JANICE TAYLOR v. COMMUNITY MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5727-08T2

JANICE TAYLOR, as

Administratrix of the Estate

of Deborah Conroy,

Plaintiff-Appellant,

Cross-Respondent,

v.

COMMUNITY MEDICAL CENTER,

SAINT BARNABAS HEALTH CARE

SYSTEMS, DANNA GLORE MICHELLE

DELA CRUZ, M.D., DEBORAH WINN-VAN

HISE, APN-C,

Defendants-Respondents/

Cross-Appellants,

and

OCEAN HEALTH INITIATIVES,

Defendant-Respondent,

and

CVS CAREMARK CORP. and

PHARMACISTS FOR CVS PHARMACY,

Defendants.

_______________________________

January 21, 2011

Argued October 27, 2010 - Decided

Before Judges R. B. Coleman and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9606-07.

MichaelA. Speroargued thecause forappellant/cross-respondent (Sterns& Weinroth, P.C., attorneys; Mr. Spero, of counsel and on the briefs; Christina Vassiliou Harvey, on the briefs).

Lauren H. Zalepka argued the cause for respondents/cross-appellants Community Medical Center, St. Barnabas Health Care Systems and Danna Glore Michelle Dela Cruz, M.D. (Ronan, Tuzzio & Giannone, attorneys; Ms. Zalepka, of counsel and on the briefs).

Julianne Cefalu argued the cause for respondent/cross-appellant Deborah Winn-Van Hise, APN-C (Reiseman, Rosenberg, Jacobs & Heller, P.C., attorneys; Sam Rosenberg, of counsel; Ms. Cefalu, on the briefs).

John J. Bannan argued the cause for respondent Ocean Health Initiatives (Reynolds & Drake, P.C., attorneys; Mr. Bannan, of counsel and on the brief).

PER CURIAM

In this medical malpractice matter, plaintiff Janice Taylor, the Administratrix of the Estate of Deborah Conroy, challenges the dismissal of her complaint for failure to properly comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 and the subsequent order denying reconsideration. Defendants St. Barnabas Health Care Systems and Community Medical Center (collectively the Community defendants), Danna Glore Michelle Dela Cruz, M.D. and Deborah Winn-Van Hise, APN-C, have filed a defensive cross-appeal, challenging the qualifications of plaintiff's putative affiant. As in other matters, we again "grappled with the derelictions" of plaintiff's counsel, who may have "filed [a] well-grounded complaint[], but [] neglected to file [a] technically correct or timely affidavit[]." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146 (2003). Following our review, we affirm.

Plaintiff commenced a wrongful death action against defendants Dr. Dela Cruz, Ocean Health Initiatives (Ocean Health), Winn-Van Hise, the Community defendants, and CVS Caremark Corp., seeking damages as a result of alleged professional negligence in prescribing medications to decedent, which caused her death on November 16, 2005. In part, plaintiff's claims were based on the Ocean County Medical Examiner's report following an autopsy of decedent, which concluded the cause of death was "[c]ardio respiratory failure[,] which resulted from a combination of prescription drug reaction[,] severe pulmonary fibrosis and desquamative changes." Decedent had been a patient of the Community defendants and Ocean Health for years before her death and Dr. Dela Cruz and Winn-Van Hise prescribed numerous medications when treating decedent. Plaintiff alleged Dr. Dela Cruz and Winn-Van Hise were negligent in "their supervision and care" of decedent "in writing prescriptions and the use of same" as "decedent was prescribed approximately 3,380 pills" in 2005. Further, plaintiff asserted Ocean Health and the Community defendants breached the standard of "care, monitoring and dispensing of medication."

Prior to a case management conference held in compliance with Ferreira, supra, 178 N.J. at 147, plaintiff moved for additional time to file an affidavit of merit as required by N.J.S.A. 2A:53A-27. The motion was granted.

On June 25, 2008, to support the viability of the claims of medical malpractice, plaintiff submitted a four paragraph "affidavit" of Charles J.F. McHugh, M.D. Dr. McHugh stated he was a licensed medical doctor for more than twenty years and had "been board certified in the area of emergency medicine" since 1992. After a review of decedent's medical records, Dr. McHugh opined, "there exists a reasonable probability that the care, skill and knowledge exercised and exhibited in the care and treatment provided by the physicians and staff identified in the complaint in this matter fell below acceptable professional standards." The document was neither notarized nor conforming to the requisites of R. 1:4-4(b). It is not clear whether a case management conference was held after plaintiff's submission.1

Defendants filed a series of letters and motions challenging Dr. McHugh's affidavit. On July 22, 2008, Winn-Van Hise sent plaintiff a letter asserting Dr. McHugh s "Affidavit of Merit was legally insufficient." The correspondence did not elaborate on that assertion. On July 28, 2008, the Community defendants filed a motion to dismiss the complaint, arguing the affidavit failed to "meet the statutory criteria to offer an Affidavit of Merit against a physician Board Certified in Internal Medicine, such as Dr. [Dela Cruz]" because Dr. McHugh was a specialist in emergency medicine. The motion was denied. On August 21, 2008, Ocean Health sent correspondence to plaintiff challenging the propriety of Dr. McHugh s affidavit "on the grounds that Dr. McHugh is not a registered professional nurse, such as [] Winn-Van Hise, and the [a]ffidavit is not notarized nor does it comply with N.J.S.A. 2A:53A-41."

On October 2, 2008, the Community defendants filed a second motion to dismiss the complaint because of the failure to provide an affidavit of merit. That motion was also denied because the court saw "no reason to rule that [a] board certified emergency room doctor would not be able to certify that there is merit to the claim being asserted by [] plaintiff."

Discovery commenced. The court granted Ocean Health's motion to dismiss the complaint for plaintiff's failure to provide answers to interrogatories and supplemental interrogatories, or respond to its request for a statement of damages and notices to produce documents. The motion was granted. By consent, dismissal was vacated on February 3, 2009.

On January 16, 2009, Winn-Van Hise moved to dismiss the complaint because "plaintiffs ha[d] failed to serve an appropriate and sufficient [affidavit of merit] as to Winn-Van Hise." Ocean Health filed a cross-motion to dismiss the complaint, relying on Winn-Van Hise's arguments.

While these motions were pending, plaintiff amended Dr. McHugh's affidavit. The amended affidavit was substantially similar to the original, except it now contained the statement "sworn and subscribed before me this 10th day of February, 2009" along with plaintiff's counsel's signature.

The trial court's order granting the motion, stated:

It is [o]rdered that [Winn-Van Hise's] motion is denied as concerns the alleged insufficient qualifications and experience of the purported affiant, Dr. McHugh; and it is further Ordered that plaintiff's complaint be and hereby is dismissed with prejudice as to [Winn-Van Hise and Ocean Health] based on the [c]ourt's finding that Dr. McHugh's purported Affidavit of Merit is defective in form, and plaintiffs are out of time to correct the defect[.]

In its statement of reasons, the court explained the complaint was dismissed "because no proper affidavit of merit has been filed with [the trial court] by the plaintiff's attorney." The court found the amended affidavit of merit was "still deficient because it [did] not comply with the [certification] requirements of [Rule 1:4-4(b)]"2 and was "not filed in a timely manner even" if it had not been deficient. "If in fact the oath was taken on February 10[, 2009] it [was] beyond the period of time allowed by . . . the affidavit of merit statute. Way beyond the additional extension of time that this [c]ourt granted of 60 days to have that affidavit filed." A second order, which dismissed the complaint against the Community defendants and Dr. Dela Cruz was filed for the same reasons.

The court denied plaintiff's motion for reconsideration. This appeal ensued.

Plaintiff argues she should be permitted to proceed with her professional negligence action because she has substantially complied with the statutory requirements of N.J.S.A. 2A:53A-27 and has corrected the error. Further, she maintains defendants have not been prejudiced and had "abandoned the issue of the allegedly defective affidavit," implicating equitable estoppel and laches. We reject these contentions.

Our review of plaintiff's arguments requires an understanding of the provisions and purpose of the Affidavit of Merit statute. N.J.S.A. 2A:53A-27 states:

In any action for damages for . . . wrongful death . . . 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 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 [N.J.S.A. 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.

The statute "was one of five bills passed as part of a 1995 tort reform package designed to strike a fair balance between . . . weed[ing] out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Ferreira, supra, 178 N.J. at 149-50 (internal quotations and citations omitted).

The statute "requires a plaintiff in a malpractice action to serve on a defendant within 120 days of receipt of the answer an expert s sworn statement attesting that there exists a 'reasonable probability' that the professional s conduct fell below acceptable standards." Id. at 146. The failure to serve a complying affidavit as required is "tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice."3 Id. at 150 (citing N.J.S.A. 2A:53A-29); Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001). Recognizing "the harshness of a rigid application of the statute," the Court has, in certain circumstances, "fashioned equitable remedies" when the statutory requirement for the affidavit of merit may be deemed to have been met. Ferreira, supra, 178 N.J. at 147; Cornblatt, supra, 153 N.J. at 240. "A complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute." Ferreira, supra, 178 N.J. at 151. Thus, the Court has determined the balance of equities requires technical defects to be overlooked in favor of proceeding with a plaintiff's valid claim. Cornblatt, supra, 153 N.J. at 239.

Plaintiff's position asks us to overlook the procedural and substantive statutory requirements because she believes her claims are meritorious and defendants have failed to assert prejudice. Although we agree no evidence is offered that defendants were prejudiced by the defective affidavit of merit, nevertheless, this is not the test.

The unequivocal provisions of the statute place an affirmative obligation upon a plaintiff, seeking to present a malpractice action, to adhere to the requirements to effectuate the statute's purpose. We do not agree that the lack of a jurat, or certification language in lieu thereof, may be ignored. The absence of the oath or affirmation is not a technical flaw, but a defect that strikes at the heart of the statutory requirement, which recognizes the need for the solemnity of the truth. See Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 306 (App. Div. 2003) (holding "the failure to place a declarant under oath" was not a "technical deficiency" but "goes to the very nature of what an affidavit is"), certif. denied, 179 N.J. 311 (2004).

Plaintiff alternatively suggests the Court has found substantial compliance where a plaintiff submitted unsworn expert reports. See Galik v. Clara Maass Med. Center, 167 N.J. 341, 347-48 (2001). By analogy, she maintains Dr. McHugh's unsworn statement suffices. This argument is rejected.

In Galik, supra, the plaintiff moved for an extension of time to file the affidavit of merit, "on the ground that the expert report, in unsworn form, had not only been served on defendants' carriers prior to the filing of suit, but was the basis of ongoing settlement negotiations" and the affidavit was filed eighteen days late. 167 N.J. at 351. Those additional facts directed the Court's conclusion that good cause for the late filing had been established.

Here, Dr. McHugh's unsworn statement provides no detail of the basis for his stated conclusion; the statement includes only a threshold showing that the claims asserted are meritorious. Moreover, the record reveals limited discovery was exchanged and no expert reports were provided. Thus, defendants have not been sufficiently informed of the basis of Dr. McHugh's statement. Based on these facts, any delay in providing a proper affidavit of merit was not occasioned by settlement negotiations based on plaintiff's proofs as was found in Galik.

Plaintiff's claim of "oversight" undermines the statutory requirements and is insufficient to ignore the glaring deficiency. We find it important that plaintiff was aware of the omission of the jurat in Dr. McHugh's statement. She should have recognized and corrected the defect on August 21, 2008, when Ocean Health sent correspondence challenging the propriety of Dr. McHugh s affidavit "on the grounds that Dr. McHugh is not a registered professional nurse, such as [] Winn-Van Hise, and the [a]ffidavit is not notarized nor does it comply with N.J.S.A. 2A:53A-41." The record is devoid of efforts to correct the identified flaw.

Similarly, plaintiff offers no explanation of why strict compliance was ignored. Counsel's inadvertence or inattention is insufficient to qualify as extraordinary circumstances to prevent application of the statute. Stoecker v. Echevarria, 408 N.J. Super. 597, 612 (App. Div.), certif. denied, 200 N.J. 549 (2009); see also Ferreira, supra, 178 N.J. at 152 (stating "attorney inadvertence is not such a circumstance entitling plaintiff to a remedy of dismissal of a complaint without prejudice").

Plaintiff additionally asserts that the amended document satisfies the statutory requisites. We disagree.

As noted by the motion judge, the amended document remains flawed because it does not comport with the requirements of an affidavit,4 which include that the officer administering the oath, the affiant and the paper, "be present at the same time" and "'there must be something done which amounts to the administration of an oath.'" Tunia, supra, 363 N.J. Super. at 306 (App. Div. 2003) (quoting In re Educ. Ass'n of Passaic, Inc., 117 N.J. Super. 255, 267 (1971)). Neither document references that Dr. McHugh signed the statements after being placed under oath. Therefore, the statements lack a recognition of the necessity for truthfulness and the penalties for perjury.

We also reject as without merit plaintiff's additional arguments asserting the equities in the matter favor allowing the litigation to proceed. R. 2:11-3(e)(1)(E). We note defendants actively moved to challenge plaintiff's statutory compliance, albeit on different grounds. The fact that defendants' motions were unsuccessful and discovery commenced cannot excuse plaintiff's failure to meet her obligations. See Stoecker, supra, 408 N.J. Super. at 613-14 (reviewing similar circumstances finding the defendant did not sit back and mislead the plaintiff to believe defendant accepted the claims as viable). The requirements imposed by the statute are exceedingly clear and not "overly burdensome obligations." Ferreira, supra, 178 N.J. at 146. Plaintiff was noticed of the statutory noncompliance and did not react. We concur with the motion judge that plaintiff's failure to file a "proper affidavit within the statutory time period requires a dismissal of the complaint with prejudice." Id. at 146-47 (citing Cornblatt, supra, 153 N.J. at 242).

Based on our determination, we need not address the cross-appeals.

1 We repeat our admonition to trial courts that the purpose of conducting a timely Ferreira case management conference is to address the possible flaws of an affidavit of merit.

2 Pursuant to Rule 1:4-4(b), a certification in lieu of an oath required by an affidavit must contain the statement "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 willfully false, I am subject to punishment."

3 In Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 247 (1998), the Court concluded "a dismissal under the statute based on a violation of the affidavit requirement would be without prejudice only if there are extraordinary circumstances. Absent extraordinary circumstances, a failure to comply with the statute that requires a dismissal would be with prejudice."

4 Neither document executed by Dr. McHugh contained the necessary language delineated in Rule 1:4-4(b) to be considered a certification, which is, "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 willfully false, I am subject to punishment."