New Jersey Appellate Court Holds Trial Court Erred In Dismissing Medical Malpractice Case Based On Failure To File Affidavit Of Merit

Court Erred In Dismissing Medical Malpractice Case: N.J.S.A. 2A:53A-28 provides that an affidavit of merit (“AOM”) is not required in a New Jersey medical malpractice case
“if the plaintiff provides a sworn statement . . . setting forth that: the defendant has failed to provide plaintiff with medical records or other records or information having a substantial bearing on preparation of the affidavit; a written request therefore along with, if necessary, a signed authorization by the plaintiff for release of the medical records or other records or information requested, has been made by certified mail or personal service; and at least 45 days have elapsed since the defendant received the request.”

In the case the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) decided on January 20, 2023, the plaintiffs’ New Jersey medical malpractice lawyer certified that the plaintiffs had served defendants with a request for their responses to Form C and Form C(3) interrogatories and with a Notice to Produce, seeking “medical records and other information having a substantial bearing on preparation of” the affidavit of merit. The plaintiffs’ lawyer certified the defendant had not provided the plaintiffs with any records or responses to the plaintiffs’ discovery requests and the plaintiffs’ “doctor” had been unable to prepare an affidavit of merit “due to having insufficient records,” and that the records in the defendant’s possession “would have a substantial bearing on preparation of” the affidavit of merit.

The New Jersey Appellate Court stated: “N.J.S.A. 2A:53A-28 excuses a plaintiff from submitting an affidavit of merit if the plaintiff provides a sworn statement that the defendant failed to respond within forty-five days to a written request for medical records or other information “having a substantial bearing on [the] preparation of the affidavit” … when a defendant has failed to provide any discovery responses whatsoever, “it should be presumed that the ‘medical records or other records or information’ not produced have had ‘a substantial bearing on preparation of the affidavit”” … Defendant plainly did not make a showing sufficient to overcome the presumption that the records he failed to furnish had “a substantial bearing on preparation of the affidavit” … Counsel’s unsworn assertions, which said nothing about what records may have been in defendant’s possession, are not sufficient to overcome the presumption that the records defendant failed to produce had “a substantial bearing on [the] preparation of the affidavit.””

The New Jersey Appellate Court explained: “for a plaintiff to be entitled to the statutory exemption under N.J.S.A. 2A:53A-28, the Legislature required only one thing: a sworn statement that the defendant failed to respond within forty-five days to a written request for medical records or other information “having a substantial bearing on [the] preparation of the affidavit.” The Legislature did not require the plaintiff to follow up on any outstanding discovery. It did not require the plaintiff to certify he or she was not in default in any discovery obligation owed to the defendant. Cf. R. 4:23-5(a)(1) (requiring a movant support a motion to dismiss or suppress a pleading for failure to provide discovery with an affidavit stating movant is not in default of any discovery obligation).”

The New Jersey Appellate Court therefore held: “the judge improperly read into N.J.S.A. 2A:53A-28 requirements the Legislature did not include … On remand, we direct the matter be assigned to a different judge. The newly-assigned judge is to enter an order exempting plaintiffs from the affidavit-of-merit requirement pursuant to N.J.S.A. 2A:53A-28 and scheduling a case management conference.”

Source Estate of Laura Christine Semprevivo v. Lahham, Docket No. A-0907-21.

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