JAMES REID AND RIGINA REID v. ST. BARNABAS HOSPITAL

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4723-08T2


JAMES REID AND RIGINA REID,

     Plaintiffs-Appellants,

v.

ST. BARNABAS HOSPITAL,

     Defendant-Respondent.
__________________________________

         Argued March 22, 2010 - Decided May 26, 2010

         Before Judges Reisner and Chambers.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No.
         L-4769-08.

         Abbott S. Brown argued the cause for
         appellants (Bendit Weinstock, attorneys;
         James Reid and Rigina Reid, on the pro se
         brief).

         Patrick J. Clare argued the cause for
         respondent (Hardin, Kundla, McKeon &
         Poletto, attorneys; Mr. Clare, of counsel;
         Chad B. Sponder, on the brief).

PER CURIAM

     The trial court dismissed this medical malpractice action

because plaintiff failed to file a proper affidavit of merit

within the time periods provided by N.J.S.A. 2A:53A-27.    We

reverse and remand, concluding that under the peculiar facts

presented, there was substantial compliance with the

requirements of the statute.

                               I

     This action was commenced on June 12, 2008, by a pro se

complaint filed by James Reid and his daughter, Rigina Reid

named as "guardian in limin[e]."1      The complaint asserts that

defendant St. Barnabas Hospital was negligent in its care and

treatment of James Reid from June 10 to 12, 2006.      Defendant

filed its answer on July 31, 2008.

     Within sixty days of the filing of defendant's answer,

plaintiff was required to file an affidavit of merit pursuant to

N.J.S.A. 2A:53A-27.   That statute provides:

          In any action for damages for personal
          injuries, wrongful death or property damage
          resulting from an alleged act of malpractice
          or negligence by a licensed person in his
          profession or occupation, the plaintiff
          shall, within 60 days following the date of
          filing of the answer to the complaint by the
          defendant, provide each defendant with an
          affidavit 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

1
  The record indicates that James Reid has subsequently passed
away. We note that Rigina Reid has continued to prosecute this
appeal and has retained counsel to do so. The record before us
does not indicate what formal legal capacity she has to assert
her father's rights. On remand, that question should be
resolved, and the caption should be amended to reflect the
correct status of plaintiff. For uniformity, we will refer to
plaintiff in the singular throughout this opinion.



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            work that is the subject of the complaint,
            fell outside acceptable professional or
            occupational standards or treatment
            practices. The 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.

            In the case of an action for medical
            malpractice, the person executing the
            affidavit shall meet the requirements of a
            person who provides expert testimony or
            executes an affidavit as set forth in
            section 7 of P.L. 2004, c. 17 (C. 2A:53A-
            41). In all other cases, the person
            executing the affidavit shall be licensed in
            this or any other state; 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 substantially to the
            general area or specialty involved in the
            action for a period of at least five years.
            The person shall have no financial interest
            in the outcome of the case under review, but
            this prohibition shall not exclude the
            person from being an expert witness in the
            case.

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

Plaintiff did not meet this deadline.

    In late October 2008, after the sixty days had expired,

plaintiff filed a motion to extend the time to file an affidavit

of merit.    The statute allows the court to grant an extension

                                                Accordingly, the trial
not to exceed another sixty days.       Ibid.

court granted the motion.    However, rather than run the

additional sixty days from the date on which the affidavit of

merit was due, the trial court by order dated November 7, 2008,



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erroneously extended the time period for sixty days from the

date of the order to January 7, 2009, thereby exceeding the time

period for an extension permitted by statute.

    On January 7, 2009, plaintiff served a report of a board-

certified general internist who expressed his opinion that

within a reasonable degree of medical certainty, defendant's

staff deviated from the standard of care and committed medical

malpractice in its treatment of James Reid.     The report set

forth the factual basis for this conclusion and identified the

deviations from the accepted standards of care.    The report

however was not submitted under oath.

    On February 10, 2009, the trial court sent out its notice

scheduling a Ferreira conference in the case for March 12, 2009.

The notice stated that the conference was required by Ferreira

v. Rancocas Orthopedic Assocs., 
178 N.J. 144 (2003), in order to

address issues concerning the affidavit of merit and any

discovery issues.   This conference however, was scheduled too

late to serve its purpose.   The Supreme Court has required that

the Ferreira conference be scheduled within ninety days of

service of the answer in all malpractice cases so that if there

is any deficiency in the affidavit of merit, plaintiff has time

                 Id. at 154-55.   In this case, the Ferreira
to correct it.

conference was scheduled over seven months after the answer was




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filed and more than two months after plaintiff's extended

deadline.   While plaintiff sought to waive the conference,

defendant did not.

    Defendant filed a motion to dismiss the complaint for

failure to satisfy the affidavit of merit statute on the basis

that the expert's report was not in affidavit form and that it

did not implicate the defendant hospital.     Plaintiff argued

substantial compliance.   Plaintiff also submitted an additional

copy of the expert report that had been signed by the expert

before a notary.

    By order dated March 20, 2009, the trial court granted

defendant's motion to dismiss.     It concluded that because the

expert report was not under oath, plaintiff had not

substantially complied with the affidavit of merit statute.

    Finally, on April 13, 2009, plaintiff obtained a signed

certification from the expert placing his report under oath and

moved for reconsideration.   That motion was denied by the trial

court by order dated April 17, 2009, and this appeal followed.

Among other arguments, plaintiff contends that she has

substantially complied with the affidavit of merit statute.

                              II

    After a careful review of the record, arguments of the

parties and the relevant law, we conclude that under the




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circumstances here, plaintiff substantially complied with the

affidavit of merit statute.   Under the doctrine of substantial

compliance, a plaintiff is deemed to have substantially complied

with the affidavit of merit statute where the following criteria

are met:

           (1) the lack of prejudice to the defending
           party; (2) a series of steps taken to comply
           with the statute involved; (3) a general
           compliance with the purpose of the statute;
           (4) a reasonable notice of petitioner's
           claim, and (5) a reasonable explanation why
           there was not a strict compliance with the
           statute.

           [Galik v. Clara Maass Med. Ctr., 
167 N.J.
           341, 353 (2001) (quoting Bernstein v. Bd. of
           Trs. of the Teachers' Pension & Annuity
           Fund, 
151 N.J. Super. 71, 76-77 (App. Div.
           1977)).]

    Here defendant can demonstrate no prejudice in plaintiff's

delay in providing a compliant affidavit of merit.   Defendant

was provided within the time period extended by the court order

with a doctor's report containing the substantive information

that the affidavit of merit statute is designed to provide to

the defense.   Plaintiff undertook a series of steps in order to

comply with the statute.   She provided the report within the

time period permitted by the court order.   That report, however,

was defective because it was not submitted under oath.    When the

problem was brought to the attention of the plaintiff, she

provided a notarized copy of the report apparently under the


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mistaken belief that would comply.   Once she understood that an

actual oath was required, plaintiff obtained the report under

oath from the doctor.

    Thus, the reason for noncompliance with the statute was due

to a misunderstanding of the technical requirements of an

affidavit and not a substantive issue of an expert unqualified

to give the report or unwilling to give the report under oath or

of the failure to provide the substantive information from a

doctor within the requisite timeframe.   Finding substantial

compliance under the circumstances here is consistent with the

purpose of the affidavit of merit statute which is "to require

plaintiffs in malpractice cases to make a threshold showing that

their claim is meritorious."   In re Petition of Hall, 
147 N.J.
 379, 391 (1997).

    Further, we note that this outcome is supported by our

decision in Mayfield v. Community Medical Associates, P.A., 
335 N.J. Super. 198, 207-09 (App. Div. 2000), wherein we found

substantial compliance although the doctor's report was not

under oath, noting that by writing the report on his letterhead,

the doctor had "put his reputation on the line as assuredly as

if he had sworn to the truth of the document" and noting that

the content of the report met the statutory requirement.




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    We recognize that in dismissing the complaint the trial

court relied on our decision in Tunia v. St. Francis Hospital,


363 N.J. Super. 301 (2003).     In Tunia, plaintiff, represented by

counsel, submitted a statement signed by a doctor that was

notarized but not under oath.    Id. at 303-04.      Further, the

doctor did not have the requisite five years experience required

by the statute to provide an affidavit of merit.        Id. at 304.

The trial court found the document insufficient to meet the

affidavit of merit statute and dismissed the claims against the

defendant physician.   Ibid.    Plaintiff then submitted a second

"affidavit of merit" by another doctor who did have the

                                  Id. at 304-05.     However, that
requisite years of experience.

affidavit was submitted beyond the statutory 120 days and it was

not under oath, although it was notarized.      Ibid.    The case

proceeded against the hospital.       Id. at 305.   Two years later,

plaintiff sought reconsideration of the dismissal as to the

                                The trial court denied the motion,
defendant physician.   Ibid.

and we affirmed, concluding that the notarized report did not

satisfy the affidavit of merit statute because the doctor's

statement was not under oath.    Id. at 305-07.

    We distinguish the circumstances before us from Tunia

because in Tunia the plaintiff never corrected the problem and

never presented an expert report under oath.        Further, the




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initial report that was submitted within the statutory 120-day

timeframe in Tunia was from a doctor unqualified to provide an

                      Id. at 304.     Finally, in Tunia, the
affidavit of merit.

plaintiff waited two years before seeking to overturn the

dismissal of his claim against the defendant physician.        Id. at

305.    None of these factors are present here.

       In conclusion, we conclude that under the particular

circumstances here, plaintiff has substantially complied with

the affidavit of merit statute.

       Reversed.




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