The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its opinion approved for publication on February 27, 2018 that the failure of the plaintiffs’ original New Jersey medical malpractice attorney to file the required Affidavit of Merit (AOM) in a prison medical malpractice case did not provide the basis to invoke the equitable concept of “extraordinary circumstances” to permit the plaintiffs to prosecute a professional and/or medical malpractice action against three prison nurses.
The New Jersey prison medical malpractice case alleged, in part, that three nurses who worked in the prison in which the plaintiffs’ decedent had been placed in a restraint chair due to his behavior had breached the standard of care applicable to them because they were not adequately trained in nursing care and care for an inmate in an inmate restraint chair, and they failed to conform with recognized standards of care, exercised by nurses in the same specialty and the same area.
Nonetheless, in the Civil Case Information Statement (CIS) filed contemporaneously with the complaint, the plaintiffs’ lawyer checked “No” in response to the question: “Is this a professional malpractice case?”
The defendant nurses filed an answer to the plaintiffs’ complaint denying any civil liability for the injuries suffered by the decedent while in custody and raised the affirmative defense “that [p]laintiff has failed to file an appropriate Affidavit of Merit for claims of professional negligence against [them], … licensed persons pursuant to New Jersey Statutes, N.J.S.A. 2A:53A-26, et seq. and applicable case law.” In the CIS, the nurses responded “Yes” to the question: “Is this a professional malpractice case?”
Affidavit Of Merit Requirement
Pursuant to N.J.S.A. 2A:53A-27, “within 60 days following the date of filing of the answer to the complaint by the defendant,” the plaintiffs were required to 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 the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.” In this case, the plaintiffs failed to do so (N.J.S.A. 2A:53A-27 authorizes the trial court to 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”).
It was undisputed that the plaintiffs’ original lawyer did not make any effort to comply with the mandate of the Affidavit of Merit statute within the timeframe established by the Legislature in N.J.S.A. 2A:53A-27. It was also undisputed that the trial court did not make any effort to conduct an accelerated case management conference prior to the expiration of the initial sixty-day statutory period, nor at any time thereafter.
The plaintiffs’ substitute lawyer filed a motion to excuse the original lawyer’s failure to comply with the Affidavit of Merit requirement. The motion judge issued a letter-opinion explaining his reasons for granting the plaintiffs’ motion: the issue was whether the plaintiffs were entitled to equitable relief from the 120-day time restriction in N.J.S.A. 2A:53A-27 (the motion judge had the authority to grant equitable relief from the strict enforcement of the Affidavit of Merit statute in cases where there are “extraordinary circumstances” or a showing of “substantial compliance” with the statutory mandate).
The New Jersey Appellate Court Opinion
The Substantial Compliance Doctrine
The New Jersey Appellate Court stated that the doctrine of substantial compliance is used by courts to avoid technical defeats of valid claims and requires: (1) the 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.
The New Jersey Appellate Court stated that with respect to factor (1), it agreed that the record does not show that the defendant-nurses were prejudiced by the plaintiffs’ failure to provide an AOM within the 120-day statutory timeframe. However, with respect to factor (2), the record shows that the plaintiffs’ lawyer did not take any steps to comply with the clear mandate of N.J.S.A. 2A:53A-27 during the 120-day maximum statutory timeframe.
The New Jersey Appellate Court stated that factor (4) requires the plaintiffs to show they gave the defendants reasonable notice of the claims against them within the maximum 120-day statutory period. Here, except for the generic, nondescriptive allegations reflected in the complaint, the plaintiffs’ original lawyer did not identify the standard of care applicable to nurses working in a penal institution nor describe what actions the defendants took or failed to take that deviated from the relevant standard of care.
Factor (5) requires the plaintiffs to provide “a reasonable explanation why there was not a strict compliance with the statute.” Here, the plaintiffs’ original lawyer did not provide any explanation for his failure to comply with the Affidavit of Merit statute or for his failure to respond to the defendants’ motion to dismiss the counts in the complaint alleging professional malpractice.
The New Jersey Appellate Court held: “The record developed before the trial court does not support granting plaintiffs any relief based on the equitable doctrine of substantial compliance.”
The New Jersey Appellate Court stated that the concept of “extraordinary circumstances” is the second equitable exception the New Jersey Supreme Court has applied to temper the draconian results of an inflexible application of the Affidavit of Merit statute.
In the present case, the New Jersey Appellate Court stated, “the record is uncontroverted that plaintiffs’ original counsel did not take any steps to comply with the requirements of the Affidavit of Merit statute during the time he was plaintiffs’ attorney of record. It is also equally undisputed that plaintiffs’ substitute counsel waited nearly two months to take any action to address this problem.”
The New Jersey Appellate Court held: “The record here shows an undisputed pattern of inattentiveness coupled with outright ignorance of the legal requirements of the Affidavit of Merit statute by plaintiffs’ original counsel. Under these uncontested facts, there is no basis to invoke the equitable concept of “extraordinary circumstances” to permit plaintiffs to prosecute a professional and/or medical malpractice action against these three nurses.”
Source Estate of David Eric Yearby v. Middlesex County, Docket No. A-2477-16T2.
If you or a loved one were injured due to deliberate indifference or the lack of appropriate medical care while incarcerated in a prison, jail, or other correctional facility in New Jersey or in another U.S. state, you should promptly seek the legal advice of a local medical malpractice lawyer in your state who handles prisoner/inmate medical malpractice claims and may investigate your claim and represent you, if appropriate.
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