Levine v. Kindred Hosp. N.J. Morris County, 2019 N.J. Super. Unpub. LEXIS 869 (Apr. 15, 2019)

A Ferreira conference is not required in medical malpractice cases for a defendant to move to dismiss a complaint, with prejudice, when the plaintiff fails to provide an appropriate affidavit of merit.

The Pro-se plaintiff appealed the trial court’s dismissal of the defendant. The trial court had dismissed the defendant because the plaintiff had failed to serve an appropriate affidavit of merit (AOM), as required by the AOM statute, N.J.S.A. 2A:53A-24 to -29. The plaintiff had previously provided the court with three separate AOMs, but the defendant argued that each AOM had been deficient. The trial court and Appellate Division agreed with the defendant. Although the defendant had advised the plaintiff of his/her obligation to cure the deficiencies of the AOMs prior to the expiration date under the statute, the plaintiff failed to do so. Notably, a second Ferreira conference was never held, and the Appellate Division made clear in its ruling that “reliance on the scheduling of a Ferreira conference to avoid the strictures of the [AOM] statute is entirely unwarranted and will not serve to toll the statutory time frames.” A.T. v. Cohen, 231 N.J. 337, 348 (2017) (quoting Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 426 (2010)). Therefore, the failure to hold a second Ferreira conference does not toll nor excuse the plaintiff’s failure to timely file an appropriate AOM when no exceptional circumstances existed to warrant an extension.

The practical implications of this decision is it now extends to AOMs in the medical malpractice context. While an unsuspecting plaintiff sits on his/her obligation to file and serve an AOM while waiting for the court to hold a Ferreira conference, a knowledgeable defendant can file a motion for dismissal, with prejudice, after the relevant time period expires. This tactic is also available to defendants in cases where the plaintiff mistakenly believes the matter is not one arising out of professional malpractice. 


Case Law Alerts, 3rd Quarter, July 2019

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