In this medical malpractice action, the infant plaintiff’s parents filed a lawsuit on behalf of themselves and their minor son. As the plaintiffs’ counsel could not secure a timely Affidavit of Merit, he sought a voluntary dismissal of the child’s claim without prejudice and dismissal of the parents claim with prejudice. After a “Ferreira” conference, the Court granted plaintiffs’ dismissal requests. The defendants sought reconsideration of the Court’s Order, arguing that the ruling created an impermissible exception to the Affidavit of Merit statute, in that it allowed the infant plaintiff the opportunity to serve an Affidavit outside of the statutory period.
Citing Kubiak v. RWJUH, 332 NJ Super 230 (App. Div. 2000), defendants contended that a Court must dismiss a Complaint with prejudice if the statutory requirements for an Affidavit of Merit are not met, even when one of the plaintiffs is an infant. However, the Court noted that pursuant to NJSA 2A:14-21, the statute of limitations for minors is tolled until they reach the age of 18. Accordingly, the defendants request for reconsideration was denied, as it would be an unjust application of the AOM statute to dismiss an infant plaintiff’s lawsuit with prejudice before the statute of limitations had expired.
- De Laroche v. Advanced Laparoscopic Association et al. (A-5403-1474) Decided 2/28/2017
- Clarification on the Statute of Limitations for “Survival” Claims – Warren v. Muenzen, 448 N.J. Super. 52, (Super. Ct. App. Div. 2016) December 7, 2016)
- Settling Defendant Charge Need Not Always Be Given – Hernandez v. Chekenian, No. L-11038 14, 2016 WL 6024008, (N.J. Super. Ct. Law Div. July 15, 2016)
- Vascular Surgeon Not Qualified to Testify Against Family Practitioner Who Performed a Vascular Procedure – Afonso v. Bejjani – A-1623-15T4
- Federally Qualified Health Center Entitled to New Jersey’s Cap on Charitable Immunity for Hospitals – S.M. v. United States of America – CA No. 13-5702, USDC – DNJ