Putting the Teeth Back in the Affidavit of Merit Statute
New Jersey - Health Care Liability (Affidavit of Merit)
In 2003 the New Jersey Supreme Court decided Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (N.J. 2003), which has resulted in the withering of the chances of success on an affidavit of merit motion in situations where the plaintiff has failed to serve an affidavit of merit within the statutory period. Unless the specific requirements of Ferreira are complied with, the courts will generally deny the motion and allow the plaintiff additional time to obtain and serve the required affidavit of merit.
Prior to the Ferreira decision, the failure to serve an affidavit of merit was viewed with the presumption that the plaintiff could not obtain one due to the lack of basis in the allegations made against the professional. Post Ferreira, the presumption has evolved to suggest that an affidavit of merit could be obtained but that the plaintiff lacked sufficient notice to obtain one. Therefore, the court should ensure that the plaintiff is made aware of its obligation.
Under N.J.S.A § 2A:53A-27, the plaintiff is required to serve an affidavit of merit within the initial 120 days of the filing of the professional liability defendant's answer to the complaint. The plaintiff is required to provide an affidavit of merit, providing the initial expert opinion that a professional, falling under the definition of the statute, deviated from the standard of care.
The Affidavit of Merit Statute was intended to "weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." Couri v. Gardner, 173 N.J. 328, 801 A.2d 1134, 1141 (N.J. 2002). While this is still the intent of the Affidavit of Merit Statute, the approach to pursing this goal has been altered by the 2003 decision in Ferreira.
Prior to 2003, vigilant defense attorneys need only arm themselves with a calendar. If the plaintiff failed to serve an affidavit of merit within the statutory 120-day period, a motion was filed to dismiss the plaintiff's complaint for failure to serve an affidavit of merit. The basis being that such noncompliance was "deemed failure to state cause of action" § 2A:53A-29.
In 2003, this approach to the filing of an affidavit of merit motion was changed to place further burden on the defense of a malpractice action. No longer is it sufficient to watch the calendar and wait. The New Jersey Supreme Court, in Ferreira, altered the notice requirements relating to an affidavit of merit:
To ensure that discovery related issues, such as compliance with the Affidavit of Merit Statute, do not become sideshows to the primary purpose of the civil justice system--to shepherd legitimate claims expeditiously to trial--the Court proposes that an accelerated case management conference be held within ninety days of the service of an answer in all malpractice actions. At the conference, the court will address all discovery issues, including whether an affidavit of merit has been served on defendant. If an affidavit has been served, defendant will be required to advise the court whether he or she has any objections to the adequacy of the affidavit. If there is any deficiency in the affidavit, plaintiff will have to the end of the 120-day time period to conform the affidavit to the statutory requirements. If no affidavit has been served, the court will remind the parties of the obligation. Early court intervention in the discovery process will permit the Affidavit of Merit statute to fulfill its true purpose. This proposal does not restrict the flexibility of trial courts to convene additional case management conferences to facilitate the discovery process and motion practice.
The New Jersey courts have now interpreted the Ferreira conference as an absolute requirement and have determined that a failure to convene the conference is grounds to deny an otherwise justified affidavit of merit motion. In Saunders ex rel. Saunders v. Capital Health System at Mercer, 398 N.J. Super. 500, 504 (App.Div. 2008), the New Jersey Appellate Court recently ruled that, had a Ferreira conference been conducted, the plaintiff's counsel would have been placed on notice of the affidavit of merit requirement and reasonably would have served an affidavit of merit, thereby remediating the inadvertent failure to serve required affidavit. The remedy for the failure serve an affidavit of merit within the statutory 120-day period, without the benefit of a Ferreira conference, is not dismissal of the complaint but a grant of additional time beyond the statutory 120-day period in which the plaintiff can serve the required affidavit of merit.
As consequence of the Ferreira decision, the courts now place an unintended burden on the defendant in professional negligence actions. In instances where an affidavit of merit is not served and no Ferreira conference is conducted, the burden is placed neither on the court for the failure to conduct the required Ferreira conference nor on the plaintiff for the failure to request one. The burden is placed upon the defendant by the denial of an otherwise deserving motion and continuation in the litigation.
The purpose of the Ferreira Court was to enact a mandatory Ferreira conference to alert the plaintiff to the affidavit of merit requirement. It was hoped that this notice would assist the plaintiff and permit the Affidavit of Merit Statute to fulfill its true purpose. This changed the presumption that an affidavit of merit is obtainable and that the plaintiff is able to obtain one, if the proper reminder is given.
The Ferreira decision stands for nothing more than notice to the plaintiff that an affidavit of merit is required. Ferreira places no affirmative responsibility to request a Ferreira conference on the defense counsel. However, given the potential consequences, it is wise to consider taking a more active role in the notification process.
Despite these procedural changes and ruling against the professional liability defendant, defense counsel can put the teeth back in the Affidavit of Merit Statue. Ferreira and Saunders are only concerned with notice to the plaintiff and do not amend the mandates of the Affidavit of Merit Statue. Once the notice of the affidavit of merit requirement has been made, a failure to serve the required affidavit of merit should result in a dismissal, absent other defenses raised by the plaintiff.
Calendar watching is no longer sufficient to obtaining a successful decision in a failure to serve an affidavit of merit motion. Defense counsel must take a more proactive approach in the defense of the professional liability defendant. Affirmatively providing notice to the plaintiff can potentially avoid the defense to a lack of a Ferreira conference. Since the basic purpose of the Ferreira decision is about notice, providing proof of adequate notice of the affidavit of merit requirement to the plaintiff could aid the support of the summary judgment motion.
Defense counsel should draft a demand for an affidavit of merit in the answer to the plaintiff's complaint. Additionally, drafting a correspondence detailing the requirements of the Ferreira conference and the date the affidavit of merit is due will demonstrate that the plaintiff had sufficient notice of the requirements, and if the plaintiff failed to serve an affidavit of merit within the 120-day period, it did so knowingly.
The Ferreira decision's requirements are nothing more than a gentle reminder to forgetful plaintiffs. However, the resulting implications of no Ferreira conference can resonate beyond the conference and sustain a denial of a summary judgment motion for the failure to serve an affidavit of merit. A failure to convene a Ferreira conference will allow the plaintiff the ability to extend the affidavit of merit period. A proactive approach by the defense counsel - providing notice to the plaintiff early in the litigation - can potentially satisfy the intent of Ferreira. Ensure the plaintiff is provided with the specific dates when the affidavit of merit is due and inform that the Ferreira conference is available if the plaintiff is unclear as to the obligations under the Affidavit of Merit Statute.
*Raymond is an associate in our Cherry Hill, New Jersey, office. He can be reached at (856) 414-6306 or email@example.com.
Defense Digest, Vol. 15, No. 2, June 2009