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November 25, 2014


Argued November 18, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-5209-10.

James S. Raban argued the cause for appellants (Gold, Albanese & Barletti, L.L.C., attorneys; Mr. Raban and Devin C. Villarosa, on the brief).

Jayne E. Turner argued the cause for respondent St. Mary s Hospital (Reiseman, Rosenberg, Jacobs & Heller, P.C., attorneys; Ms. Turner, on the brief).1

Robert J. Logan argued the cause for respondent Dr. Alina Libster (Vasios, Kelly & Strollo, P.A., attorneys; Mr. Logan, on the brief).

Paul J. Miller argued the cause for respondent Paola Escobar, C.N.M. (Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., attorneys; Mr. Miller and Kenneth M. Brown, on the brief).


Rosa Nunez and Carlos Garcia (collectively referred to as "plaintiffs") appeal from a July 27, 2012 order dismissing their complaint against defendants Dr. Alina Libster and Paola Escobar for failure to comply with the Affidavit of Merit Statute ("AMS"), N.J.S.A. 2A:53A-26 to -29; and a July 22, 2013 order dismissing their complaint alleging claims of vicarious liability against defendant St. Mary's Hospital (the "hospital"). We affirm.

Plaintiffs filed the complaint against the hospital and unknown defendants alleging medical malpractice resulting in the still-birth of plaintiffs' child. Plaintiffs timely served an affidavit of merit ("AOM") on the hospital (the "hospital AOM"), pursuant to the AMS. The hospital AOM did not name or refer to Dr. Libster or Escobar. The judge conducted a Ferreira2 conference and reminded plaintiffs' counsel that he had to serve an AOM in the future if plaintiffs added new parties who were subject to the AMS.

Plaintiffs then filed an amended complaint against Dr. Libster, an obstetrician and gynecologist, and Escobar, a Certified Nurse Midwife. It is undisputed that the claims against Dr. Libster and Escobar are subject to the AMS. Escobar filed her answer on February 14, 2012, and Dr. Libster filed her answer on February 23, 2012. Pursuant to the AMS, plaintiffs were required to serve AOMs on Escobar by June 13, 2012 and on Dr. Libster by June 22, 2012. Plaintiffs failed to meet these deadlines.

On June 28, 2012, Dr. Libster and Escobar moved to dismiss the complaint for failure to comply with the AMS. Thereafter, plaintiffs served the hospital AOM on Dr. Libster and Escobar.3 On July 18, 2012, before the return date on the motions, plaintiffs served Dr. Libster and Escobar with a new AOM (the "new AOM") naming Dr. Libster and Escobar for the first time. It is undisputed that plaintiffs served the new AOM on Dr. Libster twenty-six days late and on Escobar thirty-five days late.

On July 27, 2012, the judge conducted oral argument. Plaintiffs asserted that they substantially complied with the AMS by previously serving the hospital AOM on the hospital, and by serving Dr. Libster and Escobar with the new AOM. Plaintiffs' counsel further contended that his mother's death in April 2012, more than two months before the new AOM was due, contributed to his inability to meet the AMS deadlines.

In an oral opinion, the judge rejected plaintiffs' contention that plaintiffs substantially complied with the AMS. He found that the passing of plaintiffs' counsel's mother did not prevent the timely service of an AOM on Dr. Libster and Escobar. As a result, the judge entered the July 27, 2012 order dismissing the complaint against Dr. Libster and Escobar.

The hospital subsequently moved to dismiss the complaint against it. Counsel for the hospital argued that because Dr. Libster and Escobar were no longer parties to the case and plaintiffs' claims against the hospital were vicarious in nature, a dismissal was warranted as a matter of law. The judge agreed with the hospital's contentions, rendered a written decision, and entered the July 22, 2013 order dismissing plaintiffs' claims.4

On appeal, plaintiffs maintain that they substantially complied with the AMS as to Dr. Libster and Escobar. They also argue that they are entitled to pursue their claims against the hospital based on the doctrine of apparent authority. Finally, plaintiffs assert for the first time that the AMS and the New Jersey Medical Care Access and Responsibility and Patients First Act ("PFA"), N.J.S.A. 2A:53A-37 to -42, are unconstitutional and invalid for failure to comply with the Evidence Act of 1960 (the "Evidence Act"), N.J.S.A. 2A:84A-33 to -44.5


We begin by addressing plaintiffs' argument that they substantially complied with the AMS. We review this contention de novo because the judge made a legal ruling. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (indicating that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference").

A complaint will not be dismissed if the plaintiff can show substantial compliance with the AMS. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146-47 (2003). To establish substantial compliance, the plaintiff must 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.

[Id. at 151 (quoting Galik v. Clara Maass Med. Cntr., 167 N.J. 341, 353-54 (2001)).]

Here, plaintiffs failed to establish prongs two, three, and five.

As to prong two, plaintiffs' counsel has not shown any steps to comply with the AMS.6 Plaintiffs admit that they failed to timely serve the new AOM on Dr. Libster and Escobar. And rather than immediately serving the new AOM on Dr. Libster and Escobar once plaintiffs received the motions to dismiss, plaintiffs' counsel took an additional twenty days to serve the necessary AOM.

As to prong three, plaintiffs have not shown any steps at general compliance with the AMS. Although plaintiffs served the hospital AOM on Dr. Libster and Escobar after they filed their motions to dismiss, the hospital AOM made no mention of Dr. Libster or Escobar. The hospital AOM merely stated that "treatment and/or work rendered by medical personnel at [the hospital] . . . fell outside of the professional standards . . . ." This is insufficient to show general compliance with the AMS. See In re Hall ex rel. Hall, 147 N.J. 379, 392 (1997) (noting that an AOM must "certify that a reasonable probability exists that the defendant in question deviated from professional standards" (emphasis added)).

As to prong five, plaintiffs' counsel provided an insufficient explanation for failing to strictly comply with the AMS. Plaintiffs' counsel's explanation amounts to attorney inadvertence. An attorney's mistakes are not sufficient to provide a reasonable explanation for failure to comply with the AMS. See Palanque v. Lambert-Woolley, 168 N.J. 398, 405 (2001) (finding that plaintiffs did not substantially comply with the AMS when part of the failure was due to attorney mistake).

Plaintiffs' reliance on our decision in Mayfield v. Cmty. Med. Assocs., 335 N.J. Super. 198, 209 (App. Div. 2000), is also misplaced. In Mayfield, we concluded that those plaintiffs substantially complied with the AMS because they had filed an AOM with the court, but inadvertently failed to provide it to the defendants. Id. at 208. Those plaintiffs also provided an expert report within the AMS timeframe to defendants which "fulfill[ed] the requirements [of] professional attest[ation]." Ibid. Neither of these events occurred in this case.

As a result, "failure to deliver [the requisite AOM] within the statutory time period requires a dismissal of the complaint with prejudice." Ferreira, supra, 178 N.J. at 146-47.


We reject plaintiffs' contention that the doctrine of apparent authority allows their complaint against the hospital to survive the dismissal of their claims against Dr. Libster and Escobar. We review this argument de novo because it involves a ruling on a matter of law. Flinn v. Amboy Nat'l Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).

The doctrine of apparent authority "'imposes liability on the principal not as the result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.'" Estate of Cordero ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 312 (App. Div. 2008) (quoting Basil v. Wolf, 193 N.J. 38, 67 (2007)). "[L]iability for a doctor's negligence should be imputed to a hospital when apparent authority . . . is established." Id. at 313.

Here, the doctrine is inapplicable because the claims against Dr. Libster and Escobar were properly dismissed with prejudice. "[A] dismissal with prejudice constitutes an adjudication on the merits as fully and completely as if the order had been entered after trial." Velasquez v. Franz, 123 N.J. 498, 507 (1991) (citation and internal quotation marks omitted). The AMS makes clear that failure to comply "shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. This is because "[t]he violation giving rise to the dismissal goes to the heart of the cause of action as defined by the Legislature." Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 244 (1998). Plaintiffs' failure to serve an AOM on Dr. Libster and Escobar goes directly to the core of plaintiffs' inability to prove the hospital's negligence. Therefore, the hospital cannot be liable on the basis of apparent authority because the claims against Dr. Libster and Escobar were dismissed with prejudice. See Kelley v. Curtiss, 16 N.J. 265, 270 (1954) (holding that "for injuries allegedly occasioned solely by the negligence or misfeasance of the employee, a verdict which exonerates the employee from liability requires also the exoneration of the employer").

Plaintiffs assert that this outcome is precluded under our holding in Walker v. Choudhary, 425 N.J. Super. 135 (App. Div.), certif. denied, 211 N.J. 274 (2012). In Walker, we held that "an employer can be subject to suit [28] for the negligent actions of its employee under the principle of respondeat superior even though the employee is dismissed because the claims against her or him were filed outside the statute of limitations." Id. at 154. Plaintiffs' reliance on Walker fails to recognize that the claims against Dr. Libster and Escobar were filed before the statute of limitations against them expired, and have since been dismissed from the case with prejudice.


1 The firm name changed to Rosenberg, Jacobs & Heller, P.C. after the filing of the brief.

2 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

3 It is unclear on what date this occurred.

4 The order also dismissed plaintiffs' claims against two other defendants, Ethel Hamech, R.N., and Jocelyn Grandchamp, R.N. (the "other defendants"). Plaintiffs appealed, however, only from that part of the July 22, 2013 order dismissing their claims against the hospital. As a result, plaintiffs have not challenged the dismissal as to the other defendants on appeal.

5 Because plaintiffs did not raise these contentions before the judge, we decline to address them on appeal. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

6 Plaintiffs' counsel does not argue that he was unaware of the need to serve an AOM on Dr. Libster or Escobar. We note, however, that at the Ferreria conference involving counsel for plaintiffs and the hospital, the judge entered a consent order requiring plaintiffs' counsel to ask the court to schedule a Ferreria conference if plaintiffs added new parties. Plaintiffs' counsel did not request the conference after plaintiffs amended their complaint to add Dr. Libster and Escobar.