BACSENKO v. CFG HEALTH SYSTEMS, LLC
Filing
35
OPINION. Signed by Judge Noel L. Hillman on 1/23/2018. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JENNIFER BACSENKO,
Plaintiff,
1:17-cv-03581-NLH-AMD
OPINION
v.
CFG HEALTH SYSTEMS, LLC,
BENJAMIN ROBINSON, MD, ROBERT
EDSON, LPN, TIFFANY
SCHWEITZER, RN, COUNTY OF
ATLANTIC, NEW JERSEY, et al.,
Defendants.
APPEARANCES:
JULIE E. NUGENT
WEISS & PAARZ PC
2600 NEW ROAD
SUITE A
NORTHFIELD, NJ 08225
On behalf of Plaintiff
STEPHEN D. HOLTZMAN
JEFFREY S. MCCLAIN
HOLTZMAN & MCCLAIN, PC
524 MAPLE AVENUE
SUITE 200
LINWOOD, NJ 08221
On behalf of Defendants CFG Health Systems, LLC, Benjamin
Robinson, MD, Robert Edson, LPN, Tiffany Schweitzer, RN
JAMES T. DUGAN
ATLANTIC COUNTY DEPARTMENT OF LAW
1333 ATLANTIC AVENUE
8TH FLOOR
ATLANTIC CITY, NJ 08401
On behalf of County of Atlantic
HILLMAN, District Judge
Presently before the Court is the motion of Plaintiff to
deem adequate the “affidavit of merit” she has provided pursuant
New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A:53A-26, et
seq.
For the reasons expressed below, Plaintiff’s motion will
be denied on procedural grounds.
BACKGROUND & DISCUSSION
Plaintiff, Jennifer Bacsenko, claims, inter alia, 1 that on
July 2, 2016 while she was serving a sentence at Atlantic County
Justice Facility, Defendants Benjamin Robinson, MD, Tiffany
Schweitzer, RN, and Robert Edson, LPN, deviated from acceptable
standards of care in failing to properly evaluate, diagnose and
treat a spinal infection, which ultimately resulted in Plaintiff
becoming quadriplegic.
In a case such as this one which alleges medical
malpractice under New Jersey law, a plaintiff must comply with
New Jersey’s Affidavit of Merit statute. 2
The statute provides:
In any action for damages for personal injuries,
wrongful death or property damage resulting from an
1
Although not explicitly set forth in Plaintiff’s complaint,
this Court exercises subject matter jurisdiction over the action
pursuant to 28 U.S.C. §§ 1331 and 1343 for Plaintiff’s Eighth
Amendment violation claims, and pursuant to 28 U.S.C. § 1367 for
Plaintiff’s state law claims.
2
The Affidavit of Merit statute must be applied by federal
courts resolving claims against licensed professionals under New
Jersey state law. Chamberlain v. Ciampapa, 210 F.3d 154, 158
(3d Cir. 2000)
2
alleged act of malpractice or negligence 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 or occupational standards or treatment
practices. 3 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.
N.J.S.A. 2A:53A-27.
The New Jersey Legislature enacted the
Affidavit of Merit statute for a dual purpose: “to weed out
frivolous lawsuits early in the litigation while, at the same
time, ensuring that plaintiffs with meritorious claims will have
their day in court.”
Ferreira v. Rancocas Orthopedic
Associates, 836 A.2d 779, 782–83 (N.J. 2003).
The failure to
submit an appropriate affidavit ordinarily requires dismissal of
the complaint with prejudice, although there are exceptions
based on equitable considerations.
Meehan v. Antonellis, 141
A.3d 1162, 1169 (N.J. 2016) (citation omitted).
Specifically in a medical malpractice case, “the person
providing the affidavit must meet the requirements of N.J.S.A.
2A:53A-41, a provision of the New Jersey Medical Care Access and
Responsibility and Patients First Act, which was enacted in
3
Pursuant to N.J.S.A. 2A:53A-26, “licensed person” includes “a
physician in the practice of medicine or surgery” and “a health
care facility.”
3
2004.”
Buck v. Henry, 25 A.3d 240, 246-47 (N.J. 2011).
“The
basic principle behind N.J.S.A. 2A:53A-41 is that ‘the
challenging expert’ who executes an affidavit of merit in a
medical malpractice case, generally, should ‘be equivalentlyqualified to the defendant’ physician.”
Ryan v. Renny, 999 A.2d 427 (N.J. 2010)).
Id. at 247 (quoting
The statute sets
forth three categories embodying this kind-for-kind rule: (1)
those who are specialists in a field recognized by the American
Board of Medical Specialties (ABMS) but who are not board
certified in that specialty; (2) those who are specialists in a
field recognized by the ABMS and who are board certified in that
specialty; and (3) those who are “general practitioners.”
Id.
at 247.
In this case for the time period at issue, Defendant Dr.
Benjamin Robinson was a “general practitioner.”
Thus, the
relevant provision of N.J.S.A. 2A:53A-41 provides:
If the party against whom or on whose behalf the
testimony is offered is a general practitioner, the expert
witness, during the year immediately preceding the date of
the occurrence that is the basis for the claim or action,
shall have devoted a majority of his professional time to:
(1) active clinical practice as a general
practitioner; or active clinical practice that encompasses
the medical condition, or that includes performance of the
procedure, that is the basis of the claim or action; or
(2) the instruction of students in an accredited
medical school, health professional school, or accredited
residency or clinical research program in the same health
care profession in which the party against whom or on whose
4
behalf the testimony is licensed; or
(3) both.
N.J.S.A. 2A:53A-41(b).
In her instant motion styled “Motion to Deem the Affidavit
of Merit by Dr. Mark Graham Sufficient,” Plaintiff is seeking
the Court’s determination that her “appropriate licensed person”
complies with the statutory requirements and therefore cannot be
challenged by Defendants. 4
Plaintiff argues that Dr. Mark
Graham, who is an internist, satisfies N.J.S.A. 2A:53A-41(b)
because during the year immediately preceding the date of the
occurrence that is the basis for the action, he had an active
clinical practice that encompassed the recognition of signs and
symptoms of a serious spinal infection, which is the same
obligation of a general practitioner such as Defendant Dr.
Robinson.
Plaintiff further argues that Dr. Graham satisfies
the statutory requirements for a kind-for-kind affiant because
he instructed medical students in general primary care medicine,
which is the same as Defendant Dr. Robinson’s practice.
In opposition to Plaintiff’s motion, Defendant Dr. Robinson
argues that because Dr. Graham is double-board certified in
4
Plaintiff has also asserted medical malpractice claims against
two nurses, whom Plaintiff classifies as licensed professionals.
Plaintiff has recently filed an affidavit of merit to support
her malpractice claims against those defendants. (Docket No.
34.)
5
internal medicine, and is considered a specialist, he does not
qualify as a kind-for-kind affiant for Defendant’s status as a
general practitioner.
The Court declines to decide this issue by way of
Plaintiff’s current motion.
The Court is aware that in New
Jersey state court, a conference early in a professional
negligence case, called a Ferreira conference, is held dedicated
to the determination of whether a plaintiff is required to
provide an affidavit of merit, and whether a provided affidavit
is sufficient to comply with the statute.
A.T. v. Cohen, ---
A.3d ---, 2017 WL 6398723, at *7 (N.J. Dec. 14, 2017) (citing
Ferreira, 836 A.2d at 785).
In New Jersey state court, it is
during the Ferreira conference that the defendant presents its
challenges to the plaintiff’s affidavit. 5
5
The Ferreira court held:
To ensure that discovery related issues, such as compliance
with the Affidavit of Merit statute, do not become
sideshows to the primary purpose of the civil justice
system - to shepherd legitimate claims expeditiously to
trial - we propose that an accelerated case management
conference be held within ninety days of the service of an
answer in all malpractice actions. Our rules already
provide for case management conferences in civil cases.
Expediting the schedule in malpractice cases will further
the intent of our Best Practice rules: to resolve potential
discovery problems before they become grist for dueling
motions.
At the conference, the court will address all
discovery issues, including whether an affidavit of merit
has been served on defendant. If an affidavit has been
served, defendant will be required to advise the court
whether he has any objections to the adequacy of the
6
The federal district courts do not provide litigants with
Ferreira conferences, however.
See Nuveen Mun. Trust ex rel.
Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692
F.3d 283, 304–05 (3d Cir. 2012) (finding that the New Jersey
state court accelerated Ferreira conference was procedural,
rather than substantive state law like the Affidavit of Merit
statute itself, and therefore not required to be applied in
federal court). 6
Thus, there is no specific delineated
procedure in federal court in which a defendant may informally
challenge the provided affidavit, or where a plaintiff may
obtain assurances of her compliance with the Affidavit of Merit
statute.
Apparently recognizing that the protections of a Ferreira
conference are not afforded in federal court, Plaintiff filed
affidavit. If there is any deficiency in the affidavit,
plaintiff will have to the end of the 120–day time period
to conform the affidavit to the statutory requirements. If
no affidavit has been served, the court will remind the
parties of their obligations under the statute and case
law.
Ferreira v. Rancocas Orthopedic Associates, 836 A.2d 779, 785
(N.J. 2003).
6
The Nuveen court explained that in Chamberlain v. Giampapa, 210
F.3d 154, 161 (3d Cir. 2000), it held that the statute was
“substantive state law that must be applied by federal courts
sitting in diversity” because Federal Rules of Civil Procedure 8
and 9 did not “collide” with the statute under Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938), and its progeny. Nuveen Mun.
Trust, 692 F.3d at 300.
7
her instant motion in order to obtain the same result as a
Ferreira conference – namely, a judicial imprimatur that she has
complied with the statute and her case can proceed past the
statute’s gatekeeping process of screening out frivolous
malpractice lawsuits.
Although the Court understands
Plaintiff’s concerns and the reason behind her motion, it is
procedurally improper or at least misnamed.
The Third Circuit has instructed that a deficient affidavit
of merit is an affirmative defense, and ordinarily it is the
defendant – not the plaintiff - who raises any deficiency
through a motion filed after the pleadings are complete.
Kadonsky v. Abu Ahsan, 2017 WL 3427975, at *1 (D.N.J. August 9,
2017) (quoting Nuveen Mun. Trust, 692 F.3d at 300) (“[A]
defendant seeking to ‘dismiss’ an action based on the
plaintiff's failure to file a timely affidavit [of merit] should
file a motion for summary judgment under Rule 56, and not a
motion to dismiss for failure to state a claim under Rule
12(b)(6) [, because] the affidavit [of merit] is not a pleading
requirement.”).
At this point in the proceedings, Plaintiff’s affidavit of
Dr. Graham is presumptively in compliance with the Affidavit of
Merit statute unless Defendant Dr. Robinson successfully
challenges the sufficiency of the affidavit through the filing
8
of an appropriate motion seeking that relief. 7
The Court
recognizes that if the defendant has not so moved and no
Ferreira conference - denominated as such - has occurred in
federal court that a plaintiff, or any counsel more accustomed
to state procedure, may have some concern that peril lurks in
failing to join this issue early in the litigation. 8
The answer to this dilemma would seem to lie in the Federal
7
The Court notes that the filing date for an affidavit of merit
is calculated from the filing of an answer. Since an affidavit
of merit is not a pleading requirement, judgment on the
pleadings pursuant to Fed. R. Civ. P. 12(c) is not the proper
procedural vehicle. Accordingly, a motion for summary judgment
pursuant to Fed. R. Civ. P. 56(a) is the only viable option to
join this issue when contested. See Nuveen Mun. Trust, supra
(directing that a defendant who seeks to “dismiss” a plaintiff’s
claims for an insufficient affidavit of merit must file a motion
for summary judgment under Rule 56, and not a motion to dismiss
for failure to state a claim under Rule 12(b)(6), because the
affidavit of merit is not a pleading requirement).
8
See Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 997 A.2d
982, 987 (N.J. 2010) (“[O]ur creation of a tickler system to
remind attorneys and their clients about critical filing dates
plainly cannot trump the statute. In other words, the absence
of a Ferreira conference cannot toll the legislatively
prescribed time frames.”); see also A.T. v. Cohen, --- A.3d ---,
2017 WL 6398723, at *7 (N.J. Dec. 14, 2017) (finding that the
court, by making the Ferreira conference mandatory, had
attempted to create a “failsafe mechanism” “to promote adherence
to the AMS's salutary goal of promptly culling frivolous
malpractice claims and to promote the effective use of court and
attorney resources so that meritorious cases may advance
efficiently,” but because that mechanism has failed, “more
improvement in our mechanisms” was necessary, and concluding,
however, with “a cautionary note” that “[c]ounsel are on notice
that disregarding the scheduling of the conference, or waiving
the conference, will not provide a basis for relief from AMS
obligations”).
9
Rules of Civil Procedure, more specifically Rules 16 and 56.
Initially, this Court assumes that a vigilant plaintiff will
raise the issue of the sufficiency of an affidavit of merit at
either the Rule 16 conference or ask that the issue be addressed
in the Rule 16(b) scheduling order. 9
By rule and general
practice, the time period for such a conference and the
corresponding scheduling order approximates the timeframes
contemplated by case management practices set forth in Ferreira
and its progeny. 10
See Fed. R. Civ. P. 16(a)(providing for
9
Because the Rule 16(a) conference and issuance of a Rule 16(b)
scheduling order, although interrelated, are separate procedural
events and may occur on different dates, this Court would leave
to the sound discretion of the magistrate judge and his or her
own case management procedures how and when an affidavit of
merit issue is addressed in the ordinary course of implementing
Rule 16. In light of the developing law in this area, it may
also be appropriate for this Court to consider an appropriate
amendment to Local Civ. R. 16.1(a)(2) to expressly incorporate a
Ferreira-like procedure.
10
The Court notes here that a defendant contesting an affidavit
of merit may not delay the Rule 16 process on that basis since
the issue is joined only through the assertion of an affirmative
defense in an answer. Thus, a defendant may not ask for an
adjournment of the Rule 16 conference because of a pending
motion to dismiss on that issue. See Local Civ. R. 16.1(a)(1).
As the Court of Appeals has noted and this Court holds here, the
defense of an inadequate affidavit of merit may only be raised
by a motion for summary judgment. See Nuveen Mun. Trust, 692
F.3d at 300. Similarly, and consistently, since the filing of
an answer asserting an affirmative defense of an insufficient
affidavit of merit triggers both the scheduling conference under
Rule 16 and the state law obligation to file an appropriate
affidavit of merit, federal case management practice should be
the functional equivalent of the Ferreira conference mandated in
state courts.
10
pretrial conference); Local Civ. R. 16.1(a)(1)(directing initial
scheduling conference within 60 days of filing of an initial
answer); Fed. R. Civ. P. 16(b)(2)(directing issuance of
scheduling order as soon as practicable and within 90 days of
service and 60 days of a defendant’s appearance); Local Civ. R.
16.1(b)(directing entry of scheduling order “at or after the
initial conference).
Moreover, one express purpose of a Rule 16
conference is to “simplify[] issues . . . and eliminate
frivolous . . . defenses[,]” a description certainly broad
enough to encompass a Ferreira discussion in substance if not in
name.
A defendant who does not address that issue when raised,
or even of their own accord, at that time may face their own
timeliness dilemma. 11
11
The Court cautions that a defendant is required to advance his
challenges to an affidavit of merit early in the case, or he may
be equitably estopped from doing so. See Knorr v. Smeal, 836
A.2d 794, 798 (N.J. 2003) (“The equitable remedies that we apply
are consistent with and in furtherance of the Legislature's
intent in enacting the Affidavit of Merit statute. Defendant
suggests that because the Legislature was silent in setting a
timeframe for the filing of a motion to dismiss that there are
no time limits. We disagree. The stated intent of the statute
was to screen out meritless malpractice lawsuits at an early
stage in the litigation. The affidavit of merit may have proved
useful to defendant early in the case when he needed to know
whether there was any validity to the complaint. With
defendant's possession of full discovery and an expert's report
establishing the merits of plaintiffs' action, an affidavit of
merit would have added nothing to defendant's knowledge of the
case. Therefore, defendant has no claim of prejudice. For that
reason, the Legislature could not have intended to allow an
otherwise meritorious claim to proceed indefinitely at great
expense to both parties, only to have defendant obtain a
11
If the pretrial conference or scheduling order process does
not resolve the issue then the Plaintiff has a ready and timely
remedy.
Federal Rule of Civil Procedure 56 allows a plaintiff
to move for summary judgment on any defense, or part of any
defense, Fed. R. Civ. P. 56(a), and may do so at any time, Fed.
R. Civ. P. 56(b).
Thus, in the context of this case, if
Plaintiff wishes the Court to opine on the sufficiency of Dr.
Graham’s affidavit of merit in the absence of a formal challenge
by the defendants, Plaintiff has the option of filing a motion
pursuant to Fed. R. Civ. P. 56(a) for partial summary judgment
on any affirmative defense, 12 including the defense of
Plaintiff’s failure to properly comply with the Affidavit of
Merit statute. 13
Because neither side has moved for summary
judgment on these issues, the present affidavit remains
dismissal on procedural grounds that should have been asserted
much earlier in the process. We hold that the doctrines of
equitable estoppel and laches bar defendant's late motion to
dismiss for failure of plaintiffs to file a timely affidavit of
merit.”).
12
Because a plaintiff’s affidavit of merit is presumptively in
compliance with the statute unless successfully challenged by a
defendant, a plaintiff has the option of raising, but no
obligation to raise, the issue of its sufficiency through a Rule
56(a) motion.
13
Defendant Dr. Robinson filed his answer to Plaintiff’s
complaint, and asserted as one of his affirmative defenses
Plaintiff’s failure to file an appropriate affidavit of merit.
(Docket No. 15 at 7.)
12
presumptively in compliance with the statute.
The Court does
not, and at this point chooses not to, express any opinion on
the sufficiency of Dr. Graham’s affidavit. 14
Consequently, the Court must deny Plaintiff’s motion on
procedural and not substantive grounds and without prejudice to
the filing of any appropriate motion under Federal Rule of
Procedure 56.
An appropriate Order will be entered.
Date:
January 23, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
14
The Court recognizes that it has the option of converting
Plaintiff’s motion sua sponte into a motion for summary
judgment. Fed. R. Civ. P. 56(f). Due to the complexities of
determining the sufficiency of an affidavit of merit and to
allow the parties to frame the issue under Rule 56 as they see
fit, the Court refrains from invoking that procedure here.
Instead, the issue must be raised, if either party chooses, by
following the procedural requirements of Rule 56 and Local Civil
Rule 56.1.
13
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