TERRY L. BROWN VS. GARETT FOROSISKY, M.D. (L-0305-19, CUMBERLAND COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3614-19
TERRY L. BROWN,
Plaintiff-Appellant,
v.
GARETT FOROSISKY, M.D., 1
and INSPIRA MEDICAL CENTER
VINELAND,
Defendants-Respondents.
_____________________________
Argued September 1, 2021 – Decided September 10, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0305-19.
Emeka Igwe argued the cause for appellant.
Mark A. Petraske argued the cause for respondent
Garett Forosisky, M.D. (Dughi, Hewit & Domalewski,
1
This name is spelled "Garrett" in some parts of the record and "Garett" in
others. For consistency, we use the name as "Garett" because it appears both in
the motion judge's written opinion and the caption of the original complaint.
PC, attorneys; Mark A. Petraske, of counsel and on the
brief; Ryan A. Notarangelo, on the brief).
Morgan Rose Montano argued the cause for respondent
Inspira Medical Center Vineland (Grossman, Heavy &
Halpin, PC, attorneys; Morgan Rose Montano, on the
brief).
PER CURIAM
In this medical malpractice case, plaintiff Terry L. Brown appeals from a
March 17, 2020 order dismissing his complaint against defendants, Dr. Garett
Forosisky and Inspira Medical Center Vineland, due to plaintiff's failure to
comply with the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A -26 to -29.
He also appeals from an April 9, 2020 order denying his motion for
reconsideration. Because we agree with Judge James R. Swift that plaintiff was
non-compliant with the strict requirements of the AOM statute, we affirm for
the reasons in his written opinion. We add only the following brief remarks.
We discern the following facts from the limited record before us. On May
15, 2017, plaintiff went to the emergency room at Inspira Medical Center
Vineland due to "full thickness laceration to the palmer aspect of the distal
phalanx of the right thumb." Plaintiff was under the care of defendant Dr. Garett
Forosisky. Plaintiff was medically screened and given a tetanus injection. Dr.
Forosisky closed the laceration using simple sutures, but alleged ly failed to
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prescribe plaintiff antibiotics to prevent infection. Approximately one week
later, plaintiff's family physician advised him that the wound was improperly
sutured. After repairing the sutures, plaintiff's family physician observed a
severe infection and told him to return to the emergency room. On May 22,
2017, plaintiff returned to the emergency room at Inspira Medical Center
Vineland where it was determined that he required emergency surgery and
"negative-pressure wound therapy" due to the severity of the infection. Plaintiff
was admitted for an eleven-day inpatient stay "to clear the infection."
On May 15, 2019, plaintiff filed a complaint against defendants alleging,
in count one, medical negligence and, in count two, a claim under the doctrine
of respondeat superior against Inspira Medical Center Vineland. On July 29,
2019, after Inspira Medical Center Vineland filed an answer, plaintiff submitted
an AOM from Dr. Bruce Charash, a Board certified specialist in internal
medicine cardiology. Dr. Charash opined that the treatment provided to plaintiff
deviated from the acceptable professional or occupational standard of care.
On October 21, 2019, Dr. Forosisky filed an answer. On November 22,
2019, Dr. Forosisky requested a Ferreira 2 conference be held. On December 5,
2019, Dr. Forosisky's counsel sent a letter to plaintiff's counsel objecting to the
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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AOM because Dr. Charash was not board-certified in emergency medicine. On
January 3, 2020, the Ferreira conference was conducted where the parties agreed
that plaintiff would have until February 18, 2020 to file an AOM that complied
with N.J.S.A. 2A:53A-41.
On February 21, 2020, Dr. Forosisky filed a motion to dismiss based on
plaintiff's failure to submit an AOM within 120 days of his answer. On March
6, 2020, seventeen days after the deadline, plaintiff filed an AOM authored by
Dr. Marc Borenstein who is board-certified in emergency room medicine. On
March 11, 2020, plaintiff filed an opposition indicating that, "[d]ue to the
volume of the records . . . and Dr. Borenstein's requirement that he be provided
hard copies of the records, including hard copies of the color photographs, [he]
required additional time to provide" an AOM.
The judge granted the motion to dismiss. In doing so, he determined that:
there is not a substantial prejudice to these defendants
other than the additional time and expense for filing this
motion resulting from plaintiff's delay. The plaintiff
did take steps to comply. [He] filed a timely, but
deficient, first AOM. Then [he] filed a sufficient, but
untimely AOM. The purpose of the statute is to weed
out unmeritorious claims, and plaintiff's attempts at
compliance appear to satisfy that purpose. The
plaintiff's efforts at compliance do give defendants
reasonable notice of plaintiff's claim. . . . It is the fifth
requirement [under] the doctrine of substantial
compliance that plaintiff's argument ultimately fails.
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First, plaintiff's opposition to this motion was filed only
two days prior to the return date. Secondly, the delay
is explained in one sentence: "Due to the volume of
records in this case and Dr. Borenstein's requirement
that he be provided with hard copies of the records,
including hard copies of the color photographs, Dr.
Borenstein required additional time to provide
[p]laintiff's counsel with a complete [AOM]." Missing
from this short narrative is when Dr. Borenstein was
contacted, retained, and sent the records. Was
plaintiff's counsel attentive to the time constraints
imposed[?] Too many questions are left unanswered.
Plaintiff timely moved for reconsideration, which defendants opposed.
The judge denied plaintiff's motion for reconsideration. This appeal ensued.
On appeal, plaintiff raises the following arguments for our consideration:
POINT I
THE LOWER COURT'S DECISION MUST BE
VACATED SINCE IT IS CONTRARY TO
APPLICABLE STATUTORY AND COMMON LAW
IN MEDICAL MALPRACTICE ACTIONS.
POINT II
THE PLAINTIFF SUBSTANTIALLY COMPLIED
WITH THE [AOM STATUTE] AND THE
DISMISSAL OF HIS COMPLAINT WITH
PREJUDICE WAS A HARSH SANCTION.
Issues of law are reviewed de novo, according no deference to the
interpretative analysis of the trial court. The Palisades at Fort Lee Condo. Ass'n,
Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017) (citing Zabilowicz v.
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Kelsey, 200 N.J. 507, 512 (2009)). Failure to provide an AOM "shall be deemed
a failure to state a cause of action." N.J.S.A. 2A:53A-29. Thus, a dismissal for
failure to provide a timely AOM is reviewed de novo. See Bacon v. N.J. State
Dep't of Educ., 443 N.J. Super. 24, 33 (App. Div. 2015) (employing a plenary
standard of review over a trial court's decision to grant a motion to dismiss for
failure to state a claim (citing Rezem Fam. Assocs., L.P. v. Borough of
Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011))).
To establish negligence in a medical-malpractice case, a plaintiff must
prove, through expert testimony, "(1) the applicable standard of care," "(2) a
deviation from that standard of care," and "(3) that the deviation proximately
caused the injury[.]" Gardner v. Pawliw, 150 N.J. 359, 375 (1997). "The
submission of an appropriate [AOM] is considered an element of the claim."
Meehan v. Antonellis, 226 N.J. 216, 228 (2016). It is well-established that:
[i]n 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 [sixty] 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
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practices. The court may grant no more than one
additional period, not to exceed [sixty] days, to file the
affidavit pursuant to this section, upon a finding of
good cause.
[N.J.S.A. 2A:53A-27.]
Thus, "[f]ailure to submit an appropriate affidavit ordinarily requires dismissal
of the complaint with prejudice." Meehan, 226 N.J. at 228 (citing Alan J.
Cornblatt, P.A. v. Barow, 153 N.J. 218, 243 (1998)).
Preliminarily, we reject plaintiff's passing remarks that this case falls
within the gambit of the "common knowledge exception." Cowley v. Virtua
Health Sys., 242 N.J. 1, 16 (2020). "In the exceptionally rare cases in which the
common knowledge exception applies," id. at 17, a plaintiff does not have to
submit an affidavit of merit "where the carelessness of the defendant is readily
apparent to anyone of average intelligence." Rosenberg v. Cahill, 99 N.J. 318,
325 (1985). Examples of circumstances falling under the common knowledge
exception include a dentist extracting the wrong tooth, Hubbard v. Reed, 168
N.J. 387, 396-97 (2001), and a doctor reading specimen numbers as actual test
results. Palanque v. Lambert-Woolley, 168 N.J. 398, 407-08 (2001). This case
does not present one of the "exceptionally rare cases" to apply the "common
knowledge exception." Cowley, 242 N.J. at 17.
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Although the case is factually uncomplicated, the controlling precedent in
this context is Nicholas v. Mynster, 213 N.J. 463 (2013). In that case, the
plaintiff was treated for carbon monoxide poisoning. Id. at 467. The plaintiff
presented expert testimony from a physician who was board certified in internal
and preventative medicine, which included the treatment of carbon monoxide
poisoning. Ibid. The defendants, however, were board-certified specialists in
emergency and family medicine. Ibid. In denying the defendants' motion for
summary judgment, the trial court allowed the expert's testimony because he
was an expert in the treatment given to plaintiff. Id. at 468.
Our Supreme Court reversed, holding that the expert presented must
specialize in the same specialty as the defendant physicians. Id. at 482. The
Court very explicitly determined that "plaintiffs cannot establish the standard of
care through an expert who does not practice in the same medical specialties as
defendant physicians." Id. at 468. In so holding, the Court noted that carbon
monoxide poisoning fell within both the defendants' specialties and the expert's
specialties. Id. at 487-88.
It is well-established "[e]mergency medicine, family medicine, internal
medicine, and preventive medicine are all distinct specialty areas recognized by
the American Board of Medical Specialties." Id. at 484. Because Dr. Forosisky
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was board-certified in emergency medicine, plaintiff was required to present an
AOM from a medical expert in that specialty. Id. at 468; see also N.J.S.A.
2A:53A-41(a).
Two equitable remedies exist that "temper the draconian results of an
inflexible application" of the AOM statute. A.T. v. Cohen, 231 N.J. 337, 346
(2017) (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 151
(2003)). First, "[a] complaint will not be dismissed if the plaintiff can show that
he [or she] has substantially complied with the statute." Ferreira, 178 N.J. at
151. Secondly, "a complaint will be dismissed without prejudice if there are
extraordinary circumstances to explain noncompliance." 3 Ibid.To establish substantial compliance, a 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 a
strict compliance with the statute.
[Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353
(2001) (quoting Bernstein v. Bd. of Trs. of the Tchrs.'
Pension and Annuity Fund, 151 N.J. Super. 71, 76-77
(App. Div. 1977)).]
3
Plaintiff apparently did not argue extraordinary circumstances before the
motion judge. In any event, plaintiff has not offered any evidence to support his
cursory contention that extraordinary circumstances existed to justify his
noncompliance.
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"Establishing those elements is a heavy burden." Id. at 357.
Notwithstanding plaintiff's argument to the contrary, we agree with Judge
Swift that plaintiff has failed to meet this heavy burden. Plaintiff, fully a ware
of the deficiency as of December 5, 2019, still tendered an untimely AOM. Even
affording plaintiff the benefit of the doubt, after the January 3, 2020 conference,
plaintiff had sufficient time to provide an AOM that met the statutory
requirements but failed to do so. We are convinced that the record supports the
judge's determination that plaintiff did not provide a reasonable explanation for
his failure to provide an AOM that complied with the statute.
To the extent we have not addressed them, any remaining arguments
raised by plaintiff lack sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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