STEPHEN MEEHAN v. PETER ANTONELLIS, DMD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STEPHEN MEEHAN,

Plaintiff-Appellant,

v.

PETER ANTONELLIS, DMD,

Defendant-Respondent.

August 21, 2014

Submitted August 12, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2205-12.

Stephen Meehan, appellant pro se.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondent (Robert T. Gunning, of counsel and on the brief).

PER CURIAM

In this dental malpractice case, plaintiff Stephen Meehan appeals from a March 20, 2013 order dismissing his complaint against defendant Peter Antonellis, D.M.D., for failure to comply with the Affidavit of Merit statute (AMS), N.J.S.A. 2A:53A-26 to -29, and from a July 22, 2013 order denying plaintiff's motion for reconsideration. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff filed his pro se complaint in the Law Division on August 29, 2012. The complaint against defendant, an orthodontist, stated:

Defendant fitted me with a dental appliance, known as a 'positioner,' to wear while sleeping, to reduce the symptoms of my mild sleep apnea. Despite my objectionable concern, he unequivocally ASSURED me my teeth would not shift with this style appliance. However, my teeth have shifted, and a subsequent sleep study has discerned my sleep apnea is now severe. I was apprised of the results on August 29, 2010.

. . . .

Due to the shifted teeth, there are 'gaps' where food imbeds. The [d]efendant subsequently fitted me with new dental appliances to re-shift my teeth back in place, but this attempt was not successful. He has advised me to see a dentist to 'fill' these gaps. One of the 'gaps' is very wide, where a 'crown' is required to fill the void.

As a result, plaintiff alleged that he experienced chronic muscle pain and headaches, and that his sleep apnea condition became more severe.

In his October 12, 2012 answer, defendant denied plaintiff's allegations. As a separate defense, defendant asserted that plaintiff "failed to state a claim upon which relief can be granted pursuant to but not limited to N.J.S.A. 2A:53A-27 and [-]29."

The court held a case management conference (CMC) on January 18, 2013. Specifically, the court addressed the statutory requirement that plaintiff file an appropriate affidavit of merit (AOM) no later than February 9, 2013. See N.J.S.A. 2A:53A-27.

Plaintiff thereafter timely filed an AOM dated February 8, 2013, from Mark F. Samani, D.M.D. In his report, Dr. Samani indicated that he was a licensed dentist, and held a specialty certificate in prosthodontics. Further, he had approximately twenty years' experience treating sleep apnea, "and was among the first dentists in the country credentialed by the American Academy of Dental Sleep Medicine."

Defendant then moved to dismiss plaintiff's complaint, contending in relevant part that the AOM was insufficient pursuant to the AMS and Buck v. Henry, 207 N.J. 377 (2011), because Dr. Samani is a dentist, while defendant practiced as an orthodontist. Plaintiff opposed the motion, arguing that defendant's answer failed to identify him as an orthodontist and hence did not comply with Rule 4:5-3; that Dr. Samani was a qualified expert in prosthodontics and sleep apnea, for which defendant had treated plaintiff in his capacity as a dentist rather than an orthodontist; and that the parties had agreed at the January 18, 2013 CMC that a dentist was an appropriate expert.

The court heard argument on defendant's motion on March 19, 2013, and the following day entered an order dismissing plaintiff's complaint with prejudice. Accompanying the order was a comprehensive statement of reasons, in which the motion judge concluded:

The [c]ourt in Ferreira v. Rancocas Orthopedic Assocs., stressed that the 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." 178 N.J. 144, 151 (2003) (citing Mayfield v. Community Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div. 2000). A [p]laintiff's complaint will not be dismissed if he can show that he substantially complied with the statute, or if there are extraordinary circumstances which caused noncompliance. Id. (citing Palanque v. Lambert-Woolley, 168 N.J. 398, 404-406 (2001)).

Saliently, however, N.J.S.A. 2A:53A-27 states:

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.

Here, . . . [p]laintiff has supplied an Affidavit of Merit from a dentist who has a specialty permit in prosthodontics and who is an expert in sleep apnea medicine. Furthermore, it is undisputed that . . . [d]efendant is an Orthodontist. [D]efendant was treating . . . [p]laintiff in his capacity as an Orthodontist. The American Dental Association recognizes Prosthodontics and Orthodontics as their own dental specialties, and describes the distinct nature of the respective practices. The fact that Dr. Samani is an expert in sleep apnea is irrelevant in this malpractice claim because the statute clearly requires the affidavit of merit to be submitted by a person who practices in the same specialty or subspecialty. Specifically, an affidavit of merit from another Orthodontist was required. [P]laintiff has not applied for a waiver, pursuant to N.J.S.A. 2A:53A-41, and he has not shown that exceptional circumstances exist which would allow this Court to deviate from the statute, per Ferreira. Furthermore, [d]efendant has failed to satisfy the good faith requirements set forth in Ryan v. Renny, 207 N.J. 37, 55 (2010).

On April 19, 2013, plaintiff moved for reconsideration. On April 25, 2013, our Supreme Court decided Nicholas v. Mynster, 213 N.J. 463, 481-82 (2013), in which it addressed the issue of who is qualified to render an AOM against a party who is a specialist or subspecialist in a particular field of medicine. On July 22, 2013, the court denied plaintiff's motion for reconsideration. In his attached statement of reasons, the motion judge reaffirmed his earlier findings, and cited the appropriate standards for reconsideration set forth in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). In supplementing his earlier decision, the judge explained:

In addition, the court in Nicholas v. Mynster explains, "[o]ne piece of the Patients First Act, incorporated at N.J.S.A. 2A:53A-41, 'establishes qualifications for expert witnesses in medical malpractice actions' and 'provides that an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care provider, unless waived by the court.'" 213 N.J. at 479. Though Nicholas v. Mynster was not cited by the [c]ourt in its underlying motion, the [c]ourt is satisfied that its decision is consistent with that case.

In the matter before the [c]ourt, . . . [p]laintiff has supplied an Affidavit of Merit from a dentist who has a specialty permit in prosthodontics and who is an expert in sleep apnea medicine. Furthermore, it is undisputed that . . . [d]efendant is an orthodontist. The [c]ourt explained in its prior decision that notwithstanding . . . [p]laintiff's argument that . . . [d]efendant was acting as a dentist, . . . [d]efendant is a practicing orthodontist and was performing his duties in his capacity as an orthodontist. The fact that . . . [p]laintiff was allegedly unable to locate an orthodontist to submit an affidavit of merit does not lend itself to the argument that the affidavit of merit from a dentist is proper. Defendant is a practicing orthodontist and is credentialed as such. Therefore the allegations set forth in . . . [p]laintiff's Complaint should have been supported by an affidavit of merit from an orthodontist. The [c]ourt explained in its underlying decision that . . . [p]laintiff did not make the appropriate application for a waiver of the strict requirements for an affidavit of merit, pursuant to N.J.S.A. 2A:53-41(c) and Ryan v. Renny, 203 N.J at 53. Furthermore, the [c]ourt notes, again, that . . . [p]laintiff has not presented any controlling decisions of law or operative facts which the [c]ourt may have overlooked in its decision to dismiss . . . [p]laintiff's Complaint.

On appeal, plaintiff renews his arguments before the trial court that he provided a proper AOM because defendant treated him with a dental appliance for sleep apnea in his capacity as a dentist, and that Dr. Samani, as an expert in prosthodontics and sleep apnea, was qualified to render the AOM; and that defendant's answer failed to identify whether his treatment involved his specialty as an orthodontist. Plaintiff also emphasizes that his malpractice claim is meritorious, and urges that the AMS should not present a roadblock to his recovery of an appropriate damage award.

We first address the issue of the requisite qualifications of Dr. Samani to render an AOM in this case. We apply a plenary standard of review to the court's order dismissing the complaint. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005).

In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150 (2003) (citation and internal quotation marks omitted), the Court stated that the dual purpose of the AMS statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." See also Buck, supra, 207 N.J. at 383 (2011) (indicating that "[t]he purpose of the [AMS] is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones").

The AMS thus requires a plaintiff who alleges professional negligence to provide an expert's affidavit stating the action has merit. N.J.S.A. 2A:53A-27. In Nicholas, supra, 213 N.J. at 481-82, the Court held that pursuant to the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act, or Act), L. 2004, c. 17, codified in part at N.J.S.A. 2A:53A-41, a plaintiff's medical expert must possess the same specialty or subspecialty as the defendant physician. N.J.S.A. 2A:53A-41 provides in part that

[i]n an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L. 1995, c. 139 ([N.J.S.A.] 2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist . . . and the care or treatment at issue involves that specialty or subspecialty . . . the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty . . . as the party against whom or on whose behalf the testimony is offered . . . .

Thus, "[w]hen a physician is a specialist and the basis of the malpractice action 'involves' the physician's specialty, the challenging expert must practice in the same specialty." Nicholas, supra, 213 N.J. at 481-82 (quoting Buck, supra, 207 N.J. at 391); see also Ryan, supra, 203 N.J. at 52 (stating that Patients First Act provides "more detailed standards for a testifying expert and for one who executes an affidavit of merit, generally requiring the challenging expert to be equivalently qualified to the defendant"). Therefore, "the first inquiry must be whether a physician is a specialist or general practitioner," while the "second inquiry must be whether the treatment that is the basis of the malpractice action 'involves' the physician's specialty." Nicholas, supra, 213 N.J. at 486-87 (quoting Buck, supra, 207 N.J. at 391).

Plaintiffs' AOM affiant is a specialist and so is defendant. Dr. Samani in his AOM identified himself as a dentist holding a specialty certificate in prosthodontics, who has expertise in the area of sleep apnea. In contrast, defendant is a practicing orthodontist, credentialed as such. Notwithstanding plaintiff's argument that defendant was acting as a dentist, he was performing his duties as an orthodontist, as the motion judge aptly determined. Applying the statutory criteria of the Patients First Act, Dr. Samani lacked the requisite statutory qualifications to issue an AOM against defendant.

Addressing defendant's second argument, we note that in Buck, supra, 207 N.J. at 396, decided on August 22, 2011, the Court "[f]rom this point forward" required a physician defending a malpractice claim to designate in his answer "the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty." This requirement, now embodied in Rule 4:5-3, ensures the likelihood of providing an affidavit that conforms with the AMS. Ibid. Defendant did not satisfy this pleading requirement, as plaintiff correctly argues and defendant candidly concedes. However, under the facts of this particular case, we do not deem this omission fatal, as the CMC transcript reveals that plaintiff was clearly aware that defendant was an orthodontist, and the record reflects that plaintiff thereafter attempted, unsuccessfully, to obtain an AOM from a qualified orthodontist.

Affirmed.