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Knorr v. Smeal11/24/2003
Argued September 22, 2003
On repeated occasions, we have addressed the obligation of plaintiffs who file malpractice actions to conform to the procedural requirements of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. In such cases, within 120 days of receipt of the answer, a plaintiff must serve on defendant an affidavit from an appropriate professional attesting that the claim is meritorious. A plaintiff's failure to file a timely affidavit will result in dismissal of the claim, absent a justifiable excuse. N.J.S.A. 2A:53A-27; Burns v. Belafsky, 166 N.J. 466, 470-71 (2001). Defendants must act timely too; they cannot sleep on their rights. In the companion case of Ferreira v. Rancocas Orthopedic Assocs., __ N.J. __ (2003), decided today, we held that a defendant who filed a motion to dismiss after receipt of an untimely affidavit of merit forfeited his right to relief. In that case, we concluded that the equities required defendant to file his motion before he possessed the disputed affidavit. In this case, defendant let pass the deadline for receipt of the affidavit without filing a dismissal motion. Instead, defendant engaged in the exchange of interrogatories, deposed plaintiffs and submitted to a deposition, obtained plaintiff's expert report, and had plaintiff physically examined. Fourteen months after the deadline had passed and after the merits of plaintiffs' claims had been established, defendant filed his motion to dismiss because of the missing affidavit. We now must determine whether the remedies of waiver, equitable estoppel, and laches should bar defendant's right to bring a dismissal motion so late in the process.
I.
In June 1997, following a fall, Eleanor Knorr, seventy-one years old, suffered persistent swelling of the lower right side of her body. Ms. Knorr consulted with defendant Brian C. Smeal, M.D., who, after conducting preliminary tests, admitted her to South Jersey Hospital System, Elmer Division.
On July 1, 1997, defendant performed a surgical exploration of Ms. Knorr's right groin for biopsy of enlarged groin nodes. On July 7, defendant and Curtis L. Lockwood, D.O., conducted further exploratory surgery during which they repaired an injury to the small bowel by performing a bowel resection. On July 14, defendant, while performing an emergency surgical procedure on Ms. Knorr, discovered among other things that she had developed multiple intra-abdominal abscesses in the area of the small bowel resection. Thereafter, Ms. Knorr spent nineteen days in the hospital's intensive care unit before her transfer to a nursing care facility. On September 17, 1997, Ms. Knorr was admitted to Underwood Hospital suffering from dehydration, sepsis, acute renal failure and short-gut syndrome. She was discharged from the hospital less than a month later, but was readmitted eight more times between October 1997 and April 1999. In July 1999, Ms. Knorr underwent a final surgical bowel resection procedure.
On July 1, 1999, Ms. Knorr and her husband (per quod) filed a medical malpractice action in which they alleged that Dr. Smeal and Dr. Lockwood negligently performed the first two surgeries. Plaintiffs named Dr. Smeal, Dr. Lockwood and South Jersey Hospital System, Elmer Division, as defendants in the action. Defendants filed answers in which each demanded service of an affidavit of merit pursuant to N.J.S.A. 2A:53A-26.
On December 15, 1999, just over 120 days after filing his answer, Dr. Lockwood moved to dismiss the complaint because of plaintiffs' failure to serve him with an affidavit of merit. The court granted Dr. Lockwood's motion. Less than two weeks later, the hospital filed a similar motion. That motion was denied
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