MARK LEVENTAL v. DAVID KIRSCHENBAUM M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0T2

MARK LEVENTAL,

Plaintiff-Appellant,

v.

DAVID KIRSCHENBAUM, M.D, and

AFFILIATED ORTHOPAEDIC

SPECIALISTS, P.A.,

Defendants-Respondents.

______________________________________________

October 6, 2014

Argued September 9, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1162-13.

Yelena Perchuk argued the cause for appellant.

Renee J. Sherman argued the cause for respondents (Ruprecht, Hart, Weeks & Ricciardulli, L.L.P., attorneys; Ms. Sherman, of counsel and on the brief; Kristin J. Freely, on the brief).

PER CURIAM

Plaintiff Mark Levental appeals from the October 25, 2013 order of the Law Division that dismissed his medical negligence complaint against defendants David Kirschenbaum, M.D., and his practice group, Affiliated Orthopaedic Specialists, P.A. ("Affiliated"). We set forth the procedural history in detail because it has importance to plaintiff's arguments and our decision.

Plaintiff filed a complaint against Kirschenbaum on February 20, 2013, alleging negligence in the treatment rendered to plaintiff, who had fractured his left distal radio-ulnar joint in a fall. Defendant filed an answer on May 8, 2013, generally denying the allegations and specifically asserting as an affirmative defense plaintiff's failure to comply with the Affidavit of Merit Statute (the "AMS"), N.J.S.A. 2A:53A-26 to -29.

In the interim, on April 10, plaintiff filed an amended complaint that repeated the allegations against Kirschenbaum, and added Affiliated as a party, asserting no claim of independent negligence against it, but rather, only stating that Kirschenbaum practiced with Affiliated. On June 10, represented by the same law firm that answered on behalf of Kirschenbaum, defendants filed a single answer to the amended complaint again denying any negligence and asserting a failure to comply with the AMS as a defense. On or about September 5, defendants moved to dismiss the complaint, arguing that plaintiff had not served any affidavit of merit.1

Plaintiff opposed the motion, arguing that he had filed an affidavit of merit within 120 days of defendants' answer to the amended complaint, and, further that the "doctrine of common knowledge" applied and no affidavit was necessary. The "affidavit" to which plaintiff referred was not an affidavit at all, but rather a three-paragraph report dated September 3, 2013, authored by Doctor Andrew J. Collier, Jr. In the report, Collier opined that Kirschenbaum's treatment of plaintiff "fell below the standard of care for th[e] type of injury."

Defendants replied by noting that Collier's report was insufficient. In particular, they argued that plaintiff failed to supply an affidavit that complied with N.J.S.A. 2A:53A-41, which we discuss below. Defendants also argued that the report was untimely, since it was filed more than 120 days after Kirschenbaum filed his answer.2

Since neither side requested oral argument, the judge decided the motion on the papers and placed his oral decision on the record on October 25, 2013. He concluded that this was not a "common knowledge" case, and plaintiff needed to prove his case through expert testimony. The judge further determined that Collier's report was untimely, since it was filed more than 120 days after Kirschenbaum answered the complaint. Lastly, the judge noted Collier's report was not an affidavit at all and therefore did not satisfy the AMS. He entered the order under review. Plaintiff never sought reconsideration, choosing instead to file this appeal.

Before us, plaintiff argues that Collier's report satisfied the AMS since it was filed within 120 days of defendants' answer to the amended complaint. He also contends that the judge erred in considering an argument first raised by defendants in their reply, i.e., that the report failed to demonstrate Collier was qualified to supply an affidavit under the AMS. Lastly, plaintiff argues no expert testimony was necessary because this was a common knowledge case. We disagree and therefore affirm dismissal of the complaint.

The AMS "imposes a special requirement upon plaintiffs bringing lawsuits claiming malpractice or negligence by certain enumerated professionals." Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1, 14 (App. Div. 2010). N.J.S.A. 2A:53A-27 specifically provides

In any action for damages for personal injuries, wrongful death or property damage 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.

[Ibid.]

"If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003).

The New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, enacted in 2004, modified the AMS. Ryan v. Renny, 203 N.J. 37, 51 (2010). As a result, in any medical malpractice action, a person shall not give expert opinion or execute an affidavit pursuant to the AMS unless he or she meets certain criteria. Id. at 52-53 (citing N.J.S.A. 2A:53A-41).

[T]he statute separates the credentials a challenging expert must have (1) if the defendant physician practices in a specialty but is not board certified and (2) if the defendant is board certified in the specialty. When 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. A medical expert must be a specialist in the same field in which the defendant physician specializes . . . .

If a defendant physician not only practices in a[] . . . specialty, but also is board certified in that specialty, then the challenging expert must have additional credentials. Thus, if the defendant physician specializes in a practice area "and . . . is board certified and the care or treatment at issue involves that board specialty . . . , the expert witness" then must either be credentialed by a hospital to treat the condition at issue, N.J.S.A. 2A:53A-41(a)(1) (emphasis added), or be board certified in the same specialty in the year preceding "the occurrence that is the basis for the claim or action," N.J.S.A. 2A:53A-41(a)(2).

[Nicholas v. Mynster, 213 N.J. 463, 481-82 (2013).]

Initially, we consider plaintiff's alternative argument that this was a "common knowledge" case and required no expert testimony. It is true that "[a]n affidavit of merit is not required in a case where the 'common knowledge' doctrine applies and obviates the need for expert testimony to establish a deviation from the professional's standard of care." Bender v. Walgreen Eastern Co., 399 N.J. Super. 584, 590 (App. Div. 2008) (citing Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 390 (2001)). "The doctrine applies where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'" Hubbard, supra, 168 N.J. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

Simply put, this is not a common knowledge case. At issue is whether defendant properly treated plaintiff's fractured wrist. In his report, Collier opines that the proper treatment required "open reduction and internal fixation of" plaintiff's wrist. However, plaintiff acknowledges in his complaint that he was first treated by a doctor who performed a closed reduction of the fracture, and suggested that he see an orthopedic surgeon. Those basic facts abundantly demonstrate the need for expert testimony, since they call into question what, if any, impact on plaintiff's ultimate outcome was caused by the actions of the first treating doctor. Since an expert was necessary in order to prove his case, plaintiff was required to file an affidavit of merit that fully complied with the AMS and N.J.S.A. 2A:53A-41(a). In this regard, he clearly failed.

Although defendants argue in their brief that the more restrictive statutory criteria contained in N.J.S.A. 2A:53A-41(a) applied, the record fails to disclose whether Kirschenbaum is a board certified specialist in orthopedic surgery. If not, then the less restrictive criteria apply, and Collier only needed to have practiced in the same specialty as Kirschenbaum, i.e., orthopedic surgery. Collier's report fails to explicitly state that he does; however, his letterhead uses the term, "[o]rthopedic [s]urgery."

Even if we accept that Collier was qualified to submit an affidavit under N.J.S.A. 2A:53A-41(a), Collier's report is not an affidavit of merit or its substantial equivalent because it is not an affidavit at all. In Tunia v. St. Francis Hosp., 363 N.J. Super. 301 (App. Div. 2003), certif. denied, 179 N.J. 311 (2004), we considered the adequacy of a purported affidavit and a certification in lieu thereof filed by the plaintiff's two experts. Id. at 303-05. We noted the inadequacy of each

Plainly, neither document executed by the podiatric doctors contained the necessary language to be considered a certification. Just as plainly, neither of the doctors was placed under oath in connection with executing the documents. The statements completed by the notaries public are in the form of acknowledgements, necessary to record an instrument, N.J.S.A. 46:14-2.1, rather than a jurat, evidencing that the notary placed the doctor under oath at the time the document was executed.

[Id. at 306.]

We also considered whether the defective submissions could nonetheless salvage plaintiff's complaint through application of the equitable doctrine of "substantial compliance," noting its prior use in AMS cases to "avoid technical defeats of valid claims." Ibid. (quoting Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 239 (1998)). However, we concluded that the "failure to place a declarant under oath" went to the "very nature of what an affidavit [wa]s" and, therefore, was not merely a "technical deficiency." Ibid. In this case, Collier's report lacks any semblance of the necessary formal requirements of an affidavit.

At oral argument before us, plaintiff's counsel implied that deficiencies in Collier's report should have been raised at a Ferreira conference. See Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 423-24 (2010) (explaining the purposes and procedures to be employed at such case management conferences). Plaintiff's opposition to defendants' motion to dismiss indicated such a conference took place on September 18, 2013, but we are unsure what, if anything, was actually discussed with the judge. In any event, "reliance on the scheduling of a Ferreira conference to avoid the strictures of the [AMS] is entirely unwarranted and will not serve to toll the statutory time frames." Id. at 426.

We also reject plaintiff's contention that defendants improperly raised the deficiencies of Collier's report in their reply to his opposition to the motion. The undisputed facts are that when defendants made their motion on September 5, 2013, they did not have Collier's report since plaintiff had yet to serve them or the court with a copy.

Lastly, plaintiff contends that he had until 120 days after defendants filed their answer to the amended complaint to serve his affidavit of merit. Defendants argue that since the amended complaint made no further allegations or claims against Kirschenbaum, but only added Affiliated as a defendant allegedly vicariously liable for Kirschenbaum's acts and omissions, the motion to dismiss was timely, and plaintiff failed to comply with the AMS.

Plaintiff points to two federal cases, Snyder v. Pascack Valley Hospital, 303 F.3d 271 (3d Cir. 2002), and Costa v. County of Burlington, 566 F. Supp. 2d 360 (D.N.J. 2008), that essentially hold the AMS's purposes are best served "by establishing as the beginning point of the 120-day limitations period the date on which a defendant files his answer to the final amended complaint." Snyder, supra, 303 F.3d at 276. Defendants conceded at oral argument before us that there is no published New Jersey case specifically on point.

We choose not to directly address the issue for the following reasons. Plaintiff was already aware, as a result of Kirschenbaum's answer to the original complaint on May 8, 2013, that the AMS had been asserted as an affirmative defense. Defendants filed their answer to the amended complaint on June 10, 2013, making October 8, 2013, the outer limit for serving a fully conforming affidavit of merit under the AMS, as interpreted by the federal courts in Snyder and Costa.

Plaintiff filed his opposition to defendants' motion on or about October 1. Despite having had a Ferreira conference in the interim, the opposition only contained a copy of Collier's September 3 report as an exhibit. After receiving defendants' reply, dated October 8, or 120 days after the answer to the amended complaint had been filed, plaintiff knew the report was clearly being challenged as inadequate.

Accepting plaintiff's counsel's representation that her attempts to file a sur-reply were thwarted, the simple fact is that plaintiff never filed an affidavit that complied with the AMS at any time prior to the judge's decision on the motion, October 25, 2013, which, of course, was well after the 120 timeframe. Plaintiff never moved for reconsideration before the Law Division, at which time he might have actually served an appropriate affidavit and otherwise convinced the judge that the procedural posture of the case caused confusion about the timeframes. In the end, regardless of which date is selected, i.e., September 5, or October 8, 2013, plaintiff never served any "affidavit" of merit from Collier or any other expert. And, indeed, the appellate record does not contain one.

For these reasons, we affirm the dismissal of plaintiff's complaint.

Affirmed.

1 The notice of motion contained in the record is dated September 5, 2013, and does not bear a file stamp. September 5 is 120 days after May 8, the date Kirschenbaum's answer was filed. At oral argument before us, defendants represented that the motion was filed at least 120 days after the answer to the original complaint was filed, a fact that is apparently not disputed.

2 There is no documentation provided in the record, but at oral argument before us, plaintiff's counsel asserted that she attempted to file a sur-reply to defendants' reply but was advised by the judge's staff that it would not be accepted.