WALTER JAMES v. COUNTY OF MIDDLESEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WALTER JAMES,

Plaintiff-Appellant,

v.

COUNTY OF MIDDLESEX and CFG

HEALTH SYSTEMS, LLC,

Defendants-Respondents.

___________________________________

August 25, 2016

Submitted August 9, 2016 Decided

Before Judges Sabatino and Gilson.

On appeal from the Superior Court of New Jersey, Middlesex County, Docket Nos. L-5109-14 and L-1114-15.

Franzblau Dratch, P.C., attorneys for appellant (Brian M. Dratch, on the briefs).

Kelso & Bradshaw, attorneys for respondent County of Middlesex (Patrick J. Bradshaw, on the brief).

Holtzman & McClain, P.C., attorneys for respondent CFG Health Systems, LLC (Stephen D. Holtzman, of counsel and on the brief; Jeffrey S. McClain, on the brief).

PER CURIAM

Plaintiff Walter James appeals the trial court's successive orders dismissing with prejudice his claims against, respectively, defendant County of Middlesex ("the County") and defendant CFG Health Systems, LLC ("CFG") for failure to serve a proper Affidavit of Merit ("AOM") in accordance with N.J.S.A. 2A:53A-26 to -29. For the reasons that follow, we affirm the trial court's rulings in part, but remand in part for its further consideration with respect to the sanction of dismissal in light of the Supreme Court's recent opinion in Meehan v. Antonellis, ___ N.J. ___ (2016).

I.

The limited record on appeal provides the following pertinent background. Plaintiff was an inmate housed in the Middlesex County Correctional Facility ("the County jail") in February 2013. As of that time period, the County had a contract1 with CFG under which CFG provided medical services to inmates at the jail.

Plaintiff alleges that on February 24, 2013, he injured his right Achilles tendon and promptly sought medical treatment at the jail. He contends that the medical staff at the jail failed to provide sufficient treatment for his injury namely an MRI and surgery resulting in a tendon rupture and permanent injury. Plaintiff has since been transferred to South Woods State Prison, where he is currently confined.

Plaintiff filed a two-count complaint against the County and CFG in the Law Division in August 2014. The complaint named no individual medical professionals or other defendants. Count one of the complaint alleged that both the County and CFG carelessly, recklessly, and negligently "deviated from the standard of care owed" to plaintiff by failing to "timely treat and diagnose [his] Achilles tendon injury[.]" In count two, plaintiff asserted the same factual allegations but added that defendants are "vicariously liable for the negligent acts of their employees." Plaintiff did not assert any constitutional or statutory claims.

The County did not assert the need for an AOM in its answer or affirmative defenses. However, CFG's answer did contend that an AOM was required. In response, plaintiff moved in December 2014 to have the trial court declare that an AOM was unnecessary. That motion was denied on January 23, 2015. The motion judge stated in his brief statement of reasons that "this is a malpractice case in which Plaintiff alleges injuries sustained as a result of medical treatment that fell outside acceptable standards of care." The judge added that "[t]his type of case clearly requires an affidavit of merit."

The trial court scheduled a Ferreira2 conference with counsel on February 4, 2015.3 Less than two weeks later, on February 17, 2015, plaintiff obtained and filed an AOM from a physician in Alabama, Dr. Stephen M. Taylor, specializing in "[g]eneral [p]sychiatry and [c]hild and [a]dolescent [p]sychiatry." Plaintiff asserts that he obtained an AOM from a psychiatrist regarding his burst tendon because the president of CFG, James R. Varell, is a psychiatrist.

Around the same time, plaintiff filed a second separate complaint against fictitious employees of CFG pursuant to Rule 4:26-4, because he "was not able to read the names of any of the medical providers" on the treatment records.4

CFG moved to dismiss the complaint in March 2015 for failure to obtain an AOM from an acceptable physician, and plaintiff cross-moved to consolidate his two actions. On March 20, 2015, the trial court granted plaintiff's cross-motion for consolidation, and then granted CFG's motion, dismissing with prejudice the claims against CFG. Plaintiff immediately moved orally for reconsideration, which was denied the same day.

Several months later, the County moved for summary judgment, asserting that plaintiff could no longer proceed in an action against it premised on vicarious liability arising from the negligent conduct of CFG or a CFG employee because CFG had been dismissed from the suit. The motion was granted on June 26, 2015, and what was left of plaintiff's consolidated complaints was dismissed with prejudice.

This appeal followed. Plaintiff contends that the trial court erred in granting CFG's motion to dismiss the complaint with prejudice because the AOM statute is inapplicable to CFG. Even if the statute does apply, plaintiff argues that the affidavit that he procured from the Alabama psychiatrist meets the criteria of the statute. With respect to the County, plaintiff argues that no AOM was necessary because the County, as a public entity, is not a "licensed person" within the scope of the AOM statute, N.J.S.A. 2A:53A-26.

II.

We first address plaintiff's arguments concerning the County. Despite the fact that the County itself is not a licensed professional within the literal definition of the AOM statute, plaintiff is nonetheless obligated to support his claims of medical negligence with a proper AOM in order for the County to be vicariously liable for any deviations by medical staff from professional standards of care in his treatment. In this regard, we incorporate by reference and apply here the holding of our opinion issued on this date in McCormick v. State, ___ N.J. Super. ___ (App. Div. 2016), in which plaintiff McCormick was represented by the same attorney who is representing plaintiff James here. The County, as another public entity, should be treated in the same fashion under the AOM statute as we have treated the State in McCormick.

The issues concerning the AOM with respect to co-defendant CFG are more complicated. As the Supreme Court recently observed in Meehan, supra, slip op. at 17-25, more stringent sets of affiant qualifications and specializations apply if the medical provider whose alleged negligence is at issue is a physician covered by the Patients First Act, N.J.S.A. 2A:53A-37 to -42, rather than the more general affidavit requirements of Section 27 of the AOM statute.

We agree with CFG and the trial court that an appropriate AOM was required to support plaintiff's cause of action against CFG, which, like the County, plaintiff seeks to hold liable for the acts of its employees or agents under a theory of vicarious liability. See McCormick, supra, slip op. at 9-11; Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 273 (App. Div. 2011); Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1, 25, 27, (App. Div. 2010).

We are unable to discern from the sparse record whether plaintiff's attempts to comply with the AOM after the scheduled date of the Ferreira conference by producing the affidavit from Dr. Taylor amounted to "substantial compliance" with the AOM statute. Palanque v. Lambert-Woolley, 168 N.J. 398, 405-06 (2001). Unfortunately, as we have noted, the parties do not agree on whether a Ferreira conference even took place, much less providing us with a transcript of any such conference. Thus, we cannot tell exactly what, if any, guidance the trial court provided to counsel concerning the AOM issue, either at such a conference or otherwise.

Nor is it clear from the record whether CFG acted reasonably in identifying the credentials of the medical providers who took part in plaintiff's care, other than disclosing that the principal of CFG, a limited liability company, is a psychiatrist and supplying plaintiff with what he contends are records that do not legibly identify the medical professionals. See Buck v. Henry, 207 N.J. 377, 389, 396 (2011) (holding that the expert providing an AOM "should be equivalently-qualified" to the physician who provided the care, but also recognizing a defendant's obligation to specify for plaintiff "the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty"); R. 4:5-3 (codifying that disclosure requirement). Although CFG is a business entity rather than an individual physician, the same disclosure obligations set forth in Buck and Rule 4:5-3 logically should apply here as well.5

In its recent opinion in Meehan, the Supreme Court stressed the importance of an effective Ferreira conference in identifying the need for an AOM and specifying the proper qualifications of the AOM affiant. Meehan, supra, slip op. at 34. As the Court stated, "[t]he conference is designed to identify and resolve issues regarding the [AOM] that has been served or is to be served." Ibid. The conference "continues to be a critical component of fulfilling the purposes of the AOM statute." Id. at 33 (emphasis added).

Because it is unclear and unresolved whether a Ferriera conference took place in this case, we are unable to determine with confidence whether it was inequitable for the trial court to have rejected the AOM from Dr. Taylor tendered by plaintiff and to impose the sanctions of dismissing the complaint with prejudice as to both defendants. With respect to the County, it is also not readily evident whether the prior lack of a published opinion on the need for an AOM in a public entity case should equitably warrant affording plaintiff an opportunity to procure an AOM on remand. To some extent, that issue is also contingent on the unresolved issues concerning the sufficiency of Dr. Taylor's AOM.

Consequently, we remand the sanction issue to the motion judge, who may have notes or an independent recollection of any Ferreira conference or other case management discussions, for reconsideration in light of Meehan. Moreover, although we seriously doubt that Dr. Taylor's AOM as a psychiatrist is suitable to support malpractice claims relating to the treatment of plaintiff's Achilles heel, we leave it to the trial court in the first instance to assess whether Dr. Taylor's affidavit equitably served as an adequate interim "placeholder" until the identities and credentials of the actual treating providers are ascertained.

Affirmed in part and remanded in part. We do not retain jurisdiction.

1 A copy of the contract does not appear in the record.

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

3 The parties disagree as to whether the Ferreira conference actually took place. The ACMS docket entries reflect that the Ferreira conference scheduled for that day was "cancelled." No other relevant entries are listed. Plaintiff's briefs on appeal assert that the conference did occur, and that defense counsel did not specify at that session what specialt(ies) of the treating professionals were involved. However, plaintiff had earlier argued to the motion judge that no Ferreira conference ever took place. The County's brief on appeal represents that no conference occurred because the parties had submitted a consensual Case Management Order on February 3, 2015, which contains a notation that the pretrial judge assigned to the case had extended plaintiff's time to serve an AOM to February 17, 2015. Meanwhile, CFG's brief takes no position on whether a conference occurred and does not even cite Ferreira.

4 The appendices do not contain these documents.

5 In this regard, we do not read Buck or Rule 4:5-3 to exempt a defendant from disclosing the treating professionals' qualifications, even if the defendant entity is a limited liability company rather than, as in Albrecht, supra, 422 N.J. Super. at 273, a professional corporation.