Trepkau v. St. Clare’s Hosp. (A-4069-1454), Decided 08/14/17

Plaintiff appealed from an order of the Law Division dismissing his professional malpractice and ordinary negligence Complaint against the emergency room nursing staff employed by St. Clare’s Hospital. Plaintiff experienced dizziness while being treated in the emergency room, asked for a wheelchair to access a bathroom, the request was denied, and he fell. After an off-the-record conference, the Trial Judge dismissed the Complaint for failure to satisfy the Affidavit of Merit requirement. Defendant asserted the Trial Judge put plaintiff on notice of deficiencies in his expert’s Affidavit of Merit, the but defendant did not identify those deficiencies, nor discuss the factual or legal basis for the Trial Judge’s alleged concerns. Plaintiff sent defense counsel a second Affidavit of Merit and moved to file an Amended Complaint. The Trial Judge dismissed the Complaint with prejudice for failure to satisfy the Affidavit of Merit requirement and denied the motion to amend. On Feb 19, 2015, the Trial Judge assigned to manage the case met with counsel. The parties dispute as to the nature of what occurred at this conference.

The Appellate Division stated that it cannot be determined what was actually discussed at this conference because it was not conducted on the record. Therefore, there was no way of knowing whether it was or was not a Ferreira conference. Plaintiff argued the Trial Court failed to conduct a Ferreira conference and improperly dismissed the ordinary negligence count. Further the plaintiff argues that the Judge improperly dismissed the ordinary negligence count of his Complaint with prejudice. In response, defendant argues the Judge properly dismissed plaintiff’s case with prejudice because plaintiff was placed on appropriate notice with respect to the deficiencies of the Affidavit of Merit. Finally, defendant argues the Judge properly dismissed plaintiff’s ordinary negligence claim because nurses are “licensed professionals.

The Appellate Court reversed and remanded this case to the Trial Court to conduct a proper Ferreira conference and to permit the parties to conduct discovery and thereafter engage in proper motion practice if necessary. In Meehan v. Antonellis, 226 N.J. 216, 241 (2016), the Supreme Court held that a timely and effective Ferreira conference is “designed to identify and resolve issues regarding the Affidavit of Merit that has been served or is to be served. “Here the Judge conducted an off the record discussion with the attorneys and thereafter made no effort to memorialize what had transpired therein. If the Judge wanted to conduct a Ferreira conference he should have done that on the record. The Court further held that the Law Division’s order dismissing plaintiff’s Complaint in this case is impervious to meaningful appellate review that it must be vacated. The matter was reversed and remanded.

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