Medical malpractice case dismissed where no affidavit of merit by plaintiff Oh v Kang

KI YOL OH and HYE OK OH,

Plaintiffs-Appellants,

v.

PHILIP Y. KANG, D.D.S.,

Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

March 12, 2015

Argued December 17, 2014 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-3269-13.

Howard Z. Myerowitz argued the cause for appellants (Song Law Firm, attorneys; Mr. Myerowitz and Jeremy M. Doberman, on the brief).

Christopher E. Martin argued the cause for respondent (Morrison Mahoney, L.L.P., attorneys; Mr. Martin, of counsel and on the brief; Lina P. Corriston, on the brief).

PER CURIAM

Plaintiffs appeal from the dismissal of their dental malpractice complaint because they were late in obtaining and serving an affidavit of merit, as required by N.J.S.A. 2A:53A-27. We affirm.

I.

In March 2012, plaintiff Ki Yol Oh had dental implant procedures performed by Dr. Philip Y. Kang. Plaintiff and his wife filed a complaint on May 1, 2013, alleging dental malpractice by Dr. Kang. Defendant's answer to the complaint was filed on May 28, 2013. Defendant denied liability and also asserted as one of his affirmative defenses that he was immune from liability under the Affidavit of Merit Statute. N.J.S.A. 2A:53A-26 to -29.

The Affidavit of Merit Statute requires that a claim for injuries allegedly caused by the malpractice of a licensed professional be supported by an affidavit of a similarly licensed professional attesting that the claim has merit. N.J.S.A. 2A:53A-27. The statute requires service of an affidavit of merit within sixty days after the answer is filed, and it permits only one additional sixty-day period upon a finding of good cause by the court. Ibid.1

In this case, plaintiffs did not serve an affidavit of merit until October 7, 2013, that is, 132 days after defendant filed his answer. On the same date, plaintiffs moved for leave to serve the affidavit beyond the 120-day maximum deadline of the statute. Defendant responded with a cross-motion to dismiss the complaint with prejudice for failure to comply with the statute. The court heard argument, reviewed the applicable law, and granted defendant's motion to dismiss.

On appeal, plaintiffs contend they substantially complied with the statute, and extraordinary circumstances entitled them to serve the affidavit beyond the 120-day time limit. They also argue that defendant's cross-motion to dismiss should have been denied because plaintiffs had an affidavit of merit in hand and moved first for leave to serve it. With respect to the adequacy of their affidavit, which defendant also challenged, plaintiffs contend their affiant was qualified to provide an opinion as to the merits of their claim.

N.J.S.A. 2A:53A-29 states in pertinent part: "If the plaintiff fails to provide an affidavit . . . it shall be deemed a failure to state a cause of action." In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998), the Court interpreted this provision to require dismissal of a malpractice claim with prejudice unless extraordinary circumstances are shown.

Over the years, the Court has carved out exceptions to "temper the draconian results of an inflexible application of the statute." Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151 (2003). In addition to "extraordinary circumstances," Tischler v. Watts, 177 N.J. 243, 246-47 (2003), the exceptions are for substantial compliance with the requirements of the statute, Fink v. Thompson, 167 N.J 551, 564-65 (2001); Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 357 (2001); for delay in serving an existing affidavit where the defective service could have been cured within the statutory time limit, Ferreira, supra, 178 N.J. at 154; and for application of the doctrines of equitable estoppel and laches, Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). Also, an affidavit of merit need not be served if the alleged malpractice does not "require proof of a deviation from a professional standard of care," Couri v. Gardner, 173 N.J. 328, 341 (2002), or if the allegation of professional negligence is a matter of common knowledge and therefore expert testimony is not needed to prove the plaintiff's claim, Hubbard v. Reed, 168 N.J. 387, 390 (2001).

Much litigation with respect to the Affidavit of Merit Statute pertains to the applicability of one or more of these exceptions. In this case, the trial court determined that none applied.

Our standard of review is plenary from the dismissal of a pleading for failure to state a claim. That is, we owe no deference to the trial court's conclusions or legal determinations. Rezem Family Assoc., L.P. v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 208 N.J. 368 (2011); Smerling v. Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006); see also Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 578-79 (3d Cir. 2003) (de novo review of dismissal for failure to serve an affidavit of merit).

Plaintiffs rely on the following facts to support their assertion that failure to serve a timely affidavit of merit should not bar their malpractice claims.

On April 29, 2013, two days before filing the malpractice complaint, plaintiffs' attorney emailed Dr. Gene DeBlasio of National Medical Consultants, P.C., for a referral of experts in dentistry in two malpractice cases that the attorney then had, this case and another unrelated case. On the same day, DeBlasio emailed the name of a potential dental expert and a reference to the expert's curriculum vitae. On May 6, 2013, counsel responded that the named dentist was not an appropriate expert for the specialties that his cases involved, specifically dental implants in this case. On the same date, DeBlasio responded by email with a reference and link for another possible expert, Dr. Harvey Passes.

In early June, plaintiffs' attorney spoke to a different dentist whom DeBlasio had mentioned in a telephone conversation, John J. Choi. Counsel sent Dr. Choi information on June 7, 2013, to determine whether he could be engaged as an expert in three cases, including this one. On June 9, Dr. Choi responded that he disagreed with plaintiffs' claim in this case that defendant Kang was not qualified to provide plaintiff's implant treatment. Dr. Choi stated that Dr. Kang was one of his professors at the "Columbia University Periodontal Department" and Dr. Choi could not think of a doctor more qualified than Dr. Kang for plaintiff's implant procedure.

Having been turned down by Dr. Choi, plaintiffs' attorney emailed DeBlasio on June 14 that Dr. Passes "looks good for our cases." On June 21, 2013, counsel mailed to DeBlasio the dental and medical records for this case and two other dental malpractice cases, as well as draft affidavits of merit for each. The next event in our record occurred on August 8, 2013, when plaintiffs' attorney sent payment to DeBlasio for the services of National Medical Consultants in referring him to an expert witness and "to begin to review files" sent in June. On August 19, 2013, counsel emailed Dr. Passes, stating that they had spoken earlier and attaching a revised affidavit of merit.

Counsel's next email, on September 9, 2013, notified DeBlasio that counsel had not received an affidavit although he had spoken with Dr. Passes "awhile ago." Counsel asked: "Is there a problem with the affidavit of merit?" Our record does not indicate whether DeBlasio or Passes responded.

On September 19, 2013, which was 114 days after defendant filed his answer to the malpractice complaint, plaintiffs' attorney again emailed DeBlasio inquiring about the delay and reminding DeBlasio that payment was made in early August. On October 2, 2013, which was 127 days after the answer was filed, counsel repeated in an email to DeBlasio that he still had not received an affidavit from Dr. Passes and added that he was "running out of time."

On October 7, 2013, counsel received Dr. Passes's affidavit, which had been executed and notarized on that date. Counsel served the affidavit upon defendant's attorney the same day and also filed a motion to authorize the late service beyond the time limit of the statute.

We agree with the trial court that these facts do not excuse plaintiffs' failure to comply with the statute. They do not demonstrate either substantial compliance with the statute or extraordinary circumstances causing the delay.

To support a claim of substantial compliance, a plaintiff must show: 1) there was no prejudice to defendant by the delay, 2) the steps taken to comply with the statute, 3) general compliance with the purpose of the statute, 4) reasonable notice of the claim, and 5) a reasonable explanation as to why there was no strict compliance. Galik, supra, 167 N.J. at 353. Here, the explanation that counsel was attempting to obtain an affidavit but was delayed by late responses from the expert referral service is not a reasonable and acceptable excuse for the delay.

In Galik, supra, 167 N.J. at 357-58, the Court found substantial compliance where the plaintiff's attorney believed he had complied with the statute, defendant had received two detailed expert reports establishing the merits of the claim before the complaint was filed, and the two parties had engaged in settlement negotiations. In Cornblatt, supra, 153 N.J. at 240, the Court determined that timely service of a certification instead of an affidavit, together with an explanation of why an affidavit could not be obtained, could demonstrate substantial compliance. In Fink, supra, 167 N.J. 564-65, a timely-served affidavit omitted the name of one doctor among several that had been involved in the plaintiff's treatment, but the Court noted that the omitted doctor had received other information pertinent to the allegations against him and held the affidavit of merit substantially complied with the statute. In Mayfield v. Community Medical Associates, 335 N.J. Super. 198, 201, 207-08 (App. Div. 2000), we found substantial compliance where the affidavit had been promptly filed with the court but the plaintiff's attorney inadvertently did not serve it on the defendants at the same time.

In this case, plaintiffs did not show a mere technical deficiency in a timely served affidavit, as in Cornblatt and Fink, or untimely service of an existing affidavit that was filed with the court, as in Mayfield. They did not show defendant's active involvement in addressing the plaintiff's claims before the plaintiff obtained an affidavit of merit, as in Galik. There were no "unsworn reports satisfy[ing] the temporal requirements of the Affidavit of Merit statute." Galik, supra, 167 N.J. at 357.

Also unlike Galik, plaintiffs had not retained an expert before filing suit and had not communicated with defendant or his insurance carrier regarding their claims before they filed their complaint. See ibid. Furthermore, the complaint and the discovery exchanged during the several months when this case was pending did not afford defendant notice from an equivalently licensed professional that plaintiffs had a potentially meritorious claim of malpractice against him.

Rather, this was a case where plaintiffs filed their malpractice complaint before they had obtained an expert witness's opinion and then had difficulty finding an appropriate expert, or one who would provide a timely affidavit. Plaintiffs relied on an expert referral service to support their malpractice complaint. The referral service did not deliver what plaintiffs needed within the statutory deadline, and plaintiffs did not act expeditiously enough in following through on the retention of an expert. These facts do not establish substantial compliance under the cases we have cited.

Nor do they establish extraordinary circumstances. Unlike Ryan v. Renny, 203 N.J. 37, 43 (2010), plaintiffs have not shown they were unable to find a specialist in defendant's field. They made no effort to do so before filing their complaint, but nevertheless triggered the time periods of the statute. The delay was not caused by the unavailability or indecipherability of the necessary dental or medical records. See Barreiro v. Morais, 318 N.J. Super. 461, 467 (App. Div. 1999). And this is not a case where a "Ferreira conference" would have cleared up confusion about compliance with the statute, such as about the later insertion of a professional malpractice claim into what was originally a different type of case. See Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 419 (2010).2

This was simply a case where plaintiffs failed to obtain an affidavit within the statutory deadline. See Palanque v. Lambert-Woolley, 168 N.J. 398, 405 (2001) (attorney inadvertence will not support the extraordinary circumstances standard set forth in Cornblatt, supra, 153 N.J. at 247); Balthazar v. Atl. City Med. Cntr., 358 N.J. Super. 13, 24-26 (App. Div.) (delay in obtaining an affidavit does not constitute extraordinary circumstances), certif. denied, 177 N.J. 221 (2003). Plaintiffs have not shown anything extraordinary in their inability to obtain a timely affidavit.

We also reject plaintiffs' argument that their being first to file a motion for leave to serve a late affidavit precluded defendant's cross-motion to dismiss their complaint. Plaintiffs rely on the following passage from Ferreira

In a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit. 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, supra, 178 N.J. at 154.]

Plaintiffs did not have an affidavit "in hand" within 120 days. Dr. Passes did not execute the affidavit until October 7, 2013, which was 132 days after defendant's answer was filed. In addition, we do not view the quoted passage from Ferreira as favoring a race to the courthouse as soon as the 120-day deadline passes. It only described the circumstances where the affidavit was timely prepared but late in being served upon the defendant, and the Court posited that such facts can show substantial compliance if the plaintiff moves promptly for leave to serve the affidavit.

Finally, because we agree with the trial court that plaintiffs did not demonstrate an exception from the requirements of the Affidavit of Merit Statute, we need not decide whether Dr. Passes was qualified to provide an affidavit for this case since he practices general dentistry while Dr. Kang's treatment of plaintiff involved periodontics as a specialty. See Buck v. Henry, 207 N.J. 377, 389 (2011) (discussing the requirement of N.J.S.A. 2A:53A-41 that only an equivalent specialist can testify as an expert witness in a medical malpractice case).

II.

We are prompted by this appeal to make certain additional observations about the collateral litigation spawned by the Affidavit of Merit Statute and the case law we have discussed interpreting the statute.

To quell the "sideshows" of litigation in professional malpractice cases concerning compliance with the statute, the Supreme Court proposed that an accelerated case management conference be conducted within ninety days of the filing of an answer to determine "whether an affidavit of merit has been served," Ferreira, supra, 178 N.J. at 154-55, and "to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit . . . ." Buck, supra, 207 N.J. at 383. The record in this appeal does not reveal how effective "Ferreira conferences" have been in reducing the collateral litigation. It seems to us, however, that an early case management conference is not an adequate procedure to resolve some complex disputes about compliance with the statute.

Where the parties express a vital and substantive difference as to the necessity, adequacy, or service of an affidavit of merit, the trial court will be hard-pressed to resolve the dispute informally by means of a conference, especially within the statutory deadline. See, e.g., Ryan, supra, 203 N.J. at 46 (dispute about qualification of surgeon who was not board-certified in defendant's specialty to provide an affidavit of merit could not be resolved through a Ferreira conference).

Moreover, it seems inappropriate for the court to resolve a factual or legal dispute without an adequate record in conformity with Rule 1:6-6 and with briefs addressing the legal issues. The parties should have a formal opportunity to be heard, and the court will often need to study the record and the law. The proceedings and the record that are necessitated may not fit within the time-frame contemplated in Ferreira and the 120-day maximum deadline of N.J.S.A. 2A:53A-27, in particular, if discovery is needed to address contested factual issues. The Ferreira conference is unlikely to be useful to a malpractice plaintiff with a meritorious claim who believes an adequate affidavit of merit has been served, or that one is not necessary, and finds that the court disagrees after the 120-deadline has passed.

At the time that Ferreira was decided, three members of the Court favored a different approach. Speaking for the three, Justice Long wrote in a concurring and dissenting opinion that the litigation "sideshows" that the Court has bemoaned emanate from the Court's earlier decision in Cornblatt. Ferreira, supra, 178 N.J. at 156 (Long, J., concurring in part and dissenting in part). As we previously stated, Cornblatt held that failure to comply with the statute will result in the dismissal of the claim with prejudice unless extraordinary circumstances are shown. Cornblatt, supra, 153 N.J. at 247. The dissenting viewpoint in Ferreira would have modified Cornblatt and converted the presumptive result to a dismissal of the malpractice claim without prejudice except where "a plaintiff cannotor willnot producean affidavitof merit. .. ." Ferreira, supra, 178 N.J. at 157.

Justice Long's opinion distinguished between "the inability of a plaintiff to produce an affidavit regarding deviation" and the "procedural slip-ups in filing or service or . . . curable technical deficiencies." Ibid. While a Ferreira conference seems useful in preventing "pitfalls" of the latter type, Buck, supra, 207 N.J. at 383, 392, such a conference may be inappropriate as the procedural mechanism for resolving a disputed issue of whether a malpractice claimant has produced a substantively compliant affidavit of merit.3

The Court's reasoning in Cornblatt on the question of dismissal with or without prejudice is not unassailable. The Legislature chose to use language in the Affidavit of Merit Statute that resembles an analogous procedural rule from our Rules Governing the Courts of the State of New Jersey. Under N.J.S.A. 2A:53A-29, the plaintiff's failure to serve a compliant affidavit "shall be deemed a failure to state a cause of action." Similar language is contained in Rule 4:6-2(e), designating generally a defense of "failure to state a claim upon which relief can be granted." At the time the Affidavit of Merit Statute was enacted, the Supreme Court had already held in Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 771-72 (1989), that dismissals under Rule 4:6-2(e) for failure to state a claim should be without prejudice "barring any other impediment such as a statute of limitations . . . ." The Legislature was presumably aware of both the rule and the Supreme Court's application of the rule when it used similar language in the Affidavit of Merit Statute. See DiProspero v. Penn, 183 N.J. 477, 494 (2005); N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195 n.6 (2002); Brewer v. Porch, 53 N.J. 167, 174 (1969).

Also, the case authority cited in Cornblatt did not compel dismissals with prejudice under the statute. In Velasquez v. Franz, 123 N.J. 498, 501-04 (1991), discussed by the Court in Cornblatt, supra, 153 N.J. at 245-46, the plaintiff was precluded from filing an identical complaint in New Jersey state court after his federal complaint was dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Invoking the doctrine of res judicata, the New Jersey Supreme Court stated that dismissals under the federal rule were ordinarily with prejudice unless specifically designated as without prejudice. Velasquez, supra, 123 N.J. at 507-08. Under our State Rule 4:6-2(e), however, dismissals are ordinarily without prejudice. Smith v. SBC Commc'ns., Inc., 178 N.J. 265, 282 (2004); Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009). There is no reason to apply a precedent based on the res judicata effect of a federal rule of procedure to the Affidavit of Merit Statute.

In Hartsfield v. Fantini, 149 N.J. 611, 613, 616 (1997), also cited by the Court in Cornblatt, supra, 153 N.J. at 246-47, the Court had declined to permit the reinstatement of an automobile personal injury action that had been dismissed after arbitration under Rule 4:21A-6(b)(1). Hartsfield, like Velasquez, did not involve Rule 4:6-2(e). Neither case compelled the holding of Cornblatt that a dismissal under N.J.S.A. 2A:53A-29 must ordinarily be with prejudice.

The Legislature's choice of language in N.J.S.A. 2A:53A-29 could reasonably be interpreted to mean that a plaintiff's failure to produce a satisfactory affidavit of merit would close the courthouse door, but not necessarily forever. So long as the plaintiff remained non-compliant with the statute, the court would not entertain a malpractice claim. If, however, the plaintiff was able to produce a satisfactory affidavit at a later time, the court could re-open its door, provided that the cause of action as supported by a valid affidavit was still within the statute of limitations. See Printing Mart, supra, 116 N.J. at 772.

As Justice Long wrote in Ferreira, a dismissal without prejudice would conform to other dismissals for insufficiency of pleadings. Ferreira, supra, 178 N.J. at 157-58. On the other hand, "where a plaintiff is unable to provide an affidavit at all, the omission should be considered substantive, resulting in a merits-dismissal with prejudice." Id. at 157. In the latter circumstance, a dismissal with prejudice would be consistent with judicial application of Rule 4:6-2(e), under which a case may be dismissed with prejudice if the litigant has shown no prospect of curing the pleading deficiency. Johnson v. Glassman, 401 N.J. Super. 222, 246-47 (App. Div. 2008).

Justice Long's approach would answer the Court's concerns in Buck, supra, 207 N.J. at 395, and Ferreira, 178 N.J. at 155, that a meritorious malpractice claim not be permanently foreclosed because of inadvertence or confusion about satisfying the statute. More to the point, it would dampen the "sideshow" litigation that grew only because "Cornblatt . . . stands in the way" of permitting correction of an inadequate or an untimely affidavit of merit. Id. at 158. Most of the exceptions that generate the collateral litigation could be avoided.

To allay concerns that plaintiffs would prematurely file malpractice complaints before the merits of a claim had been determined by a similarly licensed professional, as plaintiffs did in this case, the court could impose conditions on the reinstatement of a dismissed complaint, such as reimbursement of a defendant's expenses in responding to the earlier complaint. Monetary sanctions would provide a disincentive for filing a malpractice complaint before its potential merit has been established. Also, if the Legislature thought it appropriate, it could require that an affidavit of merit be filed simultaneously with a malpractice pleading.

We respectfully discuss the alternative proposed by a minority of the Court in Ferreira as a matter for consideration by others. We are certainly aware that we are bound by the law as established by the Supreme Court.

Plaintiffs did not serve a timely affidavit and did not show either substantial compliance or extraordinary circumstances. Thetrial courtcorrectly dismissedtheir complaintwith prejudice.

Affirmed.

1 N.J.S.A. 2A:53A-27 states

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.

2 The purpose of a "Ferreira conference" is to address compliance with the affidavit of merit requirement, Ferreira, supra, 178 N.J. at 154-55, but failure to hold such a conference does not alter the statutory deadline or the remedy for failure to serve a timely affidavit. Paragon Contractors, supra, 202 N.J. at 424. In this case, the court did not schedule a Ferreira conference, and plaintiffs did not request one. Plaintiffs' attorney was aware he needed an affidavit within a statutory deadline. We comment further in section II of this opinion about the adequacy and propriety of "Ferreira conferences" to resolve some affidavit of merit disputes.

3 As we have stated, the qualification of Dr. Passes as an affiant in this case was also contested on the ground that he lacks expertise in Dr. Kang's specialty.