The New Jersey Appellate Division reinstated a medical negligence case, finding that the trial judge improperly rejected the plaintiffs’ claim that they were prevented from filing an affidavit of merit due to the defendants’ failure to produce medical records…law.com, NJ Appeals Court Reinstates Medical Negligence Case, Finding Trial Judge Misapplied AOM Statute, Colleen Murphy,Jan 2023
Laura Christine Semprevivo died by suicide on Sept. 16, 2016. Two years later, a complaint was filed against her medical providers, Hassan Lahham and Liviu Holca, by her estate and Patricia and Ronald Semprevivo. The complaint alleged that the defendants prescribed opioids “without regard for her health, safety and well-being.” The civil case information statement, filed with the complaint, identified the case as personal injury and not professional malpractice.
On March 30, 2019, the court dismissed the complaint on its own initiative, without prejudice, for lack of prosecution, according to the opinion. Then a judge granted Holca’s motion to dismiss the complaint with prejudice and denied a motion by the plaintiffs to reinstate. The Appellate Division reversed that order and remanded the case. On July 9, 2021, Holca filed an answer to the complaint, including a demand for an AOM.
In a Sept. 8, 2021, motion to extend the time to file an AOM, plaintiff’s counsel certified that they had missed the 60-day deadline due to inadvertent attorney error by plaintiff’s current and former counsel, and due to the defendant’s refusal to provide records to support an AOM, and a third-party refusal to provide any records.
According to the opinion, the judge granted the plaintiff’s motion and extended the deadline to file an AOM by 60 days. A day before that due date, counsel for the plaintiffs filed a certification citing N.J.S.A. 2A:53A-28 and certifying “that on September 8, 2021, 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 judge then dismissed the case with prejudice, and stated that he did not accept counsel’s N.J.S.A. 2A:53A-28 certification. After the judge granted the extension, according to the opinion, plaintiff’s counsel served the defendant with multiple discovery requests. None of those requests was answered.
According to the opinion, the judge denied plaintiffs the statutory exemption based on what he believed to be the plaintiff’s discovery failings and, in doing so, read into the requirements of N.J.S.A. 2A:53A-28.
“Applying the AOM statute as enacted, we conclude the judge erred in rejecting the sworn statement plaintiffs submitted pursuant to N.J.S.A. 2A:53A-28 and in dismissing the complaint with prejudice,” the opinion said.
“Accordingly, we reverse and remand,” the opinion said. “On remand, we direct the matter be assigned to a different judge.