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Minor plaintiff cannot dismiss a claim without prejudice if Affidavit of Merit not timely filed – A.T. et al. v. Cohen et al., decided April 27, 2016

By Attorney Michael B. Zerres on June 10, 2016

In this medical malpractice suit, minor plaintiff’s mother filed this suit individually, and, on behalf of her daughter asserting medical malpractice claims. The Appellate Court considers whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit within the required time frame. Ultimately, it concluded that cannot use Rule 4:37-1(b) to avoid the time frames set forth in the “Affidavit of Merit” statute regardless of whether or not the statute of limitations had expired.

Defendants moved for summary judgment arguing that plaintiff had failed to file an Affidavit of Merit within sixty days of the date of defendant’s answer pursuant to N.J.S.A. 2A:53A-27. Plaintiff attached an Affidavit of Merit to their opposition papers, requested the Court to allow them to file a Rule 4:37-1(b) motion granting them a dismissal without prejudice, and advised the Court that the failure to file an Affidavit of Merit within the specified time frame was an “oversight.” The trial judge granted summary judgment to the defendants given that plaintiff’s failure to file an Affidavit of Merit within the statutory period warranted the dismissal of her Complaint with prejudice.

On appeal, the Plaintiffs’ claim that the trial Judge should have dismissed the Complaint without prejudice under Rule 4:37-1(b) as to the minor Plaintiff, as there were many years until the statute of limitation would have expired, and, defendants would not have been prejudiced. The Appellate Division stated that failure to submit an Affidavit of Merit is a violation of a statute and thus, requires extraordinary circumstances to grant a dismissal without prejudice. Here, there were no extraordinary circumstances, but merely an oversight on the part of plaintiff’s attorney.

Furthermore, the Court stated that the granting a voluntary dismissal without prejudice would render the “Affidavit of Merit” statute meaningless. The statute operates as a tort reform measure by requiring plaintiffs “in a malpractice suit to make a threshold showing that the claims asserted are meritorious,” thereby keeping out frivolous lawsuits early on. In this case, the Court found that by permitting a voluntary dismissal, it would prejudice defendants who would have to wait indefinitely to resolve the case against them and incur more costs in defending each action. This would render the statute moot. According to Kubiak v. Robert Wood Johnson University Hospital, 332 N.J. Super. 230, 238 (App. Div. 2000), while the minor was represented by a guardian ad litem and is protected from the guardian’s inaction, the minor is not protected from their “improvident actions.” Notably, the Legislature choose not to set forth an exception for minors under the “Affidavit of Merit” statute as it has done with statute of limitations in tort cases even though it could have done so effortlessly. As such, the Appellate Division affirmed the trial Judge’s denial of the motion to make a voluntary dismissal and granted summary judgment to the defendants.

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Posted in: Medical Malpractice


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