Ferreira v. Rancocas Orthopedic Associates , 178 N.J. 144 ( 2003 )

Justice ALBIN

delivered the opinion of the Court.

The Affidavit of Merit statute, N.J.S.A 2A:53A-26 to -29, requires a plaintiff in a malpractice action to serve on a defendant within 120 days of receipt of the answer an expert’s sworn statement attesting that there exists a “reasonable probability” that the professional’s conduct fell below acceptable standards. The Legislature enacted the statute with the laudatory purpose of weeding out frivolous lawsuits early in the process. The statute does not impose overly burdensome obligations. The plaintiff must keep an eye on the calendar and obtain and serve the expert’s report within the statutory timeframe. This seemingly simple scheme has generated a tide of litigation and a new area of jurisprudence as this Court and our appellate courts have grappled with the derelictions of plaintiffs’ counsel, who have filed well-grounded complaints, but have neglected to file technically correct or timely affidavits. The failure to deliver a proper affidavit within the statutory time period requires a dismissal of the complaint with prejudice. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 242, 708 A.2d 401, 413 (1998).

Beginning with Comblatt, we have fashioned equitable remedies to mitigate the harshness of a rigid application of the statute that would result in the dismissal of an otherwise meritorious cause of action. In this case, plaintiffs attorney possessed an affidavit of merit ten days after the receipt of the answer well — within the time permitted by the statute to serve the affidavit on opposing counsel. The validity of the complaint is not at issue. Due to inadvertence, plaintiffs attorney served the affidavit eighteen days out-of-time, but before defendants moved to dismiss the complaint for failure to comply with the statutory deadline. We hold that this case is a suitable candidate for equitable relief.

This case brings to mind the adage that an ounce of prevention is worth a pound of cure. Therefore, going forward, we will require case management conferences in the early stage of malpractice actions to ensure compliance with the discovery process, including the Affidavit of Merit statute, and to remind the parties of the sanctions that will be imposed if they do not fulfill their obligations.

I.

Plaintiff Agostino Ferreira, represented by Mark Cuker, Esq., filed a medical malpractice complaint against defendants Dr. Bruce Wulfsberg and Rancocas Orthopedic Associates. The complaint alleged that defendants’ negligent treatment of plaintiff for a fractured left heel caused an infection and the fracture not to heal properly. As a consequence, plaintiff suffered pain and economic hardship. The complaint, which detailed with specificity the acts of malpractice, alleged that defendants failed to use due care in (1) performing the surgery on plaintiffs left leg; (2) diagnosing the infection and bone fragments impinging on nerves; (3) removing bone fragments during surgery; (4) closing the wound; (5) prescribing antibiotics; (6) not consulting an appropriate infectious disease specialist; and (7) instructing the physical therapists on post-operative care. Additionally, plaintiffs wife asserted a per quod claim for loss of consortium.

Several months before filing suit, Cuker retained Dr. Gregory B. Shankman, a board certified orthopedic surgeon, to review plaintiffs medical records and determine whether the care defendants and others rendered to plaintiff fell outside acceptable professional standards. In the pre-suit stage, Dr. Shankman advised Cuker by telephone that, in his opinion, there was a reasonable probability that only defendants were negligent in their care of plaintiff, thereby eliminating two other potential defendants from being named in the complaint. During this period, Cuker sent Dr. Shankman an affidavit of merit to review and sign.

On May 31, 2000, the complaint was filed. On August 17, 2000, defendants filed their answer, which asserted several affirmative defenses and demanded the production of a “medical expert affidavit.” Cuker claims that the answer and the case information statement were misfiled in his office and not reviewed by him until January 2001. Within ten days of the filing of the answer, Cuker received Dr. Shankman’s signed affidavit of merit, which, due to inadvertence, he failed to forward to defense counsel.

Discovery proceeded in the ordinary course. Plaintiff had 120 days after the filing of the answer in which to forward to defendants the affidavit of merit. During this 120-day period, defense counsel made no further request for the “medical expert affidavit” and did not participate in a telephonic case management conference. On January 3, 2001, eighteen days after the statutory deadline for delivering the affidavit of merit, Cuker had a telephone conversation with defense counsel, who brought to Cuker’s attention that defendants had not received a medical affidavit. Within hours of that conversation, Cuker faxed Dr. Shankman’s affidavit to defense counsel.

On January 17, 2001, defendants moved to dismiss the complaint with prejudice for failure to comply with the Affidavit of Merit statute. The trial court granted the motion to dismiss, and the Appellate Division affirmed in an unpublished decision. We granted certification, 174 N.J. 193, 803 A.2d 1164 (2002), and now reverse.

II.

The Affidavit of Merit statute 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.

[N.J.S.A. 2A:53A-27.]

The statute was one of five bills passed as part of a 1995 tort reform package designed to “ ‘strike[ ] a fair balance between preserving a person’s right to sue and controlling nuisance suits.’ ” Palanque v. Lambert-Woolley, 168 N.J. 398, 404, 774 A.2d 501, 505 (2001) (quoting Office of the Governor, News Release 1 (June 29, 1995)); Comblatt, supra, 153 N.J. at 228, 708 A.2d at 405-06.¹ The statute imposes a set of procedural requirements in order for a plaintiff to maintain a professional malpractice action. Comblatt, supra, 153 N.J. at 228-29, 708 A.2d at 405-06. First, the plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the “reasonable probability” of professional negligence. N.J.S.A. 2A:53A-27; Palanque, supra, 168 N.J. at 404, 774 A.2d at 505. Second, the affidavit must be provided to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. N.J.S.A. 2A:53A-27; Burns v. Belafsky, 166 N.J. 466, 470-71, 766 A.2d 1095, 1097-98 (2001). Third, the plaintiffs failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice. N.J.S.A. 2A:53A-29; Palanque, supra, 168 N.J. at 404, 774 A.2d at 505; Cornblatt, supra, 153 N.J. at 247, 708 A.2d at 415.

The statute also places certain burdens on the defendant to provide the documents necessary for the preparation of the affidavit by the plaintiffs expert. In the absence of compliance with a document request, the plaintiff may provide a sworn statement, in lieu of the affidavit, certifying that the necessary records were not made available. N.J.S.A 2A:53A-28. The Legislature did not intend to give medical malpractice defendants the power to destroy a meritorious malpractice action by refusing to provide the very records the expert would need to prepare the affidavit. Barreiro v. Morais, 318 N.J.Super. 461, 470, 723 A.2d 1244, 1248 (App.Div.1999).

Our cases have repeatedly emphasized the dual purpose of the Affidavit of Merit statute: “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.” Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001); see Palanque, supra, 168 N.J. at 404, 774 A.2d at 505 (stating that Legislature intended “to curtail frivolous litigation without preventing access to the courts for meritorious claims”); Galik v. Clara Maass Medical Center, 167 N.J. 341, 359, 771 A.2d 1141, 1152 (2000) (“there is no legislative interest in barring meritorious claims brought in good faith”). The legislative purpose was not to “create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.” Mayfield v. Community Med. Assocs., P.A., 335 N.J.Super. 198, 209, 762 A.2d 237, 244 (App.Div.2000).

We have recognized — consistent with our understanding of its legislative intent — two equitable remedies that temper the draconian results of an inflexible application of the statute. A complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute. Palanque, supra, 168 N.J. at 405-06, 774 A.2d at 505-06; Fink v. Thompson, 167 N.J. 551, 561-65, 772 A.2d 386, 392-95 (2001); Galik, supra, 167 N.J. at 351-59, 771 A.2d at 1147-53; Comblatt, supra, 153 N.J. at 239-42, 708 A.2d at 411-13. Moreover, a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance. Palanque, supra, 168 N.J. at 404-05, 774 A.2d at 505-06; Comblatt, supra, 153 N.J. at 246-47, 708 A.2d at 414-15.

In Comblatt, supra, we first applied the doctrine of substantial compliance in the context of the Affidavit of Merit statute. 153 N.J. at 239-42, 708 A.2d at 411-13. The doctrine is invoked so that technical defects will not defeat a valid claim. Id. at 239, 708 A.2d at 411; see also Galik, supra, 167 N.J. at 352, 771 A.2d at 1148 (“It is a doctrine based on justice and fairness, designed to avoid technical rejection of legitimate claims.”) The doctrine requires the moving party to 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 strict compliance with the statute.” Galik, supra, 167 N.J. at 353, 347-48, 771 A.2d at 1149, 1144-46 (finding substantial compliance where plaintiff did not file affidavit within statutory time frame, but plaintiffs counsel, before initiating suit, provided defendants’ insurance carriers with two detailed expert’s reports that established legitimacy of complaint and served as basis for settlement discussions); Palanque, supra, 168 N.J. at 405, 774 A.2d at 505-06 (finding substantial compliance doctrine not satisfied where plaintiff had expert’s report in hand before filing suit, but failed to provide defendant with affidavit of merit or expert’s report within 120 days after filing of answer); Fink, supra, 167 N.J. at 561-64, 772 A.2d at 392-94 (finding substantial compliance where timely-served affidavit and extensive expert’s report clearly focused on conduct of defendant and his relationship to malpractice case, even though both documents failed to name defendant doctor); Cornblatt, supra, 153 N.J. at 239-242, 708 A.2d at 411-13 (finding substantial compliance where plaintiff served timely certification instead of affidavit). Although we have yet to define the full scope of extraordinary circumstances as an equitable remedy for failure to comply with the statute, we do know that attorney inadvertence is not such a circumstance entitling plaintiff to a remedy of dismissal of a complaint without prejudice. Palanque, supra, 168 N.J. at 405, 774 A.2d at 505-06.

In the present case, plaintiffs counsel was in possession of the affidavit of merit within ten days of the filing of the answer. Moreover, plaintiffs counsel had complied with the underlying legislative purpose by having an expert verify the meritorious nature of the malpractice claims at an early stage of the case. Defendants do not contend that they suffered prejudice by the eighteen-day late service of the affidavit. There was no delay in the proceedings or unnecessary expense incurred by defendants as a result of the affidavit’s tardy arrival. Defendants did not request the affidavit at any point between the filing of the' answer and the end of the 120-day statutory period. Significantly, it was not until after the receipt of the affidavit that defendants filed the motion to dismiss.

Although this case satisfies most of the factors necessary to establish substantial compliance with the statute, it nevertheless falls short of the mark. As in Palanque, supra, plaintiff’s counsel did not, within the statutory time frame, take steps to forward the affidavit to opposing counsel. 168 N.J. at 405-06, 774 A.2d at 505-06. Moreover, counsel’s carelessness in misfiling defendant’s answer and failing to calendar this matter does not constitute an extraordinary circumstance. See id. at 405, 774 A.2d at 505. That, however, does not end our equitable analysis.

This plaintiff possessed the affidavit of merit almost at the time the clock began to run and served the affidavit before defendants filed a motion to dismiss. In that respect, he stands apart from the plaintiffs in Palanque; Fink, and Galik, who did not serve affidavits that conformed to the statute until after defendants had filed motions to dismiss. Ordinarily, one would expect the defendant who claims to be prejudiced by the failure to receive discovery to file an appropriate motion based on its absence, not on the occasion of its receipt. We do not fault defendants for attempting to enforce the time requirements of the Affidavit of Merit statute to their advantage. However, principles of equity and the essential goal of the statute — to eliminate frivolous lawsuits — are not advanced by dismissing the complaint. Plaintiffs malpractice action was verified by an expert as meritorious within 120 days of the filing of defendants’ answer and served on defendants only eighteen days later. Defendants waited until after they received the affidavit to file the dismissal motion. Under those circumstances, we conclude that defendants should be estopped from claiming entitlement to dismissal as a remedy.

We do not condone the misfiling of pleadings by plaintiffs counsel or his failure to use the simple expedient of a calendar as a guard against inadvertence. The Association of Trial Lawyers of America-New Jersey, as amicus curiae, has urged this Court to adopt a rule that would require, as a condition of the filing of a malpractice action, the contemporaneous attachment of an affidavit of merit to the complaint. That would appear to be a disheartening concession that not all plaintiffs’ counsel can be expected to follow the time restrictions in the Affidavit of Merit statute. We cannot rewrite the statute, eliminating the time afforded to the diligent attorneys who follow its mandate, to create a fail-safe system for the few neglectful attorneys who do not.

The Affidavit of Merit statute was intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system. The statute was not intended to encourage gamesmanship or a slavish adherence to form over substance. The statute was not intended to reward defendants who wait for a default before requesting that the plaintiff turn over the affidavit of merit.

The rule we announce in this case will further the fundamental purpose of the Affidavit of Merit statute. In a ease 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. That formulation places strong incentives on both plaintiffs’ and defense counsel to act diligently.

III.

To ensure that discovery related issues, such as compliance with the Affidavit of Merit statute, do not become sideshows to the primary purpose of the civil justice system — to shepherd legitimate claims expeditiously to trial — we propose that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. Our rules already provide for case management conferences in civil cases. See R. 4:5B-1; R. 4:5A-1 (exempting civil commitment). Expediting the schedule in malpractice cases will further the intent of our Best Practice rules: to resolve potential discovery problems before they become grist for dueling motions. At the conference, the court will address all discovery issues, including whether an affidavit of merit has been served on defendant. If an affidavit has been served, defendant will be required to advise the court whether he has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements. If no affidavit has been served, the court will remind the parties of their obligations under the statute and case law.

Our proposal does not restrict the flexibility of trial courts to convene additional case management conferences to facilitate the discovery process and motion practice. Our Best Practices rules contemplate that case management conferences should be held when “something can be gained from it.” 2 New Jersey Practice, Court Rules Annotated, Comment on R. 4:5B-2 (John H. Klock) (5th ed. Supp. 2003-2004). The painful experience of our affidavit of merit jurisprudence reveals the compelling need for such conferences at an early stage before problems arise. Indeed, our proposal serves the very goal of case management; it will “assist discovery ... [and] promote the orderly and expeditious progress of the ease.” R. 4:5B-2. We trust that early court intervention in the discovery process will permit the Affidavit of Merit statute to fulfill its true purpose — to bring a swift demise to frivolous lawsuits while allowing meritorious ones to have their day in court.

rv.

Diligence and attentiveness in the practice of law will spare plaintiffs’ attorneys from later seeking an equitable remedy that may not be available. Those members of the plaintiffs’ bar who follow the simple dictates of the statute will find no impediment to championing the causes of their clients.

The decision of the Appellate Division is reversed and the matter remanded for further proceedings.

1 Justice Zazzali's concurring opinion suggests that the Affidavit of Merit statute is unconstitutional because it violates the separation of powers. That issue was not raised before this Court or below by the parties to this case. We do not consider Justice Zazzali's constitutional analysis because it would be unfair to the defendant who has never had the opportunity to address the issue. We note that in Comblatt this Court rejected the notion that the Legislature lacked constitutional authority to enact the Affidavit of merit statute. Cornblatt, supra, 153 N.J. at 248, 708 A.2d at 415 ("[T]he constitutional principle of separation of powers in this context is not implicated. It is within the Legislature's authority to define a cause of action to include a limitations period within which the plaintiff must act.") (citation omitted). In the more than half-dozen cases in which this Court has grappled with the Affidavit of Merit statute since Comblatt, no one has questioned, and this Court has never revisited, the statute's constitutionality.