GARY SMITH v. HOWARD M. BARUCH, M.D.

(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NOT FOR PUBLICATION WITHOUT THE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-4289-07T34289-07T3

GARY SMITH,

Plaintiff-Appellant,

v.

HOWARD M. BARUCH, M.D.,

PREMIER ORTHOPAEDICS &

SPORTS MEDICINE, P.C.,

and LOUIS G. QUARTARARO,

M.D.,

Defendants-Respondents,

and

XAVIER A. AVILES, M.D.,

THE SPINE AND TRAUMA

INSTITUTE, RODOLFO ALONSO,

P.A., HACKENSACK UNIVERSITY

MEDICAL CENTER-JOHN MD DE

MERITT, HACKENSACK UNIVERSITY

MEDICAL CENTER-DEPARTMENT

OF RADIOLOGY, GENE BOUCHER,

DABNM, and DAVE DE REMIGGIO,

M.D.,

Defendants.

________________________________________________________________

 

Argued January 27, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3123-06.

Aram Ingilian argued the cause for appellant (Bakmazian & Associates, LLC, attorneys; Mr. Ingilian, on the brief).

Lori D. Lewis argued the cause for respondents Howard Baruch, M.D. and Premier Orthopaedics & Sports Medicine, P.C. (Krompier & Gordon, attorneys; Richard J. Tamn, on the brief).

Paul J. Miller argued the cause for respondent Louis Quartararo, M.D. (Giblin & Combs, attorneys; Mr. Miller, on the brief).

PER CURIAM

In this medical malpractice action, plaintiff Gary Smith appeals from an order entered on March 28, 2008 dismissing his complaint with prejudice for failure to file an Affidavit of Merit. After considering the record and the arguments of counsel, we modify the order to dismissal without prejudice.

Plaintiff injured his cervical spine in an automobile accident that occurred on May 23, 2003. On June 2, 2003, plaintiff began treatment with defendants Howard M. Baruch, M.D., and Louis G. Quartararo, M.D., both associated with Premier Orthopaedics & Sports Medicine (Premier Orthopaedics). Ultimately, on November 6, 2003, they performed an anterior cervical diskectomy at C5-6 and an anterior cervical fusion at C5-6 with "Synthes anterior cervical plate."

Because of complications after the surgery, plaintiff was examined by Marvin Friedlander, M.D., who recommended another surgery. Dr. Friedlander operated on plaintiff on April 22, 2004. His operative report states that "it was clearly obvious that the inferior screws were through the C6-7 disk space." Dr. Friedlander moved the screws to "their appropriate and proper location," and advised plaintiff that the prior surgery had been done incorrectly.

Plaintiff filed his complaint on April 26, 2006, alleging medical malpractice. He submitted an Affidavit of Merit on October 10, 2007. The Affidavit, prepared by Mark B. Toman, M.D., stated:

Based upon the records which I have reviewed, there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work of Howard Baruch, M.D. upon the [p]laintiff, Gary Smith, deviated from, and, fell outside and below, the medical professional treatment standards.

Dr. Toman added that he was a licensed physician in New Jersey "for a period in excess of five years" but did not state a specialty or any of his training.

In December 2007, defendants objected to the Affidavit of Merit and advised plaintiff that it was invalid because it was not offered by a physician practicing in the same field as them and that it did not identify defendant Premier Orthopaedics as a culpable party. Plaintiff failed to respond. Thereafter, defendants moved to dismiss the complaint for failure to file a proper Affidavit of Merit.

Plaintiff responded to the motion, arguing that the allegations fell within the "common knowledge" exception to the Affidavit of Merit. The trial court rejected that argument, stating:

I don't know how a jury could understand how to properly perform an anterior cervical dis[k]ectomy to 5, 6 with nerve routes [that] could be decompressed and anterior cervical fusion. I don't know how they could understand any of that.

So I . . . find an affidavit of merit is necessary as to this medical malpractice action. I don't think any of these procedures is [within the] common knowledge of a jury. Are they? You can't go to a jury and say, just like a mechanic, [y]ou put the screw in the wrong place. You just can't do that. A lot more to it. And I think the jury needs the experts to testify.

In this appeal, plaintiff argues that (1) he is not required to file an Affidavit of Merit because this is a common knowledge malpractice case; (2) even if an Affidavit of Merit is required, he has submitted one which substantially complied with the statute; and (3) an Affidavit of Merit conference should have precluded dismissal of the case.

We agree with the trial court that this is not a common knowledge case and that an Affidavit of Merit is required. Risko v. Ciocca, 356 N.J. Super. 406 (App. Div.), certif. denied, 176 N.J. 430 (2003); Giantonnio v. Taccard, 291 N.J. Super. 31 (App. Div. 1996). Given the circumstances here, however, where plaintiff submitted a substantially compliant Affidavit of Merit, the complaint should not have been dismissed with prejudice. Rather, defendant should have been permitted a short period of time within which to amend the Affidavit of Merit to provide the physician's specialty or an affidavit from an appropriately credentialed physician as required. Balthazar v. Atlantic City Medical Center, 358 N.J. Super. 13, 22-23 (App. Div. 2003).

In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003), the Supreme Court recognized that "[t]he legislative purpose [of the Affidavit of Merit statute] was not to 'create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.'" (Quoting Mayfield v. Community Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div. 2000)). The Court further noted that there are "two equitable remedies that temper the draconian results of an inflexible application of the statute" - "substantial compliance" and "extraordinary circumstances." Ibid.

The doctrine of substantial compliance

requires the moving party to 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 strict compliance with the statute." Galik, [v. Clara Maass Med. Ctr.], 167 N.J. [341, 353, 341-48 (2001)] (finding substantial compliance where plaintiff did not file affidavit within statutory time frame, but plaintiff's counsel, before initiating suit, provided defendants' insurance carriers with two detailed expert's reports that established legitimacy of complaint and served as basis for settlement discussions).

[Id. at 151-52.]

Here, plaintiff filed a timely affidavit, albeit Dr. Toman did not include his specialty. Although defendants claim that they "experienced great prejudice as a result of plaintiff's failure to serve an Affidavit of Merit in full compliance" with the statute, they have not articulated any prejudice beyond their claim that dismissing the complaint within 180 days would have avoided an increase in their malpractice insurance under N.J.A.C. 11:27-6.1 and 11:1-20.2. This argument presumes that plaintiff does not have a meritorious claim. That presumption is not warranted at this juncture. Defendants have not demonstrated any prejudice in their ability to defend the lawsuit by virtue of the deficiency in the affidavit. The affidavit provided by plaintiff otherwise contains all of the essential elements and gives defendants clear notice of plaintiff's claim.

A case management conference is required in all medical malpractice cases within ninety days of the service of an answer. Ferreira, supra, 178 N.J. at 154. The purpose of the Ferreira conference is to "ensure compliance with the discovery process, including the Affidavit of Merit statute." Saunders v. Capital Health System at Mercer, 398 N.J. Super. 500, 510 (App. Div. 2008) (quoting Ferreira, supra, 178 N.J. at 147). A case management conference was not held in this case. If it had been, plaintiff would have had the opportunity to amend the affidavit well within the 120 days required under the statute.

Defendants argue that they provided notice to plaintiff but he failed to respond. A Ferreira conference, however, would have provided plaintiff with notice of the consequences of his failure to respond, given him an opportunity to do so, and could have avoided the need for a motion.

We are satisfied that plaintiff substantially complied with the statutory requirements and that an amendment relates back to the original filing date. Accordingly, we modify the order dismissing the complaint with prejudice to an order dismissing it without prejudice. Plaintiff shall submit a compliant Affidavit of Merit within thirty days of this decision, and move to reinstate the complaint.

 
The order is affirmed as modified.

(continued)

(continued)

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A-4289-07T3

June 11, 2009