Estate of Edwards v. Clara Maas Medical Center, ESX-L-4808-11

By Michael Zerres

This medical malpractice action arises out of the alleged negligent treatment of plaintiff’s decedent at Clara Maas Continuing Care Center (CMCCC). Plaintiff’s decedent alleges that while a patient at CMCCC, he developed severe bed sores and pressure ulcers due to lack of proper care. The defendants advised plaintiffs’ counsel that the patient’s medical records could not be located. However, after a Ferreira conference, the court ordered defendants to subpoena the medical records from the owner of an off-site facility where they were supposedly stored. Defendants finally provided plaintiffs with a set of records; however, plaintiffs alleged that the records were incomplete. Plaintiffs’ counsel informed defendants’ counsel that the records were not complete, and, as such, insufficient for plaintiffs’ expert to provide an Affidavit of Merit.

Defendants then filed a motion asserting that plaintiffs’ failure to produce an Affidavit of Merit within the statutory time period, along with their failure to file a motion to extend the time period, warranted the dismissal of plaintiffs’ case with prejudice. Plaintiffs opposed defendants’ motion by stating that the defendants’ failure to provide a complete copy of plaintiff’s decedents’ medical records precluded the plaintiffs from timely securing the Affidavit of Merit, and thus, they were entitled to the protections of the Affidavit of Merit’s safety valve provision. The court found that case law provides that it should be presumed that the medical records that were not produced have had a substantial bearing on plaintiff’s preparation of the Affidavit, and, that the burden of establishing otherwise should be borne by the party that has not produced the records.

The court further found that plaintiffs had substantially complied with their obligation to provide a sworn statement pursuant to the plain language of the statute. Accordingly, the court denied defendants’ motion to dismiss the Complaint, holding that plaintiffs repeatedly informed both defendants’ counsel and the court that the missing medical records had a substantial bearing on the plaintiffs’ ability to file an Affidavit of Merit.

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