ANTHONY COELHO v. VITO PETROZZINO, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2205-05T32205-05T3

ANTHONY COELHO by his Guardian

Ad Litem, ISABEL COELHO,

Plaintiff-Appellant,

v.

VITO PETROZZINO, M.D.,

Defendant-Respondent,

and

ST. BARNABAS MEDICAL CENTER,

Defendant.

________________________________________________________________

 

Argued October 25, 2006 - Decided January 23, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-170-03.

Abbott S. Brown argued the cause for appellant (Bendit Weinstock, and Callan, Koster, Brady & Brennan, attorneys; Mr. Brown and Bruce M. Brady, on the brief).

Thomas J. Pyle, Jr., argued the cause for respondent (Post, Polak, Goodsell, MacNeill & Strauchler, attorneys; Lauren Koffler O'Neill, of counsel; Mr. Pyle, on the brief).

PER CURIAM

In this affidavit of merit case, plaintiff Anthony Coelho appeals from two orders, one entered on August 8, 2003, dismissing the complaint for failure to serve the affidavit of merit within the statutory time period and the other entered on February 6, 2004, denying plaintiff's motion for reconsideration. We reverse and remand.

The relevant facts are as follows. Plaintiff is an infant born on November 5, 1993. Defendant was plaintiff's pediatrician from January 5, 1994 until February 24, 1996 - from the time plaintiff was two months old to twenty-seven months. The alleged malpractice resulted in plaintiff losing his left kidney.

The report of Alan P. DeMayo, M.D. indicates that during the time defendant cared for him, plaintiff had "[seventeen] sick visits, [ten] follow up visits for the sick visits and [seven] strictly checkup visits." In eight of the sick visits a fever was noted: two notations for a fever of 102 F, one notation for a fever of 102.8 F, four notations for a fever of 103 F, and one fever without a specific temperature noted.

The report states that defendant's treatment for these fevers deviated from standard medical practice and if defendant had followed standard medical care the harm caused to plaintiff could have been avoided. Defendant prescribed Amoxicillin, rather than ordering "[a] urinalysis, CBC and blood culture." Dr. DeMayo stated that in his opinion "if the urinary tract infection had been detected at 4 months of age with the first high fever, the obstructive uropathy would have been found. The left renal collecting system could have been surgically repaired. The resulting left kidney function would have ended up being 50 to 100% of normal[,] not zero, as it turned out to be."

Elliott Cohen, M.D., reported:

On June 25, 1996 [plaintiff] underwent abdominal sonography with the finding of extensive left nephrolithiasis (kidney stones), associated with severe chronic hydronephrosis and post-obstructive atrophy. Left ureteral peristalsis was observed. The right kidney was normal. A voiding cystourethrogram on July 9, 1996 showed grade II reflux to the left kidney and grade I reflux to the right kidney. An intravenous pyelogram on July 11, 1996 showed a 2 cm X 1.5 cm round stone at the left ureteropelvic junction. There was delayed visualization of the left kidney suggesting diminished function. The right kidney was normal. A renal scan on July 25, 1996 showed a nonfunctioning left kidney and a normal right kidney.

Given the above . . . findings on urologic workup, [plaintiff] underwent surgery by a pediatric urologist, Dr. Moneer Hanna, on August 23, 1996. The left kidney was found to be full of pus with large stones and a left nephrectomy was performed. Pathology revealed hydroureteronephrosis, a severe necrotizing pyelonephritis, interstitial nephritis and end-stage renal changes. . . .

In summary, this patient was followed for over two years with multiple episodes of febrile illness prior to a diagnosis of an obstructed, infected left kidney with stones. The diagnosis of urinary tract infection was made the very first time that a urinalysis was obtained. This delay in diagnosis ultimately led to a severely infected, nonfunctioning left kidney which required surgical removal. Recovery of kidney function by correction of obstruction, removal of stones, and treatment of infection is clearly possible with early diagnosis and treatment, especially in the pediatric age group. The delay in diagnosis in this case prevented early intervention and correction, and ultimately led to the loss of the left kidney.

Plaintiff filed a medical malpractice complaint on January 6, 2003. No affidavit of merit accompanied the complaint. Plaintiff was required to serve an affidavit of merit on defendant within sixty days of the filing of defendant's answer. N.J.S.A. 2A:53A-27. Defendant answered on March 7, 2003, but no affidavit of merit followed within sixty days. The statute allows for an additional sixty days upon application by the plaintiff, but plaintiff made no motion to extend the time and the 120-day extended period for serving the affidavit of merit expired on July 5, 2003.

On July 10, 2003, plaintiff served answers to interrogatories on defendant. The answers included expert reports by Dr. Alan DeMayo, Dr. Elliot Cohen, and Dr. Stanley Kogan and medical reports by treating physicians Dr. Aldana Skripkus, Dr. M. Isabel Roberti and Dr. Moneer K. Hanna. On July 15, 2003, plaintiff provided defendant with a "Certificate of Merit" dated July 10, 2003. On July 10, 2003, defendant mailed his motion to dismiss the complaint for plaintiff's failure to serve the affidavit of merit timely. The motion was returnable on August 8, 2003 and was granted on that date. After the Supreme Court decided Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), plaintiff moved for reconsideration and that motion was denied on February 6, 2004.

In this appeal, plaintiff argues that (1) Ferreira is dispositive; (2) plaintiff's infant status requires dismissal without prejudice, if the case is dismissed at all; and (3) defendant is estopped from moving to dismiss under Ferreira.

I

The Affidavit of Merit statute is a tort reform measure which requires plaintiffs "to make a threshold showing that the claims asserted are meritorious." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 350 (2001). The purpose of the legislation is "to weed out frivolous" litigation while permitting meritorious claims to proceed. Ibid. There are three circumstances in which a late filing and service of the affidavit of merit may be permitted: (1) where there has been substantial compliance, Cornblatt, P.A. v. Barow, 153 N.J. 218, 239-40 (1998); (2) where extraordinary circumstances have been demonstrated, Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001); and (3) where defendant is estopped from arguing that the affidavit of merit was not served timely, Ferreira, supra, 178 N.J. at 154.

In Ferreira, the plaintiff filed a medical malpractice complaint on May 31, 2000. 178 N.J. at 148. Several months before filing the suit, however, the plaintiff retained "a board certified orthopedic surgeon, to review plaintiff's medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards." Ibid. After the surgeon notified plaintiff's counsel that "there was a reasonable probability that only defendants were negligent," counsel sent an affidavit of merit to the surgeon for his review and signature. Ibid. The defendants filed their answer on August 17, 2000. Within ten days of the answer being filed, plaintiff's counsel received the surgeon's signed affidavit of merit, "which, due to inadvertence, he failed to forward to defense counsel." Ibid. Discovery proceeded and defense counsel made no request for the affidavit of merit. Ibid.

On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, [plaintiff's counsel] had a telephone conversation with defense counsel, who brought to [plaintiff's counsel's] attention that defendants had not received a medical affidavit. Within hours of that conversation, [plaintiff's counsel] faxed [the surgeon's] affidavit to defense counsel.

On January 17, 2001, [the] defendants moved to dismiss the complaint with prejudice for failure to comply with the affidavit of merit statute.

[Ibid.]

The Supreme Court in Ferreira noted that it had previously recognized "two equitable remedies that temper the draconian results of an inflexible application of the statute," substantial compliance and extraordinary circumstances. Id. at 151. The Court found that plaintiff had not satisfied all of the factors necessary to establish substantial compliance because the affidavit of merit was not served within the 120-day statutory time frame. Id. at 152. Nor did the Court find that counsel's inadvertence qualified as an extraordinary circumstance. Ibid. Rather, the Court articulated the estoppel rule "where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss." Id. at 154. The Court noted:

The Affidavit of Merit statute was intended 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. The statute was not intended to encourage gamesmanship or a slavish adherence to form over substance. The statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit.

[Ibid.]

Here, in considering plaintiff's motion for reconsideration based upon Ferreira, the trial court found that plaintiff did not fall within the Ferreira estoppel exception because he did not have the affidavit of merit before the 120 day statutory period expired and did not provide it to defendant before defendant moved to dismiss. The court found further that plaintiff did not meet the substantial compliance or extraordinary circumstances exceptions.

Plaintiff maintains, however, that he has substantially complied with the Affidavit of Merit statute. Substantial compliance applies where equity requires it. Cornblatt, supra, 153 N.J. at 239-40. Substantial compliance requires that plaintiff show:

(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.

[Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 206-07 (App. Div. 2000) (quoting Cornblatt, supra, 153 N.J. at 239).]

In Mayfield, the plaintiff provided a timely expert report, but it was unsworn and uncertified. 335 N.J. Super. at 201. We found that the plaintiff had substantially complied with the statute because he had filed the unsworn report within the statutory period. Id. at 207-08. See also Ferreira, supra, 178 N.J. at 152-53 (finding that plaintiff had not fulfilled the substantial compliance requirements because steps were not taken to forward the affidavit of merit to defendant within the 120-day statutory period); Palanque, supra, 168 N.J. at 405-06 (disallowing the substantial compliance claim where plaintiff failed to supply the expert report or affidavit of merit within the 120-day statutory period); Galik, supra, 167 N.J. at 356-57 (finding that substantial compliance was met where the plaintiff submitted expert reports to defendants eight months before filing the complaint); Balthazar v. Atl. City Med. Ctr., 358 N.J. Super. 13, 23-24 (App. Div.), certif. denied, 177 N.J. 221 (2003) (stating that plaintiff had not met the substantial compliance requirements because she "took no steps to comply with the statute," or to provide expert reports within the 120-day statutory period); Hefferon v. Gitler, 346 N.J. Super. 141, 149 (App. Div. 2001) (finding a substantial compliance claim where plaintiff supplied an expert report within the statutory period and the affidavit of merit shortly after the period expired).

Here, plaintiff obtained expert reports before filing the complaint. He did not substantially comply with the statute, however, because he failed to furnish the reports or an affidavit of merit within the statutory period. Ferreira, supra, 178 N.J. at 152-53.

II

Defendant next argues that plaintiff's infant status should be considered an extraordinary circumstance. This issue was not raised before the trial court and we will consider it "only if the issue is one 'of sufficient public concern.'" Cornblatt, supra, 153 N.J. at 230 (quoting State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989). We do, indeed, consider the issue of sufficient public concern because of the unintended effect the Affidavit of Merit statute has on viable malpractice claims when counsel fail to act timely.

Plaintiff relies on Kubiak v. Robert Wood Johnson Univ. Hosp., 332 N.J. Super. 230 (App. Div. 2000), in arguing that plaintiff's minority status requires that the case be dismissed without prejudice because the statute of limitation has not yet expired.

In Kubiak, we noted that the Affidavit of Merit statute made no provision for tolling the filing deadline if a complaint was filed by an infant before the age of majority. Id. at 237-38. We noted further that statutes of limitation are tolled because a minor cannot be expected to know of and execute his legal rights. Id. at 238. We held, however, that where "the guardian steps into the shoes of the minor [he or she] is obligated to comply with court rules and the applicable statutes." Ibid. "[A] minor is protected from a parent's or guardian's inaction, but not from their improvident actions in the course of litigation. A dismissal for failure to comply with the [Affidavit of Merit statute] is not any different than a dismissal after plenary or summary adjudication." Ibid. In short, plaintiff's minority does not constitute an extraordinary circumstance for purpose of the Affidavit of Merit statute.

III

In his third point, plaintiff maintains that defendant should be estopped from moving for dismissal of the action based upon the holding in Ferreira. While the facts here are similar to those in Ferreira, there are significant differences. Plaintiff did not have the affidavit of merit in hand until after expiration of the 120-day statutory period and mailed it to defendant on July 10, 2003, the same day defendant mailed the motion to dismiss.

Here, plaintiff was in possession of Dr. DeMayo's report well before the complaint was filed. The answers to interrogatories, including the experts' reports, were served on defendant before the motion to dismiss was filed. See R. 1:6-3 and 1:5-6(b). But, neither the affidavit nor the answers were served on defendant before expiration of the 120-day period.

In establishing the estoppel exception, the Court specifically looked to the purpose of the statute: "to weed out frivolous lawsuits at an early stage and allow meritorious cases to go forward." 178 N.J. at 156 (quoting Galik, supra, 167 N.J. at 350). The Court noted that "[i]t makes perfect sense that, where a plaintiff is unable to provide an affidavit at all, the omission should be considered substantive, resulting in a merits-dismissal with prejudice." Id. at 157. The Court further noted, however,

[t]he vastly more common category is entirely different. It does not involve the inability of a plaintiff to produce an affidavit regarding deviation, but arises out of procedural slip-ups in filing or service or out of curable technical deficiencies. Such defects do not "go to the heart of the cause of action." Indeed, because they do not reflect negatively on the merits of a plaintiff's malpractice claim, dismissing the complaint does nothing to advance the legislative goal of ridding the system of frivolous cases. On the contrary, it thwarts the stated aim of allowing meritorious cases to go forward. That was never the intention of the Legislature when it enacted the Affidavit of Merit statute.

Accordingly, Cornblatt's mandatory dismissal with prejudice rule should be limited to those cases in which a plaintiff cannot or will not produce an affidavit of merit at all.

[Id. at 157 (emphasis added).]

We are satisfied that the estoppel exception to the affidavit of merit should be applied here, based upon the rationale articulated by the Court in Ferreira. Plaintiff's counsel had Dr. DeMayo's initial report in 2000. The complaint was filed on January 2, 2003, when plaintiff was nine years old. Plaintiff's counsel had in his possession several reports prior to expiration of the 120-day time period. Those reports were served after expiration of the 120 days but prior to the filing of defendant's motion to dismiss. Given those circumstances, a dismissal of the complaint with prejudice would work a substantial injustice since plaintiff has presented a meritorious claim. Consistent with the Ferreira jurisprudence, we reverse the order of dismissal and remand for further proceedings.

 
Reversed and remanded.

The report, dated March 9, 2000, is based on records of defendant, Dr. Aldona Skripkus, the 9/8/95 emergency room visit at St. Barnabas Hospital, Dr. Isabel Roberti (pediatric nephrologist), Dr. Moneer Hanna (pediatric urologist), and admission records of 8/23/96-8/26/96.

This report, dated July 25, 2001, is based on plaintiff's medical records.

Rule 1:6-3 requires that motions be filed sixteen days prior to the return date. Mailing does not constitute filing. See R. 1:5-6(b). The Affidavit of Merit statute refers to filing a motion to dismiss rather than mailing it.

(continued)

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A-2205-05T3

January 23, 2007