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Difficulty in finding an appropriate expert to draft an Affidavit of Merit is insufficient to establish exceptional circumstances to extend the statutory deadline.

October 1, 2018
Walsh v. Barnabas Health Community Medical Center, 2018 N.J. Super. Unpub. LEXIS 1183

The Appellate Division briefly recited the facts controlling their decision to dismiss this complaint: failure to serve a timely Affidavit of Merit (AOM) as required by the AOM statute, N.J.S.A. 2A:53A-26 to -29. Specifically, the decedent sought medical treatment at Barnabas Health Community Medical Center. A licensed nurse practitioner in the emergency department examined the decedent, ordered a urine test and discharged him. Within a week, the decedent committed suicide. The Administrator ad Prosequendum of the decedent’s estate sued Barnabas, a licensed health care facility, but not the nurse practitioner.

The defendant filed its answer on November 3, 2016. On January 4, 2017, Judge Den Uyl conducted a Ferreira conference and extended the AOM deadline 60 days, as allowed under the AOM statute. Although service of the AOM was due no later than March 3, 2017, the plaintiff untimely served it on April 11, 2017. Upon dismissing the plaintiff’s complaint, Judge Den Uyl held that the plaintiff, due to his failure to file and serve an AOM within the 120-day statutory period, failed to “state a cause of action.” The plaintiff’s purported reason for missing the deadline—difficulty finding an appropriate expert—was held to be insufficient to establish exceptional circumstances to extend the deadline.

 

 

Case Law Alerts, 4th Quarter, October 2018

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