SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Candace A. Moschella v. Hackensack Meridian Jersey Shore University Medical Center (A-7-23) (088312)
Argued May 2, 2024 -- Decided July 11, 2024
SOLOMON, J., writing for a unanimous Court.
Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a licensed professional must produce an affidavit from an expert attesting to the merits of the claim. Issues regarding the expert affidavit -- the Affidavit of Merit (AOM) -- are to be resolved at an accelerated case management conference conducted by the trial court in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003), otherwise known as a Ferreira conference. In this appeal, the Court considers whether the trial court properly found, without holding a Ferreira conference, that the AOM submitted by plaintiff Candace Moschella was insufficient.
On July 20, 2018, plaintiff’s daughter, Alexandrianna Lowe, who suffered from an opioid addiction, was admitted to Hackensack Meridian Jersey Shore University Medical Center (JSUMC) for complications associated with Type 1 diabetes. Two days later, Lowe was found unresponsive. Hospital staff administered anti-opioid medication but failed to check Lowe’s blood sugar levels. An autopsy revealed Lowe had no illicit drugs in her system at the time of her death.
Plaintiff filed a complaint against JSUMC, Michael Carson, M.D., and John and Jane Does 1 through 100. At the time of the complaint’s filing, plaintiff had not yet been appointed administratrix ad prosequendum of her daughter’s estate, so she did not have access to Lowe’s medical records.
Defendants moved to dismiss Dr. Carson because he did not participate in any of the events that led to Lowe’s death. The motion included an affidavit identifying Dr. Vikas Singh as the attending physician at the time of Lowe’s death and two pages of Lowe’s medical records. The court granted defendants’ motion.
Plaintiff submitted an AOM prepared by Dr. Joseph Fallon that stated Fallon was “Board Certified in Internal Medicine, as was . . . Dr. Michael P. Carson and at least one of the John and Jane Doe [d]efendants sued therein (now known to be Dr. Vikas Singh, the physician in charge of the efforts to resuscitate [Lowe]).”
1 Defendants argued that the Fallon AOM was insufficient because it failed to name the surviving defendants in the action; did not state that Dr. Fallon was a “similarly licensed physician” as contemplated by the AOM statute; and failed to state that Dr. Fallon reviewed Lowe’s medical records.
Without a Ferriera conference, the trial court dismissed plaintiff’s complaint with prejudice for failure to submit a sufficient AOM. The Appellate Division affirmed. The Court granted certification. 255 N.J. 363 (2023).
HELD: The AOM plaintiff submitted complied with N.J.S.A. 2A:53A-27. First, an AOM does not need to specify that the affiant reviewed medical records. Second, a doctor to whom the affidavit attributed negligence is the agent of a named defendant and is identified in the AOM as one of the John or Jane Doe defendants included in the complaint. The Court stresses the importance of the Ferreira conference in professional negligence actions.
1. The dual purpose of the AOM statute is 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. To achieve that balance, plaintiffs bringing negligence suits against designated professionals are required to produce an affidavit from an expert attesting to the merits of the claim. The Court has construed the statute to require dismissal with prejudice for noncompliance. (pp. 12-14)
2. In Cornblatt v. Barow, the Court analyzed the required contents of a compliant AOM and found that the AOM statute does not require that the affiant’s qualifications must be included in the affidavit. 153 N.J. 218, 241 (1998). The Court declined to impose additional burdens on the plaintiff outside the statutory text. Id. at 242. In Fink v. Thompson, the Court found that an AOM referring to unknown defendants was insufficient with respect to a doctor who had been named in the complaint, but it concluded that the plaintiff had nevertheless substantially complied with the AOM statute because the doctor “was timely served with an affidavit and . . . report that clearly focused on his conduct and on the totality of the circumstances.” 167 N.J. 551, 560-64 (2001). And the Appellate Division held that a plaintiff complied with N.J.S.A. 2A:53A-27 where the AOM identified the defendants only as “defendant architects and engineers.” Medeiros v. O’Donnell & Naccarato, Inc., 347 N.J. Super. 536, 539, 544 (App. Div. 2002). (pp. 15-16)
3. The requirement of a Ferreira conference is meant to 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. The Court has stressed the need for a timely and effective Ferreira conference in all professional negligence actions. (pp. 16-19)
2 4. Here, defendants’ arguments focus on the Fallon AOM’s (1) failure to mention that any medical records were reviewed and its (2) failure to name a specific named defendant whose actions fell below the applicable standard of care. As to the first point, given that N.J.S.A. 2A:53A-27 does not refer to the review of medical records, affiants are not required to state that they reviewed the medical records of the injured party. See Cornblatt, 153 N.J. at 241. The Fallon AOM’s failure to include a reference to Lowe’s medical records thus does not render it insufficient. As to the second point, the AOM statute “is silent as to any requirement that the affidavit specifically identify a defendant by name.” Medeiros, 347 N.J. Super. at 540. And unlike the affidavit at issue in Fink, plaintiff’s AOM specifically names Dr. Singh as “one of the John and Jane Doe [d]efendants sued therein.” Furthermore, Dr. Singh was not required to be named individually in the complaint because he was an agent of JSUMC and was one of the John and Jane Does referred to in the complaint. (pp. 20-24)
5. The Court reiterates the need for a timely and effective Ferreira conference in all professional negligence actions. The conference is designed to identify and resolve issues regarding the AOM that has been served or is to be served. Failing to hold such a conference in this case gave rise to issues that could have been resolved. Because the Fallon AOM is compliant with N.J.S.A. 2A:53A-27’s requirements, the Court need not reach the equitable remedies of substantial compliance or extraordinary circumstances. The Court notes, however, that if it were to reach the question of extraordinary circumstances, the trial court’s failure to hold a Ferreira conference would weigh heavily in favor of such a finding. (pp. 24-25)
REVERSED and REMANDED.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER, and NORIEGA join in JUSTICE SOLOMON’s opinion. JUSTICE FASCIALE did not participate.
3 SUPREME COURT OF NEW JERSEY A-7 September Term 2023 088312
Candace A. Moschella, on behalf of herself and the Estate of Alexandrianna Lowe,
Plaintiffs-Appellants,
v.
Hackensack Meridian Jersey Shore University Medical Center and Dr. Michael P. Carson,
Defendants-Respondents.
On certification to the Superior Court, Appellate Division.
Argued Decided May 2, 2024 July 11, 2024
Christina Vassiliou Harvey argued the cause for appellants (Lomurro Munson, attorneys; Christina Vassiliou Harvey, of counsel and on the supplemental briefs, and Andrew Broome, on the supplemental briefs; Appellants having filed briefs in support of certification on their own behalf).
Russell J. Malta argued the cause for respondents (Orlovsky Moody Schaaff Conlon Bedell McGann & Gabrysiak, attorneys; Russell J. Malta, of counsel and on the briefs).
1 Catherine J. Flynn argued the cause for amici curiae Medical Society of New Jersey and American Medical Association (Flynn Watts, attorneys; Michael A. Moroney, on the brief).
JUSTICE SOLOMON delivered the opinion of the Court.
Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a
licensed professional must “produce an affidavit from an expert attesting to the
merits of the claim.” Meehan v. Antonellis, 226 N.J. 216, 230 (2016). Issues
regarding the expert affidavit -- the Affidavit of Merit (AOM) -- are to be
resolved at an accelerated case management conference conducted by the trial
court in accordance with Ferreira v. Rancocas Orthopedic Assocs., 178 N.J.
144, 154-55 (2003), otherwise known as a Ferreira conference. In this appeal,
we consider whether the trial court properly found, without holding a Ferreira
conference, that the AOM submitted by plaintiff Candace Moschella was
insufficient under N.J.S.A. 2A:53A-26 to -29.
Following the death of her daughter Alexandrianna Lowe, plaintiff filed
a complaint seeking damages under New Jersey’s Wrongful Death Act,
N.J.S.A. 2A:31-1 to -6, and for negligent infliction of emotional distress
against Hackensack Meridian Jersey Shore University Medical Center
(JSUMC), Michael Carson, M.D., and John and Jane Does 1 through 100.
Plaintiff alleged that while Lowe was admitted at JSUMC, “numerous other
2 persons, whose identities are currently unknown . . . were also involved in the
provision of medical care to” Lowe. As is required by N.J.S.A. 2A:53A-27,
plaintiff submitted an AOM in support of the validity of her claim. Dr. Joseph
Fallon prepared plaintiff’s AOM.
The trial court, without holding a Ferreira conference, granted
defendants’ motion to dismiss plaintiff’s complaint with prejudice, finding the
Fallon AOM insufficient under N.J.S.A. 2A:53A-27. The court reasoned that
the Fallon AOM did not state that Dr. Fallon reviewed any medical records,
and it did not indicate that any named defendant committed negligence. The
court further denied plaintiff’s claims that she substantially complied with the
AOM statute’s requirements or that extraordinary circumstances warranted
dismissal without prejudice. The Appellate Division affirmed.
We hold that the Fallon AOM complied with N.J.S.A. 2A:53A-27. First,
an AOM does not need to specify that the affiant reviewed medical records.
Second, a doctor to whom the affidavit attributed negligence is the agent of a
named defendant and is identified in the AOM as one of the John or Jane Doe
defendants included in the complaint. We therefore reverse the judgment of
the Appellate Division and remand the matter for further proceedings. We
stress once again the importance of the Ferreira conference in professional
negligence actions.
3 I.
A.
Given that this case did not reach the discovery phase before it was
dismissed with prejudice, we rely on the following facts alleged in plaintiff’s
complaint and responses to defendants’ motions to dismiss.
On July 20, 2018, Lowe, who suffered from an opioid addiction, was
admitted to JSUMC for complications associated with Type 1 diabetes.
Plaintiff claims that defendants were aware of both conditions at the time of
Lowe’s admission to the hospital.
Shortly after plaintiff left Lowe at the hospital on the night of July 22,
2018, plaintiff received a call from medical staff that Lowe was unresponsive.
Plaintiff later learned that staff found that “a syringe of unknown origin [had
been] inserted into [Lowe’s] IV line.” Plaintiff alleged that defendants
“negligently assumed” the syringe was related to Lowe’s opioid addiction and
believed that Lowe was overdosing. Hospital staff then administered Narcan,
an anti-opioid overdose medication, but failed to check Lowe’s blood sugar
levels. An autopsy conducted by the Monmouth County Medical Examiner’s
Office revealed that Lowe had no illicit drugs in her system at the time of her
death.
4 On July 21, 2020, plaintiff, acting pro se, filed a complaint on behalf of
Lowe’s estate, 1 alleging negligence under the Wrongful Death Act against
defendants. At the time of the complaint’s filing, plaintiff had not yet been
appointed administratrix or administratrix ad prosequendum of Lowe’s estate,
so she did not have access to Lowe’s medical records.
The complaint stated that Dr. Michael P. Carson
was in charge of [Lowe’s] medical care while she was an inpatient at [JSUMC] and numerous other persons, whose identities are currently unknown to Plaintiff (and therefore are herein referred as Defendants John and Jane Does Nos. 1 through 100 (the “Doe Defendants”)), were also involved in the provision of medical care to [Lowe] while she was an inpatient at [JSUMC].
Defendants filed an answer on August 25, 2020, and later moved,
without opposition, to dismiss Dr. Carson from the action because he did not
participate in any of the events that led to Lowe’s death. The motion included
an affidavit identifying Dr. Vikas Singh as the attending physician at the time
of Lowe’s death and two pages of Lowe’s medical records. The court granted
defendants’ motion, leaving JSUMC and the John and Jane Does as the
remaining defendants.
1 Plaintiff also alleged, on her own behalf, negligent infliction of emotional distress against all defendants. 5 B.
On September 28, 2020, the court informed plaintiff of a Ferreira
conference scheduled for September 30, 2020, but that conference was
postponed. The court rescheduled but ultimately cancelled the Ferreira
conference. 2
On October 28, 2020, defendants moved to dismiss plaintiff’s complaint
for failure to state a cause of action because she had not proffered an AOM.
Three days later, plaintiff filed an AOM authored by retired nurse Jennifer
Colangelo.
Plaintiff filed opposition to defendants’ motion on November 24, 2020,
and in support submitted a letter from Dr. Tirissa Reid, a board-certified
endocrinologist, and a letter from Rachel Leininger, R.N., which pointed out
the importance of checking the blood sugar levels of an unresponsive diabetic
patient.
The court held oral argument on defendants’ motion to dismiss on
December 18, 2020, and concluded that although plaintiff failed to file an
2 According to the court, the Ferriera conference never took place because “there was no [AOM]” and a Ferreira conference “is not designed to say . . . you need to file an [AOM].” In a later hearing, the trial court noted that instead of a Ferreira conference, plaintiff “had a conversation with someone who works in [the] civil assignment office . . . and w[as] made aware . . . that an [AOM] was needed.” 6 AOM within sixty days of defendants’ answer, a sixty-day extension had been
granted and plaintiff had until December 23, 2020 to file an AOM.
On December 23, 2020, plaintiff submitted Dr. Fallon’s curriculum vitae
and AOM stating that he is “a licensed physician in the State of New Jersey”
and at “the time of the conduct complained of” was “Board Certified in
Internal Medicine, as was . . . Dr. Michael P. Carson and at least one of the
John and Jane Doe [d]efendants sued therein (now known to be Dr. Vikas
Singh, the physician in charge of the efforts to resuscitate [Lowe]).” As part
of the AOM, Dr. Fallon also provided that he
reviewed the [c]omplaint and, based upon [his] education, training, experience and knowledge of the facts as alleged therein, [found] that the allegations therein allege a viable cause of action in that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by one or more of the [d]efendants therein (including Dr. Singh, one of the John and Jane Doe [d]efendants sued therein) in the treatment, practice or work that is the subject of the [c]omplaint fell outside acceptable professional or occupational standards or treatment practices.
In response, defendants argued that the Fallon AOM was insufficient
under N.J.S.A. 2A:53A-27 and plaintiff’s complaint should therefore be
dismissed with prejudice. Specifically, defendants claimed that the AOM
failed to name the surviving defendants in the action, that the AOM did not
state that Dr. Fallon was a “similarly licensed physician” as contemplated by
7 the AOM statute, and that Dr. Fallon failed to state that he reviewed Lowe’s
medical records.
Arguing extraordinary circumstances, plaintiff advised the trial court
that her inability to be appointed administratrix ad prosequendum of her
daughter’s estate and the COVID-19 pandemic prevented her from securing
Lowe’s medical records. Notwithstanding, and without a Ferriera conference,
on January 4, 2021, the trial court granted defendants’ motion to dismiss
plaintiff’s complaint with prejudice for failure to submit a sufficient AOM.
In an accompanying written decision, the court reasoned that although
Dr. Fallon is a “similarly credentialed expert” capable of submitting an AOM
in this case, the Fallon AOM was insufficient because Dr. Fallon did not
indicate that any named defendant’s care fell outside acceptable professional
or occupational standards. The court explained that “Dr. Fallon does not have
the authority to cause [Dr. Singh] to be a named defendant through plaintiff’s
use of the ‘John and Jane Doe’ designations in the complaint.” The court
further found that Dr. Fallon’s AOM violated the statute by failing to indicate
that he reviewed any of Lowe’s medical records.
Additionally, the court did not find that plaintiff substantially complied
with the AOM statute because “an appropriate [AOM] by a medical
professional likely cannot be issued without a review by the expert of Lowe’s
8 medical records.” 3 Similarly, the court determined that plaintiff did not
demonstrate extraordinary circumstances and subsequently dismissed her
complaint with prejudice because she “received notice of the [AOM]
requirement when she received the Ferreira conference notice and spoke with
court staff.”
Plaintiff was appointed administratrix ad prosequendum on February 12,
2021, nearly two months after the deadline for filing her AOM, and more than
a month after the trial court dismissed her complaint. Plaintiff moved for
reconsideration of the dismissal of her complaint and later moved for leave to
amend her complaint to add Dr. Singh as a named defendant.
After oral argument, the court denied plaintiff’s motion to reconsider,
finding that the AOM was insufficient and did not substantially comply with
N.J.S.A. 2A:53A-27. The court later issued an order denying plaintiff’s
motion to amend her complaint because “[a]n amendment of the complaint
cannot be granted after the case [was] dismissed with prejudice[.]”
C.
On appeal, plaintiff argued that the trial court erred as a matter of law in
finding that the Fallon AOM was insufficient and, in the alternative, that the
3 Although the trial court listed the five prongs a plaintiff must establish for substantial compliance, the court did not analyze them. 9 trial court should have found that the AOM substantially complied with
N.J.S.A. 2A:53A-27, or extraordinary circumstances warranted dismissal
without prejudice.
The Appellate Division affirmed the trial court’s decision, agreeing that
the Fallon AOM was insufficient because it did not allege negligence against a
named defendant. The Appellate Division found that plaintiff did not
substantially comply with the AOM statute because she “was aware she
required a compliant AOM to support her complaint” and was granted an
extension to procure one, but failed to do so. Concluding that “plaintiff had
ample opportunity to provide an AOM that complied with the statute,” the
court found that plaintiff failed to demonstrate extraordinary circumstances
and dismissal with prejudice was appropriate.
D.
We granted plaintiff’s petition for certification. 255 N.J. 363 (2023).
We also granted leave to participate as amici curiae to the Medical Society of
New Jersey (MSNJ) and the American Medical Association (AMA).
II.
Plaintiff contends that the Fallon AOM is sufficient because N.J.S.A.
2A:53A-27 does not require that the licensed professional named in the AOM
be a named defendant. Plaintiff also argues that N.J.S.A. 2A:53A-27 does not
10 require the affiant to enumerate the materials reviewed or to provide their
credentials.
Alternatively, plaintiff contends that she substantially complied with the
requirements of N.J.S.A. 2A:53A-27 because defendants were not prejudiced,
plaintiff attempted to obtain an AOM showing that at least one agent of
JSUMC breached the standard of care, defendants had reasonable notice of her
claims, and she submitted a detailed explanation justifying any failure to
comply with the statute. Plaintiff also argues that if the AOM is insufficient
and does not substantially comply with the AOM statute, extraordinary
circumstances warrant dismissal of her complaint without prejudice because
she was not appointed administratrix ad prosequendum of her daughter’s estate
until after the AOM deadline, the COVID-19 pandemic delayed her from
procuring an AOM, and the court did not hold a Ferreira conference.
Defendants argue that the Fallon AOM does not meet the requirements
of N.J.S.A. 2A:53A-27 because Dr. Fallon relied on plaintiff’s complaint,
rather than Lowe’s medical records, and the AOM failed to identify a named
defendant whose actions fell below the applicable standard of care.
Defendants also contend therefore that the Fallon AOM does not substantially
comply with N.J.S.A. 2A:53A-27 because no specific caregiver is alleged to
have done anything that fell outside the relevant standard of care, and the
11 absence of a Ferreira conference does not relieve a plaintiff of the obligation to
timely serve a conforming AOM. Defendants submit that plaintiff failed to
demonstrate extraordinary circumstances, arguing that plaintiff’s reliance on
the lack of a Ferreira conference is “disingenuous” and that the dismissal of
plaintiff’s claims are unrelated to the COVID-19 pandemic.
Amici curiae MSNJ and AMA jointly agree with defendants that
plaintiff’s failure to obtain a sufficient or substantially compliant AOM and
her failure to demonstrate exceptional circumstances warrant dismissal of her
complaint with prejudice.
III.
The Legislature enacted the AOM statute “as part of a 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 (2001) (alteration in original) (quoting Office of the
Governor: News Release, Gov. Christine Todd Whitman (June 29, 1995)).
We have long recognized that the dual purpose of the AOM statute is “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.” Ferreira,
178 N.J. at 150 (quoting Hubbard v. Reed, 168 N.J. 387, 395 (2001)). To
12 achieve that balance, plaintiffs bringing negligence suits against designated
professionals are required “to produce an affidavit from an expert attesting to
the merits of the claim.” Meehan, 226 N.J. at 230. Physicians and health care
facilities are among the “licensed persons” covered by the AOM statute.
N.J.S.A. 2A:53A-26(f), (j).
In an
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.
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 [N.J.S.A. 2A:53A-41]. . . . 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.
[N.J.S.A. 2A:53A-27 (emphases added).]
13 An AOM is not 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.” N.J.S.A. 2A:53A-28. “If
the plaintiff fails to provide an affidavit or a statement in lieu thereof . . . it
shall be deemed a failure to state a cause of action.” N.J.S.A. 2A:53A-29. We
have “construed the statute to require dismissal with prejudice for
noncompliance.” A.T. v. Cohen, 231 N.J. 337, 346 (2017).
“The [AOM statute] is the exclusive authority governing the document
to be filed.” Cornblatt v. Barow, 153 N.J. 218, 238 (1998). Because the
statute’s aim is “to identify and eliminate unmeritorious claims against
licensed professionals and to permit meritorious claims to proceed efficiently
through the litigation process,” our courts recognize the doctrines of
substantial compliance and extraordinary circumstances, which can “temper
the draconian results of an inflexible application of the statute” when an AOM
is insufficient. Meehan, 226 N.J. at 229 (quoting Ferreira, 178 N.J. at 151).
B.
1.
In several cases, our courts have considered the requirement to name
allegedly negligent defendants in an AOM.
14 In 1998, we applied the AOM statute’s provisions to a legal malpractice
claim brought by a divorcee against her lawyer. Cornblatt, 153 N.J. at 236.
We held in Cornblatt that, although N.J.S.A. 2A:53A-27 plainly requires the
submission of an AOM, nothing in the statute’s history “suggests the
Legislature intended to foreclose the familiar doctrine of substantial
compliance in the [AOM] context.” Id. at 240. Analyzing the required
contents of a compliant AOM, we found that although the statute separately
“lists the affiant’s qualifications as mandatory requirements, . . . the statute
does not describe those requirements as information that must be included in
the affidavit.” Id. at 241 (emphasis added). We therefore declined to impose
additional burdens on the plaintiff outside the statutory text. Id. at 242.
We further elaborated on the AOM’s requirements in Fink v. Thompson,
in which the plaintiff filed a complaint against the defendant doctor, two
hospitals, and other unnamed physicians. 167 N.J. 551, 557 (2001). The
plaintiff timely submitted an AOM against the defendant Dr. Strobel, but the
AOM did not mention Dr. Strobel by name. Id. at 559. We held that the
AOM’s reference to “unknown” physicians did not satisfy N.J.S.A. 2A:53A-27
because Dr. Strobel was a named defendant and the AOM did not specifically
refer to him. Id. at 560-61 (“N.J.S.A. 2A:53A-27 requires that a plaintiff
provide an [AOM] to each defendant detailing a reasonable probability that at
15 least one claim concerning each defendant has merit.”). We concluded,
however, that the plaintiff had substantially complied with the AOM statute
because “[Dr.] Strobel was timely served with an affidavit and . . . report that
clearly focused on his conduct and on the totality of the circumstances
attending [the hospital’s] acceptance of [the patient] into its care under
Strobel’s authorization.” Id. at 564. We therefore held that the plaintiff’s
complaint should not have been dismissed. Id. at 565.
One year after Fink, the Appellate Division held that a plaintiff complied
with N.J.S.A. 2A:53A-27 where the AOM identified the defendants only by
occupation as “defendant architects and engineers.” Medeiros v. O’Donnell &
Naccarato, Inc., 347 N.J. Super. 536, 539 (App. Div. 2002). The appellate
court explained that although “the better practice would be for plaintiffs to
identify, by name, the specific defendant alleged to have committed
malpractice,” the AOM identifying defendants by occupation was sufficient
because there was only one “defendant engineer involved in the project.” Id.
at 542.
2.
Through case law, we have developed a requirement that the compliance
of an AOM with the AOM statute be examined at a conference not long after
the pleadings are filed.
16 To combat the “avalanche of litigation” generated by the AOM statute,
we “declared in Ferreira that an accelerated case management conference
should be conducted within ninety days of the filing of an answer to identify
and address any and all issues concerning the [AOM] served or not served by
the plaintiff.” Meehan, 226 N.J. at 229 (emphasis added). Ferreira dealt with
a case of attorney inadvertence: the plaintiff obtained an AOM ten days after
receipt of an answer but filed it eighteen days out of time. 178 N.J. at 147.
We held that when a plaintiff obtains an AOM within the 120-day period
referred to in the statute and serves the AOM outside that timeframe but before
the defendant files their motion to dismiss, the complaint will not be
dismissed. Id. at 154.
The requirement of a Ferreira conference within ninety days of the filing
of an answer is meant “[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.” Ibid. We reasoned that
[e]xpediting 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 [AOM] has been served on [the] defendant. If an [AOM] has been served, defendant will be required to
17 advise the court whether he has any objections to the adequacy of the [AOM]. If there is any deficiency in the [AOM], plaintiff will have to the end of the 120-day time period to conform the [AOM] to the statutory requirements. If no [AOM] has been served, the court will remind the parties of their obligations under the statute and case law.
[Id. at 154-55 (emphasis added).]
In 2016, “we return[ed] to the vexing and recurring issue” of the
sufficiency of an AOM when a plaintiff sought treatment for sleep apnea from
an orthodontist, who failed to inform the plaintiff that the treatment may
dislocate his teeth. Meehan, 226 N.J. at 220. The plaintiff, who was self-
represented, submitted an AOM from a dentist who specialized in
prosthodontics and the treatment of sleep apnea. Ibid. The defendant asserted
that because a dentist, not a “like qualified” orthodontist, authored the AOM, it
did not meet the enhanced credential requirements for AOMs submitted in
professional negligence cases under the Patients First Act (PFA), N.J.S.A.
2A:53A-41. Id. at 224. We first held that the PFA’s constraints applied only
to physicians in medical malpractice actions, which was not the case in
Meehan. Id. at 235. Finding that the dentist affiant was not bound by the
PFA, we held that the AOM statute “requires no more than that the person
submitting an [AOM] be licensed in this state or another and ‘have particular
18 expertise in the general area or specialty involved in the action.’” Id. at 237
(quoting N.J.S.A. 2A:53A-27).
Importantly, we reasoned that “[a]n effective Ferreira conference would
probably have prevented [the] appeal” because “[t]he trial court pointedly
declined to resolve the issues presented by [the] plaintiff.” Id. at 240. We
reiterated “the need for a timely and effective Ferreira conference in all
professional negligence actions” because “[t]he conference is designed to
identify and resolve issues regarding the [AOM] that has been served or is to
be served.” Id. at 241.
IV.
Informed by those principles, we turn to the question presented by this
appeal: whether plaintiff’s complaint should have been dismissed with
prejudice for failure to comply with N.J.S.A. 2A:53A-27 when the AOM
identified an agent of defendant JSUMC who was not himself a named
defendant and did not state that medical records were reviewed.
Because this appeal involves a matter of statutory interpretation, our
review is de novo. Cashin v. Bello, 223 N.J. 328, 335 (2015). When
interpreting the AOM statute, as with any statute, “[t]he objective of that task
‘is to discern and effectuate the intent of the Legislature.’” Meehan, 226 N.J.
19 at 232 (quoting Shelton v. Restaurant.com, Inc., 214 N.J. 419, 428-29 (2013)).
“In most instances, the best indicator of that intent is the plain language chosen
by the Legislature.” Cashin, 223 N.J. at 335 (quoting State v. Gandhi, 201
N.J. 161, 176 (2010)). We reiterate here that the text of the AOM statute “is
the exclusive authority governing the document to be filed,” and “[t]he issue of
what information must be included in the [AOM] is one of statutory
construction.” Cornblatt, 153 N.J. at 218, 241.
Here, defendants do not contest either that Dr. Fallon had access to the
two pages of medical records attached to defendants’ answer or that Dr. Fallon
is a similarly qualified licensed person under the AOM statute and the PFA. 4
Defendants’ arguments focus on the Fallon AOM’s (1) failure to mention that
any medical records were reviewed and its (2) failure to name a specific named
defendant whose actions fell below the applicable standard of care. We
consider each argument in turn.
4 Because this is a medical malpractice action against a physician, the PFA and its attendant requirements are implicated. Under N.J.S.A. 2A:53A-41(a), a physician submitting an AOM must be a licensed physician with the same specialty as the allegedly negligent doctor. 20 1.
As we held in Cornblatt, the “the only part of the statute detailing what
must be included in the [AOM]” is the specification “‘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.’” 153 N.J. at 241 (quoting N.J.S.A. 2A:53A-27). Given that the
AOM statute does not make any reference to the review of medical records, we
conclude that affiants are not required to state that they reviewed the medical
records of the injured party.
Further, although N.J.S.A. 2A:53A-28 provides relief where a defendant
refuses to provide medical records, creating an inference that medical records
must be reviewed before submitting an AOM, that inference does not import a
requirement that affiants state in the AOM that they reviewed the patient’s
medical records. We thus find that the Fallon AOM’s failure to include a
reference to Lowe’s medical records does not render it insufficient.
We turn next to the findings of the trial court and the Appellate Division
that the Fallon AOM was insufficient for failing to allege negligence against a
named defendant. Plaintiff here alleged negligence against JSUMC -- a named
21 defendant -- by and through its agents, the John and Jane Doe defendants 1
through 100, on a theory of vicarious liability.
To establish vicarious liability, a plaintiff must demonstrate an
employment relationship and that the alleged tort occurred in the scope of that
employment. Carter v. Reynolds, 175 N.J. 402, 408-09 (2003). “Although as
a general rule of tort law, liability must be based on personal fault,” an
employer will be held vicariously liable under the doctrine of respondeat
superior “for the negligence of an employee causing injuries to third parties, if,
at the time of the occurrence, the employee was acting within the scope of his
or her employment.” Ibid.
Once JSUMC provided plaintiff with the two pages of medical records,
Dr. Fallon was able to identify Dr. Singh as “one of the John and Jane Doe
[d]efendants sued therein.” We assume for the purposes of resolving the issue
raised in this appeal, because it is uncontested that Dr. Singh was JSUMC’s
agent, that any alleged negligence occurred within the scope of that agency
relationship.
As the Appellate Division correctly stated in Medeiros, the AOM statute
“is silent as to any requirement that the affidavit specifically identify a
defendant by name.” 347 N.J. Super. at 540. “[W]hen a statute is susceptible
of an interpretation true to its purpose and that permits plaintiffs to proceed
22 with meritorious claims, we will not add requirements not explicitly set forth
that deny plaintiffs their day in court.” Burns v. Belafsky, 166 N.J. 466, 470
(2001).
At the time of plaintiff’s complaint, plaintiff did not have access to
Lowe’s medical records. Plaintiff therefore raised this claim against JSUMC
and “other persons, whose identities are currently unknown (and therefore are
herein referred as [d]efendants John and Jane Does Nos. 1 through 100[)].”
The Fallon AOM sufficiently identifies Dr. Singh as “one of the John and Jane
Doe [d]efendants sued therein.”
In Fink, we found that the AOM was insufficient because it referenced
“unknown” physicians. 167 N.J. at 560-61. By contrast, plaintiff’s AOM
specifically names Dr. Singh as “one of the John and Jane Doe [d]efendants
sued therein.” In accordance with Medeiros, the Fallon AOM named “the
specific defendant alleged to have committed malpractice.” 347 N.J. Super. at
542.
Furthermore, to the extent that Dr. Singh is not a named defendant in the
complaint, we hold that he was not required to be named individually in the
complaint because he was an agent of JSUMC and was one of the John and
Jane Does referred to in the complaint. Again, plaintiff was unable to obtain
Lowe’s medical records, which made it impossible to accurately identify the
23 physicians or nurses who attended to her daughter on the night she died.
However, upon receipt of defendants’ answer, accompanied by two pages of
records that explained Dr. Singh’s role, plaintiff successfully identified Dr.
Singh as both an agent of JSUMC and “one of the John and Jane Doe
[d]efendants sued therein.” It would therefore be inconsistent with our
precedent and the purpose of the statute to uphold a ruling denying this
plaintiff the ability to proceed with this medical malpractice claim.
We reiterate here, as we did in Meehan, “the need for a timely and
effective Ferreira conference in all professional negligence actions” because
“[t]he conference is designed to identify and resolve issues regarding the
[AOM] that has been served or is to be served.” 226 N.J. at 241. Failing to
hold such a conference in this case gave rise to issues that could have been
resolved. For example, the fact that her late appointment as administratrix ad
prosequendum deprived plaintiff of the legal authority to request Lowe’s
medical records from JSUMC would have explained any delay. Additionally,
it would have been made clear that Dr. Fallon benefited from Lowe’s medical
records identifying Dr. Singh.
Because we find the Fallon AOM is compliant with N.J.S.A. 2A:53A-
27’s requirements, we need not reach the equitable remedies of substantial
compliance or extraordinary circumstances. If we were to reach the question
24 of extraordinary circumstances, however, the trial court’s failure to hold a
Ferreira conference would weigh heavily in favor of such a finding. See A.T.,
231 N.J. at 346 (“The Ferreira conference was designed to be the Judiciary’s
key tool to promote satisfaction of the [AOM statute’s] salutary policy
goals.”). We emphasize once again the conference’s importance in
professional negligence actions.
We hold that the Fallon AOM is sufficient, and plaintiff’s complaint
should not have been dismissed. We therefore vacate the dismissal of
plaintiff’s complaint, reinstate the complaint, and remand for the trial court to
consider plaintiff’s motion to amend her complaint to add Dr. Singh as a
defendant. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (“We
have made clear that ‘Rule 4:9-1 requires that motions for leave to amend be
granted liberally’ . . . .” (quoting Kernan v. One Wash. Park Urb. Renewal
Assocs., 154 N.J. 437, 456-57 (1998))).
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE- LOUIS, WAINER APTER, and NORIEGA join in JUSTICE SOLOMON’s opinion. JUSTICE FASCIALE did not participate.