Melody Faith Mazur, Etc. v. Crane's Mill Nursing Home

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2072-14T2
A-2495-14T2
MELODY FAITH MAZUR, as ATTORNEY-
IN-FACT for DORIS ELIZABETH APPROVED FOR PUBLICATION
ARMSTRONG,
June 11, 2015
Plaintiff-Appellant, APPELLATE DIVISION
v.
CRANE'S MILL NURSING HOME, CRANE'S
MILL OAK HEALTH CENTER, THE OAKS AT
CRANE'S MILL, THE HEALTH CENTER AT
CRANE'S MILL, LUTHERAN SOCIAL
MINISTRIES OF NJ, and PRADIP SUKHAL
SHAH, M.D.,
Defendants-Respondents.
_____________________________________
Submitted June 2, 2015 – Decided June 11, 2015
Before Judges Fisher, Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-
2703-14.
Failla & Banks, LLC, attorneys for appellant
(Vincent J. Failla, on the briefs).
Vasios, Kelly & Strollo, P.A., attorneys for
respondent Pradip Sukhal Shah, M.D. (Rowena
M. Duran, of counsel; Linda Fulop-Slaughter,
on the brief).
Burns White LLC, attorneys for respondents
Lutheran Social Ministries at Crane's Mill,
Inc. (incorrectly pleaded as "Crane's Mill
Nursing Home") and Lutheran Social Ministries
of New Jersey, Inc. (Brian D. Pagano and
Taisha K. Tolliver, on the brief).
PER CURIAM
This is a medical malpractice action. Plaintiff has filed
these appeals, which we consolidate for purposes of this
opinion, from trial court orders dismissing the complaint on the
ground that the affidavit of merit plaintiff served on
defendants was deficient. Because the trial court based its
disposition of defendant Pradip Sukhal Shah's motion on false
statements in his answer, his attorney's certification, and his
brief, as well as incompetent evidence, we reverse and remand
for further proceedings. We also reverse the order dismissing
the complaint against defendants Lutheran Social Ministries at
Crane's Mill, Inc., and Lutheran Social Ministries of New
Jersey, Inc., (collectively, LSM), which owned and operated the
facility where the malpractice allegedly occurred. The
arguments of the LSM defendants are essentially the same as Dr.
Shah's and are based on either incompetent evidence on the
motion record or unsupported statements in their brief. We
remand this case to the trial court for further proceedings
consistent with this opinion.
2 A-2072-14T2
I.
The facts of record are essentially undisputed. Plaintiff
Melody Mazur is the attorney-in-fact for her mother, Doris
Elizabeth Armstrong.1 Doris Elizabeth Armstrong (the patient)
was eighty-one years old when she was admitted to the LSM
facility in November 2012 to undergo rehabilitation following
her hospitalization for a fractured pelvis. According to an LSM
attorney's certification - which will be discussed later - the
LSM facility was a "full-service assisted living, skilled
nursing and rehabilitation facility equipped to provide the
rehabilitative needs that [the patient] required." During her
stay at the LSM facility, the patient suffered a severe stroke,
the event that precipitated this lawsuit.
Plaintiff filed a five-count complaint against Dr. Shah,
LSM, and numerous fictitiously named defendants on April 17,
2014,2 and an affidavit of merit on May 7, 2014. Although the
complaint alleged causes of action for negligence, malpractice,
negligent hiring, negligent supervision, and negligent training,
1
Ms. Armstrong is now deceased. Plaintiff will presumably amend
the complaint, substitute an appropriate representative, see
N.J.S.A. 2A:15-3, N.J.S.A. 2A:31-2, and properly identify the
defendants.
2
The complaint is date stamped with the year 2015, but bears a
2014 docket number, and the other pleadings as well as the
transcripts make it clear that the complaint was filed in 2014.
3 A-2072-14T2
the core allegation was that defendants' untimely diagnosis and
treatment of the patient's stroke fell outside acceptable
professional standards of care and caused the patient to suffer
debilitating injuries. For example, the negligent hiring count
incorporates the allegations as to Dr. Shah and then asserts the
LSM defendants were negligent for hiring him because they knew
or should have known he was not qualified to fill the position
for which he was hired. The only factual allegations supporting
that proposition are those that Dr. Shah deviated from an
accepted medical standard when caring for the patient.
Significantly, plaintiff alleged that Dr. Shah and the other
medical providers who cared for the patient were agents or
employees of LSM.
Plaintiff's affidavit of merit (AOM), prepared by Dr. Ira
Mehlman, stated that the patient's care at the LSM facility on
November 23, 2012, "did not meet the standard of care." In the
doctor's opinion, the clinical nursing team's and Dr. Shah's
alleged deviations from professional standards of care caused or
contributed to the patient's final debilitating condition. Dr.
Mehlman was board certified in emergency and internal medicine.
The month after plaintiff filed the complaint, Dr. Shah
filed an answer on May 15, 2014, which included this statement:
"Dr. Shah's field of specialty is [g]eriatrics [m]edicine and he
4 A-2072-14T2
is [b]oard [c]ertified in [g]eriatrics. The doctor's treatment
of the plaintiff involved the specialty of [g]eriatrics." The
statement that Dr. Shah was board certified was false; although
Dr. Shah had once been board certified in geriatric medicine, he
had not been so certified for several years or more before he
began to treat the patient at the LSM facility.
On July 2, 2014, the trial court sent a letter to
plaintiff's counsel scheduling a Ferreira3 conference for October
16, 2014 and directing plaintiff's counsel to notify the other
parties. The conference was thus to occur more than 120 days
after Dr. Shah filed his answer on May 15, 2004. Meanwhile, LSM
had filed an answer on June 19, 2014. The Ferreira conference
was scheduled to be conducted 119 days after the LSM answer was
filed; however, eight days before the conference, counsel for
LSM obtained a consensual adjournment to October 29, 2014, 132
days after LSM filed its answer.
A month before the Ferreira conference occurred, Dr. Shah's
counsel sent a letter to plaintiff's counsel pointing out that
Dr. Ira Mehlman, in the AOM,
certifies that he is boarded in [e]mergency
[m]edicine and [i]nternal [m]edicine but has
been practicing [e]mergency [m]edicine since
1992. Dr. Shah was treating [the patient]
3
Ferreira v. Rancocas Orthopedic Assoc., 178 N.J. 144 (2003).
5 A-2072-14T2
as a board certified geriatric specialist.
Accordingly, it is our position that both
pursuant to the case law and the statute,
Dr. Mehlman is not qualified to render an
affidavit of merit as to Dr. Shah.
Accordingly, we will not be withdrawing our
motion to dismiss.4
Counsel's assertion that Dr. Shah was "treating [the patient] as
a board certified geriatric specialist" was false.
By the time the Ferreira conference was conducted on
October 29, 2014, Dr. Shah had filed a second motion to dismiss,
returnable November 7, 2014. When informed by counsel of the
pending motion, the court responded: "Okay. There's nothing for
me to do then because I'll decide that on the [return date of
Dr. Shah's motion]." The court made no determination at the
Ferreira conference as to whether plaintiff's affidavit of merit
was deficient.
On November 7, 2014, the court heard oral argument on Dr.
Shah's motion to dismiss. Plaintiff's counsel did not appear.
Dr. Shah's motion was supported by a certification of counsel,
exhibit, and brief. The certification and brief repeated the
false assertion that Dr. Shah was board certified in geriatric
medicine. The "exhibit" was a printout of a New Jersey Health
4
Dr. Shah's counsel had filed a motion to dismiss on the ground
that plaintiff had filed no affidavit of merit. That motion,
denied without prejudice on October 10, 2014, is not at issue
here.
6 A-2072-14T2
Care Profile from an internet site stating that Dr. Shah's board
certification in internal medicine expired on December 31, 2006
and his board certification in geriatric medicine expired on
December 31, 2008. The court and counsel apparently overlooked
those dates.
The court noted that Dr. Shah's "motion is indicating that
[plaintiff's AOM] doesn't comply inasmuch [as plaintiff's]
expert . . . is not board certified in geriatrics, or geriatric
medicine." Citing precedent requiring that the AOM author be
board certified in the same specialty as the defendant being
criticized, the court granted Dr. Shah's motion and dismissed
the complaint as to him with prejudice. On leave granted,
plaintiff appealed under A-2072-14 from the confirming order.
The following month, December 2014, the LSM defendants
filed a motion to dismiss the complaint. In support of the
motion, counsel for the LSM defendants submitted a certification
that the LSM facility was a "full-service assisted living,
skilled nursing and rehabilitation facility equipped to provide
the rehabilitative needs that [the patient] required." Citing
the allegation in plaintiff's complaint that defendants "failed
to adhere to accepted medical and/or nursing standards," and
referencing the court's dismissal with prejudice of the
complaint against Dr. Shah, the LSM defendants sought a
7 A-2072-14T2
dismissal with prejudice "for the same reason," namely,
plaintiff's AOM "is insufficient in that it was not served by a
properly qualified affiant."
During oral argument, plaintiff's counsel clarified that
plaintiff was alleging the LSM defendants were negligent in
"react[ing] to an emergency situation, a person . . . a person
having a stroke in their facility." The court rejected
plaintiff's argument that Dr. Mehlman's AOM was adequate. The
court stated: "I [am] rejecting your witness because, when
you're suing the nursing home for malpractice and their policies
and procedures, this witness has no experience to talk about
that." The court entered a confirming order on December 19,
2014, from which plaintiff appealed under A-2495-14.
II.
A.
We begin our analysis by reviewing in the context of
medical malpractice cases some of the basic provisions of the
AOM statute, N.J.S.A. 2A:53A-26 to -29, and the interplay
between the statute's procedural requirements and those of
motions generally. We start with the statute.
In enacting the AOM statute, "the Legislature aimed to
strike 'a fair balance between preserving a person's right to
sue and controlling nuisance suits [against certain licensed
8 A-2072-14T2
professionals] that drive up the cost of doing business in New
Jersey.'" Hill Intern., Inc. v. Atlantic City Bd. of Educ., 438
N.J. Super. 562 (App. Div. 2014) (quoting Statement of Governor
Whitman on Signing S. 1493 (June 29, 1995)), motion for leave to
appeal granted, __ N.J. __ (April 21, 2015). The statute
strikes that balance, in part, by "impos[ing] 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).
The "professionals" enumerated in the statute include "a
physician in the practice of medicine or surgery[,]" N.J.S.A.
2A:53A-26(f), and "a health care facility as defined in section
2 of P.L.1971, c.136 (C.26:2H-2)[,]" N.J.S.A. 2A:53A-26(j). If
a plaintiff seeks personal injury, wrongful death, or property
damages in an action alleging
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
9 A-2072-14T2
one additional period, not to exceed 60
days, to file the affidavit pursuant to this
section, upon a finding of good cause.
In the case of an action for medical
malpractice, the person executing the
affidavit shall meet the requirements of a
person who provides expert testimony or
executes an affidavit as set forth in
section 7 of P.L. 2004, c. 17 (C. 2A:53A-
41). In all other cases, the person
executing the affidavit shall be licensed in
this or any other state; have particular
expertise in the general area or specialty
involved in the action, as evidenced by
board certification or by devotion of the
person's practice substantially to the
general area or specialty involved in the
action for a period of at least five years.
The person shall have no financial interest
in the outcome of the case under review, but
this prohibition shall not exclude the
person from being an expert witness in the
case.5
[N.J.S.A. 2A:53A-27.]
5
An affidavit shall not be required . . . if
the plaintiff provides a sworn statement in
lieu of the affidavit setting forth that:
the defendant has failed to provide
plaintiff with medical records or other
records or information having a substantial
bearing on preparation of the affidavit; a
written request therefor along with, if
necessary, a signed authorization by the
plaintiff for release of the medical records
or other records or information requested,
has been made by certified mail or personal
service; and at least 45 days have elapsed
since the defendant received the request.
[N.J.S.A. 2A:53A-28.]
10 A-2072-14T2
Thus, in a medical malpractice action, parties must also
comply with the New Jersey Medical Care Access and
Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -
42. Under that act, the person executing the AOM must be
licensed as a physician or other health care
professional in the United States and meet[]
the following criteria:
a. If the party against whom or on whose
behalf the testimony is offered is a
specialist or subspecialist recognized by
the American Board of Medical Specialties or
the American Osteopathic Association and the
care or treatment at issue involves that
specialty or subspecialty recognized by the
American Board of Medical Specialties or the
American Osteopathic Association, the person
providing the testimony shall have
specialized at the time of the occurrence
that is the basis for the action in the same
specialty or subspecialty, recognized by the
American Board of Medical Specialties or the
American Osteopathic Association, as the
party against whom or on whose behalf the
testimony is offered, and if the person
against whom or on whose behalf the
testimony is being offered is board
certified and the care or treatment at issue
involves that board specialty or
subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association, the expert witness
shall be:
(1) a physician credentialed by a hospital
to treat patients for the medical condition,
or to perform the procedure, that is the
basis for the claim or action; or
(2) a specialist or subspecialist recognized
by the American Board of Medical Specialties
or the American Osteopathic Association who
11 A-2072-14T2
is board certified in the same specialty or
subspecialty, recognized by the American
Board of Medical Specialties or the American
Osteopathic Association, and during the year
immediately preceding the date of the
occurrence that is the basis for the claim
or action, shall have devoted a majority of
his professional time to either:
(a) the active clinical practice of the same
health care profession in which the
defendant is licensed, and, if the defendant
is a specialist or subspecialist recognized
by the American Board of Medical Specialties
or the American Osteopathic Association, the
active clinical practice of that specialty
or subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association; or
(b) the instruction of students in an
accredited medical school, other accredited
health professional school or accredited
residency or clinical research program in
the same health care profession in which the
defendant is licensed, and, if that party is
a specialist or subspecialist recognized by
the American Board of Medical Specialties or
the American Osteopathic Association, an
accredited medical school, health
professional school or accredited residency
or clinical research program in the same
specialty or subspecialty recognized by the
American Board of Medical Specialties or the
American Osteopathic Association; or
(c) both.
b. If the party against whom or on whose
behalf the testimony is offered is a general
practitioner, the expert witness, during the
year immediately preceding the date of the
occurrence that is the basis for the claim
or action, shall have devoted a majority of
his professional time to:
12 A-2072-14T2
(1) active clinical practice as a general
practitioner; or active clinical practice
that encompasses the medical condition, or
that includes performance of the procedure,
that is the basis of the claim or action; or
(2) the instruction of students in an
accredited medical school, health
professional school, or accredited residency
or clinical research program in the same
health care profession in which the party
against whom or on whose behalf the
testimony is licensed; or
(3) both.
c. A court may waive the same specialty or
subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association and board
certification requirements of this section,
upon motion by the party seeking a waiver,
if, after the moving party has demonstrated
to the satisfaction of the court that a good
faith effort has been made to identify an
expert in the same specialty or
subspecialty, the court determines that the
expert possesses sufficient training,
experience and knowledge to provide the
testimony as a result of active involvement
in, or full-time teaching of, medicine in
the applicable area of practice or a related
field of medicine.
[N.J.S.A. 2A:53A-41(a)-(c).]
The Patients First Act makes clear that, with the exception
of N.J.S.A. 2A:53A-41(c), "[w]hen a physician is a specialist
and the basis of the malpractice action 'involves' the
physician's specialty, the challenging expert must practice in
13 A-2072-14T2
the same specialty." Nicholas v. Mynster, 213 N.J. 463, 481-82
(2013). If the defendant physician
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)
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).
[Id. at 482 (citation and internal quotation
marks omitted).]
A board-certified expert must also satisfy one of two
additional requirements. The physician must have devoted a
majority of his professional time in the preceding year to
either clinical practice in the specialty or to teaching at an
accredited medical school in that specialty. Id. at 481.
Our Supreme Court has implemented certain procedural
requirements "[t]o ensure that discovery related issues, such as
compliance with the [AOM] statute, do not become sideshows to
the primary purpose of the civil justice system — to shepherd
legitimate claims expeditiously to trial . . . ." Ferreira,
supra, 178 N.J. at 154. "A physician defending against a
malpractice claim who admits to treating the plaintiff must
include in his or her answer the field of medicine in which he
or she specialized at that time, if any, and whether his or her
14 A-2072-14T2
treatment of the plaintiff involved that specialty." R. 4:5-3;
see also Buck v. Henry, 207 N.J. 377, 396 (2011).
Additionally, the Supreme Court has directed that trial
courts conduct a
case management conference . . . within
ninety days of the service of an answer in
all malpractice actions . . . . 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.
[Ferreira, supra, 178 N.J. at 154-55.]
It serves no purpose to conduct a Ferreira conference more
than 120 days after defendant has filed an answer.
The Ferreira conference was created to
remind parties of their statutory
obligations and thus avoid dismissal of
meritorious claims through inadvertence. It
was never intended, nor could it have been,
as an overlay on the statue that would
effectively extend the legislatively
prescribed filing period. Thus, it is not a
tolling device.
[Paragon Contractors, Inc. v. Peachtree
Condo. Ass'n, 202 N.J. 415, 419 (2010).]
15 A-2072-14T2
In addition to procedural requirements concerning the AOM
statute, a medical malpractice defendant filing an AOM dismissal
motion must meet the procedural requirements concerning general
motion practice, which are contained in Rule 1:6.
This is because "[a]n application to the court for an order
shall be by motion, or in special cases, by order to show
cause." R. 1:6-2(a).
If the facts upon which the motion is based do not appear
of record and are not judicially noticeable, "the court may hear
[the motion] on affidavits made on personal knowledge, setting
forth only facts which are admissible in evidence to which the
affiant is competent to testify and which may have annexed
thereto certified copies of all papers or parts thereof referred
to therein." R. 1:6-6. Further, "[t]he court may direct the
affiant to submit to cross-examination, or hear the matter
wholly or partly on oral testimony or depositions." R. 1:6-6.
It bears emphasizing that "[a]ffidavits by attorneys of
facts not based on their personal knowledge but related to them
by and within the primary knowledge of their clients constitute
objectionable hearsay." Pressler & Verniero, Current N.J. Court
Rules, comment on R. 1:6-6 (2015). "It is also clear that the
mere appending of relevant documents to the motion brief does
not constitute compliance with the rule. Such documents must be
16 A-2072-14T2
incorporated by reference in an appropriate affidavit or
certification, which properly authenticates material which is
otherwise admissible." Ibid.
This case serves as an example of what can happen when
lawyers and judges ignore Rule 1:6-6. We thus turn to the
issues the parties have raised on this appeal.
B.
Because the facts are undisputed, our review is of the
trial court's legal conclusions and is therefore plenary.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995). We first review de novo the order dismissing the
complaint against Dr. Shah.
The doctor now concedes that the trial court entered the
dismissal order based on false information; namely, that Dr.
Shah was board certified in geriatric medicine when he treated
the patient. The doctor does not explain how the false
representations upon which the court made its ruling came about.
What is clear is that Dr. Shah established the factual premises
upon which the trial court decided his motion through his
attorney's certification, which included facts not based on
personal knowledge as required by Rule 1:6-6. Notwithstanding
that fundamental deficiency in Dr. Shah's motion, the court
relied upon the certification rather than dismiss the motion.
17 A-2072-14T2
The result is that considerable time and expense have been
wasted and an action has been dismissed based on incompetent
evidence that is false. The court's decision must be reversed.
Dr. Shah contends that even though the court's ruling was
based on false evidence, we should affirm the implementing order
because Dr. Shah specialized in geriatric medicine, his
treatment of the patient involved geriatric medicine, and Dr.
Mehlman, who signed the AOM for plaintiff, did not specialize in
geriatric medicine. The doctor's argument is without sufficient
merit to warrant extended discussion in a written opinion. R.
2:11-3(e)(1)(E). We add only the following brief comments.
Dr. Shah maintains that his answer placed plaintiff on
notice of his area of specialty. That may be so, but absent the
misrepresentation concerning his board certification plaintiff
may well have sought – and received – competent proof or
verification that such was the case and responded timely and
appropriately.
More significantly, Dr. Shah would now have us disregard R.
1:6-6 and base a decision on the same incompetent evidence that
he presented to the trial court. In view of the false
statements that were made to the trial court, we have no
confidence in either the statements in Dr. Shah's answer or the
representations of Dr. Shah's attorney. That is not to suggest
18 A-2072-14T2
that we believe the doctor's attorney made deliberately false
statements. Rather, our comments are made to underscore what
should be obvious: Rule 1:6-6 and its implicit prohibition –
explicit in the rule's comments - against attorneys filing
certifications not based on firsthand knowledge serve a salient
purpose. Attorneys should comply with the rule and trial courts
should enforce it.
Having said that, we nonetheless must consider the policy
underpinning the AOM statute. Dr. Shah should not have to
defend a meritless claim.
"Absent extraordinary circumstances, a failure to comply
with the statute . . . requires a dismissal . . . with
prejudice." Allen J. Cornblatt, P.A. v. Barrow, 153 N.J. 218,
247 (1998). Here, plaintiff did not comply with the statute.
We conclude, however, that the circumstances of this case are
extraordinary. Specifically, we conclude that in cases where an
answer states falsely that a medical malpractice defendant is
board certified; the defense attorney does not correct the
misstatement, but repeats it in a certification in support of a
motion to dismiss the complaint and then repeats the false
statement throughout the motion brief; the court does not timely
conduct a Ferreira conference; and the court ultimately
dismisses the complaint based on the misrepresentation;
19 A-2072-14T2
extraordinary circumstances exist and the statutory time frame
should be adjusted accordingly.
Here, Dr. Shah never amended his answer to correct the
misstatement. Accordingly, we remand this matter and direct
that he file an amended answer within fifteen days of this
opinion. If he fails to do so, he will be deemed to have waived
the AOM requirement. Plaintiff shall have sixty days from the
date the amended answer is filed, extendable to 120 days on good
cause, to file an AOM. The trial court shall timely conduct a
Ferreira conference no later than ninety days after the amended
answer is filed unless defendants first notify the court they do
not dispute that the AOM complies with the statutory
requirements. This result serves the policy underlying the AOM
statute and preserves the procedural safeguards our Supreme
Court has established to prevent the type of "sideshow" that
occurred here due to a pleading's misstatement and the disregard
of the rules concerning basic motion practice.
C.
We turn to the LSM defendants. We begin by noting that
their motion to dismiss suffers from the same deficiency as that
of Dr. Shah, namely, it is based in part on a certification from
counsel rather than from officers or employees of LSM with
firsthand knowledge of the material facts. That deficiency
20 A-2072-14T2
continues in their appellate brief, where they assert that Dr.
Shah "is a practicing geriatric medicine physician, as well as
the Medical Director at Crane's Mill" without citing to the
appellate appendix or transcript as required by R. 2:6-2(a)(4).
In any event, on appeal the LSM defendants argue that
because Dr. Mehlman "is clearly an emergency medicine expert,"
and because Dr. Shah, the director of the facility, "is a
practicing geriatric physician," Dr. Mehlman is not equivalently
credentialed and therefore his AOM is inadequate. As we have
previously noted, there was no competent evidence before the
trial court to establish the underlying "facts" upon which Dr.
Shah and the LSM defendants based their motion. Moreover, the
trial court did not specifically address each count – and
liability theory – of the complaint.
We add the following concerning the LSM defendants. If, on
remand, these defendants move to dismiss the complaint - on a
competent record - the court should address each count of the
complaint before dismissing the case in its entirety. In doing
so, the court should bear in mind
[i]t is not the label placed on the action
that is pivotal but the nature of the legal
injury. Accordingly, when presented with a
tort or contract claim asserted against a
professional specified in the statute,
rather than focusing on whether the claim is
denominated as tort or contract, attorneys
and courts should determine if the claim's
21 A-2072-14T2
underlying factual allegations require proof
of a deviation from the professional
standard of care applicable to that specific
profession. If such proof is required, an
affidavit of merit is required for that
claim, unless some exception applies.
[Couri v. Gardner, 173 N.J. 328, 340
(2002).]
Additionally, the court should consider that an AOM is not
necessary to support a claim against a firm whose employee or
agent acted negligently if the claim against the firm is solely
based on a theory of vicarious liability or agency. Hill
Intern., Inc., supra, 438 N.J. Super. at 592-93. In such a
situation, however, the plaintiff would need to serve an AOM
from an expert with credentials equivalent to the employee or
agent who deviated from an applicable professional standard of
care. Ibid.
On the other hand, if plaintiff intends to pursue a
negligence claim other than one based on the medical malpractice
of the LSM agents and employees, then plaintiff will have to
provide an AOM from an appropriate professional. If the precise
credentials of the appropriate professional are uncertain,
either because plaintiff's liability theory is vaguely pleaded
or because defendants have not specified the credentials of the
appropriate professional or both, then the court should resolve
the issues at the Ferreira conference.
22 A-2072-14T2
Reversed and remanded. We do not retain jurisdiction.
23 A-2072-14T2