NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3719-22
DORIANA R. GONZALEZ and RAFAEL GONZALEZ,
Plaintiffs-Respondents, APPROVED FOR PUBLICATION v. February 16, 2024
MAHER IBRAHIM, APPELLATE DIVISION INTERVENTIONAL PAIN MANAGEMENT ASSOCIATES, LLC, HAMILTON SURGERY SERVICES, PA, and HAMILTON SURGICAL CENTER, LLC,1
Defendants-Respondents,
and
PERRY LOESBERG, M.D.,
Defendant-Appellant. ____________________________
Argued January 9, 2024 – Decided February 16, 2024
Before Judges Sumners, Smith and Perez Friscia. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2630-21.
1 Hamilton Surgical, PA (d/b/a Hamilton Surgical Services) improperly pled as Hamilton Surgery Services, PA. Erika L. Mohr argued the cause for the appellant (Blumberg & Wolk, LLC, attorneys; Jay Judah Blumberg, of counsel and on the briefs; Erika L. Mohr, on the briefs).
Jonathan H. Lomurro argued the cause for respondents Doriana Gonzalez and Rafael Gonzalez (Lomurro Munson, LLC, attorneys; Jonathan H. Lomurro, of counsel and on the brief; Jeffrey John Niesz, on the brief).
Buckley, Theroux, Kline & Cooley LLC, attorneys for respondent Hamilton Surgical, PA and Hamilton Surgical Center, LLC (Sean Patrick Buckley and Sarah Lois Kelley, on the brief).
Orlovsky Moody Schaaff Conlon Bedell McGann & Gabrysiak, attorneys for respondents Maher Ibrahim, M.D. and Interventional Pain Management Associates, LLC (Michael E. McGann and Allison A. Krilla, on the brief).
The opinion of the court was delivered by
SUMNERS, JR., C.J.A.D.
In this medical malpractice action, we granted defendant Perry Loesberg,
M.D.,2 leave to appeal the Law Division's March 17, 2023 and June 20, 2023
orders denying his motions to dismiss the amended complaint by Doriana
2 We refer to Dr. Loesberg as defendant for purposes of clarity and because the appeal does not affect the other defendants.
A-3719-22 2 Gonzalez (plaintiff) 3 and Rafael Gonzalez due to their failure to serve an
affidavit of merit (AOM) within 120 days of the filing of defendant's answer in
accordance with N.J.S.A. 2A:53A-27. Having considered the parties'
arguments, the record, and the applicable legal principles, we affirm based on
our conclusion extraordinary circumstances existed for the motion court to
extend the time for plaintiff to submit an AOM.
I
Beginning in 2019, plaintiff began receiving pain management treatment
from Maher Ibrahim, M.D. In June 2020, plaintiff authorized Dr. Ibrahim to
administer injections into several medial nerve branches in her lower back at
levels L3 to L4. However, Dr. Ibrahim injected the nerve blocks at the wrong
levels, C3 to C5 in plaintiff's neck. Defendant, an anesthesiologist, administered
anesthesia prior to Dr. Ibrahim's procedure.
On December 14, 2021, plaintiff filed a medical malpractice complaint
suing Dr. Ibrahim, Interventional Pain Management Associates, LLC, Hamilton
3 We refer to Doriana Gonzalez as plaintiff for purposes of clarity and because Rafael Gonzalez, her husband, asserted only a per quod claim in the personal injury complaint, and that claim is not pertinent to the issues raised on appeal. A-3719-22 3 Surgical, PA, and Hamilton Surgical Center, LLC. 4 Although defendant was
mentioned several times in the complaint, he was not a named defendant.
After Dr. Ibrahim and his practice group, Interventional Pain
Management, filed their answer, plaintiff moved to waive the AOM
requirement. On March 31, 2022, the trial court entered an order (AOM waiver
order) "having found this matter to fall within the common knowledge
doctrine,[5] an [AOM] is not required."
The next day, Hamilton Surgical, PA and Hamilton Surgical Center
(collectively "the Hamilton entities") filed their answer, asserting cross -claims
for contribution, indemnification, and/or settlement credit against their co-
4 Dr. Ibrahim, Interventional Pain Management Associates, LLC, Hamilton Surgical, PA, and Hamilton Surgical Center, LLC take no position in this appeal other than seeking to reserve their rights to assert, at trial, the alleged negligence of Dr. Loesberg should he be dismissed from the case because of plaintiff’s failure to serve an AOM regarding his conduct. Given our decision to affirm the orders denying Dr. Loesberg's motions to dismiss, the co-defendants' contentions need not be addressed. 5 Under the common knowledge doctrine, an AOM is not required when jurors can determine a defendant's negligence based on their common knowledge, using their "ordinary understanding and experience," without the need for an expert to establish the defendant's duty of care or the breach of that duty. Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Est. of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).
A-3719-22 4 defendants. They also demanded an AOM within the statutory time limits. The
Hamilton entities have not challenged the applicability of the AOM waiver order
to plaintiff's claims against them.
Plaintiff subsequently moved to amend her complaint naming Dr.
Loesberg as a defendant. This was due to Ziad Hadaya, M.D., Hamilton
Surgical's head of surgery, sending a text message––before the entry of the AOM
waiver order and the answer filed by the Hamilton entities––to plaintiff's
attorney's firm stating: "Dr[.] Ibrahim and [Dr. Loesberg,] the
anesthesiologist[,] are the people who are responsible for the malpractice case."
The motion was granted on May 13, 2022. In his answer filed on July 7, 2022,
defendant demanded plaintiffs provide an AOM.
After defendant filed an answer, the trial court did not schedule a Ferreira6
conference to address the timely filing of an AOM regarding plaintiff's claims
against defendant. Eventually, 134 days after defendant's answer was filed,
defendant moved to dismiss plaintiff's complaint for failure to provide an AOM.
6 In Ferreira v. Rancocas Orthopedic Associates, our Supreme Court mandated a "case management conference be held within ninety days of the service of an answer in all malpractice actions," at which "the court will address all discovery issues, including whether an [AOM] has been served on [the] defendant" and "whether [the defendant] has any objections to the adequacy of the affidavit." 178 N.J. 144, 154-55 (2003). A-3719-22 5 Defendant contended the AOM waiver order, which was based on the common
knowledge doctrine, did not apply to him because he had "no role in the insertion
of [the] needle and the injections" performed by Dr. Ibrahim, and his
administration of anesthesia is "distinctly different" from Dr. Ibrahim's
obligations during the procedure. Defendant stressed that his answer demanded
an AOM, and the 120 days allowed under N.J.S.A. 2A:53A-27 to provide an
AOM had expired. The motion judge, who was not the judge who entered the
AOM waiver order, was unpersuaded and entered the March 13, 2023 order
denying the motion and scheduling a Ferreira conference for April 3, 2023,
regarding claims against defendant.
At the Ferreira conference, the judge rejected defendant's contention that
it was too late for plaintiff to submit an AOM regarding claims against him. The
judge reasoned plaintiff should be afforded additional time to produce an AOM
because: (1) defendant was not a named party in the action when the initial
Ferreira conference was conducted, thus the need for an AOM regarding any
allegations against him were not discussed at that time; and (2) once the
amended complaint added defendant as a party, no follow-up Ferreira
conference was scheduled until after the 120-day AOM filing period against him
had expired. On April 11, 2023, the judge entered an order directing plaintiff to
A-3719-22 6 "file an appropriate [AOM] on or before May 3, 2023." Plaintiff responded
promptly, filing an AOM nine days later on April 20, 2023.
Defendant thereafter filed a second motion to dismiss plaintiff's complaint
for failure to timely serve an AOM. At oral argument on June 14, 2023,
defendant asserted that under "the plain language of [N.J.S.A. 2A:53A-27,] the
timing start[ed]" on July 7, 2022, when he filed his answer, and "[the statutory
maximum of] 120 days ended on November 4, 2022." Defendant maintained
plaintiff did not substantially comply in providing an AOM because she did not
submit it until April 20, 2023, nor were there extraordinary circumstances
warranting that she be given additional time to comply as expressed by the
Supreme Court in A.T. v. Cohen, 231 N.J. 337, 350 (2017).
Defendant also asserted plaintiff's reliance on Rule 4:5B-4(c)7 was
misplaced because the Rule only applies in cases where "a party is added and an
7 Rule 4:5B-4(c) provides:
Later Added Defendants. For any defendant joined after the case management conference, any party required to provide an [AOM] pursuant to the statute must also serve on such defendant a copy of the [AOM], along with a reasonably current curriculum vitae of the affiant, within thirty (30) days of joinder of such additional defendant. Where there is no objection to the sufficiency of the [AOM], a consent order to that
A-3719-22 7 [AOM] has been served . . . upon that party." In opposition, plaintiff's counsel
argued that because the AOM waiver "order [does not] specify any particular
party that it appli[ed] to . . . it was [his] office's position that this case —the
entire case was one of common knowledge because some of the facts
surrounding [defendant] were in [her] initial complaint." The judge reserved
decision.
In a June 20, 2023 order, the judge denied defendant's motion, adding:
"The [c]ourt retains the right to amplify the record pursuant to the New Jersey
Court Rules. The [c]ourt has previously set forth on the record at the time of
oral argument on June 14, 2023, its reasons with respect to entry of this order."
No amplification was filed, and the oral argument transcript does not
definitively indicate the judge's reasons for denying defendant's second motion
to dismiss. Nevertheless, we clearly infer from the judge's discussion of Meehan
effect shall be submitted by the party required to provide an [AOM] within sixty (60) days of the service of the affidavit and curriculum vitae. Any objections to the sufficiency of the [AOM] must be in writing and served by the added defendant within fifteen (15) days of its receipt. If any dispute concerning the sufficiency of the affidavit is not resolved within sixty (60) days of service of the objections, the added defendant shall promptly file a motion to resolve the issue.
A-3719-22 8 v. Antonellis, 226 N.J. 216, 240 (2016), that the judge believed a timely Ferreira
conference to determine if the AOM waiver order applied to claims against
defendant might have avoided defendant's dismissal motions. The judge also
referred to the need for giving plaintiff additional time to file an AOM as being
akin to the situation in A.T., 231 N.J. at 350, where the Court reasoned that a
"perfect storm" took place which constituted extraordinary circumstances to
extend time to file an AOM.
In his appeal, defendant argues the complaint against him should have
been dismissed with prejudice because the AOM waiver order did not apply to
claims against him, and plaintiff failed to file a timely AOM before the statutory
120-day deadline expired. Defendant asserts the motion judge misapplied A.T.
in finding exceptional circumstances existed to afford plaintiff additional time
to file an AOM after the 120-day filing period.
II
In a professional malpractice action, an AOM requires a plaintiff "to make
a threshold showing [a] claim is meritorious, in order that meritless lawsuits
readily [can] be identified at an early state of litigation." Fink v. Thompson,
167 N.J. 551, 559 (2001) (quoting In re Petition of Hall, 147 N.J. 379, 391
(1997)). An AOM is due within sixty days after a defendant files an answer but
A-3719-22 9 may be filed within 120 days "upon a finding of good cause." N.J.S.A. 2A:53A-
27; Burns v. Belafsky, 166 N.J. 466, 475-77 (2001) (noting a motion to extend
the deadline may be made at any point before the 120-day filing period
concludes). Within ninety days of the service of a defendant's answer, the court
must conduct a Ferreira conference to allow the parties to raise and address
issues pertaining to the sufficiency of an AOM. A.T., 231 N.J. at 346; Ferreira,
178 N.J. at 155. The legislative goal of requiring an AOM is to "facilitate the
weeding-out of frivolous lawsuits." A.T., 231 N.J. at 346.
A plaintiff who fails to provide an AOM runs the risk of having a
complaint dismissed with prejudice for "failure to state a cause of action," even
if the complaint sets forth a meritorious claim. N.J.S.A. 2A:53A-29; Buck v.
Henry, 207 N.J. 377, 382 (2011). Still, to "temper the draconian results of an
inflexible application of the" AOM filing deadline, our courts have allowed an
extension of the 120-day deadline where equity applies. A.T., 231 N.J. at 346
(quoting Ferreira, 178 N.J. at 151). Hence, "a complaint will be dismissed
without prejudice if there are extraordinary circumstances to explain
A-3719-22 10 noncompliance." Ferreira, 178 N.J. at 151. 8 The court would then allow a
plaintiff an extension of time to file an AOM.
There is no one-size-fits-all definition of what constitutes extraordinary
circumstances to warrant an extension of time to file an AOM beyond the filing
deadline. Yet, our courts have provided some guidance based upon "a fact -
sensitive [case-by-case] analysis." Tischler v. Watts, 177 N.J. 243, 246 (2003)
(alteration in original) (quoting Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)).
Extraordinary circumstances do not exist due to: an "undisputed pattern
of inattentiveness" and "outright ignorance" by an attorney of requirements
under the AOM statute, Estate of Yearby v. Middlesex County, 453 N.J. Super.
388, 404-07 (App. Div. 2018); the sole fact that the trial court failed to hold a
Ferreira conference, Paragon Contractors, Inc. v. Peachtree Condominium
Ass'n, 202 N.J. 415, 426 (2010); a delay in obtaining the plaintiff's medical
records, Davies v. Imbesi, 328 N.J. Super. 372, 377-78 (App. Div. 2000); an
attorney's "[c]arelessness, lack of circumspection, or lack of diligence," Burns,
326 N.J. Super. at 470 (alteration in original); or "ignorance of the law or failure
8 A plaintiff can also avoid a dismissal with prejudice upon a showing that there has been substantial compliance with the AOM filing requirements. Ferreira, 178 N.J. at 151 (citing Palanque v. Lambert-Woolley, 168 N.J. 398, 405-06 (2001)). Neither the motion judge nor plaintiff relied upon this criterion to deny defendant's motions to dismiss. A-3719-22 11 to seek legal advice," Hyman Zamft & Manard, L.L.C. v. Cornell, 309 N.J.
Super. 586, 593 (App. Div. 1998).
Extraordinary circumstances do exist where: the AOM deadline expired
before the plaintiff and the defendant finished negotiating a stipulation of
dismissal without prejudice, preserving a plaintiff's opportunity to reinstate the
claim, and discovery uncovered more about the dismissed defendant's
responsibility, Yagnik v. Premium Outlet Partners, LP, 467 N.J. Super. 91, 115-
17 (App. Div. 2021); the defendant's answer falsely stated his board
certification, the defense failed to correct the misstatement and repeated it in a
certification and brief supporting a motion to dismiss, and the court failed to
timely conduct a Ferreira conference and dismissed the complaint based on the
misrepresentation, Mazur v. Crane's Mill Nursing Home, 441 N.J. Super. 168,
181-82 (App. Div. 2015); or there is legal confusion over statutory requirements
amended by common law, Paragon Contractors, 202 N.J. at 422-23, 425.
We find instructive our Supreme Court's ruling in A.T. The Court there
recognized our settled case law that the trial court's failure to conduct a Ferreira
conference alone does not constitute extraordinary circumstances to extend the
AOM filing period. A.T., 231 N.J. at 348. Yet, the Court reasoned that to avoid
procedural dismissals where a conference was not held, "[g]oing forward,
A-3719-22 12 advancements in our automated case management system will permit electronic
notification of (1) the AOM filing obligation and (2) the scheduling of a Ferreira
conference" in order "to issue notices to counsel and accomplish those tasks."
Id. at 353. Justice LaVecchia, writing for the Court, explained the system
improvements were necessary because "the Judiciary failed to do what this Court
expected, namely to act as a backstop. No Ferreira conference was scheduled,
which would have assisted in keeping the parties focused on the timing of the
necessary affidavit." Id. at 349. That said, even with these enhanced
notifications, "[c]ounsel are on notice that disregarding the scheduling of the
conference, or waiving the conference, will not provide a basis for relief from
[AOM] obligations." Id. at 353. The Court concluded "the circumstances of
this case as extraordinary, viewed in combination with the Judiciary's failure
here. The lack of a scheduled Ferreira conference significantly contributed to
an almost perfect storm of injustice." Id. at 350.
Based on our de novo review, see Bacon v. New Jersey State Department
of Education, 443 N.J. Super. 24, 33 (App. Div. 2015) (employing a plenary
standard of review over a trial court's decision to grant a motion to dismiss for
failure to state a claim), we are convinced there were extraordinary
circumstances here to warrant extension of the AOM 120-day filing deadline.
A-3719-22 13 Thus, the motion judge's orders denying defendant's motion to dismiss are
supported by the record.
The focal point of the extraordinary circumstances here is the entry of the
AOM waiver order prior to the amendment of the complaint asserting
malpractice claims against defendant. Plaintiff contends now, as she did before
the motion judge, that she believed no AOM was needed regarding claims
against defendant based on the AOM waiver order. Plaintiff points out the judge
who issued the AOM waiver order was aware the complaint at that time
mentioned but did not sue defendant and contended the Hamilton entities ––
which have never challenged the application of AOM waiver order to claims
against them––were vicariously liable through defendant, their agent, employee,
or servant. Plaintiff also stresses that during discovery before defendant first
moved to dismiss the amended complaint, defendant did not answer Form C
Interrogatory 12 by asserting that his defense relied on any statute. Defendant
maintains his answer demanded submission of an AOM, which was disregarded
because plaintiff made a flawed "judgment call" not to file an AOM. He claims
this decision does not constitute extraordinary circumstances as the Court
concluded in A.T.
A-3719-22 14 Under the circumstances we cannot fault plaintiff for believing the AOM
waiver order provided a basis not to submit an AOM regarding defendant's
conduct until directed by the motion judge. The AOM waiver order definitively
states that plaintiff's complaint, which mentions defendant's conduct and the
vicarious liability of his employers, fell within the common knowledge doctrine.
It was reasonable for plaintiff to believe an AOM was not needed as to
defendant. And when the motion judge entered an order requiring plaintiff to
submit an AOM pertaining to defendant within twenty-two days, one was
supplied in nine days. See A.T., 231 N.J. at 349 ("We presume from plaintiff's
swift compliance [in filing an AOM] upon the filing of the motion that we are
dealing with a non-frivolous matter, not the type of case that the A[OM statute]
intended to weed out.").
While defendant demanded an AOM in his answer, which arguably was a
pro forma request, he did not assert plaintiff's lack of an AOM as a defense in
response to plaintiff's discovery request. This would have alerted plaintiff to
defendant's position that the AOM waiver order did not apply to him. The record
does not show that defendant was unaware of the AOM waiver order after filing
his answer, nor does it show he repeated his demand for an AOM before moving
to dismiss. While defendant's inaction alone does not necessarily justify
A-3719-22 15 plaintiff's decision to not timely submit an AOM, it is worthy of consideration
as part of a fact-sensitive case-by-case analysis. See Tischler, 177 N.J. at 246.
This brings us to the trial court not scheduling a Ferreira conference after
defendant filed his answer. As noted in A.T., this alone does not constitute
extraordinary circumstances for not filing a timely AOM as to defendant's
conduct. 231 N.J. at 348. Yet, the scheduling of another Ferreira conference
after a defendant is added to a professional malpractice action following the
initial Ferreira conference is an additional case management consequence that
is consistent with A.T.'s recognition of the trial court's role "to act as a
backstop." See id. at 349. The lack of a Ferreira conference after defendant
answered, coupled with the AOM waiver order and defendant's discovery
response—specifically—not raising the lack of an AOM as a defense,
constituted "an almost perfect storm" of events that warrant affording plaintiff
additional time to submit an AOM. See id. at 350. A Ferreira conference should
have been conducted to address the applicability of the AOM waiver order on
the amended claims against defendant. Permitting plaintiff to file an AOM
outside the 120-day statutory deadline and denying defendant's motions to
dismiss prevent an injustice. Plaintiff should be permitted to prosecute the
merits of her claims against defendant.
A-3719-22 16 Affirm.
A-3719-22 17