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Five years after its passage, New Jersey’s Affidavit of Merit Act is accomplishing some of its purpose — dissuading tort litigation — but in pernicious ways. In malpractice where the damages sought are relatively small, the fee paid to the affiant can significantly offset the recovery. Add in the fee of an expert witness and other sundries, and the cost of litigation becomes prohibitive. Moreover, a plaintiff’s lawyer’s failure to obtain or file the affidavit on time can eviscerate the client’s case, however nonfrivolous the claim might be. Those were among the criticisms leveled during oral arguments at the New Jersey Supreme Court Jan. 29 by plaintiffs’ lawyers licking their wounds from dismissals. It was no accident that the court clustered, on one day, five appeals that complain about overly stringent application of the Affidavit of Merit Act, N.J.S.A. 2A:53A-27. Together, they provide the justices with one clear shot at setting clear and unambiguous guidelines for the law’s use. The first case, Galik v. Clara Maass Medical Center, A-13-00, dealt with whether a suit should be dismissed for lack of an affidavit of merit even though the plaintiff had served detailed liability-expert reports before the complaint was filed. The suit sought damages on behalf of a woman who died, allegedly as the result of a maltreated spinal fracture. The lawyer, Newark, N.J., sole practitioner Terry Shapiro, told the court he did not file an affidavit of merit because he had already served on the defendants’ lawyers two expert reports that provided all detail of an affidavit of merit, and more. Shapiro said he filed the 1997 complaint only after settlement negotiations failed. But when the time for serving an affidavit passed, the defendants filed a motion to dismiss, which Superior Court Judge Carol Ferentz granted. “I was shocked to get it,” Shapiro told the court. “I thought I had complied with the statute. I thought what I did was better. What I had was so much better. The reports go way beyond any affidavit of merit. They were better than an affidavit of merit.” Justice James Zazzali interrupted, noting that affidavits of merit are sworn documents, whereas expert reports are not. Perhaps that is why affidavits should be required in any case, he said. Shapiro retorted that doctors who agree to testify against another doctor or who prepare expert reports damning other doctors do not do so with the idea of merely making up facts. Those reports thus should be accorded the same weight as sworn statements. “This is a question of form rather than substance,” he said. Justice James Coleman Jr. said the Legislature, presumably knowledgeable about the difference between an affidavit of merit and an expert report, did not include language in the statute that would allow for a lawyer to substitute an expert report for an affidavit. Chief Justice Deborah Poritz appeared to agree. “This is not a question of what is better,” she said. “It is a question of what the Legislature chose to do. They chose the affidavit of merit.” When his turn came, defendants’ lawyer Kenneth Brown picked up on the same theme. “The Legislature was aware of all of this, and they chose to put together a straightforward requirement,” said Brown, a partner at Parsippany, N.J.’s Reiseman Sharp Brown & Rosenberg. “There is a bright-line test: ‘This is what needs to be done,’ ” he said. The Legislature, Brown added, realized that because of the tight requirements of the statute, some meritorious malpractice cases might not go forward. In that event, the plaintiff can then turn to the plaintiff’s lawyer as a target for a malpractice complaint. Zazzali wondered what would have been the prejudice against the defendants if Ferentz had ordered Shapiro to file an affidavit immediately, instead of dismissing the case. “He did not have a sworn statement,” said Brown, “and that’s what the Legislature required.” Another case, Hubbard v. Reed, A-6-00, dealt with whether the cost of obtaining an affidavit might leave a victorious plaintiff with nothing, and whether affidavits are needed at all for res ipsa loquitur cases. Nina Hubbard filed a malpractice suit against a dentist, Joseph Reed, who pulled the wrong tooth from her daughter, Nia. “The common-knowledge doctrine should apply,” said the Hubbards’ lawyer, Westmont, N.J. sole practitioner Edward Crisonino. And there was a monetary factor. Had he paid any of the prices he had been quoted — up to $2,500 — the plaintiffs might have been left with nothing after fees and expenses had been deducted. At most, he said, the case was worth about $8,000. “The real purpose of the statute was to quickly weed out meritless cases,” not those where the evidence of malpractice is clear, said Crisonino. And, he said, “it’s a matter of pure economics.” Coleman said cost factors were not part of the statute and probably should not be taken into account. Said Crisonino: “That’s shutting the door to those who are poor.” Poritz, too, was skeptical. “The plain language of the statute seems to require the filing of an affidavit in every case,” she said. Reed’s lawyer, Timothy Mullin, agreed. “The statute clearly states that affidavits must be filed in any malpractice case. There has to be a threshold showing that a case has merit, and that was not done in this case.” Mullin, an associate at Cherry Hill, N.J.’s Mintzer, Sarowitz, Zeris & Ledva, said the court does not have the authority to carve out exceptions. “We must assume the Legislature knew of the common-knowledge doctrine,” he said. “The Legislature wanted every case to have an affidavit of merit.” And, said Mullin, if a case truly has merit, an affidavit of merit cannot be that hard to obtain. Another case, Palanque v. Lambert-Wooley, A-16-00, also dealt with the common-knowledge question, and with what should happen if an affidavit is accidentally not filed on time. Michelle Palanque filed a malpractice case against her obstetrician/gynecologist, Margaret Lambert-Wooley, for allegedly misreading a laboratory report and engaging in surgery for an ectopic pregnancy that did not exist. The trial lawyer, Thomas Shebell, must have forgotten about the affidavit requirement. “There was no need for an expert,” said Palanque’s current lawyer, David Corrigan. “A jury could have concluded without an expert that there was a deviation from the standard of care.” Shebell, he said, “simply forgot to get and to serve an affidavit of merit.” The case should not fall merely because Shebell failed to obtain an affidavit for what appeared to be an easy case, said Corrigan, a partner at Eatontown, N.J.’s Hobbie, Corrigan, Bertucio & Tashjy. Lambert-Wooley’s lawyer, Richard Grossman, disagreed. “Things are not always as simple as they may seem,” said Grossman, a partner at Brick, N.J.’s Grossman, Kruttschnitt, Heavey & Jacob. “That’s the problem with a lot of these ‘common knowledge’ cases. They are not so clear-cut as in the beginning.” First, the case was not so simple. “The case that I know is not triable without an expert,” Grossman said. And, echoing the other defense lawyers, Grossman said the statute is clear: Affidavits not filed within 60 days of the filing of an answer, or within 120 days with good cause showing, should and will be dismissed — even if they appear to be meritorious. The fourth case, Fink v. Thompson, A-120-99, dealt with whether affidavits of merit must be filed against respondeat superior defendants who may not actually have directly dealt with a patient. A second issue was whether a time extension should be granted for the filing of an affidavit if it is later learned that the defendant did actually treat the patient. The case involves a patient, John Fink, who sued an attending resident, Richard Strobel, other residents and the Robert Wood Johnson University Medical Center, after his wife, Lisa, died at the age of 32 due to complications from meningitis. The case against Strobel was dismissed because no affidavit of merit had been filed. Fink’s lawyer, Michael Schottland, said Strobel was named in the original complaint because he was the doctor in charge. No affidavit needed to be filed against him because it was believed at the time that he did not actually participate in Lisa Fink’s treatment. Zazzali asked why Strobel was not named in the affidavits of merit filed against the other defendants. Schottland, a partner at Freehold, N.J.’s Schottland, Manning, Rosen & Caliendo, said the expert he hired to write the affidavit had no ability to determine vicarious liability. Strobel “was not named because he was the superior. This is an issue of respondeat superior liability,” he said. “A doctor [hired to write an affidavit of merit] is not supposed to issue an opinion on that. “We thought we had done everything right,” said Schottland. But then came the depositions, and it was discovered that Strobel allegedly was involved in treating Lisa Fink. “Our expert then said he didn’t have the whole picture” when he wrote the original affidavit of merit. Because the 60-day time period, as well as the 60-day extension period, had long passed, Schottland said he was barred from filing a separate affidavit of merit with Strobel’s lawyer and Strobel was let out of the case. Strobel’s lawyer, Matthew Schorr, said the trial judge acted properly in dismissing the claim against Strobel merely by the fact that no affidavit of merit had been filed before the expiration of the deadline. “All of these cases have that sympathy theme running through them,” said Schorr, a partner at Springfield, N.J.’s McDonough, Korn & Eichhorn. “But these claimants are protected” by the lawyer’s malpractice insurance. “It’s unfair to say that a doctor should pay for the lawyer’s mistake,” he said. The statute is clear, Schorr said. If Strobel is a defendant, there should be an affidavit of merit to back up the claims against him. “This is beyond any of our control,” he said. “None of us had any role in writing that statute. But any statute is going to have a bite to it. It’s going to hurt. The system won’t work if the statute is diluted.” The last case, Christie v. Lucas, A-8-00, raised a timing issue. The alleged acts of legal malpractice occurred before the enactment of the affidavit-of-merit statute, but the ultimate injury occurred afterward. So does the statute apply? The plaintiff, Robert Christie, originally hired a lawyer, Robert Jeney, to represent him in a defamation suit he filed against the Somerset County Prosecutor’s Office and the Green Brook Board of Education that eventually was dismissed. After the dismissal, Christie fired Jeney and hired West Orange, N.J., litigator Walter Lucas, a partner at Lucas Savits & Marose, to represent him in a malpractice case against Jeney. All of this occurred before the affidavit-of-merit statute went into effect on June 29, 1995, so Lucas did not file an affidavit with Jeney. But the statute applied retroactively, according to a trial judge who dismissed the case against Jeney. So, Christie hired another lawyer and is now suing Lucas. A trial judge has allowed the case to move forward, but Lucas’ lawyer asked the court to dismiss the case. “That was a time of confusion,” said Lucas’ lawyer, Robert Hille, a partner at Hackensack, N.J.’s Contant, Atkins, Rogers, Fede, Keane & Hille. “There was good faith in the path he [Lucas] chose” in deciding no affidavit of merit was needed. The legally significant facts of the underlying case against Jeney were well in place before the statute went into effect, he said. “Mr. Lucas’ actions were understandable.” Christie’s lawyer, Meredith Stoma, said the issue was simple. “There was no compliance in this case,” said Stoma, a partner at Livingston, N.J.’s Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski. “The answer demanded an affidavit of merit and none was filed. Mr. Lucas did not abide by the statute.” Stoma said the same standard should apply to disputes over the filing of affidavits of merit as do those that apply to lawyers who fail to comply with statutes of limitations and whose cases are dismissed because filing deadlines are missed. “If the claim is meritorious, they still lose,” she said. “And that’s what happened here.”

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