NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5023-12T1
JOHNNY MEDINA,
Plaintiff-Appellant, APPROVED FOR PUBLICATION v. August 11, 2015
CEASAR G. PITTA, M.D., APPELLATE DIVISION ANTHONY L. PANARIELLO, M.D., BETTY A. CERVENAK, M.D. and PALISADES EYE ASSOCIATES,
Defendants-Respondents,
and
RIVERSIDE SURGERY & LASER CENTER and CLARA MAASS MEDICAL CENTER,
Defendants.1
________________________________________________________________
Argued October 6, 2014 – Decided August 11, 2015
Before Judges Espinosa, St. John and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 5532-11.
Paul F. O'Reilly argued the cause for appellant (The Law Offices of James Vasquez,
1 According to the case information statement, plaintiff's claims against these defendants were dismissed without prejudice by agreement. P.C., attorneys; James Vasquez and Mr. O'Reilly, on the briefs).
Christine M. Jones argued the cause for respondent Ceasar G. Pitta, M.D. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Ms. Jones, on the brief).
Erica C. Avondoglio argued the cause for respondents Anthony L. Panariello, M.D., Betty A. Cervenak, M.D. and Palisades Eye Associates (Giblin & Combs, LLC, attorneys; Ms. Avondoglio, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In this medical malpractice action, plaintiff retained an
expert who was "fully retired" before any of the defendant
physicians treated him. Plaintiff appeals from an order
granting summary judgment to defendants on the ground that,
pursuant to the New Jersey Medical Care Access and
Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37
to -42, his proposed expert was not qualified to give expert
testimony on the appropriate standard of care. He also appeals
from the denial of his motion for reconsideration. For the
reasons that follow, we conclude the proposed expert did not
meet the qualification requirements of the PFA. We further
consider plaintiff's argument that the doctrines of substantial
compliance and extraordinary circumstances should preclude the
dismissal of his complaint. We conclude that these doctrines
2 A-5023-12T1 are inapplicable when summary judgment is sought based upon a
plaintiff's failure to secure an expert witness who is
"statutorily authorized to testify" about the standard of care
in a medical malpractice case. Therefore, a dismissal with
prejudice was appropriate.
I.
A.
Plaintiff, a diabetic, was referred to defendants in
October 2007 by his endocrinologist because he was seeing spots.
The vision in his right eye was 20/40 and in his left eye was
20/50. He was diagnosed with proliferative diabetic
retinopathy, which means he had retinal changes in both eyes due
to diabetes.
It is unnecessary to give a detailed account of plaintiff's
treatment history with defendants. Over the course of the years
following plaintiff's first appointment on October 10, 2007, Dr.
Ceasar G. Pitta performed a number of procedures on plaintiff,
beginning with a vitrectomy on the left eye and laser treatment
on the right eye on October 16, 2007. He later performed these
procedures on the right eye on multiple occasions: November 17,
2009, January 19, 2010, April 20, 2010, and January 25, 2011.
Dr. Anthony L. Panariello performed what he described as a
"complex cataract surgery" on plaintiff's right eye on January
3 A-5023-12T1 5, 2011. There were no complaints relative to a retinal
detachment in the first post-operative visit. However, when
plaintiff saw Dr. Leonard Feiner on March 30, 2011, a B-Scan2
revealed that plaintiff had developed a retinal detachment.
Plaintiff now has no vision in his right eye.
B.
The amended complaint, filed in November 2011, alleged that
Dr. Pitta, Dr. Panariello, Betty A. Cervenak, M.D., and
Palisades Eye Associates were negligent in the care provided to
plaintiff during the time period from 2007 to 2011.3
In his October 24, 2011 expert report, Dr. Peter H. Morse
opined, "Mr. Medina lost the sight in his right eye because of
inadequate and dilatory treatment by Dr. Pitta. Drs. Panariello
and Cervenak were also negligent in caring for the patient but
to a lesser degree." He stated that, as of plaintiff's first
appointment with Dr. Pitta in October 2007, "his eyes were
eminently salvageable with adequate and timely treatment" and
remained so in January 2009. At his deposition, Dr. Morse also
2 Plaintiff's expert testified, "B-scan is an ultrasound . . . [that] can detect patterns in the back of the eye when you can't see in clearly." 3 Although there are some differences in the dates of treatment identified by plaintiff and defendants, these discrepancies are immaterial because it is undisputed that none of the defendants treated plaintiff before October 2007.
4 A-5023-12T1 stated that plaintiff's eye was still "eminently salvageable
with laser treatment" in July 2009.
Dr. Morse acknowledged that Dr. Pitta's treatment notes
from July 2009 reflect that he recommended laser treatment to
plaintiff and that "[p]atient wishes to defer treatment." Dr.
Morse agreed that plaintiff did not want laser treatment at that
time and did not return to Dr. Pitta until November 2009. Dr.
Morse testified he thought plaintiff's eye still remained
salvageable in November 2009. He stated further that the
vitrectomy with laser treatment performed by Dr. Pitta in
November 2009 was the proper treatment and, in fact, there was
some restoration of vision as of December 2009. Dr. Morse
testified that his report contained all his opinions with regard
to deviations from the standard of care.
Dr. Morse was also questioned about the earliest dates that
Dr. Panariello and Dr. Cervenak deviated from accepted standards
of care. He identified October 25, 2010 as the date of Dr.
Panariello's first deviation from standards of medical care. He
did not find any deviations in care in the cataract surgery
performed by Dr. Panariello on January 5, 2011. Turning to Dr.
Cervenak, Dr. Morse stated, "essentially, she only had one visit
on the 20th of October 2010." He testified that, despite Dr.
Cervenak's recommendation that plaintiff have a cataract
5 A-5023-12T1 extraction, she deviated from accepted standards of medical care
because she failed to order a B-scan and make sure plaintiff had
follow-up for the inflammation in his eye.
C.
In December 2011, each of the defendants filed answers and
demanded an affidavit of merit (AOM), N.J.S.A. 2A:53A-27. Dr.
Pitta's answer complied with the requirement established by the
Supreme Court in Buck v. Henry, 207 N.J. 377 (2011)4 to "include
in his answer the field of medicine in which he specialized, if
any, and whether his treatment of the plaintiff involved that
specialty." Id. at 396. His answer states, "Dr. Pitta is an
ophthalmologist with a specialty in retinal disease who has
provided care and treatment to Plaintiff . . . ." In addition,
Dr. Pitta demanded answers to Form A(1) Uniform Interrogatories,
Interrogatory Forms, Pressler & Verniero, Current N.J. Court
Rules, Appendix II to R. 4:17-1(b) at 2604-06 (2015), which
include a request for a copy of the current resume of
plaintiff's expert.
Plaintiff served an AOM, dated November 7, 2011, prepared
by Dr. Morse, along with a copy of his curriculum vitae. Dr.
Morse's curriculum vitae states he is board certified in
4 Buck was decided on August 22, 2011, approximately four months before the answers were filed in this case.
6 A-5023-12T1 ophthalmology. The list of hospital and administrative
appointments ends with the following:
1993-Present Staff Physician McKennan Hospital Sioux Falls, SD
1993-Present Staff Physician Sioux Valley Hospital Sioux Falls, SD
However, Dr. Morse was not a staff physician at either hospital
at the time his curriculum vitae was provided to defendants as a
"current resume."
According to the parties, the trial court held a Ferreira5
conference on February 15, 2012, where plaintiff's counsel
represented that he served an AOM and expert report written by
Dr. Morse, a board certified ophthalmologist, and defendants
posed no objections to his report or qualifications.6
Dr. Panariello and Dr. Cervenak did not identify themselves
as specialists in their answers. The curriculum vitae provided
with their answers to interrogatories stated they were board
certified in ophthalmology. Those answers were served on March
16, 2012, approximately one month after plaintiff was required
to serve an AOM. N.J.S.A. 2A:53A-27.
5 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). 6 We have not been provided with an order from the Ferreira conference and rely upon the representations contained in the parties' briefs.
7 A-5023-12T1 A case management order, dated July 26, 2012, set September
2, 2012 as the final date for the service of expert reports on
behalf of plaintiff.
At his deposition on January 10, 2013, Dr. Morse testified
he had "fully retired" on January 1, 2007. Since that time, he
had not treated any patients or had privileges at any hospitals.
He had not instructed any students in an accredited medical
school, health professional school, accredited residency or
clinical research program for six months to one year before his
retirement. When asked for an updated curriculum vitae, Dr.
Morse replied, "There has not been an updating in 20 years, and
there isn't going to be."
D.
Plaintiff did not file any motion to be permitted to obtain
a new expert or extend the discovery end date. A motion for
summary judgment was filed on behalf of Dr. Cervenak and Dr.
Panariello on or about January 24, 2013, arguing that Dr. Morse
did not meet the qualification requirements of the PFA to
provide expert testimony on the applicable standard of care.
Dr. Pitta's motion for summary judgment was filed on or about
February 22, 2013. Plaintiff's opposition was limited to a
letter in which he merely asserted that Dr. Morse's credentials
satisfied the requirements of N.J.S.A. 2A:53A-41 because he "is
8 A-5023-12T1 . . . board certified" in ophthalmology, "has held privileges at
hospitals regarding ophthalmology, and he has also held
positions in teaching schools on ophthalmology." (Emphasis
added).
By orders dated March 8, 2013, defendants' motions were
granted. The motion judge noted plaintiff's failure to comply
with Rule 4:46-2,7 but addressed the motion on the merits.
Citing Ryan v. Renny, 203 N.J. 37 (2010), the motion judge
stated N.J.S.A. 2A:53A-41 required a "degree of contemporaneity"
in the qualifications of the expert. The judge noted Dr. Morse
testified he was no longer credentialed by a hospital to treat
patients, had not been in active clinical practice since his
retirement in January 2007, and had not instructed students
since sometime before that date. The judge concluded, "The
expert witness was not credentialed nor specialized at the time
of the alleged deviation as required under N.J.S.A. 2A:53A-41."
The judge noted further that "plaintiff has not requested a
waiver of the specialty provision, N.J.S.A. 2A:53A-41(c), nor
7 Plaintiff did not file a responding statement that admitted or disputed each of the facts in the movant's statement of material facts as required by Rule 4:46-2(b). His counsel stated at oral argument on the motion for reconsideration that he did not dispute any of the facts.
9 A-5023-12T1 argued that the affidavit of merit substantially complies with
the statute."
Plaintiff filed a motion for reconsideration in which he
maintained Dr. Morse was qualified to testify as an expert
witness. He also contended, for the first time, that the
doctrines of substantial compliance and extraordinary
circumstances warranted a dismissal without prejudice. At oral
argument on this motion, plaintiff's counsel stated he had
intended to raise these issues at oral argument of the summary
judgment motions, which he did not attend. Counsel also
admitted that when he first called him, Dr. Morse advised him
that he was retired "somewhere around 2007" and asked if that
would be a problem. Counsel replied that he would look into it
but that he did not think so.8
The motion judge denied the motion for reconsideration and
set forth his reasons in a written opinion.
II.
Plaintiff raises a number of arguments for our
consideration in his appeal. We turn to the central question
8 Plaintiff provided the court with conflicting accounts as to his knowledge regarding Dr. Morse's qualifications. In his motion for reconsideration, plaintiff's counsel stated he was surprised by Dr. Morse's deposition testimony that he stopped practicing on January 1, 2007, and that all his hospital privileges ended around that time.
10 A-5023-12T1 here, whether Dr. Morse was qualified, pursuant to the
requirements of the PFA, to testify on the appropriate standard
of care applicable to each of these defendants. We conclude
that he was not.
The qualification and competency of a witness to provide
expert testimony are matters that lie within "the sound
discretion of the trial court. Absent a clear abuse of
discretion, an appellate court will not interfere with the
exercise of that discretion." Carey v. Lovett, 132 N.J. 44, 64
(1993). The trial court's discretion "can, of course, be guided
by statute." Ryan, supra, 203 N.J. at 50.
Any expert testimony proffered by plaintiff was subject to
the PFA, which established enhanced qualification requirements
for experts who provide testimony or execute AOMs in medical
malpractice cases.9 The requirements vary, depending upon
whether the defendant physician is a specialist, board certified
in a specialty or a general practitioner. A witness who does
not meet those qualifications is not "statutorily authorized to
testify" as to the standard of care, even if the witness meets
the qualifications set by the AOM statute, Ryan supra, 203 N.J.
9 In Khan v. Singh, 200 N.J. 82, 100 (2009), the Supreme Court expressly noted that these additional requirements applied to causes of action arising after July 7, 2004.
11 A-5023-12T1 at 52, or the standard set by N.J.R.E. 702. Nicholas v.
Mynster, 213 N.J. 463, 468, 478-79 (2013).
We first consider the qualification requirements for expert
testimony against Dr. Pitta. Plaintiff argues that the PFA does
not define "specialized" and does not require experts to be
credentialed by a hospital, engaged in active clinical practice
or involved in the instruction of students to testify against
specialists, such as Dr. Pitta, who are not board certified.
Therefore, he contends Dr. Morse satisfies the requirements of
the PFA. This argument lacks merit.
The PFA explicitly refers to specialties and board
certifications "recognized by the American Board of Medical
Specialties [(ABMS)] or the American Osteopathic Association
[(AOA)]." N.J.S.A. 2A:53A-41(a). When the physician defendant
is a specialist, but is not board certified in the specialty, a
proposed expert must be licensed as a physician in the United
States and "shall have specialized at the time of the occurrence
that is the basis for the action in the same specialty . . . as
the party against whom or on whose behalf the testimony is
offered." Ibid. (emphasis added). In Nicholas, the Supreme
Court described this requirement as follows: "When a physician
is a specialist and the basis of the malpractice action
12 A-5023-12T1 'involves' the physician's specialty, the challenging expert
must practice in the same specialty." Nicholas, supra, 213 N.J.
at 481-82 (emphasis added). Based upon both the commonly
understood meaning of the term "specialize" and the Supreme
Court's description of the statutory requirement, it is clear
that "specialize" as used in N.J.S.A. 2A:53A-41 means "practice
in a specialty" recognized by the ABMS or AOA.
Further, we agree with the motion judge that the statute
requires "contemporaneity," meaning the proposed expert must
actively practice in the specialty at the time of the alleged
deviation to satisfy the qualification requirements of
subsection (a). In Ryan, the Court explained what the
requirements were for application of the waiver provision,
N.J.S.A. 2A:53-41(c),10 and noted that the waiver provision did
not contain the "strict time limit[]" element common to all the
10 N.J.S.A. 2A:53A-41(c) permits a court to waive the same specialty or subspecialty requirement upon motion
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.
13 A-5023-12T1 sections of the PFA that define qualification requirements.
Ryan, supra, 203 N.J. at 57.
For example, where the defendant is a specialist or subspecialist, the person providing the testimony against him "shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty[.]" N.J.S.A. 2A:53A-41(a) (emphasis added). Further, where the defendant is board certified, the witness against him must also be board certified in the same specialty or subspecialty 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" active clinical practice or teaching of the specialty or subspecialty. N.J.S.A. 2A:53A-41(a)(2) (emphasis added). Likewise, where the defendant 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" teaching or to active clinical practice as a general practitioner or in a practice that encompasses the medical condition or includes performance of the procedure at issue. N.J.S.A. 2A:53A-41(b) (emphasis added).
[Id. at 57-58.]
To satisfy the "strict time limit" requirement applicable
for testimony against Dr. Pitta, a proposed expert had to
practice in the specialty of ophthalmology at the time of the
alleged deviation. Dr. Morse was vague as to when such
deviation occurred, stating plaintiff's vision loss was caused
14 A-5023-12T1 by Dr. Pitta's "inadequate and dilatory treatment," but conceded
that plaintiff's vision remained salvageable as late as November
2009. Even if plaintiff is afforded all favorable inferences,
the alleged delay in treatment could occur no earlier than Dr.
Pitta's first appointment with plaintiff in October 2007. It is
undisputed that Dr. Morse was no longer practicing in the
specialty of ophthalmology at that time. Therefore, he did not
meet the qualification requirements to testify as to the
standard of care applicable to Dr. Pitta.
Under the PFA, additional qualification requirements apply
if the defendant physician, like Dr. Panariello and Dr.
Cervenak, is board certified.
[I]f 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 . . . 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 . . . who is board certified in the same specialty or subspecialty . . . 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:
15 A-5023-12T1 (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 . . . the active clinical practice of that specialty or subspecialty . . . 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 . . . an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty . . . or
(c) both.
[N.J.S.A. 2A:53A-41(a) (emphasis added).]
Plaintiff acknowledges that Dr. Morse would not satisfy the
PFA's additional requirements for testifying against a board
certified specialist, such as Dr. Panariello and Dr. Cervenak.
However, he contends these defendants should have been estopped
from raising their specialty to challenge Dr. Morse's
qualifications because they failed to list their specialty in
their answers. Again, we disagree.
Plaintiff's estoppel argument was raised for the first time
in plaintiff's motion for reconsideration. This was
inappropriate. To properly contest the motions on this ground,
16 A-5023-12T1 plaintiff was required to present his argument in his written
opposition to the motions. Pressler & Verniero, supra, comment
2 on R. 1:6-2 ("[R]esponsive papers must not only object
generally to the relief sought but must state with particularity
the basis, whether legal, factual or both, of such opposition.")
Reconsideration is to be utilized only in those cases "in
which either 1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or 2) it is
obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence."
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
In short, a motion for reconsideration provides the court, and
not the litigant, with an opportunity to take a second bite at
the apple to correct errors inherent in a prior ruling. Filing
a motion for reconsideration does not provide the litigant with
an opportunity to raise new legal issues that were not presented
to the court in the underlying motion. See Cummings v. Bahr,
295 N.J. Super. 374, 384 (App. Div. 1996). Despite the
procedural infirmity, we consider plaintiff's estoppel argument
and find it inapplicable to the facts in this case.
Just as "it is the duty of litigants to make a good faith
effort to obtain an equivalently-qualified expert in a
malpractice case," Ryan, supra, 203 N.J. at 56, a defendant
17 A-5023-12T1 physician must comply with the requirement established in Buck,
supra, 207 N.J. at 396, to alert the plaintiff to the higher
standard to be met by identifying their specialty, if
applicable, in the answer. R. 4:5-3.11 We note that Buck
concerned the sufficiency of an affiant's qualifications to
author an AOM and that the remedy ordered by the court, albeit
before R. 4:5-3 was amended, was to reverse the dismissal of the
plaintiff's complaint and remand with instructions to provide
the plaintiff with additional time to obtain an AOM that
complied with the statute's requirements. Buck, supra, 207 N.J.
at 395. The Court did not instruct what remedy would be
appropriate in cases thereafter in which a physician defendant
failed to provide the necessary information regarding specialty
in his or her answer. Although it is unlikely that such an
omission could warrant scuttling the Legislature's scheme of
enhanced qualification requirements for a testifying expert, we
conclude it is unnecessary in this case to consider what remedy
is appropriate.
This is not a case in which the deficiency in Dr. Morse's
qualifications relates to one of the more specialized
requirements applicable to a board certified specialist. The
11 The rule was amended, effective September 1, 2012, in response to the court's direction in Buck, supra, 207 N.J. at 396.
18 A-5023-12T1 deficiency lies in the fact he was retired and not practicing at
the time of the alleged deviations in care by Dr. Panariello and
Dr. Cervenak.
As we have noted, the PFA imposes "strict time limits" tied
to the date of the occurrence that is the basis for the
malpractice action for each of the categories of physicians.
See Ryan, supra, 203 N.J. at 57. In the case of a specialist
who is not board certified, the expert must "have specialized at
the time of the occurrence . . . in the same specialty."
N.J.S.A. 2A:53A-41(a) (emphasis added). If the defendant
physician is board certified, the statute requires that the
proposed expert "shall have devoted a majority of his
professional time to . . . active clinical practice" or teaching
of the specialty or subspecialty "during the year immediately
preceding the date of the occurrence." N.J.S.A. 2A:53A-41(a)(2)
(emphasis added). The strict time limit applicable to general
practitioners similarly requires that the proposed expert "shall
have devoted a majority of his professional time to" teaching or
to "active clinical practice as a general practitioner"
performing the relevant procedure "during the year immediately
preceding the date of the occurrence." N.J.S.A. 2A:53A-41(b)
(emphasis added). No matter what category of physician is
applied, Dr. Morse's qualifications come up short. Therefore,
19 A-5023-12T1 he was not statutorily authorized to testify against Dr.
Panariello and Dr. Cervenak.
III.
Plaintiff also argues that the doctrines of substantial
compliance and extraordinary circumstances should apply to
reverse the dismissal with prejudice. Plaintiff raised the
issues of substantial compliance and extraordinary circumstances
for the first time in his motion for reconsideration. 12
Nonetheless, we address plaintiff's contention to clarify that
the doctrines of substantial compliance and extraordinary
circumstances do not apply when the qualifications of a witness
to "give expert testimony" are measured under the PFA.
The enhanced qualification requirements of the PFA
explicitly apply to both the affiant for an AOM and the expert
witness a plaintiff seeks to rely upon at trial. N.J.S.A.
2A:53A-41 ("In an action alleging medical malpractice, a person
shall not give expert testimony or execute an affidavit pursuant
to the [AOM statute] on the appropriate standard of practice or
care unless" the enumerated criteria are satisfied). However,
12 Plaintiff contended that he intended to raise these issues at oral argument on the summary judgment motions. Like his estoppel argument, these issues were not properly presented to the motion judge. Pressler & Verniero, supra, comment 2 on R. 1:6-2.
20 A-5023-12T1 the analysis required to determine the appropriate disposition
when the sufficiency of a proposed expert's qualifications is
challenged differs sharply depending upon whether the issue is
raised within a challenge to the sufficiency of the AOM or in a
summary judgment motion.
"The core purpose underlying the [AOM] statute is to
require plaintiffs . . . to make a threshold showing that their
claim is meritorious, in order that meritless lawsuits readily
could be identified at an early stage of litigation." Ryan,
supra, 203 N.J. at 51 (citation and internal quotation marks
omitted). A "plaintiff's failure to serve the affidavit within
120 days of the filing of the answer is considered tantamount to
the failure to state a cause of action, subjecting the complaint
to dismissal with prejudice." Ferreira v. Rancocas Orthopedic
Assocs., 178 N.J. 144, 150 (2003) (citing N.J.S.A. 2A:53A-29;
Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001); Alan J.
Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998)). The
exceptions of extraordinary circumstances and substantial
compliance13 are intended to "temper the draconian results of an
13 To seek relief under the doctrine of substantial compliance,
a plaintiff must show: a series of steps were taken to comply with the statute; general compliance with the purpose of the statute; the defendant had reasonable notice (continued)
21 A-5023-12T1 inflexible application of the statute" that would extinguish a
meritorious claim in its infancy. Id. at 151. Even so,
"carelessness, lack of circumspection, or lack of diligence on
the part of counsel are not extraordinary circumstances which
will excuse missing a filing deadline." Palanque, supra, 168
N.J. at 404-05 (quoting Burns v. Belafsky, 326 N.J. Super. 462,
470 (App. Div. 1999), aff’d, 166 N.J. 466 (2001)).
The AOM must be served "[i]n the early stages of a medical
malpractice action," and a Ferreira conference, held "within
ninety days of the service of an answer," was "intended to
resolve questions concerning the propriety of an affidavit
before the end of the statutory time limit . . . ." Buck,
supra, 207 N.J. at 382-83 (citing Ferreira, supra, 178 N.J. at
154-55). If an AOM was deemed to be deficient, the plaintiff
would "have to the end of the 120-day time period to conform the
(continued) of the plaintiff's claim; a reasonable explanation for plaintiff's failure to strictly comply with the statute; and lack of prejudice to the defendant.
[Stoecker v. Echevarria, 408 N.J. Super. 597, 612 (App. Div.) (citing Ferreira, supra, 178 N.J. at 151), certif. denied, 200 N.J. 549 (2009).]
See also Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 353 (2001).
22 A-5023-12T1 affidavit to the statutory requirements." Ferreira, supra, 178
N.J. at 155. Although the goal is to safeguard "otherwise
worthy causes of action . . . [from being] needlessly
dismissed," Buck, supra, 207 N.J. at 383 (citing Ferreira,
supra, 178 N.J. at 154-55), it is understood that under the AOM
statute, "the failure to file an appropriate affidavit within
the statutory time limits may result in dismissal of even
meritorious cases." Id. at 382 (citing Ferreira, supra, 178
N.J. at 154).
When the challenge targets the qualifications of a witness
to testify regarding the standard of care, the analysis is
governed by the summary judgment rule, R. 4:46-2. Like the AOM
statute, the summary judgment rule serves "two competing
jurisprudential philosophies." Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 541 (1995). While "every litigant who has
a bona fide cause of action or defense [should be afforded] the
opportunity to fully expose his case," it is equally important
to provide protection "against groundless claims and frivolous
defenses, not only to save antagonists the expense of protracted
litigation but also to reserve judicial manpower and facilities
to cases which meritoriously command attention." Id. at 541-42
(citation and internal quotation marks omitted); cf. Ferreira,
supra, 178 N.J. at 150 (stating "the dual purpose" of the AOM
23 A-5023-12T1 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" (citation
and internal quotation marks omitted)). However, there are
fundamental differences between the "weeding" performed under
the AOM statute and that accomplished through summary judgment
practice.
The AOM statute's procedural requirements apply in the
earliest stage of the litigation, when discovery is almost
certainly incomplete, and a dismissal for non-compliance may be
warranted even if a claim has merit. In summary judgment
motions, the determination as to whether a bona fide cause of
action exists is made after the parties have had an opportunity
to develop the evidence they will rely upon at trial. See James
v. Bessemer Processing Co., 155 N.J. 279, 310-11 (1998) (holding
summary judgment was premature because plaintiff had not
"engaged in extensive discovery"); Velantzas v. Colgate-
Palmolive Co., 109 N.J. 189, 193 (1988) (finding it "especially
inappropriate" to grant summary judgment when discovery is
incomplete). The court reviews a record that includes "the
pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any," R.
4:46-2(c), to make a determination whether the claim has
24 A-5023-12T1 substantive merit. The motion judge must "consider whether the
competent evidential materials presented, when viewed in the
light most favorable to the non-moving party in consideration of
the applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill, supra, 142 N.J. at 523.
Because summary judgment is denied if the evidence meets this
standard, it is intended that meritorious claims will not be
dismissed. See id. at 540-42.
The summary judgment motions here were filed well after the
exchange of interrogatories and expert reports and the deadline
set in the case management order for the production of
plaintiff's expert reports. The motions followed the deposition
of plaintiff's sole expert as to the standard of care and
alleged deviations in care. There was no motion filed by
plaintiff to extend discovery or to seek an alternative expert.
It cannot be disputed that the record was ripe for summary
judgment.
Similarly, there is no question that expert testimony was
required for plaintiff's claims to succeed. "To establish a
prima facie case of negligence in a medical-malpractice action,
a plaintiff must present expert testimony establishing (1) the
applicable standard of care; (2) a deviation from that standard
25 A-5023-12T1 of care; and (3) that the deviation proximately caused the
injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (citations
omitted); accord Nicholas, supra, 213 N.J. at 478.
It is generally recognized that in the ordinary medical malpractice case the standard of practice to which [the defendant-practitioner] failed to adhere must be established by expert testimony, and that a jury generally lacks the requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert.
[Rosenberg v. Cahill, 99 N.J. 318, 325 (1985) (citation and internal quotation marks omitted).]
The need for expert testimony regarding deviation from the
appropriate standard is not limited to medical malpractice, but
applies "in nearly all malpractice cases." Garcia v. Kozlov,
Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 362 (2004);
accord Brach, Eichler, P.C. v. Ezekwo, 345 N.J. Super. 1, 12
(App. Div. 2001). Moreover, "[a] party cannot defeat a motion
for summary judgment merely by submitting an expert's report in
his or her favor. In order for such a report to have any
bearing on the appropriateness of summary judgment, it must
create a genuine issue of material fact." Brill, supra, 142
N.J. at 544 (citation omitted) (declaring an expert opinion
"based on erroneous or nonexistent facts is worthless"); see,
e.g., Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002) ("The
26 A-5023-12T1 very object of the summary judgment procedure . . . is to
separate real issues from issues about which there is no serious
dispute. Sham facts should not subject a defendant to the
burden of a trial."); Kaplan v. Skoloff & Wolfe, P.C., 339 N.J.
Super. 97, 104 (App. Div. 2001) (finding summary judgment
appropriate where net opinion by expert failed to establish a
standard by which to judge the defendant's conduct).
Without testimony from a statutorily authorized expert,
plaintiff cannot establish the applicable standard of care.
Therefore, summary judgment was appropriate. Nicholas, supra,
213 N.J. at 468.
The doctrine of substantial compliance may be invoked when
dismissal is sought based upon deficiencies in an AOM "so that
technical defects will not defeat a valid claim." Ferreira,
supra, 178 N.J. at 151 (emphasis added). It is not intended to
shield a plaintiff from the dismissal of a claim that is
substantively defective. Moreover, the application of the
doctrine to summary judgment motions would materially erode the
jurisprudence that has developed since Brill and eviscerate the
remedial purpose of the PFA to establish enhanced qualification
requirements for expert witnesses as part of "a comprehensive
set of reforms affecting the State's tort liability system,
27 A-5023-12T1 health care system and medical malpractice liability insurance
carriers," N.J.S.A. 2A:53A-38(f).
Similarly, the analysis required for a summary judgment
motion does not allow for a claim of extraordinary
circumstances. When a party concludes circumstances exist that
would warrant relief, the appropriate course of action is to
pursue remedies such as those afforded by Rules 4:17-7 and 4:24-
1(c).
Because the doctrines of substantial compliance and
extraordinary circumstances would subvert rather than promote
the remedial purpose of the PFA, we conclude these doctrines are
inapplicable when summary judgment is sought based upon a
failure to meet the PFA's enhanced qualification requirements
for testifying experts.
IV.
After reviewing plaintiff's remaining arguments in light of
the record and applicable legal principles, we conclude that the
arguments raised in Points I, V, VI, VII and VIII lack
sufficient merit to warrant more than the following limited
discussion. R. 2:11-3(e)(1)(E).
In Point I, plaintiff cites the requirements of the AOM
statute that an expert be either board certified in the general
area or specialty or have five years' clinical practice in the
28 A-5023-12T1 general area of specialty. He argues that Dr. Morse is
qualified to testify pursuant to these requirements because he
is "currently a Board Certified Ophthalmologist and had
practiced as a Board Certified Ophthalmologist from 1971 to
2007." In Ryan, supra, 203 N.J. at 52, the Court observed that
the original requirements for the affiant of an AOM set forth in
the AOM statute were modified by the PFA, which "provide[d] more
detailed standards for a testifying expert and for one who
executes an affidavit of merit, generally requiring the
challenging expert to be equivalently-qualified to the
defendant." Therefore, plaintiff's effort to cast Dr. Morse as
a qualified expert because he meets the more generalized
requirements of the AOM statute is unavailing.
In Point V, plaintiff argues that, as a result of
defendants' failure to object to Dr. Morse's qualifications
until February 2013, the proper remedy was to permit him to cure
any deficiencies rather than dismiss the complaint with
prejudice. The notion that defendants' objection was untimely
lacks factual support. It was not until Dr. Morse's deposition
in January 2013 that defendants first learned Dr. Morse had
"fully retired" in January 2007, before the alleged malpractice,
and did not have any hospital privileges thereafter. Defendants
acted promptly after receiving this information.
29 A-5023-12T1 Plaintiff argues in Point VI that, as a result of
defendants' "misfeasance," he was deprived of his right to oral
argument on the summary judgment motions and later held to a
higher standard applicable to his motion for reconsideration.
Plaintiff's counsel, who did not appear for oral argument of the
summary judgment motions, certified he was never informed of the
date and time for oral arguments. He contends he was denied his
right to oral argument as a result. However, counsel relocated
his office on March 2, 2013, and did not inform any of the
defendants of his new contact information. Moreover, plaintiff
was given a full opportunity to present his arguments at the
motion for reconsideration. We find no error on this record.
Plaintiff also argues the AOM statute and the PFA violate
the New Jersey Constitution (Point VII) and that the statutes
are invalid because the Legislature failed to follow the
procedure for the adoption of rules of evidence set forth in
N.J.S.A. 2A:84A-33 to -44 (Point VIII). These arguments are
raised for the first time on appeal and do not fall within the
exceptions that would warrant our consideration. See US Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 483 (2012). Moreover,
both statutes have withstood prior constitutional challenges.
See Ferreira, supra, 178 N.J. at 149 n.1 (citing Cornblatt,
supra, 153 N.J. at 248 (noting "[i]n the more than half-dozen
30 A-5023-12T1 cases in which this Court has grappled with the Affidavit of
Merit statute since Cornblatt, no one has questioned, and this
Court has never revisited, the statute's constitutionality"));
N.J. State Bar Ass'n v. State, 387 N.J. Super. 24 (App. Div.)
(rejecting challenges to the constitutionality of the PFA),
certif. denied, 188 N.J. 491 (2006).
Affirmed.
31 A-5023-12T1