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Young’s e-mail address is gyoungnlj.com. modifying the dismissal with prejudice of a medical malpractice action, the New Jersey Supreme Court explained on July 24 that an attorney’s illness constituted an extraordinary circumstance sufficient to justify failure to comply with procedural requirements. Tischler v. Watts, No. A-77-01. Four years after suffering complications from a reduction mammoplasty, a patient hired an attorney to sue her plastic surgeon. Under the Affidavit of Merit Statute, which requires the filing of an affidavit by a licensed professional in malpractice actions attesting to deviation from the standard of care, the attorney had another plastic surgeon sign an affidavit. When the patient’s attorney was diagnosed with cancer, the case was transferred to a colleague. The trial court dismissed the case with prejudice after discovering that the affiant’s medical license had been revoked before he signed the affidavit. The Affidavit of Merit Statute allows for dismissal of an action without prejudice where extraordinary circumstances caused the failure to comply with procedural requirements. The state Supreme Court found the patient’s original attorney to be competent and determined that she would have discovered the problematic nature of the affidavit within the statutory time limit had she not been undergoing treatment for cancer.

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