Balthazar v. Atlantic City Medical Center3/5/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 27, 2003
Plaintiff Enez Balthazar appeals from an order of May 23, 2000 dismissing with prejudice her claims for medical malpractice against defendants Barbara Henderson, M.D., Joseph DeStefano, M.D., Allan Feldman, M.D., Larry Kaufman, M.D., and Phillip Korzeniowski, M.D. (the Henderson defendants) as the result of plaintiff's failure to comply with the requirements of the affidavit of merit statute, N.J.S.A. 2A:53A-26 through -29. Balthazar also appeals from an order of May 14, 2001 denying her motion to amend her complaint to allege claims of battery and fraudulent concealment. We affirm.
On January 27, 1998, Plaintiff underwent an abdominal hysterectomy at Atlantic City Medical Center (ACMC), performed by Henderson, an employee of the medical group of DeStefano, Feldman, Kaufman & Korzeniowski, P.A., with the assistance of Korzeniowski. A resident named Richard Cooper was also present in the operating room. During the surgery, sutures were mistakenly placed in Balthazar's left ureter that blocked the flow of urine, and the ureter may have been cut. These acts caused complications that resulted in a second laparotomy on January 31, 1998, at which time the damage to the ureter was discovered, the ureter was rejoined to the bladder at a new location, and a stent was placed in it for a period of six weeks, at which time it was surgically removed. Additional complications arose of relevance to damages issues, but not to this appeal.
On June 21, 1999, plaintiff filed suit against the Henderson defendants, ACMC and others alleging injury to her ureter as the result of defendants' negligence. The Henderson defendants answered the complaint on October 5, 1999, and ACMC answered within two additional days. Demands for service of an affidavit of merit within sixty days were made in the answers of ACMC and the Henderson defendants. However, plaintiff did not file her affidavit until March 8, 2000 - a date more than 120 days after the answers of the relevant parties had been filed and after the Henderson defendants and ACMC had moved for dismissal of Balthazar's suit with prejudice as the result of her failure to comply with the affidavit of merit act.
That act, enacted as a tort reform measure in 1995, requires that plaintiffs seeking damages as the result of professional negligence make a threshold showing that their claims are valid, thereby permitting identification and dismissal of meritless lawsuits at an early stage of litigation before large sums are spent on defense. In re Petition of Hall, 147 N.J. 379, 391 (1997). See also, e.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341 (2001); Fink v. Thompson, 167 N.J. 551, 559 (2001); Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218, 242 (1998).
N.J.S.A. 2A:53A-27, a key section of the statute, provides in relevant part:
In any action for damages for personal injuries . . . resulting from an alleged act of malpractice . . . by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional . . . standards or treatment practices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.
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