The opinion
NOT FOR PUBLICATION WITHOUT THE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 only binding 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-4069-14T4
RAYMOND TREPKAU,
Plaintiff-Appellant,
v.
ST. CLARE'S HOSPITAL,
Defendant-Respondent.
___________________________
Argued September 28, 2016 – Decided August 24, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-1686-14.
Patrick P. Toscano, Jr., argued the cause for
appellant (The Toscano Law Firm, LLP,
attorneys; Mr. Toscano, of counsel and on the
brief).
Michael A. Moroney argued the cause for
respondent (Decotiis, FitzPatrick, Cole &
Giblin, LLP, attorneys; Mr. Moroney, of
counsel; Randall S. Watts, on the brief).
PER CURIAM
Plaintiff Raymond Trepkau appeals from an order of the Law
Division dismissing his professional malpractice and ordinary
negligence complaint against the emergency room nursing staff
employed by defendant St. Clare's Hospital (Hospital). We reverse
and remand for further proceedings consistent with this opinion.
We derive the following facts from the limited record developed
before the Law Division.
On July 9, 2014, plaintiff filed a complaint against the
Hospital and other unidentified defendants under the fictitious
party rule,1 alleging medical and nursing malpractice and ordinary
negligence in connection with the treatment and care he received
on June 11, 2013. Specifically, plaintiff alleged he went to the
Hospital's emergency room complaining of "several ailments
limiting his ability to independently care for and properly
ambulate himself while undergoing tests[.]"
By virtue of a Consent Order dated December 1, 2014, the
court vacated the default judgment it had previously entered
against the Hospital for failure to submit a timely responsive
pleading and permitted the Hospital to file an answer. Because
plaintiff's cause of action was predicated in part on alleged
professional malpractice, plaintiff was required to comply with
1
"'The purpose of [the fictitious party rule] is to render timely
the complaint filed by a diligent plaintiff, who is aware of a
cause of action against an identified defendant but does not know
the defendant's name.'" Bustamante v. Borough of Paramus, 413
N.J. Super. 276, 299 (App. Div. 2010) (quoting Greczyn v. Colgate-
Palmolive, 183 N.J. 5, 11 (2005)); see also R. 4:26-4.
2 A-4069-14T4
the requirements of the Affidavit of Merit Act, N.J.S.A. 2A:53A-
27 to -29. Thus, on December 22, 2014, plaintiff's counsel sent
defense counsel an affidavit of merit authored by Thomas Bojko,
M.D., M.S., J.D., FCLM. In this document, Dr. Bojko averred he
was "licensed to practice medicine in the states of New York and
New Jersey." With respect to the allegations of medical and
nursing malpractice, Dr. Bojko made the following assertions in
numbered paragraphs:
3. I have reviewed the medical records and
other pleadings available to . . . [p]laintiff
to date concerning the allegations of gross
medical malpractice.
4. I am familiar with the applicable standard
of care relative to the allegations . . .
[p]laintiff has made.
5. It is my opinion that St. Clare's Hospital
and certain employees breached the standard
of care by failing to provide proper care to
. . . [p]laintiff, relative to the allegations
. . . [p]laintiff has made concerning falling
and severely/permanently injuring [his]
ankle.
On February 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. Although it appears the judge
intended to conduct a Ferreira2 conference, we cannot determine
what was actually discussed at this "conference" because it was
2
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
3 A-4069-14T4
not conducted on the record. We do know that on March 2, 2015,
after this off-the-record discussion had occurred, the trial judge
entered an order dismissing plaintiff's complaint "without
prejudice for . . . failure to satisfy the requirements of the
Affidavit of Merit statute, N.J.S.A. 2A:53A-27[.]" We infer the
judge decided to take this action on his own initiative because
defendant did not file a motion seeking this or any other relief.
The judge also failed to explain the basis for taking this action,
as required under Rule 1:7-4(a).
In the Hospital's appellate brief, defense counsel claims the
trial judge put plaintiff "on notice" of multiple deficiencies in
Dr. Bojko's affidavit of merit. However, defense counsel neither
identifies the nature of these alleged "deficiencies" nor
elaborates on the factual or legal bases for the judge's alleged
concerns. Plaintiff's position in this appeal is equally opaque.
In the procedural history section of his appellate brief,
plaintiff's counsel states that "[o]n February 19, 2015, the trial
court held a Ferreira conference." However, in the legal argument
section, plaintiff's counsel emphatically states: "The trial court
herein did not conduct a Ferreira conference as required by
controlling case law."
On March 19, 2015, seventeen days after the trial court
dismissed plaintiff's complaint without prejudice, plaintiff's
4 A-4069-14T4
counsel sent defense counsel a letter transmitting a second
affidavit of merit authored by Dr. Bojko. This second affidavit
of merit is nearly identical to the first affidavit dated December
22, 2014. The only differences are found in paragraphs 4 and 5.
In the interest of clarity, we reveal the differences in language
in these two affidavits by underlining the language that was added
to paragraphs 4 and 5 in the second affidavit:
4. I am familiar with the applicable standard
of care relative to the allegations . . .
[p]laintiff has made and with the applicable
nursing standard of care specifically.
5. It is my opinion that certain nurses at St.
Clare's Hospital breached the nursing standard
of care by failing to provide proper care to
. . . [p]laintiff, relative to the allegations
. . . [p]laintiff has made concerning falling
and severely/permanently injuring [his]
ankle.
In the letter transmitting the second affidavit of merit,
plaintiff's counsel asked defense counsel to "execute a Consent
Order reinstating Count Two of our Complaint." By limiting his
request in this fashion, plaintiff's counsel revealed an
assumption that the ordinary negligence count in the complaint
remained legally viable. However, the trial court's March 2, 2015
order dismissing plaintiff's complaint without prejudice contains
no language exempting any of plaintiff's causes of action.
Finally, plaintiff's counsel concluded this part of his letter by
apprising defense counsel that if he did not voluntarily agree to
5 A-4069-14T4
reinstate the complaint, plaintiff would file "the appropriate
motion pursuant to Rule 4:9-1[.]"
On April 24, 2015, the trial judge heard oral argument on
plaintiff's "motion to file an amended complaint" and defendant's
"cross-motion to dismiss . . . plaintiff's complaint[] with
prejudice." The judge decided to hear argument in support of
defendant's cross-motion first:
DEFENSE COUNSEL: Your Honor's [sic] previously
dismissed plaintiff's complaint, ruling that
Mr. Botchco[3] was not qualified to opine as to
the provision of nursing services in an
emergency room setting.
We were before Your Honor on February 19th of
this year, when Your Honor dismissed the
complaint. The complaint is dismissed.
Initially, plaintiff now seeks leave of the
court to amend that complaint which, we
submit, is not proper because there's no
complaint pending. The complaint would need
to be reinstated before it could be amended.
But the real gist of the motion is whether or
not the affidavit of merit that was provided
by Mr. Botchco satisfies the statute.
In response, plaintiff's counsel noted that to support his
motion to amend the complaint, he had attached an amended affidavit
of merit from Dr. Bojko "which we believe more than satisfies
[N.J.S.A. 2A:53A-27], [and] as a result of that, we filed [a]
notice of motion under [Rule] 4:9-1[.]" The judge responded that
3
We presume defense counsel was referring to Dr. Bojko.
6 A-4069-14T4
plaintiff's motion to amend the complaint was premature because
"[y]ou can't amend a complaint that's been dismissed. . . . [Y]ou
have to reinstate it first." As the argument continued, the judge
told plaintiff's counsel that he did not see "any difference
between the other affidavit and this one. You still have an
affidavit by a doctor asserting that a nurse is negligent."
In response, plaintiff's counsel pointed out that Dr. Bojko
had inserted the following language in paragraph 3 of his third
affidavit of merit, dated April 6, 2015: "Throughout my career,
and in my roles as a senior medical executive and hospital
administrator, I have been often involved in the teaching and
supervision of nurses, and in participating in the development of
many policies concerning nursing practice." Aside from this
language, the affidavit is identical to its previous version.
Plaintiff's counsel further argued that because he named the
allegedly negligent nurses who treated plaintiff as John Does
pursuant to Rule 4:26-4, and because discovery had not yet revealed
the identity of those nurses, he had tolled the running of the
sixty-day period for serving an affidavit of merit. See N.J.S.A.
2A:53A-27.
Although the judge was skeptical about the merits of
plaintiff's arguments, he reserved decision at the conclusion of
oral argument. By order dated May 5, 2015, the judge dismissed
7 A-4069-14T4
plaintiff's complaint with prejudice "for . . . failure to satisfy
the requirements of the Affidavit of Merit statute, N.J.S.A.
2A:53A-27[.]" The judge also denied plaintiff's motion to amend
the complaint. The judge did not place his reasons for reaching
these decisions on the record. Nor did he provide a written
statement of reasons as required by Rule 1:7-4(a).
In this appeal, plaintiff argues the trial judge failed to
conduct an appropriate Ferreira conference. Plaintiff further
argues the judge improperly dismissed the ordinary negligence
count of his complaint with prejudice. In response, defendant
argues the judge properly dismissed plaintiff's complaint with
prejudice because plaintiff's counsel "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" under N.J.S.A. 2A:53A-26i.
We reverse and remand this matter 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."
8 A-4069-14T4
The Court held that to this end, "all participants must be prepared
to identify at the conference the general area or specialty
involved in the action and whether the defendant was providing
professional services within that profession or specialty." Ibid.
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 intended to conduct a
Ferreira conference, he should have done so on the record. Then,
the judge could have expressed his concerns regarding plaintiff's
affidavit of merit and set a clear and definite timeframe to
address those concerns. Instead, the order that emerged from this
off-the-record discussion dismissed plaintiff's complaint without
prejudice and was otherwise silent about the issues surrounding
Dr. Bojko's affidavit.
"Trial judges are under a duty to make findings of fact and
to state reasons in support of their conclusions." Heinl v. Heinl,
287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-4).
Meaningful appellate review cannot take place unless the trial
judge sets forth the reasons for his decision. Strahan v. Strahan,
402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch,
240 N.J. Super. 441, 443 (App. Div. 1990)). The Law Division's
order dismissing plaintiff's complaint in this case is impervious
to meaningful appellate review and must be vacated.
9 A-4069-14T4
On remand, the judge assigned to this case must conduct a
Ferreira conference guided by the statute's dual purpose of
"weed[ing] out frivolous lawsuits early in the litigation while,
at the same time, ensuring that plaintiffs with meritorious claims
will have their day in court." Hubbard v. Reed, 168 N.J. 387, 395
(2001). The judge must keep in mind that in adopting the Affidavit
of Merit Act, the Legislature did not intend to "create a minefield
of hyper-technicalities in order to doom innocent litigants
possessing meritorious claims." Mayfield v. Cmty. Med. Assocs.,
P.A., 335 N.J. Super. 198, 209 (App. Div. 2000).
That being said, the statute requires plaintiffs to provide
a formal affidavit in which an appropriately credentialed
physician or licensed professional attests to a reasonable
probability that the defendant's conduct breached the applicable
standard of care. Buck v. Henry, 207 N.J. 377, 382 (2011) (quoting
N.J.S.A. 2A:53A-27). Absent "extraordinary circumstances," the
failure to provide such an affidavit within the specified statutory
period results in a dismissal with prejudice. Alan J. Cornblatt,
P.A. v. Barow, 153 N.J. 218, 242–45 (1998). On remand, the judge
assigned to this case must make specific findings to determine
whether the Law Division's failure to conduct a proper Ferreira
conference on the record constitutes "extraordinary circumstances"
10 A-4069-14T4
warranting the relaxation of the statute's draconian remedy of
dismissal with prejudice.
Finally, the motion judge also erred in dismissing
plaintiff's cause of action predicated on ordinary negligence.
First, the judge did not make any findings or state any reasons
for this decision, in clear violation of Rule 1:7-4(a). Second,
although nurses are licensed professionals under N.J.S.A. 2A:53A-
26i, a cause of action predicated on ordinary negligence can be
maintained if the negligence asserted by plaintiff falls within
the purview of the common knowledge doctrine. As the Supreme
Court explained in Hubbard, supra, 168 N.J. at 390:
Because we do not believe that the Legislature
intended to burden a plaintiff with the
affidavit requirement when expert testimony is
not required at trial to establish the
defendant's negligence, we hold that an
affidavit need not be provided in common
knowledge cases when an expert will not be
called to testify "that the care, skill or
knowledge . . . [of the defendant] fell
outside acceptable professional or
occupational standards or treatment
practices."
[Ibid. (quoting N.J.S.A. 2A:53A-27).]
In his appellate brief, plaintiff claims he experienced
dizziness and weakness while being treated for gastrointestinal
symptoms at the Hospital's emergency room. He requested a
wheelchair or other form of ambulatory assistance so he could have
ready access to a nearby bathroom. He alleges the treating nurses
11 A-4069-14T4
denied this request, thereby causing him to fall and injure
himself. These allegations were neither supported by competent
evidence nor reviewed and analyzed by the motion judge. Given the
paucity of competent material facts concerning this issue, the
judge's decision to dismiss plaintiff's complaint with prejudice
was clearly erroneous. However, we do not express any opinion
as to whether plaintiff will be able to maintain a legally viable
claim based on ordinary negligence against the unnamed nurses.
Reversed and remanded. We do not retain jurisdiction.
12 A-4069-14T4