MONICA HARPER-McGILL v. JAMES A. BANCROFT M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MONICA HARPER-McGILL,

Plaintiff-Appellant,

v.

JAMES A. BANCROFT, M.D.,

JOSEPH P. MULLANE, M.D.,

ORLANDO J. PENALOZA, M.D.,

CAPITAL HEALTH SYSTEM, INC.,

Defendants-Respondents,

and

SHASTRA SOLOMON, M.D.,

Defendant.

___________________________________

July 27, 2016

Argued November 18, 2015 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2594-13.

Alan Roth argued the cause for appellant (Bendit Weinstock, P.C., attorneys; Mr. Roth, on the briefs).

Jason M. Altschul argued the cause for respondent James A. Bancroft, M.D. (Krompier & Tamn, L.L.C., attorneys; Richard J. Tamn, of counsel and on the brief; Mr. Altschul, on the brief).

Gregory J. Giordano argued the cause for respondent Joseph P. Mullane, M.D. (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, attorneys; Michael A. Pattanite, Jr., on the brief).

John S. Rigden argued the cause for respondents Orlando J. Penaloza, M.D. and Capital Health System, Inc. (Parker McCay P.A., attorneys; Stacy L. Moore, Jr., of counsel; Mr. Rigden, on the brief).

PER CURIAM

Plaintiff Monica Harper-McGill appeals from the trial court's order dismissing her medical negligence complaint against defendants James A. Bancroft, M.D., Joseph P. Mullane, M.D., Orlando J. Penaloza, M.D., and Capital Health System, Inc. (Capital Health), and the court's subsequent order denying reconsideration. The court dismissed the complaint because plaintiff failed to file an affidavit of merit (AOM) as required by N.J.S.A. 2A:53A-27, and plaintiff failed to establish grounds for filing a sworn statement in lieu of an AOM (SIL) under N.J.S.A. 2A:53A-28. Plaintiff argues the court should have permitted her to file a SIL. Alternatively, she contends the AOM statute is unconstitutional. We affirm.

I.

A motion to dismiss for failure to provide an AOM or SIL is equivalent to a motion to dismiss for failure to state a cause of action. N.J.S.A. 2A:43A-29. As a result, we recite the facts in the light most favorable to plaintiff. Nostrame v. Santiago, 213 N.J. 109, 113 (2013).

Plaintiff filed her complaint on November 26, 2013, alleging that defendants negligently failed to diagnose and treat her medical condition. Although the complaint does not identify the condition, plaintiff's counsel states in a certification that plaintiff suffers from multiple sclerosis (MS), which was diagnosed in January 2012 by a physician who is not a party to the litigation. Counsel asserts that defendants treated plaintiff between 2006 and 2011.

Drs. Mullane and Bancroft filed their answers on January 23, 2014. Dr. Penaloza and Capital Health did so on January 31, 2014. Each defendant's answer demanded an AOM. After the initial sixty-day period for filing an AOM had already passed, plaintiff sought a sixty-day extension, which the court granted, extending the deadline for filing the AOM to May 27, 2014 for Drs. Mullane and Bancroft, and June 3, 2014 for Dr. Penaloza and Capital Health.

Plaintiff did not file an AOM by the new deadlines. Plaintiff's counsel also asked the court to cancel a scheduled conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

All four defendants filed motions to dismiss with prejudice based on plaintiff's failure to file an AOM. Plaintiff then filed a cross-motion seeking permission to file a SIL, supported by a brief and certification of counsel.

Plaintiff's counsel certified that he obtained certain of plaintiff's medical records, but he apparently did so outside formal discovery.1 He stated that the records showed plaintiff had presented complaints although counsel does not state to whom that were "noted to be related to arthritis, a knee injury, a back problem and other similar orthopaedic issues." None of the records reflected "any neurological involvement whatsoever," which counsel asserted was "an important symptom that could be related to early onset of [MS]."

According to her counsel, plaintiff contended that defendants' records omitted documentation of neurological complaints she claimed to have conveyed to defendants over the course of their treatment of her. There is no record that plaintiff sought discovery from defendants or anyone else to substantiate her alleged neurological complaints.

Plaintiff's counsel asserted that none of the experts with whom he consulted were willing to provide an AOM. The experts allegedly concluded there was no reason to refer plaintiff to a neurologist because, according to her records, she had no neurological symptoms. However, plaintiff's counsel contended that "if those records are inaccurate or incomplete, and there were neurological signs that should have been picked up and plaintiff should have been referred, there is no way for an expert reviewing these records to 'assume' that situation."

Judge Anthony M. Massi denied the motion in a written opinion. The court held that plaintiff could not avail herself of a SIL because she had not alleged or established that defendants had withheld, altered, or tampered with her records. On a motion for reconsideration, plaintiff contended for the first time that the AOM statute was unconstitutional as applied to her case. The court noted that it was inappropriate for plaintiff to raise the constitutional argument for the first time in a motion for reconsideration, and denied the motion.

On appeal, plaintiff renews her argument she should have been permitted to file a SIL; or alternatively, the AOM statute is unconstitutional.

II.

We exercise plenary review of the trial court's order dismissing plaintiff's complaint. Rezem Family Assocs., L.P. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 366, 368 (2011); R. 4:6-2(e). We also review de novo the court's interpretation of N.J.S.A. 2A:53A-28, and its determination that plaintiff was not entitled to avail herself of a SIL. Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014) (statutory construction is a legal issue subject to de novo review); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Although a plaintiff in a professional negligence action must file an AOM, the statute provides a "safety valve" in the form of the SIL. See Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J. Super. 536, 545 (App. Div. 2002). An AOM is "an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional and occupational standards or treatment practices." N.J.S.A. 2A:53A-27. It must be filed within sixty days after a defendant files an answer, which the court may extend one time for no more than another sixty-day period. Ibid. The AOM statute is designed to require plaintiffs to show that their claims have merit, so that those that do not can be dismissed at an early stage of litigation. Buck v. Henry, 207 N.J. 377, 393 (2011). However, the statute is not intended to create "hidden pitfalls" for meritorious claims. Id. at 383.

The statute provides that "[a]n [AOM] shall not be required . . . if the plaintiff provides a sworn statement in lieu of the affidavit" setting forth that he or she requested in writing "medical records or other records or information having a substantial bearing on preparation of the affidavit," and defendant failed to provide them. N.J.S.A. 2A:53A-28. The SIL must also state that the written request was made by certified mail or personal service, and at least 45 days have elapsed since the defendant received the request. N.J.S.A. 2A:53A-28.

In order to resort to an SIL, a plaintiff must "identify with specificity any medical records or other information he believes are needed to prepare an affidavit of merit. . . ." Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001). In Scaffidi, the court affirmed dismissal after concluding that the plaintiff could not use a SIL, as he failed to specify that logs, requested among numerous other documents sought in a notice to produce, were needed to prepare the AOM. Ibid. In any event, the logs were produced more than sixty days before dismissal, yet the plaintiff never filed an AOM. Ibid.

However, when a defendant engages in a wholesale refusal to produce the medical records that it concededly possesses, "it should be presumed" that the withheld records have a "substantial bearing on preparation of the affidavit" as required by N.J.S.A. 2A:53A-28. Aster, supra, 346 N.J. Super. at 543 (internal quotation marks omitted) (reversing dismissal). In such a case, the defendant bears the burden to demonstrate that the withheld records are not pertinent to an AOM. Id. at 549. Furthermore, the SIL shall be deemed to have been filed as of the plaintiff's initial request for the never-furnished documents or information. Id. at 546.

In Guzman v. Jersey City Medical Center, 356 N.J. Super. 37, 38-39 (App. Div. 2002), we held a plaintiff was not entitled to file a SIL where (1) the records or information did not exist because they were never created in the first place, and (2) they played no role in preparing an AOM. The plaintiff claimed the defendant-hospital was negligent when its emergency room failed to admit and treat him in a timely manner. Id. at 38-39. After the ER staff allegedly ignored him, the plaintiff left and sought treatment elsewhere. Ibid. We held plaintiff could not excuse his failure to file an AOM on the grounds that the hospital failed to produce medical records. Id. at 42. The plaintiff was never treated. "[A] plaintiff cannot avoid the [AOM] requirement . . . by requesting documents he or she does not reasonably believe to exist and be necessary for 'preparation of the affidavit.'" Id. at 40 (quoting N.J.S.A. 2A:53A-28).

We recognized in Balthazar v. Atlantic City Medical Center, 358 N.J. Super. 13, 22 (App. Div. 2003), that acts of negligence will often be unrecorded. However, a plaintiff must still show that the absence of such records impedes preparation of an AOM. Ibid. In Balthazar, the plaintiff claimed that in the course of a hysterectomy, her physician negligently sutured and transected her left ureter. Id. at 16-17. After the surgeon could not find her dictated post-operative report in the chart, she dictated a second one, labelled "redictation." Id. at 20. None of the various versions of this report mentioned the suturing or transection. Ibid. The physician testified she was unaware the damage occurred. Ibid. However, evidence of the damage appeared in later studies, as well as the report of another physician's reparative surgery. Ibid.

The plaintiff contended that a SIL was permitted because it was "impossible to provide an [AOM] when no authentic medical record exists," contending that the initial surgeon fraudulently altered her report when she prepared the redictation. Id. at 21. We disagreed. We held that the absence of any reference to the suturing and transection in the initial surgeon's report did not justify a SIL, even if one assumed the initial surgeon tampered with her report. Id. at 22.

[E]ven if we were to acknowledge fraud in what appears to us to have been an innocent re-dictation, we can find no causal relationship between that fraud and any inability on plaintiff's part to determine the nature of her injury and prepare an affidavit of merit. In this case, like many others, defendants claim that the damage that was inflicted was unknown to them and thus was unrepaired and unrecorded. This asserted lack of knowledge on defendants' part provides a factual foundation for [plaintiff's] malpractice claim. It does not provide grounds for avoidance of the requirements of the affidavit of merit.

[Ibid.]

Applying these principles, plaintiff has fallen far short of establishing grounds for filing a SIL. As a threshold matter, plaintiff is procedurally barred from utilizing a SIL. Counsel did not seek leave to file a SIL until after the extended time for filing an AOM had expired.2 Although a SIL may relate back to the date records were requested, plaintiff has presented no record request, particularly one served by personal service or certified mail, forty-five days in advance of the SIL.3

As a substantive matter, plaintiff has not provided competent evidence in support of her missing records claim. She provides no certification that she suffered neurological symptoms between 2006 and 2011, or that she reported them to any of her treating physicians, let alone describe them in any detail. Her attorney's certification, which conveys her hearsay statements, and provides information patently outside counsel's personal knowledge, simply does not suffice. R. 1:6-6 (stating that where "a motion is based on facts not appearing of record or not judicially noticeable," the facts shall be presented by affidavit or certification "made on personal knowledge . . . [and] admissible in evidence"); Pressler & Verniero, Current N.J. Court Rules, comment on R.1:6-6 (2016) ("Affidavits by attorneys of facts not based on their personal knowledge but related to them by and within the primary knowledge of their clients constitute objectionable hearsay.").

Even assuming for argument's sake that plaintiff conveyed neurological symptoms to all three treating physicians, she has provided no competent evidence that the physicians' alleged failure to document those symptoms would prevent the preparation of an AOM. Again, plaintiff's counsel's certification, which vaguely refers to consultations with experts, does not suffice. The record includes no certification from an expert stating that the absence of the records precluded preparation of an AOM. The record also does not reflect what information was provided to the expert. Non-specific hearsay claims of "neurological signs" would presumably not weigh as heavily as specific, competent evidence that the patient reported symptoms that went undocumented and undiagnosed.

We can conceive of cases in which the failure of a physician to create a medical record is the crux of a plaintiff's claim. See, e.g., N.J.A.C.13:35-6.5(b) (requiring licensed physicians to keep professional treatment records of a patient's medical history, findings upon examination, and diagnosis or medical impression, among others). We do not presume that the absence or inaccuracy of a medical record would invariably prevent an expert from opining that there was a reasonable probability that the physician deviated from the applicable standard of care. However, when a plaintiff alleges as the basis for her appeal, that absence or inaccuracy of medical records precluded her from filing an AOM, that allegation must be supported by competent record evidence. We find no such evidence here.

Plaintiff's alternative argument that the AOM statute is unconstitutional lacks sufficient merit to warrant discussion in a written opinion. SeeCornblatt, supra, 153 N.J.at 247-48; Balthazar, supra, 358 N.J. Super.at 19 n.6; R.2:11-3(e)(1)(E).

Affirmed.

1 None of the medical records are included in the record on appeal. Nor does the record include any discovery requests served by plaintiff on defendants.

2 The statute does not expressly require that a plaintiff first seek leave from the court to file a SIL. However, to avoid the uncertainty that the SIL would be rejected, a plaintiff may reasonably seek advance approval of a SIL, so that alternative steps can be taken if the SIL is not available. However, as we note, plaintiff's application was not timely.

3 We also reject plaintiff's argument that she should have been entitled to conduct discovery regarding the allegedly omitted documentation. Plaintiff was obliged to seek such discovery before the AOM deadline. See Fink v. Thompson, 167 N.J. 551, 564 (2001) ("Attorneys should not rely on an intention to conduct later discovery to excuse noncompliance with N.J.S.A. 2A:53A-27 but, rather, should begin discovery promptly when facts are needed to comply with the requirements of the Affidavit of Merit statute.").