Mangone v. Morris Cty. Surgical Ctr., No. A-1200-15T2, (App. Div. 2017): Decided October 17, 2017

By Michael Zerres

In this medical malpractice case, plaintiff appeals from companion Orders entered on June 15, 2015, which (a) denied his motion to be relieved from the requirements of N.J.S.A. 2A:53A-27 and (b) dismissed his complaint with prejudice against defendant Vadim Barg, M.D. The Trial Court dismissed the Complaint because plaintiff failed to file an Affidavit of Merit (AOM) as required by N.J.S.A. 2A:53A-27. The Court denied plaintiff’s application for relief from the statutory requirement because he failed to establish grounds for filing a sworn statement in lieu (SIL) of an AOM under N.J.S.A. 2A:53A-28. Plaintiff argues that the Court should have permitted him to file an SIL.

The Appellate Division ruled that a Plaintiff cannot avoid the [AOM] requirement . . . by requesting documents he or she does not reasonably believe to exist and be necessary for ‘preparation of the affidavit.’ (quoting N.J.S.A. 2A:53A-28). However, when a defendant engages in a wholesale refusal to produce the medical records that it concededly possesses, “it should be presumed” that the withheld records have “a substantial bearing on preparation of the affidavit” as required by N.J.S.A. 2A:53A-28. Aster ex rel. Garofalo v. Shoreline Behavioral Health, 346 N.J. Super. 536, 543, 788 A.2d 821 (App. Div. 2002). In such a case, the defendant bears the burden to demonstrate that the withheld records are not pertinent to an AOM. Id. at 549. Furthermore, the SIL shall be deemed to have been filed as of the plaintiff’s initial request for the never-furnished documents or information. Id. at 546. Otherwise, it is subject to the same 69-day period set forth in N.J.S.A. 2A:53A-27. Id. at 550.

In another case, Scaffidi, the Court affirmed the dismissal of the Complaint after concluding that the plaintiff could not resort to an SIL because he failed to specify that logs, which were requested among numerous other documents sought in a notice to produce, were needed to prepare the AOM. Scaffidi v. Horvitz, 343 N.J. Super. 552, 779 A.2d 439 (App. Div. 2001). Similarly, in Guzman v. Jersey City Medical Center, the Court held that a plaintiff was not entitled to file an SIL where (1) the records or information did not exist because they were never created in the first place, and (2) they played no role in preparing an AOM. There, the plaintiff claimed that the defendant-hospital was negligent when its emergency room personnel failed to admit and treat him in a timely manner. Guzman v. Jersey City Medical Center, 356 N.J. Super. 37, 39-40, 811 A.2d 481 (App. Div. 2002).

Here, the Court held that the plaintiff is procedurally barred from utilizing an SIL. Although an SIL may relate back to the date records were requested, plaintiff has presented no written request for medical records or other records or information, particularly one served by certified mail or personal service, 45 days in advance of the SIL. Specifically, the Court was not persuaded that a February 6, 2015 deposition notice served on defendant satisfied the required request contemplated under the statute. As a substantive matter, plaintiff also did not file a sworn statement that specifically identified the records he needed from the defendant and there is no claim that the defendant failed to turn over the requested records.

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