RAYMOND TREPKAU VS. ST. CLARE'S HOSPITAL(L-1686-14, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is only binding on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4069-14T4

RAYMOND TREPKAU,

Plaintiff-Appellant,

v.

ST. CLARE'S HOSPITAL,

Defendant-Respondent.
___________________________

Argued September 28, 2016 – Decided August 24, 2017

Before Judges Fuentes, Simonelli and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-1686-14.

Patrick P. Toscano, Jr., argued the cause for
appellant (The Toscano Law Firm, LLP,
attorneys; Mr. Toscano, of counsel and on the
brief).

Michael A. Moroney argued the cause for
respondent (Decotiis, FitzPatrick, Cole &
Giblin, LLP, attorneys; Mr. Moroney, of
counsel; Randall S. Watts, on the brief).

PER CURIAM

Plaintiff Raymond Trepkau appeals from an order of the Law

Division dismissing his professional malpractice and ordinary
negligence complaint against the emergency room nursing staff

employed by defendant St. Clare's Hospital (Hospital). We reverse

and remand for further proceedings consistent with this opinion.

We derive the following facts from the limited record developed

before the Law Division.

On July 9, 2014, plaintiff filed a complaint against the

Hospital and other unidentified defendants under the fictitious

party rule,1 alleging medical and nursing malpractice and ordinary

negligence in connection with the treatment and care he received

on June 11, 2013. Specifically, plaintiff alleged he went to the

Hospital's emergency room complaining of "several ailments

limiting his ability to independently care for and properly

ambulate himself while undergoing tests[.]"

By virtue of a Consent Order dated December 1, 2014, the

court vacated the default judgment it had previously entered

against the Hospital for failure to submit a timely responsive

pleading and permitted the Hospital to file an answer. Because

plaintiff's cause of action was predicated in part on alleged

professional malpractice, plaintiff was required to comply with

1
"'The purpose of [the fictitious party rule] is to render timely
the complaint filed by a diligent plaintiff, who is aware of a
cause of action against an identified defendant but does not know
the defendant's name.'" Bustamante v. Borough of Paramus, 413
N.J. Super. 276, 299 (App. Div. 2010) (quoting Greczyn v. Colgate-
Palmolive, 183 N.J. 5, 11 (2005)); see also R. 4:26-4.
2 A-4069-14T4
the requirements of the Affidavit of Merit Act, N.J.S.A. 2A:53A-

27 to -29. Thus, on December 22, 2014, plaintiff's counsel sent

defense counsel an affidavit of merit authored by Thomas Bojko,

M.D., M.S., J.D., FCLM. In this document, Dr. Bojko averred he

was "licensed to practice medicine in the states of New York and

New Jersey." With respect to the allegations of medical and

nursing malpractice, Dr. Bojko made the following assertions in

numbered paragraphs:

3. I have reviewed the medical records and
other pleadings available to . . . [p]laintiff
to date concerning the allegations of gross
medical malpractice.

4. I am familiar with the applicable standard
of care relative to the allegations . . .
[p]laintiff has made.

5. It is my opinion that St. Clare's Hospital
and certain employees breached the standard
of care by failing to provide proper care to
. . . [p]laintiff, relative to the allegations
. . . [p]laintiff has made concerning falling
and severely/permanently injuring [his]
ankle.

On February 19, 2015, the trial judge assigned to manage the

case met with counsel. The parties dispute as to the nature of

what occurred at this conference. Although it appears the judge

intended to conduct a Ferreira2 conference, we cannot determine

what was actually discussed at this "conference" because it was

2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
3 A-4069-14T4
not conducted on the record. We do know that on March 2, 2015,

after this off-the-record discussion had occurred, the trial judge

entered an order dismissing plaintiff's complaint "without

prejudice for . . . failure to satisfy the requirements of the

Affidavit of Merit statute, N.J.S.A. 2A:53A-27[.]" We infer the

judge decided to take this action on his own initiative because

defendant did not file a motion seeking this or any other relief.

The judge also failed to explain the basis for taking this action,

as required under Rule 1:7-4(a).

In the Hospital's appellate brief, defense counsel claims the

trial judge put plaintiff "on notice" of multiple deficiencies in

Dr. Bojko's affidavit of merit. However, defense counsel neither

identifies the nature of these alleged "deficiencies" nor

elaborates on the factual or legal bases for the judge's alleged

concerns. Plaintiff's position in this appeal is equally opaque.

In the procedural history section of his appellate brief,

plaintiff's counsel states that "[o]n February 19, 2015, the trial

court held a Ferreira conference." However, in the legal argument

section, plaintiff's counsel emphatically states: "The trial court

herein did not conduct a Ferreira conference as required by

controlling case law."

On March 19, 2015, seventeen days after the trial court

dismissed plaintiff's complaint without prejudice, plaintiff's

4 A-4069-14T4
counsel sent defense counsel a letter transmitting a second

affidavit of merit authored by Dr. Bojko. This second affidavit

of merit is nearly identical to the first affidavit dated December

22, 2014. The only differences are found in paragraphs 4 and 5.

In the interest of clarity, we reveal the differences in language

in these two affidavits by underlining the language that was added

to paragraphs 4 and 5 in the second affidavit:

4. I am familiar with the applicable standard
of care relative to the allegations . . .
[p]laintiff has made and with the applicable
nursing standard of care specifically.

5. It is my opinion that certain nurses at St.
Clare's Hospital breached the nursing standard
of care by failing to provide proper care to
. . . [p]laintiff, relative to the allegations
. . . [p]laintiff has made concerning falling
and severely/permanently injuring [his]
ankle.

In the letter transmitting the second affidavit of merit,

plaintiff's counsel asked defense counsel to "execute a Consent

Order reinstating Count Two of our Complaint." By limiting his

request in this fashion, plaintiff's counsel revealed an

assumption that the ordinary negligence count in the complaint

remained legally viable. However, the trial court's March 2, 2015

order dismissing plaintiff's complaint without prejudice contains

no language exempting any of plaintiff's causes of action.

Finally, plaintiff's counsel concluded this part of his letter by

apprising defense counsel that if he did not voluntarily agree to
5 A-4069-14T4
reinstate the complaint, plaintiff would file "the appropriate

motion pursuant to Rule 4:9-1[.]"

On April 24, 2015, the trial judge heard oral argument on

plaintiff's "motion to file an amended complaint" and defendant's

"cross-motion to dismiss . . . plaintiff's complaint[] with

prejudice." The judge decided to hear argument in support of

defendant's cross-motion first:

DEFENSE COUNSEL: Your Honor's [sic] previously
dismissed plaintiff's complaint, ruling that
Mr. Botchco[3] was not qualified to opine as to
the provision of nursing services in an
emergency room setting.

We were before Your Honor on February 19th of
this year, when Your Honor dismissed the
complaint. The complaint is dismissed.
Initially, plaintiff now seeks leave of the
court to amend that complaint which, we
submit, is not proper because there's no
complaint pending. The complaint would need
to be reinstated before it could be amended.

But the real gist of the motion is whether or
not the affidavit of merit that was provided
by Mr. Botchco satisfies the statute.

In response, plaintiff's counsel noted that to support his

motion to amend the complaint, he had attached an amended affidavit

of merit from Dr. Bojko "which we believe more than satisfies

[N.J.S.A. 2A:53A-27], [and] as a result of that, we filed [a]

notice of motion under [Rule] 4:9-1[.]" The judge responded that

3
We presume defense counsel was referring to Dr. Bojko.
6 A-4069-14T4
plaintiff's motion to amend the complaint was premature because

"[y]ou can't amend a complaint that's been dismissed. . . . [Y]ou

have to reinstate it first." As the argument continued, the judge

told plaintiff's counsel that he did not see "any difference

between the other affidavit and this one. You still have an

affidavit by a doctor asserting that a nurse is negligent."

In response, plaintiff's counsel pointed out that Dr. Bojko

had inserted the following language in paragraph 3 of his third

affidavit of merit, dated April 6, 2015: "Throughout my career,

and in my roles as a senior medical executive and hospital

administrator, I have been often involved in the teaching and

supervision of nurses, and in participating in the development of

many policies concerning nursing practice." Aside from this

language, the affidavit is identical to its previous version.

Plaintiff's counsel further argued that because he named the

allegedly negligent nurses who treated plaintiff as John Does

pursuant to Rule 4:26-4, and because discovery had not yet revealed

the identity of those nurses, he had tolled the running of the

sixty-day period for serving an affidavit of merit. See N.J.S.A.

2A:53A-27.

Although the judge was skeptical about the merits of

plaintiff's arguments, he reserved decision at the conclusion of

oral argument. By order dated May 5, 2015, the judge dismissed

7 A-4069-14T4
plaintiff's complaint with prejudice "for . . . failure to satisfy

the requirements of the Affidavit of Merit statute, N.J.S.A.

2A:53A-27[.]" The judge also denied plaintiff's motion to amend

the complaint. The judge did not place his reasons for reaching

these decisions on the record. Nor did he provide a written

statement of reasons as required by Rule 1:7-4(a).

In this appeal, plaintiff argues the trial judge failed to

conduct an appropriate Ferreira conference. Plaintiff further

argues the judge improperly dismissed the ordinary negligence

count of his complaint with prejudice. In response, defendant

argues the judge properly dismissed plaintiff's complaint with

prejudice because plaintiff's counsel "was placed on appropriate

notice with respect to the deficiencies [of] the affidavit of

merit." Finally, defendant argues the judge properly dismissed

plaintiff's ordinary negligence claim because nurses are "licensed

professionals" under N.J.S.A. 2A:53A-26i.

We reverse and remand this matter to the trial court to

conduct a proper Ferreira conference and to permit the parties to

conduct discovery and thereafter engage in proper motion practice

if necessary. In Meehan v. Antonellis, 226 N.J. 216, 241 (2016),

the Supreme Court held that a timely and effective Ferreira

conference "is designed to identify and resolve issues regarding

the affidavit of merit that has been served or is to be served."

8 A-4069-14T4
The Court held that to this end, "all participants must be prepared

to identify at the conference the general area or specialty

involved in the action and whether the defendant was providing

professional services within that profession or specialty." Ibid.

Here, the judge conducted an off-the-record discussion with

the attorneys and thereafter made no effort to memorialize what

had transpired therein. If the judge intended to conduct a

Ferreira conference, he should have done so on the record. Then,

the judge could have expressed his concerns regarding plaintiff's

affidavit of merit and set a clear and definite timeframe to

address those concerns. Instead, the order that emerged from this

off-the-record discussion dismissed plaintiff's complaint without

prejudice and was otherwise silent about the issues surrounding

Dr. Bojko's affidavit.

"Trial judges are under a duty to make findings of fact and

to state reasons in support of their conclusions." Heinl v. Heinl,

287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-4).

Meaningful appellate review cannot take place unless the trial

judge sets forth the reasons for his decision. Strahan v. Strahan,

402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch,

240 N.J. Super. 441, 443 (App. Div. 1990)). The Law Division's

order dismissing plaintiff's complaint in this case is impervious

to meaningful appellate review and must be vacated.

9 A-4069-14T4
 On remand, the judge assigned to this case must conduct a

Ferreira conference guided by the statute's dual purpose of

"weed[ing] out frivolous lawsuits early in the litigation while,

at the same time, ensuring that plaintiffs with meritorious claims

will have their day in court." Hubbard v. Reed, 168 N.J. 387, 395

(2001). The judge must keep in mind that in adopting the Affidavit

of Merit Act, the Legislature did not intend to "create a minefield

of hyper-technicalities in order to doom innocent litigants

possessing meritorious claims." Mayfield v. Cmty. Med. Assocs.,

P.A., 335 N.J. Super. 198, 209 (App. Div. 2000).

That being said, the statute requires plaintiffs to provide

a formal affidavit in which an appropriately credentialed

physician or licensed professional attests to a reasonable

probability that the defendant's conduct breached the applicable

standard of care. Buck v. Henry, 207 N.J. 377, 382 (2011) (quoting

N.J.S.A. 2A:53A-27). Absent "extraordinary circumstances," the

failure to provide such an affidavit within the specified statutory

period results in a dismissal with prejudice. Alan J. Cornblatt,

P.A. v. Barow, 153 N.J. 218, 242–45 (1998). On remand, the judge

assigned to this case must make specific findings to determine

whether the Law Division's failure to conduct a proper Ferreira

conference on the record constitutes "extraordinary circumstances"

10 A-4069-14T4
warranting the relaxation of the statute's draconian remedy of

dismissal with prejudice.

Finally, the motion judge also erred in dismissing

plaintiff's cause of action predicated on ordinary negligence.

First, the judge did not make any findings or state any reasons

for this decision, in clear violation of Rule 1:7-4(a). Second,

although nurses are licensed professionals under N.J.S.A. 2A:53A-

26i, a cause of action predicated on ordinary negligence can be

maintained if the negligence asserted by plaintiff falls within

the purview of the common knowledge doctrine. As the Supreme

Court explained in Hubbard, supra, 168 N.J. at 390:

Because we do not believe that the Legislature
intended to burden a plaintiff with the
affidavit requirement when expert testimony is
not required at trial to establish the
defendant's negligence, we hold that an
affidavit need not be provided in common
knowledge cases when an expert will not be
called to testify "that the care, skill or
knowledge . . . [of the defendant] fell
outside acceptable professional or
occupational standards or treatment
practices."

[Ibid. (quoting N.J.S.A. 2A:53A-27).]

In his appellate brief, plaintiff claims he experienced

dizziness and weakness while being treated for gastrointestinal

symptoms at the Hospital's emergency room. He requested a

wheelchair or other form of ambulatory assistance so he could have

ready access to a nearby bathroom. He alleges the treating nurses
11 A-4069-14T4
denied this request, thereby causing him to fall and injure

himself. These allegations were neither supported by competent

evidence nor reviewed and analyzed by the motion judge. Given the

paucity of competent material facts concerning this issue, the

judge's decision to dismiss plaintiff's complaint with prejudice

was clearly erroneous. However, we do not express any opinion

as to whether plaintiff will be able to maintain a legally viable

claim based on ordinary negligence against the unnamed nurses.

Reversed and remanded. We do not retain jurisdiction.

12 A-4069-14T4