN MEMORIAL HOSPITAL ATLANTIC HEALTH SYSTEM

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3837-07T33837-07T3

CHARLOTTE BRUEN, As Administratrix

of the Estate of CHRISTOPHER JOSEPH

BUTLER, and CHARLOTTE BRUEN,

individually,

Plaintiffs-Appellants/Cross-

Respondents,

v.

MORRISTOWN MEMORIAL HOSPITAL,

ATLANTIC HEALTH SYSTEM,

Defendant-Respondent/Cross-

Appellant.

__________________________________

 
 

Submitted January 26, 2009 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-99-06.

Arthur G. Nevins, Jr., attorney for appellants/cross-respondents.

Bubb, Grogan & Cocca, LLP, attorneys for respondent/cross-appellant (Anthony Cocca, of counsel; Kristi L. Terranova, on the brief).

PER CURIAM

Plaintiff Charlotte Bruen, individually and as administratrix of the estate of Christopher Joseph Butler, appeals from a Law Division order denying reconsideration of the prior dismissal of her malpractice complaint against defendant Morristown Memorial Hospital (MMH), Atlantic Health System. The dismissal was granted due to plaintiff's failure to provide MMH with an affidavit of merit. Plaintiff alleged that the decedent, who suffered from spina bifida among other disorders, died on February 5, 2004, as a result of MMH's negligence. We reverse the order of dismissal and reinstate the complaint.

Christopher Joseph Butler, plaintiff's son, was twenty years old at the time of his death. He was admitted to MMH on February 1, 2004, with complaints of shortness of breath, weakness and fever. He had been discharged from MMH just a few days earlier on January 26, 2004, after being treated for pneumonia. The day Butler was scheduled to be discharged after this second stay at MMH, he died shortly after an x-ray was taken.

Plaintiff's complaint was filed on January 23, 2006. Defendants answered on May 15, 2006. On July 12, 2006, plaintiff's counsel filed a motion for an extension of time in which to file the affidavit of merit and to compel defendant to produce certain x-rays and x-ray reports. The motion was opposed. On August 18, 2007, an additional sixty days was granted to plaintiff in which to file the affidavit of merit. Although we were not provided a transcript of those proceedings, the August 18 order indicates that plaintiff's request for x-rays and scans taken on Butler's date of death, together with all x-ray or scan reports, was "moot." The order also indicates that rather than plaintiff filing the affidavit of merit within sixty days of receipt of the x-rays and x-ray reports, it was to be filed within sixty days of the entry of the order. We therefore infer from the handwritten language and deletions on the order that the relevant x-ray records and reports were supplied prior to the return date of the motion.

A "certification of merit" was filed and served on October 12, 2006, and received by defendant on October 13, 2006. It complied with the requirements of Rule 1:4-4(b) as to certifications. In the "certification of merit," Evelyn Dooley, M.D., stated that the medical care received by Butler was "a departure from proper and accepted standards of medical care." The doctor also opined that the hospital had prematurely discharged Butler on January 26, 2004.

Months after receipt of the "certification of merit," on January 24, 2007, defendant's counsel wrote a letter to plaintiff's counsel stating that the "certification of merit" was "objectionable" because it was not in affidavit form and it used the word "departure" as opposed to "deviation." The letter further states: "[T]he appropriate motion will be filed." Discovery was pursued, including depositions, disclosure of medical records, and the provision of applicable hospital policies.

Discovery did not flow smoothly. Plaintiff had to file a motion to compel production of hospital policies, handwritten nurse's notes, and depositions. A case management conference was conducted on the return date of plaintiff's discovery motion, July 12, 2007, and defendant was ordered to produce doctors and nurses for deposition that July and August.

On August 2, 2007, defendant's counsel wrote to the trial judge requesting a Ferreira conference. A management conference was held on September 24, 2007, and defendant was again ordered to produce doctors for deposition. Although the "certification of merit" was discussed at this conference, no order was entered. Efforts at deposing hospital staff continued through November 2007. On November 21, 2007, defendant filed a notice of motion to dismiss plaintiff's complaint for failure to state a claim pursuant to the Affidavit of Merit statute.

On December 21, 2007, defendant's motion was granted. The motion judge found that the "certification of merit" was inadequate because it was not in affidavit form as required by statute and because it used the word "departure" as opposed to "deviation." Furthermore, the motion judge stated that it did not have "any specificity about the particular defendant that we are talking about here, which is Morristown Memorial Hospital." Thereafter, plaintiff filed a motion for reconsideration of the dismissal of the complaint pursuant to Rule 4:49-2. The motion was opposed and denied on February 29, 2008. This appeal followed.

Plaintiff contends that the court misinterpreted the Affidavit of Merit statute as requiring a plaintiff to make more than a threshold showing. She also asserts that she substantially complied with the statute, and that, in any event, equitable principles, including the doctrine of laches and equitable estoppel, should have defeated defendant's motion to dismiss.

We begin our analysis with a reiteration of the obligation on counsel and the court to conduct a Ferreira case management conference within ninety days of the service of an answer in a professional malpractice case. Saunders v. Capital Health Sys. at Mercer, 398 N.J. Super. 500, 510 (App. Div. 2008). Had a timely Ferreira conference been conducted, the parties and the court would have been spared the unnecessary litigation and fruitless investment of resources and time addressing this issue, which such mandatory conferences are intended to prevent. Knorr v. Smeal, 178 N.J. 169, 176 (2003).

The purpose of the Affidavit of Merit statute is "to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims." Ferreira, supra, 178 N.J. at 154. It was "not intended to encourage gamesmanship or a slavish adherence to form over substance." Ibid. The history of this case is an example of the "sideshow" over the statutory requirement of an affidavit of merit that a Ferreira conference was designed to avoid. Ibid. The Affidavit of Merit statute, after all, was adopted solely "to bring a swift demise to frivolous lawsuits while allowing meritorious ones to have their day in court." Id. at 155.

Within this context, we consider plaintiff's specific claim that equitable principles require reinstatement of her medical malpractice complaint. Preliminarily, we reiterate that the time for filing a motion objecting to the form and content of a "certification of merit" is not thirteen months into comprehensive and difficult discovery, as was the case here. Although defendant's January 24, 2007 letter objecting to plaintiff's certification certainly should have placed plaintiff on notice of defendant's claim that the certification was deficient, it was not a formal motion.

It is not just plaintiffs who must act in compliance with the statute: "Defendants must act timely too; they cannot sleep on their rights." Knorr, supra, 178 N.J. at 173. Consideration of the facts in Ferreira indicates the premium placed on substance over form. In that case, the complaint was reinstated because the defendant deliberately waited to file a motion to dismiss based on non-compliance with the statute until after receipt of a late affidavit of merit. Ferreira, supra, 178 N.J. at 153.

Here, the motion to dismiss based on lack of a proper affidavit of merit was also granted too late into the litigation process. Discovery was virtually complete, and defendant had ample opportunity to verify the merit of plaintiff's claim, which is the purpose behind the enactment of the statute. Id. at 154. Accordingly, we next consider whether plaintiff is entitled, as she claims, to the protection of the equitable doctrines of estoppel or laches.

To establish the right to equitable estoppel in this context, a plaintiff must show that a defendant "engaged in conduct, either intentionally or under circumstances that induced reliance," and that the plaintiff acted or changed his or her position to his or her detriment. Knorr, supra, 178 N.J. at 178. In this case, defendant did not even respond to the receipt of the certification of merit until some three months later. No motion to dismiss was filed on those grounds until thirteen months later.

Obviously, defendant was participating in ongoing discovery and had, in fact, been court-ordered to comply with discovery requests in the intervening period. Plaintiff's reliance on defendant's silence over many months was therefore justified. Plaintiff would not have engaged in extensive discovery had she known that an objection to her expert's certification was forthcoming. Significant costs, time and energy have been expended by all parties.

As the Knorr Court said, it makes no difference if defendant's silence was not intended to mislead. Id. at 180. The point is that the silence persisted for months, and that plaintiff continued with the discovery process in reliance thereon. Accordingly, because of the late filing of the motion and plaintiff's reliance on many months of silence, defendant is equitably estopped from obtaining a dismissal.

Plaintiff also claims that the doctrine of laches bars dismissal of the complaint. In the context of an affidavit of merit, that doctrine is applied to deny "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 181. The doctrine applies 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." Ibid. The "core equitable concern" is whether a party has been harmed by the delay. Ibid.

Defendant slept on its rights, and plaintiff proceeded on the assumption that the affidavit of merit issue was no longer a problem for defendant. The record does not contain any explanation for defendant's failure to file the appropriate motion. Plaintiff relied to her detriment upon defendant's inaction. She bore the costs of discovery and the investment of time and energy over the course of thirteen months. Accordingly, we also determine that as a result of the application of the doctrine of laches, defendant has forfeited its right to pursue the dismissal of the complaint.

In no way does our reinstatement of the complaint reflect an opinion as to the ultimate validity of plaintiff's claim or its likelihood of success. Similarly, we do not think that the motion court's comments on the substance of the "certification of merit" were warranted. The sole purpose of the statute is to "flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system." Ferreira, supra, 178 N.J. at 154. We are not entirely comfortable with the certification, as opposed to an affidavit, submitted in this case. Nonetheless, the purpose of the Affidavit of Merit statute would not be served by the dismissal of this cause of action, and plaintiff's equitable defenses to dismissal are meritorious.

Defendant cross-appeals on the basis that the motion judge did not address its arguments as to the untimeliness of plaintiff's motion for reconsideration. Defendant asserts that Rule 4:49-2 bars such applications when filed beyond twenty days. Plaintiff's motion for reconsideration was filed within the twenty days, but because she failed to enclose a filing fee, the original filing date was crossed out and a later date entered. This issue was not raised before the motion judge. In any event, Rule 1:5-6(c) states that when "a paper" is returned for lack of the required filing fee, and the paper is retransmitted within ten days after the clerk's notice, it will be deemed to have been filed on the original stamped receipt date. In this case, that receipt date was January 22, 2008. The retransmitted motion, along with the appropriate fee, was received by the clerk's office on February 1, 2008. Accordingly, the motion was properly treated as if filed on January 22.

 
Reversed and remanded.

An explanation for the submission was proffered in plaintiff's appellate brief; however, we cannot consider it as it was not contained in the record of the Law Division proceedings. R. 2:5-4; Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007) ("Our appellate courts will not ordinarily consider evidentiary material that is not in the record below.").

Rule 1:4-4(b) requires the document to be dated and signed with the following language immediately preceding the signature: "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are wilfully false, I am subject to punishment."

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 147 (2003), requires that a case management conference be conducted to specifically address compliance with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, applicable in specified professional malpractice cases. Ferreira mandates that the case management conference be conducted within ninety days of the service of an answer. Id. at 154.

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A-3837-07T3

 

June 15, 2009