Opinion
DOCKET NO. A-1572-09T2
09-19-2011
GINA CORNEJO, Plaintiff-Appellant, v. ASHWIN KANSAGRA, M.D. and RICHARD P. MACKESSY, M.D., Defendants-Respondents, and JONATHAN LESTER, M.D., Defendant.
John D. North argued the cause for appellant (Greenbaum Rowe Smith & Davis, LLP, attorneys; Mr. North, of counsel, Steve Newman, on the briefs). Michael L. Solomon argued the cause for respondent Ashwin Kansagra (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Mr. Solomon, of counsel and on the brief). Thomas J. Pyle, Jr., argued the cause for respondent Richard Mackessy (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Lauren Koffler O'Neill, of counsel; Mr. Pyle, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1667-08.
John D. North argued the cause for appellant (Greenbaum Rowe Smith & Davis, LLP, attorneys; Mr. North, of counsel, Steve Newman, on the briefs).
Michael L. Solomon argued the cause for respondent Ashwin Kansagra (Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys; Mr. Solomon, of counsel and on the brief).
Thomas J. Pyle, Jr., argued the cause for respondent Richard Mackessy (Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys; Lauren Koffler O'Neill, of counsel; Mr. Pyle, on the brief). PER CURIAM
Plaintiff Gina Cornejo appeals from a July 1, 2009 summary judgment dismissing her medical malpractice complaint against defendants Ashwin Kansagra, M.D., and Richard Mackessy, M.D., for failure to provide a sufficient affidavit of merit (AOM) pursuant to the Affidavit of Merit Statute (AOM Statute), N.J.S.A. 2A:53A-27 and -41, and from the denial of her subsequent motion for reconsideration. We now affirm.
Defendant Jonathan Lester, M.D., was dismissed from the action for plaintiff's lack of prosecution on August 21, 2010, which was more than eight months after plaintiff had filed the present appeal. The notice of appeal was not amended to include the August 21, 2010, order. Because neither defendant moved to dismiss this appeal as improvidently filed and because the order of July 1, 2009, became final before this matter was listed for oral argument, we will dispose of the appeal on the merits.
This action arises out of medical services provided to plaintiff by defendants in 2006 after plaintiff fell while delivering mail and injured her left elbow, shoulder, and hip. She was diagnosed with thoracic outlet syndrome and treated by defendants. Ultimately, plaintiff underwent surgery at Massachusetts General Hospital to relieve her pain and remedy the disability in her left arm. She alleges that while treating her defendants committed malpractice in ordering physical therapy and authorizing her to return to work on modified duty, causing permanent damage to the nerves in her left arm. The specific treatments and allegations of malpractice are not relevant to our determination of this appeal.
Plaintiff filed her complaint on May 9, 2008, and defendants filed their separate answers toward the end of that year. The filing of those answers triggered an obligation under N.J.S.A. 2A:53A-27 on plaintiff's part to serve an AOM on defendants within sixty days.
That statute also permits one sixty-day extension for compliance with the requirements for an AOM but prohibits any extensions beyond 120 days. Ibid.
Plaintiff obtained an AOM from Raphael Osheroff, M.D., who had diagnosed and treated her for the thoracic outlet syndrome, but was not the surgeon who operated on her. She served Dr. Osheroff's AOM on February 9, 2009. No one suggests this was outside the sixty-day period allowed by N.J.S.A. 2A:53A-27. On February 12, 2009, counsel to Dr. Mackessy promptly advised plaintiff's counsel that she did not "consider [her AOM] sufficient pursuant to N.J.S.A. 2A:53[A]-27." She did not specify the nature of the deficiency in her letter. On February 17, 2009, counsel for Dr. Kansagra objected to the sufficiency of the AOM, also without specifying the nature of the deficiency. Plaintiff's counsel took no action in response to these letters, awaiting a Ferreira conference that was never scheduled by the trial judge or requested by plaintiff, even though the total 120-day period for serving a sufficient AOM expired as to Dr. Mackessy in March and as to Dr. Kansagra in April.
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) (requiring trial judges to conduct a case management conference in all malpractice cases within ninety days of the filing of an answer to address, among other discovery issues, deficiencies in an AOM).
On or about March 30, 2009, after the time within which the AOM could be corrected or a new one could be secured from another physician, Dr. Mackessy moved for dismissal of the complaint for failure to provide a sufficient AOM. On April 28, 2009, Dr. Kansagra "cross-moved" for the same relief, also after the 120-day period had expired. Neither Dr. Mackessy nor Dr. Kansagra signed a certification in support of his motion. Rather, in support of Dr. Mackessy's motion, his attorney signed a certification in which he stated:
Because this motion was based on evidence outside the complaint itself, the motion was required by Rule 4:6-2 to be treated as a motion for summary judgment and determined as provided by Rule 4:46.
This was a misuse of the rule permitting cross-motions. Rule 1:6-3(b) only permits cross-motions to be filed by the party responding to the motion and only if the cross-motion "relates to the subject matter of the original motion." Although Dr. Kansagra's motion so related, he was not a responding party and was thus required to file his own independent motion, thereby giving plaintiff the full amount of time allowed by Rule 4:46-1 to respond to his motion.
For the reasons set forth in the accompanying [b]rief, it is respectfully requested that the [c]ourt dismiss plaintiff's complaint with prejudice pursuant to [N.J.S.A.] 2A:53A-29 for failure to state a cause of action since Dr. Osheroff is not an appropriate licensed person to execute an [AOM] against Dr. Mackessy pursuant to [N.J.S.A.] 2A:53A-27.
In Dr. Mackessy's brief, he argued that his specialty was orthopedics and orthopedic surgery, whereas Dr. Osheroff was not board certified in orthopedic surgery but was merely an internal medicine physician. As such, Dr. Osheroff was prohibited by N.J.S.A. 2A:53A-41 from executing an affidavit "'on the appropriate standard of practice or care . . .' in this case."
This, of course, was not supported by any competent evidence as there was no certification from Dr. Mackessy attesting to his status as a specialist or board-certified specialist.
That statute provides in pertinent part as follows:
In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of . . . [N.J.S.A. 2A:53A-26] on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties . . . and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties . . . , the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspe-cialty, recognized by the American Board of Medical Specialties . . . , as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties . . . , the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or[Ibid.]
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties . . . who is board certified in the same specialty or subspecialty . . . .
In support of Dr. Kansagra's motion, his attorney stated that "Dr. Kansagra is board certified in occupational medicine." He further asserted, "Thus, since Dr. Osheroff does not specialize in the same specialty as Dr. Kansagra, Dr. Osheroff is not an appropriate physician to execute an [AOM] against Dr. Kansagra." Dr. Kansagra sought dismissal of the complaint pursuant to N.J.S.A. 2A:53A-27 and -29 and relied on the brief submitted by Dr. Mackessy. Plaintiff opposed both motions on May 8, 2009, advancing a number of arguments.
Once again, there was no evidential support for this statement.
Dr. Kansagra's attorney by letter dated May 8, 2009, advised the judge that Dr. Kansagra was also a board-certified surgeon. Then, on May 12, 2009, Dr. Mackessy's attorney filed a reply letter brief to which he attached an internet printout from the Division of Consumer Affairs' website indicating that Dr. Mackessy was board certified by the American Board of Orthopaedic Surgery from July 26, 1986, to December 31, 2016, with a subspecialty in hand surgery. He submitted a similar document indicating that Dr. Osheroff was board certified by the American Board of Internal Medicine on June 21, 1972, with a subspecialty in nephrology, but the website had no information about the expiration of that initial certification and did not indicate any recertification. Plaintiff then submitted a similar document reflecting that Dr. Kansagra was board certified by the American Board of Surgery on April 23, 1997, and that his certification expired on July 1, 2007.
After oral argument, the judge permitted additional letter briefs and plaintiff submitted Dr. Osheroff's curriculum vitae. By orders entered on July 1, 2009, the judge granted both motions for the reasons articulated in a letter opinion of the same date. First, she explained that the lack of a Ferreira conference did not protect plaintiff from dismissal because "the purposes of the case management conference . . . were met" by plaintiff's timely filing of the AOM and defendants' timely objections to same, making this case distinguishable from the facts in Saunders ex rel. Saunders v. Capital Health System at Mercer, 398 N.J. Super. 500 (App. Div. 2008), and Paragon Contractors, Inc. v. Peachtree Condominium Ass'n (Paragon I), 4 06 N.J. Super. 568 (App. Div. 2009), rev'd on other grounds, 202 N.J. 415 (2010).
Saunders was abrogated by the Supreme Court's decision in Paragon, which had yet to be decided at the time the judge issued her decision.
Next, the judge decided that Dr. Osheroff's AOM was insufficient as to Dr. Mackessy under N.J.S.A. 2A:53A-41 because plaintiff's complaint alleged that Dr. Mackessy was a board-certified orthopedic surgeon who "did not exercise the degree of care or skill or possess the degree of knowledge ordinarily exercised or possessed by others of this specialty" (quoting N.J.S.A. 2A:53A-41) (emphasis added). Thus, only an expert orthopedic surgeon could opine as to any deviation by Dr. Mackessy, and Dr. Osheroff's curriculum vitae did not suggest such a specialty. As a result, plaintiff failed to satisfy the requirements of N.J.S.A. 2A:53A-41.
Plaintiff has not appealed this determination.
Finally, the judge decided that Dr. Osheroff's AOM was insufficient as to Dr. Kansagra because plaintiff's complaint alleged that he deviated from the standard of care of a physician specializing in occupational medicine. She reasoned that because Dr. Kansagra specialized in occupational medicine, although not board certified, and Dr. Osheroff's curriculum vitae "did not mention any relevant experience or study in the field of occupational medicine," he was "not an appropriate licensed person to provide an [AOM]" (quoting N.J.S.A. 2A:53A-27. As a result, plaintiff failed to satisfy the requirements of N.J.S.A. 2A:53A-27.
Plaintiff filed a motion for reconsideration on August 5, 2009. Defendants argued that the motion was not timely, but plaintiff's counsel certified that Dr. Kansagra's counsel had served him with the July 1 order on July 13 and Dr. Mackessy's counsel had served him with the July 1 order on July 14. He pointed out that Rule 1:3-3 provides that when service is made by ordinary mail and a rule allows the party served a period of time after service in which to take action, three days "'shall be added to the period'" (quoting R. 1:3-3). Thus, he urged that service and filing of the motion for reconsideration was not required until August 5.
The judge denied the motion on the merits on September 25, 2009, without resolving the dispute over its timeliness. On November 17, 2009, the judge amended her order to correct the form of order that had been submitted by plaintiff. This appeal was filed on December 3, 2009.
We are, however, satisfied that the motion was timely. See R. 1:3-3, 4:49-2
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Plaintiff first urges that the judge erred in dismissing her complaint without having conducted a Ferriera conference. This issue is controlled by the Supreme Court's June 28, 2010, decision in Paragon Contractors, Inc. v. Peachtree Condominium Ass'n (Paragon II), 202 N.J. 415 (2010). There, Peachtree filed a third-party complaint against Key, indicating on its CIS that the matter was a construction dispute. Id. at 419-20. Key answered and asserted the AOM Statute as a defense, indicating on its CIS that the third-party complaint alleged professional malpractice, and requested a track reassignment. Id. at 420. Before Peachtree served an AOM and before any Ferreira conference, but after 120 days had expired from the filing of its answer, Key moved to dismiss. Ibid. Peachtree argued that the failure to conduct a Ferreira conference tolled the time to comply with the AOM Statute. Ibid. The motion judge, rejecting the argument, dismissed the third-party complaint, and we affirmed. Id. at 420-21 (citing Paragon I, supra, 406 N.J. Super. at 585).
The Court reversed our decision in Paragon I but, in doing so, overruled our decision in Saunders, supra, 398 N.J. Super. at 510-11 (permitting the action to proceed to trial because the judge did not timely conduct a Ferriera conference). Paragon II, supra, 202 N.J. at 424-25. The Court concluded that the failure to conduct a Ferreira conference had no effect on the time limits in N.J.S.A. 2A:53A-27. Ibid. However, the Court recognized that Saunders and Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Ouinn, 410 N.J. Super. 510, 542 (App. Div. 2009) (finding that the failure to conduct a Ferreira conference did not affect the time constraints of N.J.S.A. 2A:53A-27), certif. denied, 203 N.J. 93 (2010), diverged and confused the issue and that "lawyers also may have been unclear regarding the import of the failure to hold a Ferreira conference and, incorrectly as it turns out, may have assumed that the absence of the conference provided a safe harbor from the [AOM] statute's requirements." Id. at 425. That confusion counseled lenience in that case. Ibid. The issue is whether it counsels lenience here. For the following reasons we conclude it does not.
Here, plaintiff knew that she was filing a malpractice action and timely served her AOM on defendants. Furthermore, defendants promptly notified plaintiff that Dr. Osheroff's AOM was deficient. Nevertheless, plaintiff neither sought to ascertain from defendants the basis for their positions nor requested the scheduling of a Ferreira conference. Most importantly, plaintiff did not file a certification in opposition to defendants' motions asserting reliance upon our decision in Saunders to await a Ferreira conference before resolving the dispute over the sufficiency of the AOM. Finally, plaintiff submitted no new AOMs within sixty days of the orders dismissing her complaint to support the motion for reconsideration. Thus, this case is entirely distinguishable from Paragon and lenience is not warranted.
Plaintiff also contends that the judge erred in dismissing her complaint against Dr. Kansagra. The judge recognized that Dr. Kansagra failed to demonstrate either that he was board certified in occupational medicine or that he was a recognized specialist or subspecialist in occupational medicine; she nonetheless dismissed plaintiff's complaint against him because Dr. Osheroff was not an "appropriate licensed person" under N.J.S.A. 2A:53A-27 as he was not board certified in occupational medicine or recognized as a specialist or subspecialist in occupational medicine.
The judge recognized that in Wacht v. Farooqui, 312 N.J. Super. 184, 187-88 (App. Div. 1998), we acknowledged overlaps in practice between and among the various medical professions and specialties." As such, we determined that "a doctor in one field would be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice." Ibid. Plaintiff points to Dr. Osheroff's certification in support of reconsideration in which he averred that his "expertise in treating [thoracic-outlet syndrome] . . . overlaps the expertise [of Dr. Kansagra] as an occupational medical specialist." Thus, plaintiff contends, it was error to dismiss her complaint as to Dr. Kansagra.
Without addressing the evidential value of the printout from the Division of Consumer Affairs' website respecting Dr. Kansagra's qualifications, it was plaintiff who relied on that information, from which it is apparent that Dr. Kansagra was a board-certified surgeon. Although an AOM from the surgeon who operated on plaintiff may have been sufficient, the AOM from Dr. Osheroff was not.
The AOM Statute provides in pertinent part as follows:
In 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 the 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 (emphasis added).]
Originally, "the statute broadly required that the affidavit be executed by an affiant who was 'licensed' and had 'expertise in the general area or specialty involved in the action.'" Ryan v. Renny, 203 N.J. 37, 51 (2010). As noted by the Court, the New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42, which was enacted in 2004, modified the AOM Statute and "provides more detailed standards . . . for one who executes an [AOM], generally requiring the challenging expert to be equivalently[ ] qualified to the defendant." Id. at 51-52 (citing N.J.S.A. 2A:53A-41). Indeed, the New Jersey Medical Care Access and Responsibility and Patients First Act overruled Wacht. N.J.S.A. 2A:53A-41 limited the physicians who could execute an AOM against Dr. Kansagra to those who were board-certified surgeons. Thus, the judge did not err in dismissing plaintiff's complaint.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION