Ryan v. Renny

Justice RIVERA-SOTO,

dissenting.

Giving bare passing reference to the core principles of statutory construction intended to govern the interpretation of statutes, ante at 54-55, 999 A.2d at 437-38, the majority contorts the plain language of the Affidavit of Merit statute (AMS), N.J.S.A. 2A:53A-26 to -29, as modified by the New Jersey Medical Care Access and Responsibility and Patients First Act (Medical Care Access Act), N.J.S.A. 2A:53A-37 to -42. It does so to achieve a result: to preserve plaintiff’s claim and to rescue plaintiffs counsel from the consequences of his own, unexplained inaction. Because that result comes at the expense of untold violence to a clear and unambiguous legislative direction and, more to the point, unconscionably denies a defendant a right specifically granted to him by the Legislature—the right to be free of malpractice claims of questionable merit—I dissent.

I.

The AMS is a clearly worded and straightforward statute. It specifically requires that

[iln any 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 *62the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.
[N.J.S.A. 2A:53A-27.]

The AMS also provides that “[t]he 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.” Ibid.

It is undisputed that plaintiff Abby Ryan’s claim against defendant Andrew Renny, M.D. alleged professional malpractice in defendant’s provision of medical services to plaintiff,1 namely, in performing a colonoscopy on plaintiff. It is also undisputed that defendant was a “licensed person” under the AMS. See N.J.S.A. 2A:53A-26(f) (defining “licensed person” to include “a physician in the practice of medicine or surgery”). Thus, on the face of the complaint, the requirements of the AMS apply to this civil action.

Plaintiff clearly understood that, in order to proceed with her complaint against defendant, she would have to comply with the AMS; that understanding was reinforced by defendant’s November 21, 2007 answer and separate defenses, which specifically “assert[ed] any and all relief available pursuant to” the AMS and the Medical Care Access Act. Indeed, on October 24, 2007, almost a month before the filing of defendant’s answer and separate defenses and thus before the initial sixty day time period provided in the AMS even began to run, plaintiff filed what she claimed was *63her required affidavit of merit. It is the sufficiency of that affidavit that is central to this appeal.

II.

It is uncontested that defendant is board-certified in gastroenterology2 and that performing a colonoscopy—the procedure defendant is alleged to have performed negligently on plaintiff—is, without doubt, part of that medical specialty. See Dorland’s Illustrated Medical Dictionary 601 (24th ed. 1965) (defining “gastroenterology” as “[t]he study of the stomach and intestines and their diseases”); Merriamr-Webster’s Medical Dictionary 140 (2006) (defining “colonoscopy” as “[an] endoscopic examination of the colon” and “colon” as “the part of the large intestine that extends from the cecum to the rectum”).

Because defendant is a specialist and the alleged malpractice involves the practice of defendant’s specialty, the provisions of the Medical Care Access Act, to the extent they modify the AMS, must be addressed. Section 7 of the Medical Care Access Act, N.J.S.A. 2A:53A-41, distinguishes between the rights it affords physician/defendants who are general practitioners and those who are recognized specialists. In respect of the requirements for affidavits of merit submitted against general practitioners, it imposes no additional requirements on medical malpractice plaintiffs—save, of course, for those already present in the AMS.

However, in respect of specialists, the Medical Care Access Act unequivocally mandates that the required affidavit of merit may only be executed by a licensed physician who is board-certified in the same specialty or subspecialty as defendant. N.J.S.A. 2A:53A-41(a). The Medical Care Access Act provides a safety valve: an exception from its plain requirement that a board-*64certified physician can only be held to answer upon a timely and compliant affidavit of merit duly executed by a peer board-certified physician. It provides that

[a] court may waive the same specialty or subspecialty ... and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.
[N.J.S.A 2A:53A-41(c).]

And, any determination made in respect of any portion of the Medical Care Access Act must be informed by the legislative findings that undergird it:

The Legislature finds and declares that:
a. One of the most vital interests of the State is to ensure that high-quality health care continues to be available in this State and that the residents of this State continue to have access to a full spectrum of health care providers, including highly trained physicians in all specialties;
b. The State’s health care system and its residents’ access to health care providers are threatened by a dramatic escalation in medical malpractice liability insurance premiums, which is creating a crisis of affordability in the purchase of necessary liability coverage for our health care providers;
e. One particularly alarming result of rising premiums is that there are increasing reports of doctors retiring or moving to other states where insurance premiums are lower, dropping high-risk patients and procedures, and practicing defensive medicine in a manner that may significantly increase the cost of health care for all our citizens;
d. The reasons for the steep increases in the cost of medical malpractice liability insurance are complex and involve issues related to: the State’s tort liability system; the State’s health care system, which includes issues related to patient safety and medical error reporting; and the State’s regulation and requirements concerning medical malpractice liability insurers;
e. It is necessary and appropriate for the State to take meaningful and prompt action to address the various interrelated aspects of these issues that are impacted by, or impact on, the State’s health care system; and
f. To that end, this act provides for a comprehensive set of reforms affecting the State’s tort liability system, health care system and medical malpractice liability insurance carriers to ensure that health care services continue to be available and accessible to residents of the State and to enhance patient safety at health care facilities.
[N.J.S.A 2A:53A-38 (emphasis supplied).]

*65Plainly put, then, in order to pursue a malpractice claim against a board-certified physician, the AMS and the Medical Care Access Act, read in harmony, require that a plaintiff satisfy one of only two alternatives: either submit an affidavit of merit from a board-certified physician who is certified in the same specialty or subspecialty as the defendant, or make a timely motion seeking a waiver of the requirement and presenting a viable substitute.

III.

Although plaintiff admits that defendant is board-certified—and, hence, is entitled to the additional protections of Section 7 of the Medical Care Access Act—the affidavit of merit plaintiff filed on October 24, 2007 on its face did not conform to that statute’s requirements: the affidavit was executed by David Befeler, M.D., who, although board-certified in surgery, patently is not board-certified in gastroenterology. Shortly after receipt of that nonconforming affidavit of merit, defendant’s counsel wrote to plaintiffs counsel, stating:

I am in receipt of your Affidavit of Merit authored by Dr. [Befeler] with regard to the [Ryan v. Renny ] matter. It is my understanding that Dr. [Befeler] is board certified in surgery. My client is board certified in gastroenterology. Pursuant to N.J.S.A. 2A:53A-41[, Section 7 of the Medical Care Access Act,] it is our position that you are required to submit an Affidavit of Merit authored by a board certified gastroenterologist. If you contend that Dr. [Befeler] has qualifications other than his board certification in general surgery which make him appropriately qualified to render an Affidavit of Merit in this case, kindly advise me of same.
Under separate cover I will request that a Ferreiral v. Rancocas Orthopedic Associates, 178 N.J. 144, 836 A.2d 779 (2003) ] conference be held to address this issue.

Plaintiff did nothing in response. As a result, on March 7, 2008, a Ferreira conference was held, during which plaintiff acknowledged that her affidavit of merit was facially insufficient and that she would have to seek a waiver. Despite that admission, plaintiff still did nothing.

On March 27, 2008—more than one hundred twenty days following the date of the filing of the answer and, hence, after the deadline, as extended, provided in the AMS—defendant moved to *66dismiss plaintiffs complaint “for failure to provide a sufficient Affidavit of Merit as to the moving defendant.” On April 10, 2008—well past the one hundred twenty days allowed under the AMS and, more significantly, after defendant moved to dismiss— plaintiff finally cross-moved, seeking a waiver of the board-certification requirements of the Medical Care Access Act, as provided for under N.J.S.A. 2A:53A-41(c). Plaintiffs explanation for her non-conforming affidavit of merit is telling; her counsel certified in writing that he had

contacted an attorney in Atlantic County specializing in a field of medical malpractice who provided ... the name of a specialist in [gastroenterology], [He had] contacted an attorney in Cherry Hill with a high level of expertise in medical malpractice who provided ... a second individual Board Certified in [gastroenterology]. [He had] also contacted an extremely well-known attorney in North Jersey who provided ... the name of a third physician with certifications in the field of gastroenterology.
Following the receipt of the names of the above individuals, [he] contacted each of the physicians, and generally outlined the facts relating to the case in question, and each of them declined to provide an opinion relating to the actions of [defendant].
Following the above, [he] contacted Dr. David Befeler, who, although not certified in each of the sub-specialties of gastroenterology and internal medicine, has an enormous amount of experience, knowledge and skill relating to the issues involved in this case,3 and has been qualified by the Court in New Jersey to give opinions on these types of issues what we have in this case, a large tear in the colon.4
[ (Paragraph numbering omitted).]

The trial court denied defendant’s motion to dismiss for failure to comply with the AMS and granted plaintiffs motion for a *67waiver of same-board-certification requirements of the Medical Care Access Act. Defendant sought leave to appeal to the Appellate Division, which was granted. The Appellate Division, in a published opinion, reversed the judgment of the Law Division, concluding that plaintiffs explanation in support of her application for a waiver was lacking, noting that “the waiver provision [of the Medical Care Access Act] would be circumvented if a plaintiff ccmld get a waiver merely by showing that specialists in the area are unwilling to sign an Affidavit of Merit for the plaintiff.” Ryan v. Renny, 408 N.J.Super. 590, 596, 975 A.2d 971 (App.Div.2009). This Court granted plaintiffs petition for certification to consider the questions presented in this appeal. Ryan v. Renny, 200 N.J. 504, 983 A.2d 1111 (2009).

IV.

My colleagues in the majority address first “the requirement of the waiver provision that the moving party must demonstrate to the satisfaction of the court that he has made a good faith effort to identify an expert in the same specialty as defendant[,]” ante at 54, 999 A.2d at 438, and then whether Dr. Befeler qualified as a meaningful substitute for the same-board-certified requirement of the Medical Care Access Act.5 Ante at 56-61, 999 A.2d at 439-42. In doing so, the majority ignores and thus leapfrogs over a dispositive condition precedent: the timeliness of plaintiffs application.6

*68As noted, plaintiff well understood she was required to file an affidavit of merit and, in accordance with that understanding, filed one, albeit a non-conforming one.* ***7 The question then is whether the filing of an admittedly non-conforming affidavit of merit satisfies the AMS’s and the Medical Care Access Act’s requirements, at least to the extent of preserving the question for a later, untimely motion for a waiver of the Medical Care Access Act’s requirements. The answer to that question is “no.”

It bears repeating: the Medical Care Access Act specifically requires that a plaintiff in a professional malpractice action against a medical specialist must either file an affidavit of merit from a board-certified physician who is certified in the same specialty or subspeeialty as the defendant, or the plaintiff must make a timely motion to the court seeking a waiver of the requirement, demonstrating that it is made in good faith and presenting a viable substitute.

Everyday common sense tells us that, until a waiver is granted, a non-conforming affidavit of merit—that is, one from someone other than a board-certified physician who is certified in the same specialty or subspeeialty as the defendant—is simply no affidavit *69of merit at all. See Palanque v. Lambert-Woolley, 168 N.J. 398, 404-06, 774 A.2d 501 (2001) (explaining that failure to file timely and compliant affidavit of merit results in dismissal of complaint “unless extraordinary circumstances prevented the filing” and that “attorney inadvertence will not support the extraordinary circumstances standard”). Were it otherwise, the clear and mandatory provisions of the Medical Care Access Act would be swallowed whole by its waiver provision thus making both provisions irrelevant, a nonsensical result the Legislature never could have contemplated. American Fire and Cas. Co. v. N.J. Div. of Taxation, 189 N.J. 65, 81, 912 A.2d 126 (2006) (“[W]e must construe statutes in a manner that avoids unreasonable results unintended by the Legislature.” (citation omitted)); Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 178, 892 A.2d 1240 (2006) (“ ‘[A] court should strive to avoid statutory interpretations that lead to absurd or unreasonable results.’ ” (quoting State v. Lewis, 185 N.J. 363, 369, 886 A.2d 643 (2005))).

Nor can it be said that by filing a non-complying affidavit of merit plaintiff nevertheless met the substantial compliance standard and, thus, should be allowed, after the fact and in an untimely manner, to seek a waiver of the statutory requirements. This Court repeatedly has made clear that

[t]he doctrine of substantial compliance requires that a defaulting party demonstrate the following:
(1) lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claim, and (5) a reasonable explanation why there was not a strict compliance with the statute.
[Fink v. Thompson, 167 N.J. 551, 561, 772 A.2d 386 (2001) (citation omitted).]

There is scant need to delve deeply into whether plaintiff can satisfy these factors, as it is obvious plaintiff is unable to make even a prima facie showing that she can satisfy the first and last factors: that there be a lack of prejudice to the defending party and that there be a reasonable explanation for the statutory noncompliance.

*70In Ferreira, supra, this Court made a covenant. This Court explained that if a “plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit.” 178 N.J. at 154, 836 A.2d 779. Conversely, this Court promised that “[i]f defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed -with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply.” Ibid. That tipping point—the filing of a defendant’s motion to dismiss after the expiration of 120 days after the filing of the answer—was adopted to “placet] strong incentives on both plaintiffs’ and defense counsel to act diligently.” Ibid.

In this ease, plaintiff filed a timely but non-conforming affidavit. While well within the 120-day statutory period, defendant informed plaintiff that plaintiffs affidavit of merit clearly did not meet the requirements of the Medical Care Access Act and, hence, was a nullity. Yet, plaintiff did nothing.

At defendant’s—and specifically not at plaintiff’s—behest, a Ferreira conference was held, id. at 154-55, 836 A.2d 779, where defendant again aired the insufficiency of plaintiffs purported affidavit of merit. Yet again, plaintiff did nothing.

Well after the expiration of the 120-day statutory period for compliance, defendant moved to dismiss plaintiff’s complaint for failure to comply with the AMS and the Medical Care Access Act. He did so reasonably expecting, as Ferreira promised, that plaintiffs complaint would be dismissed. It was then and only then that plaintiff—expressly conceding that her original affidavit of merit plainly did not satisfy the statutory requirements—sought a waiver from those requirements.

Similarly, despite defendant’s early warning that plaintiff needed to seek a waiver of the provisions of the Medical Care Access *71Act, the record is barren of any “reasonable explanation why there was not a strict compliance with the [AMS].” Fink, supra, 167 N.J. at 561, 772 A.2d 386 (emphasis supplied). While plaintiff, through her counsel, tendered a tepid explanation for her reliance on Dr. Befeler as a substitute, there has been no showing—none whatsoever—why plaintiff did not seek a waiver during the statutorily allowed 120-day period and, in any event, before defendant moved to dismiss. It was only after she faced all-but-certain dismissal that plaintiff finally acted.

That was too little, too late. By that point, plaintiff had forced defendant to move to dismiss because no valid affidavit of merit had been filed, despite defendant’s written notice to plaintiff as well as a Ferreira conference that underscored the deficiencies in plaintiffs so-called affidavit of merit. The tipping point this Court previously set forth—the expiration of the 120-day statutory period and the filing of a motion to dismiss by defendant—had been met and defendant’s statutory right to dismissal of the complaint had vested. Once that occurred, all that remains is for this Court to be true to its word and dismiss plaintiffs complaint.8

*72V.

At the very core of this Court’s inherent worth as a necessary and relevant institution of government is a straightforward proposition: that it say what it means, and mean what it says. Observance of that simple tenet requires that this Court reaffirm the principles of diligence to and compliance with unambiguous statutory requirements designed to keep judicial decision making from free-falling into chaos. The contradictory message delivered by the majority today, however, stands in stark opposition to those principles. Instead, the majority announces that those who are not diligent and choose to ignore their obligations need not fear for they will be rescued, regardless of the cost to other litigants, to the judicial system, or to the basic respect owed to a co-equal branch of government. In doing so, clearly phrased legislative requirements—the AMS and the Medical Care Access Act—now are relegated to a subsidiary role; those statutes have become judicially neutered scarecrows, providing a warning heeded by the diligent but having no lingering effect on the scavengers.

That process rewards the willful disregard of a legislative mandate; it results in the needless nullification of a thoughtful and reasoned legislative scheme; and it tramples the right to be free of malpractice claims lacking in merit—a right the Legislature intentionally and unequivocally granted to defendant.9 For each of those reasons, I dissent.

*73For reversal and remandment—Chief Justice RABNER, Justices LONG, LaVECCHIA, ALBIN, WALLACE, and HOENS—6.

For affirmance—Justice RIVERA-SOTO—1.

Kirk Ryan, plaintiff Abby Ryan’s husband, also is listed as a plaintiff. However, because he advances only a per quod claim, "the viability of [that claim] is subject to the survival of [his wifej's claim.” Sciarrotta v. Global Spectrum, 194 N.J. 345, 350 n. 3, 944 A.2d 630 (2008). See also Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178, 190, 735 A.2d 1142 (1999) (explaining that "loss of consortium, or per quod, claim is intended to compensate a person for the loss of a spouse's society, companionship and services due to the fault of another[,]” and that "a per quod claim is derivative of the injured spouse's personal injury cause of action" (citations and internal quotation marks omitted)); Murphy v. Implicito, 392 N.J.Super. 245, 269, 920 A.2d 678 (App.Div.2007) (noting that, "[i]n general, a per quod claim includes the right of a husband or wife to receive compensation for loss of affection, comfort, companionship, society, assistance and sexual relations lost as a result of the other's personal injuries" (citing Dan B. Dobbs, The Law of Torts § 310 at 841-43 (2001))). For that reason, all references to plaintiff shall be solely to Abby Ryan.

Defendant’s status as a board-certified physician also is not in dispute; none other than plaintiff's counsel certilied to the trial court that "defendant is Board Certified in the field of [ijnternal medicine and [possesses] a sub-[c]ertif’ication in gastroenterology.

According to his curriculum vitae, Dr. Befeler is board-certified only in general surgery and has not been involved in gastrointestinal matters since the late 1960's; in Dr. Befeler’s own words, he "do[es] not perform colonoscopies at the present time" and has not performed one since before 2004.

The record is curiously silent on when and under what circumstances Dr. Befeler has been qualified as an expert in the New Jersey courts, that is, whether he has even been qualified as an expert in gastroenterology, and, more to the point, whether he has been qualified as an expert since July 7, 2004, the date the Medical Care Access Act became effective. See L. 2004, c. 17, § 33 (defining effective dates of Medical Care Access Act).

While this appeal was pending—-but before argument was heard—defendant moved to supplement the record to add certain challenges to Dr. Befeler's credentials. The majority has denied that motion, ante at 45, 999 A.2d at 432, the subject matter of which the majority entrusts to the trial court on remand. Ante at 60-61, 999 A.2d at 441-42. Because the correct result here should be to bar as untimely the purported affidavit of merit executed by Dr. Befeler, there would be no need for this Court to consider the allegations raised in that motion. That said, the matters alleged in that motion demand careful and close scrutiny by the trial court.

The majority strives to define the "good faith efforts" and suitability of the substitute expert factors relevant to granting a waiver under NJ.S.A. 2A:53A-*6841(c). No doubt, that discussion may be of some assistance in the future, one in which I likely would join. However, in the peculiar circumstances presented in this case, because the question of whether to grant the waiver should not have been addressed at all, that discussion is dicta.

In a legal sleight-of-hand, the majority asserts that "Dr. Befeler’s report was filed prior to Dr. Renny's answer—well within the time frames provided in the Affidavit of Merit statute—and was declared by the trial judge to satisfy the substantive requirements of the statute. Put another way, a proper affidavit of merit was, in fact, timely filed.” Ante at 48 n. 4, 999 A.2d at 434 n. 4. As the discussion that follows amply demonstrates, the majority's reasoning is nothing more than the exercise of "the false logic of ‘Post hoc, ergo propter hoc analysis!,]’ ” Schulman v. Male, 70 N.J.Super. 234, 240, 175 A.2d 450 (App.Div. 1961), and merits no additional response. See Black’s Law Dictionary 1285 (9th ed. 2009) (translating "post hoc, ergo propter hoc ” as "after this, therefore because of this” and defining phrase as "[o]f or relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence”).

Our precedents also require that, in addition to demonstrating substantial compliance with the AMS’s requirements, a non-compliant plaintiff—one who fails to satisfy her AMS obligations before (1) the 120-day extended statutory deadline and (2) the defendant has moved to dismiss the complaint—must prove extraordinary circumstances to avoid a dismissal with prejudice. Ferreira, supra, 178 N.J. at 151, 836 A.2d 779 (citing Palanque, supra, 168 N.J. at 404-05, 774 A.2d 501; Alan J. Comblatt, P.A. v. Barow, 153 N.J. 218, 246-47, 708 A.2d 401 (1998)). We have explained that "[w]hat constitutes an 'extraordinary circumstance' will require a fact-sensitive analysis in each case[,]” Hartsfield v. Fantini, 149 N.J. 611, 618, 695 A.2d 259 (1997), an analysis we have incorporated into whether dismissal of a complaint for failure to comply with the AMS will be with prejudice. See Comblatt, supra, 153 N.J. at 246-47, 708 A.2d 401 (adopting Hartsfield extraordinary circumstances standard and holding that "[ajbsent extraordinary circumstances, a failure to comply with the [AMS] that requires a dismissal would be with prejudice"); Tischler v. Watts, 177 N.J. 243, 246-47, 827 A.2d 1036 (2003) (applying Comblatt rule in AMS case). Nothing in this record even remotely approaches the species of "extraordinary circumstances” necessary to relieve plaintiff of a dismissal with prejudice, much less a dismissal without prejudice.

That concern has poignantly added weight here, where plaintiff disclosed that she sought supporting opinions from three geographically disparate experts obviously aligned with and recommended by medical malpractice plaintiff's counsel. Despite such auspicious beginnings, each of those experts refused to provide the affidavit of merit plaintiff needed to proceed and, not surprisingly, plaintiff fails to tell us why. Although some may conjure up sundry neutral reasons those experts refused to support plaintiff's claim, the self-evident reason glaringly remains: those experts refused to swear that plaintiff's claim had merit because it patently did not. That fact, standing alone, underscores the reasoning and need for competent and meaningful affidavits of merit as required by both the AMS and the Medical Care Access Act.