On July 16, 2024, plaintiff, as a self-represented litigant, filed a handwritten New Jersey medical malpractice complaint
against defendants. In the accompanying Case Information Statement (CIS), plaintiff checked the “yes” box, indicating her assertion of a professional malpractice claim. Because plaintiff checked “yes,” the CIS instructed plaintiff to “see N.J.S.A. 2A:53A-27 and applicable case law regarding [her] obligation to file an [AOM].”
Mountainside and Drs. Casagrande and Shaker filed answers and asserted plaintiff’s failure to file an Affidavit of Merit (AOM) as an affirmative defense. The sixty-day period for plaintiff to satisfy her AOM obligation ran from the date each defendant filed an answer and demanded an AOM. N.J.S.A. 2A:53A-27. An additional period of sixty days may have been granted upon a showing of “good cause.”
Because plaintiff failed to provide any AOM, defendants moved separately to dismiss plaintiff’s complaint with prejudice. In orders dated December 6, 2024, the judge granted the motions on behalf of Drs. Casagrande and Shaker, citing plaintiff’s failure to provide an AOM. In a January 7, 2025 order, the judge granted Mountainside’s motion for the same reason.
Plaintiff retained counsel to file an appeal. Plaintiff argued extraordinary circumstances justified a “good cause” extension to file an AOM. Additionally, she contended the judge should have considered a less drastic sanction than dismissal of her complaint with prejudice for failure to file an AOM. Further, plaintiff asserted her self-represented status before the trial court “deprived her of a fair opportunity to be heard.”
The Superior Court of New Jersey Appellate Division stated in it’s November 10, 2025 unpublished Per Curiam: “The failure to provide the AOM is a failure to state a cause of action under N.J.S.A. 2A:53A-29, requiring with prejudice dismissal of a malpractice action … The Court created two exceptions, allowing trial courts some flexibility in applying the AOM statute. First, “[a] complaint will not be dismissed if the plaintiff can show that he [or she] has substantially complied with the statute.” Id. at 152. Second, “[w]here extraordinary circumstances are present, a late affidavit will result in a dismissal without prejudice.””
“Despite the judge explaining plaintiff’s obligation to comply with the AOM requirements at the various Ferreira conferences, which plaintiff’s son presumably reported to his mother, plaintiff never submitted an AOM. Nothing
on this record would support finding extraordinary circumstances to reverse the orders dismissing plaintiff’s complaint with prejudice. Even on appeal, plaintiff did not indicate she presently has an AOM that would comply with the statute.”
“We reject plaintiff’s assertion that extraordinary circumstances existed to excuse her noncompliance with the AOM statute. Plaintiff cites her “pro se status” in support of this argument … Contrary to plaintiff’s assertion, the record confirms the judge painstakingly fulfilled his obligation to remind plaintiff an AOM was required … Here, plaintiff
never filed any AOM despite receiving instructions in the CIS and during the Ferreira conferences of her obligation to do so or risk dismissal of her malpractice action with prejudice. Based on these specific facts, plaintiff failed to demonstrate extraordinary circumstances justifying her failure to submit an AOM and the judge properly dismissed her complaint with prejudice.”
Source Hancock v. Mountainside Medical Center Montclair, Docket No. A-1600-24.
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