Savannah Abdelmalak v. Prime Healthcare Services-St. Mary's Passaic, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3894-23

SAVANNAH ABDELMALAK, a minor,

by her Guardians Ad Litem, EMAN

BISKALES ABDELMALAK, her mother,

and HANY ABDELMALAK, her father,

and EMAN BISKALES ABDELMALAK,

and HANY ABDELMALAK,

individually,

Plaintiffs-Respondents,

v.

PRIME HEALTHCARE SERVICES-ST.

MARY'S PASSAIC, LLC, d/b/a SAINT

MARY'S GENERAL HOSPITAL,

MARJORIE ROSE, RN, CECIL

CANDAME, RN, VERSELLIS LARA,

RN, RACHEL SIMCHI, RN, BIBOR

KELEMAN, RN, BELEN SHERIDAN,

RN, MIRIAM MANDESIA, RN,

ESTATE OF ELLIOT SAMET, MD,

WILLIAM HENICK, MD, GUY

SALOMON, MD, RAMAPO VALLEY

ANESTHESIA ASSOCIATES, LLC,

FARES DIARBAKERLI, MD, SALMAN

OKOUR, MD, and NJ BEST OB/GYN,

Defendants,

and

RICHARD MARTINEZ, MD,

Defendant-Appellant.

__________________________________

Argued January 29, 2025 – Decided February 19, 2025

Before Judges Rose, DeAlmeida and Puglisi.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Bergen County,

Docket No. L-4103-20.

Matthew R. Parker argued the cause for appellant

(Schenck, Price, Smith & King, LLP, attorneys;

William J. Buckley and Matthew R. Parker, on the

briefs).

James D. Martin argued the cause for respondents

(Martin Kane Kuper, LLC, attorneys; James D. Martin

and Jonathan D. Martin, on the brief).

PER CURIAM

In this medical malpractice action, we granted defendant Richard

Martinez, M.D., leave to appeal from a Law Division order, effectively

permitting plaintiffs Eman Biskales Abdelmalak and Hany Abdelmalak,

individually and as guardians ad litem of their daughter, Savannah Abdelmalak

(collectively, plaintiffs), to file an amended complaint asserting claims against

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2

Dr. Martinez alleging he negligently treated and cared for Savannah 1 – nearly

one year after plaintiffs' pediatric anesthesiology claims against Dr. Martinez

were dismissed with prejudice for failure to comply with the affidavit of merit

(AOM) statute, N.J.S.A. 2A:53A-26 to -29. More particularly, the June 7, 2024

order denied Dr. Martinez's motion to reconsider an April 26, 2024 order, 2

vacating a June 9, 2023 order, which dismissed Savannah's claims for failure to

provide a sufficient AOM and a November 3, 2023 order, which dismissed

Eman's claims on summary judgment for failing to provide an expert report.

On appeal, Dr. Martinez argues the motion judge erroneously permitted

plaintiffs "to revive old claims or assert new claims" following the dismissal

with prejudice order, contrary to the AOM statute and its limited exceptions.

Dr. Martinez also asserts his rights were prejudiced by the reinstatement order.

Having reviewed Dr. Martinez's contentions in view of the procedural posture

of the case and the purpose of the AOM statute, we affirm.

1

Because plaintiffs share the same surname, we use their first names for clarity.

We intend no disrespect in doing so.

2

The April 26, 2024 order also permitted plaintiffs to assert claims in their

amended complaint against Ramapo Valley Anesthesia Associates, LLC, by

whom Dr. Martinez allegedly was employed at the time of the surgery. Of all

defendants named in plaintiffs' present complaint, only Dr. Martinez is a party

to this interlocutory appeal.

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3

I.

We summarize plaintiffs' allegations and the matter's half-decade

procedural history from the limited motion record. On July 28, 2016, Eman

underwent an emergency caesarean section (C-section) at St. Mary's Hospital

(SMH) in Passaic. Born prematurely, Savannah weighed two pounds and

required immediate resuscitation via intubation. Savannah later was diagnosed

with a brain injury caused by reduced blood flow and oxygen levels around the

time of birth.

Sometime later, plaintiffs' initial attorneys obtained from SMH a partial

set of medical records. In April 2019, plaintiffs retained present counsel, who

made multiple attempts to obtain a complete set of records from SMH, including

assistance from the Department of Health and Human Services (DHHS). On

April 13, 2020, SMH advised plaintiffs' counsel the records could not be located.

Around the same time, 3 plaintiffs sued SMH and the medical staff for

negligence in their treatment and care of Eman and Savannah. Based on the

records furnished by the hospital at that time, plaintiffs "believed that the

3

In his merits brief, without citation to the record, Dr. Martinez states the

complaint was filed on June 4, 2020. The complaint provided in plaintiffs'

appellate appendix is dated March 25, 2020, but is not stamped filed.

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4

medical failures in this case arose from the delay in delivering Savannah and

that her injury occurred before or during delivery." Dr. Martinez was not named

as a defendant in plaintiffs' initial complaint. 4

In response to plaintiffs' interrogatories, SMH served the same incomplete

set of medical records. Ultimately, following two case management orders

directing SMH produce full and complete and certified records of Eman's and

Savannah's treatment, in December 2021, plaintiffs received from SMH 300

additional documents, including "nursing notes"; "fetal monitoring strips"; "the

anesthesia record"; and "Savannah's chart containing neonatal records."

By leave granted, in February 2022, plaintiffs filed a second amended

complaint.5 Plaintiffs named as defendants the three anesthesiologists

apparently referenced in the anesthesia records, Willam Henick, M.D., Guy

Salomon, M.D., and Dr. Martinez. Pertinent to this appeal, plaintiffs asserted

all defendant physicians, including Dr. Martinez

4

For reasons that are unclear from the record, plaintiffs filed an amended

complaint in late 2020. Dr. Martinez was not named as a defendant in the

amended complaint.

5

The caption of the second amended complaint provided in Dr. Martinez's

appellate appendix indicates his first name was unknown, but his full name is

reflected throughout the complaint.

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5

negligently failed to exercise the degree of care

required by accepted standards of good medical

practice in that they failed to properly diagnose,

medicate and treat . . . Eman . . . , and thereby . . .

Savannah . . . , in accordance with the accepted

standards of good and reasonable medical practice.

[(Emphasis added).]

Plaintiffs also "produced" 6 an AOM from a board-certified anesthesiologist with

a specialty in obstetric anesthesiology, asserting the care and treatment provided

by Drs. Henick, Salomon, and Martinez "fell outside acceptable professional or

occupational standards or treatment practices."

Thereafter, in April 2022, SMH provided another 350 pages of documents.

According to plaintiffs' responding brief on appeal, "[t]he 'official set' consists

of over 1,000 pages and, to date," SMH has not "certified them as true, accurate,

or complete."

In his May 2022 answer, Dr. Martinez averred he was board certified both

in anesthesiology and pediatric anesthesiology. Specifically, at the time of the

surgery, he "was practicing the specialty of anesthesiology when he rendered

care to Eman" and "the subspeciality of pediatric anesthesiology when he

rendered care to Savannah." Discovery ensued.

6

Dated January 19, 2022, it is unclear from the record whether the AOM was

filed with the complaint.

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The following year, in his March 7, 2023 answers to interrogatories, Dr.

Martinez described his medical relationship with plaintiffs and treatment

rendered:

I served as the anesthesiologist for the C-

[s]ection performed on July 28, 2016. Following the

delivery[,] the baby was intubated by [neonatologist,

Elliot] Samet [M.D.]. I reintubated the baby at the

request of Dr. Samet.

....

I was one of the anesthesiologists on duty in

[SMH] on July 28, 2016. On that date I received a

communication from Dr. Guy Salomon requesting my

assistance with a stat C-[s]ection. I immediately

proceeded to the Labor and Delivery Suite. Dr.

Salomon and I arrived in [the operating room] just as

the patient was being pushed into the room. The patient

was placed under general anesthesia. Following the

delivery the baby was intubated by Dr. Samet. I

reintubated the baby at the request of Dr. Samet.

Dr. Martinez was deposed the next day. The following exchange ensued,

in relevant part:

[PLAINTIFFS' COUNSEL:] [M]y understanding from

your [a]nswers to [i]nterrogatories you were called on

after the delivery by the pediatrician and neonatologist

who intubate[d] this child; is that correct?

[DR. MARTINEZ:] Correct.

[PLAINTIFFS' COUNSEL:] Is that something that's

typically within your services in this circumstance or is

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that something out of the ordinary for you to be asked

to intubate the baby?

[DR. MARTINEZ:] Do I . . . have the skill set to do it

or is it something routinely that happens or two separate

questions? I'm sorry.

[PLAINTIFFS' COUNSEL:] Did you have the skill set

to do it?

[DR. MARTINEZ:] Yes.

[PLAINTIFFS' COUNSEL:] Okay. But would you

typically perform that service or is that something out

of the ordinary?

[DR. MARTINEZ:] It's not routine.

[PLAINTIFFS' COUNSEL:] [] Do you know why in

this case you were asked to do that?

[DR. MARTINEZ:] Based on my note, it just says that

they were having trouble, but why they were having

trouble, I don't know. I didn't write that down.

[PLAINTIFFS' COUNSEL:] Is there any way you can

tell from the record or were able to tell from the record

how many attempts individuals before you, whether it

be the nursing staff or the pediatrician, made to intubate

before you were asked to do that?

After an objection as to form, Dr. Martinez responded:

In my note it says multiple intubations by the

neonatologist. So multiple is more than one but I can't

tell you how many. And again, I was attending to my

patient up top, the mother. And so you know, the

operating room is a very hectic location. I wasn't sitting

there counting.

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8

The following exchange later continued:

[PLAINTIFFS' COUNSEL:] After you were successful

with the intubation did you stay with the child or did

you return to your patient?

[DR. MARTINEZ:] I had to immediately return to my

patient.

[PLAINTIFFS' COUNSEL:] Okay. And did you have

any further contact with the child after that?

[DR. MARTINEZ:] He asked me – according to my

note here, he asked me to re-intubate again at the

request of the neonatologist. So, I showed him the same

view and we don't change anything there.

[PLAINTIFFS' COUNSEL:] I'm not sure I understand

that. So, you were asked to do it a second time?

[DR. MARTINEZ:] Correct.

....

[PLAINTIFFS' COUNSEL:] Is there an indication as

to why you were asked to do it a second time?

[DR. MARTINEZ:] I can only – based on the notes the

baby's not getting better so it appears that – but again,

I'd just be speculating. The baby's not getting better,

it's clear to me. And . . . the neonatologist is wondering

if the tube's in the correct location.

[PLAINTIFFS' COUNSEL:] Okay. So, did you have

to do the intubation a second time or was the tube that

you originally put in satisfactory?

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9

[DR. MARTINEZ:] The tubing was satisfactory but the

second time I showed him, I said, please look. So, I

just kind of opened the mouth, inserted the blade so he

can see with his own eyes. It's a small airway. If I

stand over it, he is not able to see. I said, please look.

He sees the same view that I see. So, now we both are

on the understanding that it's in the right place.

According to the nurse's report, Dr. Samet intubated Savannah between

9:09 a.m. and 9:17 a.m., and Dr. Martinez reintubated her at 9:36 a.m. Savannah

began showing improvement by 10:00 a.m. Sometime after 10:25 a.m.,

Savannah was transferred to St. Joseph's Hospital.

Plaintiffs failed to provide an AOM from a pediatric anesthesiologist

within the statutory time frame. See N.J.S.A. 2A:53A-27.7 The motion judge

granted Dr. Martinez's unopposed dismissal motion. In their merits brief on

appeal, plaintiffs explain the SMH "nursing notes did not suggest anything other

than a successful intubation, and Dr. Samet's notes d[id] not even mention Dr.

Martinez"; and "Dr. Martinez's notes and later explanation suggest[ed] nothing

7

Although not referenced by the parties, we glean from the motion judge's

decision on reconsideration, a Ferreira conference was conducted prior to the

expiration of the statutory period. See Ferreira v. Rancocas Orthopedic Assocs.,

178 N.J. 144, 154-55 (2003) (mandating a conference "within ninety days of the

service of an answer in all malpractice actions," during which "the court will

address all discovery issues, including whether an [AOM] has been served on

[the] defendant" and "whether [the defendant] has any objections to the

adequacy of the affidavit").

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untoward on his part." Accordingly, plaintiffs did not oppose Dr. Martinez's

motion to dismiss "claims that did not actually exist" and were not then

supported "by any reasonable medical evidence."

The June 9, 2023 order dismissed with prejudice

any and all claims against [Dr.] Martinez . . . for the

treatment and care of the infant plaintiff Savanah . . .

within the specialty of pediatric anesthesiology alleged

in [p]laintiffs' [second a]mended [c]omplaint and any

and all crossclaims derived therefrom only . . . against

[Dr.] Martinez . . . , for failure to provide a sufficient

[AOM] pursuant to [the AOM statute.]

[(Emphasis added).]

Plaintiffs' counsel neither objected to the form of the order prepared by

defense counsel, nor moved to limit the terms of the dismissal to preserve

Savannah's direct claims against Dr. Martinez. No statement of reasons

accompanied the order. See R. 1:7-4(a).

At some point after the claims against Dr. Martinez were dismissed,

plaintiffs consulted with a neonatologist and a neuroradiologist, who opined Dr.

Samet's treatment of Savannah "may have contributed to [her] injuries." In his

September 20, 2023 certification in support of plaintiffs' motion to file a third

amended complaint naming Dr. Samet's estate, 8 plaintiffs' counsel averred:

8

Dr. Samet's date of death is unclear from the record provided on appeal.

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because Savannah is a minor, the statute of limitations was not at issue; fact

discovery was ongoing; expert reports had not been exchanged; because Dr.

Samet is deceased, claims against him would be limited to the existing record;

and a trial date had not yet been scheduled.

The motion judge granted plaintiffs' application. For reasons that are

unclear from the record, plaintiffs' October 24, 2023 third amended complaint

retained their allegations against Dr. Martinez, which had been dismissed more

than four months prior.

On a date not disclosed in the record, plaintiffs' neonatologist suggested

the medical records "were deficient or incomplete and that a review of Dr.

Martinez's involvement in the 'failed' intubations should be examined." On

April 5, 2024, plaintiffs obtained an AOM from Adam Adler, M.D., a board-

certified anesthesiologist with a specialty in pediatric anesthesiology, against

Dr. Martinez. Around the same time, plaintiffs moved to vacate the June 9, 2023

dismissal order pursuant to Rule 4:42-2, and amend their complaint "to add a

new claim against Dr. Martinez" under Rule 4:9-1.9

9

Plaintiffs' notice of motion was not provided on appeal. At our request, Dr.

Martinez's counsel provided the transcript of the motion hearing.

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During oral argument on April 26, 2024, plaintiffs' counsel clarified his

clients only sought to vacate the dismissal order for failure to provide an AOM

from a pediatric anesthesiologist. Plaintiffs abandoned their claims against the

three anesthesiologists, including Dr. Martinez, for their treatment of Eman. In

response to the judge's inquiry, plaintiffs' counsel acknowledged the claims

asserted in the dismissed complaint on Savannah's behalf were akin to a

derivative claim, i.e., Savannah was injured "through the care or lack of care"

rendered to Eman by Dr. Martinez.

Plaintiffs' counsel argued extraordinary circumstances warranted vacatur

of the dismissal order. Specifically, it was not until plaintiffs' neonatologist,

apparently retained in connection with their claims against Dr. Samet, opined

there was "something missing . . . that a trained pediatric anesthesiologist would

have immediately, not subsequently, . . . known that he didn't have that tube

properly placed in the trachea." The neonatologist told plaintiffs' counsel, "there

[we]re tell-tale signs in the gasses and whatever's being produced

simultaneously with this process . . . that any first-level anesthesiologist would

have known immediately that that tube was misplaced." The neonatologist

suggested plaintiffs retain "another expert and have him look at it." Plaintiffs

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then obtained an AOM from Dr. Adler. Plaintiffs' counsel thus argued Dr.

Martinez "wasn't forthcoming" when deposed.

Immediately following argument, the judge issued an oral decision

granting plaintiffs' motion. Citing his familiarity with the case and "great

difficulty" plaintiffs experienced in obtaining a complete set of medical records

over "extended periods of time," the judge found plaintiffs clearly "acted with

due diligence." The judge further found the AOM statute was not

set up for a situation where a party acts with due

diligence, the records are less than forthcoming, the

doctor's deposition – I'm not suggesting for a moment

that Dr. Martinez was purposely evasive – but certainly

would not have given somebody an indication that there

was a basis to seek to make that person a defendant at

that time.

The judge was convinced fundamental fairness and the absence of any prejudice

to Dr. Martinez warranted relief from the dismissal order.

On April 30, 2024, plaintiffs filed their fourth amended complaint, adding

direct claims against the defendant physicians, including Dr. Martinez, for

Savannah's injuries. The parties do not dispute that plaintiffs provided Dr.

Adler's AOM to Dr. Martinez.

Shortly thereafter, Dr. Martinez moved for reconsideration of the April

26, 2024 order. During oral argument on the return date of the motion, Dr.

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Martinez's attorney asserted, following Dr. Martinez's deposition, plaintiffs

were well aware of his role in caring for Savannah. Thus, defense counsel

argued Dr. Martinez did not "deliberately obfuscate his testimony." Defense

counsel also asserted no authority in this state supported plaintiffs' motion to

reinstate claims that had been dismissed with prejudice for failure to file an

appropriate AOM. Citing our decision in Davies v. Imbesi, 328 N.J. Super. 372

(App. Div. 2000), defense counsel argued "the legislature did not intend a delay

in obtaining medical records to constitute exceptional circumstances" and, by

extension, the legislature "would [not] intend that medical records [a] plaintiff

might misinterpret or not fully understand would be the basis for exceptional

circumstances."

In a written rider to the June 7, 2024 order, the motion judge addressed

the arguments raised on reconsideration, including his greater understanding of

plaintiffs' reliance on a theory "akin to the discovery rule," that is, "an [AOM]

is not required unless and until a party knows or should have known of the

potential malpractice by the medical professional." The judge recognized the

absence of any authority supporting the failure to file a timely AOM where the

medical records "fail to provide the basis for determination of the applicability

and necessity for the AOM."

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The motion judge compared the circumstances presented here with those

in other cases where our courts have addressed a plaintiff's failure to file a timely

AOM. As one notable example, the judge distinguished Davies, 328 N.J. Super.

at 377, where unlike plaintiffs in the present matter, the plaintiffs in that case

delayed obtaining medical records.

Citing the "unique circumstances of this litigation and the efforts of

plaintiff[s'] counsel," the judge reiterated his decision that fairness dictated

permitting plaintiffs to reinstate their claims on Savannah's behalf. The judge

underscored the purpose of the AOM statute was not to bar meritorious litigation

under these circumstances, where Dr. Martinez's alleged actions "we[re] far

from clear" from the SMH records and Dr. Martinez's deposition testimony. The

judge thus concluded "the records and testimony of Dr. Martinez did not provide

an adequate basis to permit a reasonably diligent attorney to recognize the

necessity for an [AOM]." Nor was the judge convinced Dr. Martinez suffered

prejudice by denial of his reconsideration motion.

II.

Generally, absent an abuse of discretion, appellate courts will not disturb

a trial court's order on a motion for reconsideration. See Branch v. Cream-O-

Land Dairy, 244 N.J. 567, 582 (2021). An abuse of discretion arises when a

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decision was "made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis." Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &

Naturalization Servs., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Unlike reconsideration motions to alter or amend final judgments and final

orders, which are governed by Rule 4:49-2, a motion for reconsideration of an

interlocutory order – as was the dismissal order here – is governed by the "far

more liberal approach" set forth in Rule 4:42-2. Lawson v. Dewar, 468 N.J.

Super. 128, 134 (App. Div. 2021). "Rule 4:42-2 declares that interlocutory

orders 'shall be subject to revision at any time before the entry of final judgment

in the sound discretion of the court in the interest of justice.'" Ibid. (quoting R.

4:42-2).

However, we review de novo "all decisions on a motion to dismiss."

Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div. 2016) (recognizing our de

novo standard of review on a trial court's dismissal under the AOM statute).

"We likewise conduct a plenary review of the trial court's determination of a

dismissal motion under Rule 4:6-2(e)." Pfannenstein v. Surrey, 475 N.J. Super.

83, 95 (App. Div.), certif. denied, 254 N.J. 517 (2023) (citing Dimitrakopoulos

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v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108

(2019)).

Pertinent to this appeal, a plaintiff in a medical negligence action must,

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.

[N.J.S.A. 2A:53A-27.]

An additional time period of sixty days may be granted upon a showing

of "good cause." Ibid. The AOM is due at the expiration of this time frame,

"regardless of whether the pleadings are subsequently amended to name other

defendants or assert additional claims." Yagnik v. Premium Outlet Partners,

L.P., 467 N.J. Super. 91, 97 (App. Div. 2021).

Our Supreme Court recently reiterated the "dual purposes of the AOM

statute": "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." Wiggins v. Hackensack Meridian Health, ___ N.J. ___, ___ (2025) (slip

op. at 14) (quoting Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 150

(2003)); see also Meehan v. Antonellis, 226 N.J. 216, 229 (2016). The failure

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to provide an AOM is considered "a failure to state a cause of action" under

N.J.S.A. 2A:53A-29 and warrants a dismissal with prejudice. A.T. v. Cohen,

231 N.J. 337, 346 (2017) (quoting N.J.S.A. 2A:53A-29).

In medical negligence actions, N.J.S.A. 2A:53A-41 requires the AOM

affiant to "be equivalently-qualified to the defendant" physician. Buck v. Henry,

207 N.J. 377, 389 (2011) (quoting Ryan v. Renny, 203 N.J. 37, 52 (2010)).

Stated another way, when a defendant is a board-certified specialist, the

plaintiffs must provide an AOM from a physician board-certified in the same

specialty. See N.J.S.A. 2A:53A-41(a). To ensure a plaintiff files a proper AOM,

"a defendant physician must indicate in his [or her] answer . . . the specialty, if

any, in which he [or she] was involved when rendering treatment." Henry, 207

N.J. at 383.

Our Supreme Court has carved out two limited exceptions to "temper the

draconian results of an inflexible application of the [AOM] statute." Ferreira,

178 N.J. at 151. Initially, "[a] complaint will not be dismissed if the plaintiff

can show that he [or she] has substantially complied with the statute." Ibid.

(citing Palanque v. Lambert-Woolley, 168 N.J. 398, 405-06 (2001)). Substantial

compliance is not at issue here.

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Secondly, "[w]here extraordinary circumstances are present, a late

affidavit will result in dismissal without prejudice." Paragon Contractors, Inc.

v. Peachtree Condo. Ass'n, 202 N.J. 415, 422-23 (2010). To determine whether

extraordinary circumstances are present, the court must engage in "a fact -

sensitive [case-by-case] analysis." Tischler v. Watts, 177 N.J. 243, 246 (2003)

(alteration in original) (quoting Hartsfield v. Fantini, 149 N.J. 611, 618 (1997)).

"To show extraordinary circumstances, it is unnecessary to establish that an

opponent acted in bad faith or deliberately misled a plaintiff." Yagnik, 467 N.J.

Super. at 116. Extraordinary circumstances exist where there is a "perfect storm

of injustice." A.T., 231 N.J. at 350.

Against these legal principles, we disagree with Dr. Martinez's argument

that the motion judge "create[d] a novel exception" to the AOM statute's

requirements. Rather, we are convinced, as was the judge, extraordinary

circumstances warranted vacatur of the dismissal order to prevent a manifest

injustice in this case. The judge's finding is supported by the protracted

procedural history, which included multiple and diligent attempts by plaintiffs'

counsel to obtain a complete set of SMH medical records, and required

intervention by DHHS and the court. Cf. Davies, 238 N.J. Super. at 377.

Further, Savannah's direct claim against Dr. Martinez was not readily apparent

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from counsel's review of the medical records and Dr. Martinez's sworn

statements which, taken together, did not evince wrongdoing. Plaintiffs were

not aware of Savannah's direct claims until experts retained in connection with

their claims against Dr. Samet recommended a pediatric anesthesiologist should

review the records.

Nor are we persuaded by Dr. Martinez's argument that, because the third

amended complaint named Dr. Samet – the neonatologist who, by definition,

directly treated Savannah – and reiterated the same derivative treatment

language as the second amended complaint, plaintiffs effectively asserted direct

claims against Dr. Martinez in their second amended complaint. Plaintiffs

alleged Savannah was injured by defendants' "fail[ure] to properly diagnose,

medicate and treat . . . Eman . . . , and thereby Savannah . . . in accordance with

the accepted standards of good and reasonable medical practice." When

"liberally construed in the interest of justice," see R. 4:5-7, the second amended

complaint did not allege direct claims. We conclude, as the judge correctly

noted during colloquy with plaintiffs' counsel, Savannah's claims were

derivative of Dr. Martinez's failure to properly render care to Eman.

We nonetheless are troubled by the breadth of the June 9, 2023 order,

which dismissed "any and all claims against" Dr. Martinez for his care and

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treatment of Savannah "within the specialty of pediatric anesthesiology alleged

in [p]laintiffs' [second a]mended complaint." That language incorrectly

encompassed Savannah's direct claims against Dr. Martinez, which were not

pled in the second amended complaint.

We recognize plaintiffs did not move to amend the dismissal order to

protect Savannah's direct claims, which are tolled until she reaches age thirteen.

See N.J.S.A. 2A:14-2.2 (providing "an action by or on behalf of a minor that has

accrued for medical malpractice for injuries sustained at birth shall be

commenced prior to the minor's 13th birthday"). 10 However, it is unclear from

the order whether the court and counsel considered the broad terms of the

dismissal language. For purposes of appellate review, a trial court should issue

some explanation when dismissing allegations on behalf of a child whose claims

have not yet accrued. See Rule 1:7-4(a) (requiring the court "find the facts and

state its conclusions of law thereon . . . on every motion decided by a written

order that is appealable as of right"). There is no exception to the rule "where

10

Nor do plaintiffs contend the order was improvidently entered as drafted.

They maintain, instead, their belated claims against Dr. Martinez are protected

under the discovery rule. See Lopez v. Swyer, 62 N.J. 267, 272 (1973) (holding

"a cause of action will be held not to accrue until the injured party discovers, or

by an exercise of reasonable diligence and intelligence should have discovered

that he may have a basis for an actionable claim"). The motion judge declined

to analyze plaintiffs' claim pursuant to Lopez, and so do we.

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the motion is unopposed." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 299-

300 (App. Div. 2009).

In any event, we are satisfied dismissal of Savannah's direct claims with

prejudice for failure to comply with the AOM statute, when those claims were

not asserted in the second amended complaint and the child has not yet attained

the age of thirteen, would have been a manifest injustice if the dismissal order

had not been vacated. Our conclusion is consonant with the judge's reasoning.

Lastly, we disagree with Dr. Martinez's renewed argument that he is

unduly prejudiced by the late amendment of plaintiffs' claims. Dr. Martinez

fails to articulate, with any specificity, how he is harmed by reentering the case.

He has not, for example, asserted "any loss of evidence or undue additional

defense costs that could result from allowing [the] plaintiffs' case to proceed."

See Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div.

2000). Nor does Dr. Martinez dispute plaintiffs' assertion that he "has been

privy to, and participated in, all discovery that has occurred in this case."

We are satisfied the motion judge's decision is consistent with the AOM

statute's dual purposes. Wiggins, ___ N.J. at ___ (slip op at. 14). We recognize,

however, plaintiffs are not relieved of their burden of demonstrating Dr.

Martinez's medical negligence at trial. See id. at ___ (slip op. at 27).

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Affirmed.

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