An “Almost Perfect Storm of Events” Warranted Additional Time to File an Affidavit of Merit
The plaintiff and her husband, by way of a per quod claim, initiated a medical malpractice action against the defendants for, among other things, their alleged failure to administer pain injections at the correct vertebrae of the plaintiff’s spine. The trial court entered an order waiving the affidavit of merit (AOM) requirement, finding that the causes of action alleged in the original complaint were within the common knowledge doctrine.
The plaintiff then filed an amended complaint, naming P. Loesberg, M.D. as a defendant. Dr. Loesberg was alleged to have administered anesthesia to the plaintiff. In his answer, Dr. Loesberg demanded the plaintiff serve an affidavit of merit. The trial court did not schedule a Ferreira conference to address the timely filing of an AOM regarding the plaintiff’s claims against Dr. Loesberg. About 134 days after he filed his answer, Dr. Loesberg moved to dismiss the plaintiff’s complaint for failure to provide an AOM.
The trial court denied Dr. Loesberg’s motion and scheduled a Ferreira conference to address the AOM issue. At the Ferreira conference, the judge rejected Dr. Loesberg’s contention that it was too late for the plaintiff to submit an AOM, reasoning that additional time was warranted for the plaintiff to produce an AOM because Dr. Loesberg was not a named party in the action when the initial Ferreira conference was conducted (thus, the need for an AOM regarding any allegations against him were not discussed at that time). Additionally, once the amended complaint added Dr. Loesberg as a party, no follow-up Ferreira conference was scheduled until after the 120-day AOM filing period against him had expired.
After the Ferreira conference, the judge entered an order requiring the plaintiff to file an AOM by a designated time, with which the plaintiff complied. Dr. Loesberg then filed a second motion to dismiss the plaintiff’s complaint, chiefly arguing that no extraordinary circumstances existed that would allow for additional time to file an AOM. However, the trial judge denied the doctor’s second motion to dismiss, finding that extraordinary circumstances were present. Dr. Loesberg appealed.
On appeal, the Appellate Division held that extraordinary circumstances existed here for the following reasons: (1) the trial court entered an AOM waiver order prior to the filing of the plaintiff’s amended complaint asserting medical malpractice claims against Dr. Loesberg; (2) Dr. Loesberg did not assert the plaintiff’s lack of filing an AOM as a defense in response to the plaintiff’s discovery requests; and (3) the lack of a Ferreira conference after Dr. Loesberg filed his answer (which the court noted is not an extraordinary circumstance on its own but is, rather, one consideration of the entire fact-sensitive inquiry).
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