ESTATE OF GEETA KOLLORY VS. ROBERT WOOD JOHNSON HOSPITAL (L-2804-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2886-17T3

ESTATE OF GEETA KOLLORY,

and PETER S. KOLLORY,

Individually and as Administrator

and Administrator Ad Prosequendum,

Plaintiffs-Appellants,

v.

ROBERT WOOD JOHNSON

UNIVERSITY HOSPITAL, a

private hospital, DR. ALPESH

B. PATEL, MA ANA F. ABARCA,

R.N., AUGUSTO CESPEDES, R.N.

and DAISY MENOSA, R.N.,

Defendants-Respondents,

and

ANDY KIM, LAROBIS COREZON, R.N.,

RESIDENT DR. DAN, DR. SATYA

BHARATH, and DR. ANDREW SCHIFF,

Defendants.

__________________________________

Submitted February 25, 2019 – Decided May 22, 2019

Before Judges Messano, Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-2804-16.

Peter S. Kollory, appellant pro se and attorney for

Estate of Geeta Kollory.

Rosenberg Jacobs Heller & Fleming, PC, attorneys for

respondents Robert Wood Johnson University Hospital,

Ma Ana F. Abarca, R.N., Augusto Cespedes, R.N, and

Daisy Menosa, R.N. (Raymond J. Fleming, of counsel;

Christopher Klabonski, on the brief).

Lenox Law Firm, attorneys for respondent Dr. Alpesh

Patel (Joseph R. Lang, of counsel; Christina M. Matteo,

on the brief).

PER CURIAM

Individually, and as administrator for the estate of his late wife Geeta,

plaintiff Peter S. Kollory filed a complaint for medical malpractice against

defendants Dr. Alpesh B. Patel, and the Robert Wood Johnson University

Hospital and its registered nurse employees, Ma Ana F. Abarca, Augusto

Cespedes,1 and Daisy Menosa (collectively, RWJ defendants). Mrs. Kollory

died during a cardiac procedure performed by Dr. Patel. An autopsy was

1

Defendant Cespedes was improperly pled as A. Cespecles, and some orders

entered in the litigation incorrectly name Cespedes.

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performed at the request of plaintiff, which revealed the cause of death was

"chronic ischemic heart disease secondary to severe coronary artery disease."

Dr. Patel and the RWJ defendants filed answers on June 29 and July 27,

2017, respectively. The court conducted a Ferreira2 conference on October 11,

2017. Plaintiff had not served an affidavit of merit (AOM) at that point, so the

judge extended the deadline until October 27, 2017 for Dr. Patel, and November

4, 2017, for the RWJ defendants. Apparently on plaintiff's motion, and

recognizing the date did not provide plaintiff with the requisite time under the

Affidavit of Merit Statute (AMS), N.J.S.A. 2A:53A-26 to -29, the court

extended the time to November 27 for the RWJ defendants. Plaintiff failed to

file any AOM within these timeframes.

Defendants moved to dismiss the complaint with prejudice. In response,

plaintiff filed a cross-motion.3 Plaintiff certified that defendants were late in

2

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003). In Ferreira,

the Court mandated that a "'case management conference be held within ninety

days of the service of an answer' at which the professional defendant would raise

'any objections to the adequacy of the affidavit' served by the plaintiff . . . [if]

deficient, then the plaintiff would 'have to the end of the 120-day time period to

conform the affidavit to the statutory requirements.'" Buck v. Henry, 207 N.J.

377, 382 (2011) (quoting Ferreira, 178 N.J. at 154-55).

3

In the interim, plaintiff was permitted to amend the complaint to add other

parties as defendants. It is unclear from the record whether they were ever

served.

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responding to his discovery requests, and, while he had consulted several

experts, none was willing to testify. In addition, plaintiff attached two purported

AOMs, an affidavit from Dr. Gregory Baird, a hospitalist who practiced family

medicine in Utah, and an affidavit from a registered nurse, Joahnna D. Evans

Budge, who was licensed to practice in California and Utah. Plaintiff claimed

that despite their untimeliness, these demonstrated his substantial compliance

with the AMS, and that the complaint was meritorious. Plaintiff also furnished

his own affidavit, citing several medical journals and articles, which he claimed

demonstrated defendants' deviations from the standard of care. Lastly, plaintiff

argued that certain causes of action in the complaint, such as Dr. Patel's alleged

failure to secure informed consent, were not subject to the AMS, and he could

prove these causes of action by application of the doctrine of res ipsa loquitur

or common knowledge.

After several adjournments, the Law Division judge heard argument,

denied plaintiff's cross-motion, granted defendants' motions, and dismissed the

complaint with prejudice. He reasoned that the surgery was complex and not

subject to the common knowledge of jurors. He also found the two affidavits

plaintiff furnished were inadequate. The judge said Dr. Baird's affidavit was

deficient because he did not practice in the same specialty as Dr. Patel, who was

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a board certified cardiologist. The judge also reasoned that Nurse Budge's

affidavit was also deficient, because it failed to name the individual nurses, nor

did it state in any detail what the "nurses did or didn't do." Finally, the judge

concluded that plaintiff was in possession of all the necessary records by

September 2, 2017, and yet he failed to procure sufficient AOMs before the

deadline.

The judge entered two orders dismissing plaintiff's complaint with

prejudice as to Dr. Patel and the RWJ defendants. This appeal followed.

Plaintiff reiterates the arguments made in the Law Division. We affirm

substantially for the reasons expressed by the motion judge. We add only the

following.

"In the early stages of a medical malpractice action, a plaintiff must

provide an affidavit from an equivalently credentialed physician attesting 'that

there exists a reasonable probability that the' defendant physician's treatment

'fell outside acceptable professional' standards." Buck, 207 N.J. at 382 (quoting

N.J.S.A. 2A:53A-27). "Under the [AMS], the failure to file an appropriate

affidavit within the statutory time limits may result in dismissal of even

meritorious cases." Ibid. (citation omitted).

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N.J.S.A. 2A:53A-28 provides a relaxation of the strict time limits if, prior

to the deadline "plaintiff provides a sworn statement in lieu of the affida vit

setting forth that: the defendant has failed to provide plaintiff with medical

records or other records or information having a substantial bearing on

preparation of the affidavit; . . . ." This sworn statement should be presented at

the Ferreira conference, which was purposely created to "remind the parties of

the sanctions that will be imposed if they do not fulfill their obligations." 178

N.J. at 147. Additionally, the requirement can be waived equitably if the

plaintiff can demonstrate "extraordinary circumstances and substantial

compliance." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J.

415, 422 (2010). When those circumstances are shown, the dismissal without

prejudice is appropriate. Id. at 422-23.

Under the circumstances of this case, plaintiff did not qualify for relief.

In a certification filed in anticipation of the October 11, 2017 Ferreira

conference, plaintiff acknowledged that he possessed what he viewed as the

critical "cardiac cath procedure dis[c]s" as of September 2. He never argued at

the time that necessary discovery was still outstanding.

Nor did the two affidavits plaintiff furnished meet the statutory

requirements. Nurse Budge's affidavit failed to name any specific defendant,

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nor did it describe any negligent act with specificity. See Fink v. Thompson,

167 N.J. 551, 559-60 (2001). With rare exception, only a similarly qualified

specialist may file an AOM against a board-certified medical specialist like Dr.

Patel. Nicholas v. Mynster, 213 N.J. 463, 486 (2013) ("The apparent objective

of N.J.S.A. 2A:53A-41 is to ensure that, when a defendant physician is subject

to a medical-malpractice action for treating a patient's condition falling within

his . . . specialty, a challenging plaintiff's expert, who is expounding on the

standard of care, must practice in the same specialty.").4

"[W]hen a defendant's negligence is so apparent that expert testimony will

not be needed at trial, the purpose of the [AMS] statute . . . would not be

furthered by requiring an affidavit of merit." Hubbard ex rel. Hubbard v. Reed,

168 N.J. 387, 392 (2001). This exception is narrow, and the examples are

obvious. See id. at 396-97 (holding the exception applied when a dentist pulled

the wrong tooth).

4

N.J.S.A. 2A:53A-41 is part of the New Jersey Medical Care Access and

Responsibility and Patients First Act. The provisions of that statute apply to

AOMs required in medical malpractice actions. See N.J.S.A. 2A:53A-27 ("In

the case of an action for medical malpractice, the person executing the [AOM]

shall meet the requirements of a person who provides expert testimony or

executes an affidavit as set forth in . . . [N.J.S.A.] 2A:53A-41.")

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Here, the procedure itself was complicated and beyond the ken of the

average juror. Plaintiff concedes that the alleged negligent conduct that supports

the "common knowledge" exception — Dr. Patel was on his phone during the

event — was necessitated by the doctor's need to discuss complications he

encountered during the procedure with another physician. Moreover, expert

testimony would still be required to prove that the making of such a phone call

was a deviation from accepted medical standards. Nor could plaintiff overcome

the need to file an AOM by application of res ipsa loquitur. See Risko v. Ciocca,

356 N.J. Super. 406, 411 (App. Div. 2003) ("[W]e are satisfied that an affidavit

of merit is required in a res ipsa case, unless the 'common knowledge' doctrine

is also applicable.").

Lastly, plaintiff claims that some of the causes of action alleged in the

complaint survive his failure to serve a timely, adequate AOM. The argument

lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). It suffices to say that plaintiff never raised the point in the trial court.

Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, his claims

for assault and battery, lack of informed consent and "abandonment" required

expert proofs because they were inextricably tied to the medical procedure and

defendants' alleged deviation from appropriate standards of care. See, e.g.,

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Risko, 356 N.J. Super. at 412 n.1 (noting allegation of "lack of informed

consent" requires an AOM) (citing Darwin v. Gooberman, 339 N.J. Super. 467,

480-81 (App. Div. 2001), abrogated in part by Couri v. Gardner, 173 N.J. 328

(2002)); see also Couri, 173 N.J. at 340 ("[W]hen presented with a tort or

contract claim asserted against a professional specified in the [AMS], . . . courts

should determine if the claim's underlying factual allegations require proof of a

deviation from the professional standard of care applicable to that specific

profession.").

Affirmed.

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