SEYMA O. LEVINE, ETC. VS. KINDRID HOSPITAL NEW JERSEY - MORRIS COUNTY (L-1965-16, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0257-17T3

SEYMA O. LEVINE, individually

and as ADMINISTRATRIX of the

ESTATE OF BERNARD LEVINE,

Plaintiff-Appellant,

v.

KINDRED HOSPITAL NEW JERSEY -

MORRIS COUNTY, and SELECT

SPECIALTY HOSPITAL - NORTHEAST

NEW JERSEY,

Defendants-Respondents.

____________________________________

Submitted December 20, 2018 – Decided April 15, 2019

Before Judges Simonelli and DeAlmeida.

On appeal from Superior Court of New Jersey, Law

Division, Bergen County, Docket No. L-1965-16.

Seyma O. Levine, appellant pro se.

Farkas & Donohue, LLC, attorneys for respondent

Kindred Hospital New Jersey (David C. Donohue, of

counsel; Christine M. Jones, on the brief).

Marshall Dennehey Warner Coleman & Goggin,

attorneys for respondent Select Specialty Hospital

Northeast New Jersey (Walter F. Kawalec, III, on the

brief).

PER CURIAM

In this medical malpractice matter, plaintiff Seyma O. Levine appeals

from the following Law Division orders:

1. the June 12, 2017 order granting the motion of

defendant Kindred Hospital New Jersey (Kindred) to

dismiss the complaint with prejudice for plaintiff's

failure to serve an affidavit of merit (AOM) in

compliance the AOM statute, N.J.S.A. 2A:53A-24 to -

29;

2. the August 21, 2017 order granting the motion of

defendant Select Specialty Hospital-Northeast New

Jersey (Select) for summary judgment and dismissal of

the complaint with prejudice for plaintiff's failure to

serve an expert's report;

3. the October 27, 2017 order denying plaintiff's

motion for recusal of the trial judge; and

4. the November 3, 2017 order denying plaintiff's

motion for a change of venue.1

1

Plaintiff's notice of appeal indicates she is also appealing from the August 8,

2017 order denying her motion for reconsideration of the June 12, 2017 order,

and the October 27, 2017 order denying her motion for reconsideration of the

A-0257-17T3

2

We have considered plaintiff's arguments relating to recusal of the trial

judge, change of venue, and Kindred's vicarious liability in light of the record

and applicable legal principles and conclude they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In addition, we

decline to address plaintiff's argument, raised for the first time in her reply brief,

that an expert's report as to Select was not necessary because the medical records

of Select and New York Presbyterian Hospital demonstrated Select's

negligence;2 Select's negligence was a matter of common knowledge; and res

ipsa loquitor applied. See Goldsmith v. Camden Cty. Surrogate's Office, 408

N.J. Super. 376, 387 (App. Div. 2009) ("raising an issue for the first time in a

reply brief is improper") (quoting Borough of Berlin v. Remington & Vernick

Engr's, 337 N.J. Super. 590, 596 (App. Div. 2001).

Accordingly, we focus on the dismissal of plaintiff's complaint with

prejudice as to Kindred for failure to comply with the AOM statute, and the

August 21, 2017 order. However, plaintiff did not address these orders in her

merits brief. The issues therefore are deemed waived. See Sklodowsky v.

Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current

N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019).

2

These documents are not in the record.

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3

grant of summary judgment and dismissal of the complaint with prejudice as to

Select for failure to serve an expert's report.

I.

The following facts inform our review. Plaintiff's husband, Bernard

Levine (decedent), was treated at Select from September 28, 2012 until

December 2012. He was admitted to Kindred on February 7, 2014, and

discharged on March 18, 2014, against medical advice. The decedent was also

treated at a number of other hospitals, both before and after his admission to

Kindred and Select.

On February 22, 2016, plaintiff, individually and as administratrix of the

decedent's estate, filed a complaint pro se against Kindred and Select, asserting

claims of medical malpractice against "physicians, surgeons, doctors, interns,

residents, nurses and other personnel employed at" Kindred and Select.

On June 17, 2016, the court held a Ferreira3 conference with plaintiff and

Select. Kindred did not appear because plaintiff failed to adequately serve it

with the summons and complaint. However, on June 27, 2016, the court entered

default against Kindred. Kindred subsequently filed a motion to vacate default,

3

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

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4

which the court granted. On December 27, 2016, Kindred filed an answer and

demand for an AOM within sixty days pursuant to N.J.S.A. 2A:53A-27.

Plaintiff provided an AOM from Axel Pflueger, M.D., Ph.D., dated June

16, 2016. Because the AOM only identified Select, on January 30, 2017,

Kindred notified plaintiff the AOM was not appropriate as to Kindred and

Kindred would file a motion to dismiss the complaint with prejudice if plaintiff

did not serve an appropriate AOM within the statutory period.

Plaintiff provided a second AOM from Pflueger, also dated June 16, 2016,

which was identical to the first AOM, except it identified Kindred. The AOM

stated as follows:

Axel Pflueger, M.D. Ph.D being sworn states:

1. I am a physician licensed in the State of New Jersey.

2. I am board certified in Internal Medicine and

Nephrology.

3. For a period in excess of five years a substantial

share of my practice has been devoted to Internal

Medicine and Nephrology.

4. Based on the records which I have reviewed, there

is a reasonable probability that the care, skill or

knowledge exercised or exhibited in the treatment,

practice or work of Kindred Hospital-Morris County

upon the patient Mr. Bernard Levine, fell outside

acceptable professional treatment standards.

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5

5. I have no financial interest in the outcome of this

action.

Pflueger did not sign the AOM before a notary public.

On February 14, 2017, Kindred notified plaintiff the AOM was not

appropriate because Pflueger was not a licensed person qualified to provide an

AOM against a facility such as Kindred. Kindred also stated that Pflueger did

not identify anyone within Kindred that he believed deviated from accepted

standards of care. Kindred advised plaintiff it would file a motion to dismiss

the complaint with prejudice if she failed to provide an appropriate AOM within

the statutory period.

On April 6, 2017, Kindred notified plaintiff that Pflueger's AOM was also

not appropriate because he did not sign it before a notary public. Kindred again

advised plaintiff it would file a motion to dismiss the complaint with prejudice

if she did not provide an appropriate AOM within the statutory period.

The statutory period expired on April 26, 2017, without plaintiff having

provided an appropriate AOM. On May 7, 2017, Kindred filed a motion to

dismiss the complaint with prejudice for plaintiff's failure to provide an

appropriate AOM. Plaintiff filed opposition and served a third AOM from

Pflueger, dated May 22, 2017.

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6

The trial court found that an AOM was required in this matter because

plaintiff's claims involved the professional conduct of employees and staff of

Kindred as medical providers. The court determined that plaintiff's claims

required an analysis of Kindred's duty and responsibilities as a provider of

medical care at a long-term facility, which were outside the common knowledge

of the average juror. The court also found that Kindred qualified as a "licensed

person" under N.J.S.A. 2A:53A-26.

The court found Pflueger's AOM was not sufficiently specific as to the

negligent persons or actions; rather, the AOM was a "blanket affidavit" that did

not comport with Fink v. Thompson, 167 N.J. 551 (2001), as it did not identify

any negligent providers and their skill, level, or specialty. The court noted that

Pflueger appeared to ascribe general negligence in pulmonology and nursing

care; however, he is Board certified in nephrology and internal medicine and not

qualified to opine as to whether Kindred's medical staff deviated from the

standard of care.

The court concluded that plaintiff provided an AOM that was improper

and untimely. The court found the May 22, 2017 AOM did not cure the

deficiencies, it was served beyond the 120-day deadline, and there were no

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7

exceptional circumstances to warrant an extension. In rejecting plaintiff's

request for a hardship extension, the court concluded:

[plaintiff did] not address the critical deficiencies in []

Pflueger's [AOM]. First, the [AOM] is insufficiently

specific in identifying physicians who rendered

substandard care and identifying those negligent acts.

Second, . . . Plfueger is only able to opine as to

deviations from the standard of care of internists and

nephrologists, and not pulmonologists, nurses, or direct

claims against Kindred.

The court entered an order on June 12, 2017, memorializing its decision.

On appeal, plaintiff contends an AOM was not required against a business

entity, such as Kindred, under the version of N.J.S.A. 2A:53A-27 in effect when

she filed her complaint on February 22, 2016. Plaintiff posited that N.J.S.A.

2A:53A-27 was amended on April 14, 2016, to include the following language:

"the plaintiff shall, at the time of filing the complaint, provide each defendant,

including any business entity named as a defendant, with an [AOM]."

We review a trial court's decision to dismiss a complaint under the AOM

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

We also review de novo a trial court's determination of whether an AOM is

required; whether the court should have held a Ferreira conference; and whether

the plaintiff has demonstrated extraordinary circumstances as a defense to the

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8

AOM statute. Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super. 104, 113 (App.

Div. 2011). Applying these standards, we discern no reason to reverse.

Contrary to plaintiff's argument, N.J.S.A. 2A:53A-27 was not amended in

April 2016. Since 2004, N.J.S.A. 2A:53A-27 has provided as follows, in

pertinent part:

In any action for damages for personal injuries,

wrongful death or property damage resulting from an

alleged act of malpractice or negligence by a licensed

person in his profession or occupation, the plaintiff

shall, within [sixty] 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. The court may grant no more than one

additional period, not to exceed [sixty] days, to file the

affidavit pursuant to this section, upon a finding of

good cause.

In the case of an action for medical malpractice, the

person executing the affidavit 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]. . . . The person shall have no

financial interest in the outcome of the case under

review, but this prohibition shall not exclude the person

from being an expert witness in the case.

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9

Although N.J.S.A. 2A:53A-27 does not specifically refer to actions

against a business entity, the statute requires an AOM to be served "[i]n any

action for damages . . . resulting from an alleged act of malpractice or negligence

by a licensed person in his profession or occupation . . . ." N.J.S.A. 2A:53A-27

(emphasis added). The definition of "licensed person" includes "any person who

is licensed as . . . a healthcare facility as defined in [N.J.S.A. 26:2H-2]."

N.J.S.A. 2A:53A-26(j). Under N.J.S.A. 26:2H-2(a), a "healthcare facility"

includes "the facility or institution, whether public or private, that is engaged

principally in providing services for health maintenance organizations,

diagnosis, or treatment of human disease, pain, injury, deformity, or physical

condition, including, but not limited to, a general hospital, special hospital . . .

treatment center, rehabilitation center, extended care facility," and others. Thus,

a healthcare facility, despite being a business entity, is included under the AOM

statute's definition of a "licensed person."

Kindred is a long-term healthcare facility, also known as a transitional

care hospital, which specializes in caring for difficult to treat and chronically

critically ill patients who require specialized and aggressive goal-directed care

over an extended recovery period. Kindred therefore is a "licensed person"

entitled to an AOM.

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10

To determine whether the AOM statute applies to a particular claim

against a "licensed person," the court must consider three factors:

(1) whether the action is for "damages for personal

injuries, wrongful death or property damage" (nature of

injury); (2) whether the action is for "malpractice or

negligence" (cause of action); and (3) whether 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"

(standard of care).

[Triarsi, 422 N.J. Super. at 114 (alteration in original)

(quoting Couri v. Gardner, 173 N.J. 328, 334 (2002)).]

In evaluating the cause of action and the nature of the injury to determine

whether a claim requires an AOM, "courts must look to the underlying factual

allegations, and not how the claim is captioned in the complaint . . . . [I]t is the

nature of the proof required that controls." Ibid. (alteration in original) (quoting

Syndicate 1245 at Lloyd's v. Walnut Advisory Corp., 721 F. Supp. 2d 307, 315

(D.N.J. 2010)).

The factual allegations in plaintiff's complaint confirm this is a medical

malpractice action where plaintiff alleges that Kindred's conduct fell outside

acceptable professional standards or treatment practices. Thus, the AOM statute

clearly applies to plaintiff's claims against Kindred and plaintiff was required to

provide an AOM.

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11

Nevertheless, plaintiff argues that even if an AOM was required, she had

extenuating health circumstances warranting an exception to the 120-day

deadline. Specifically, plaintiff alleges she was unable to provide an appropriate

AOM within the 120-day period because she became critically ill in February

2017, within two weeks of Kindred notifying her that Pflueger's AOM was not

appropriate.

The failure 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). However, New Jersey courts have

"recognized equitable exceptions to 'temper the draconian results of an

inflexible application of the statute[.]'" Ibid. (quoting Ferreira, 178 N.J. at 151).

One of these equitable exceptions is that "a complaint will be dismissed without

prejudice if there are extraordinary circumstances to explain noncompliance."

Ferreira, 178 N.J. at 151.

In order to determine whether there are extraordinary circumstances, 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)). However, "ignorance of the law or failure

to seek legal advice will not excuse failure to meet the filing deadline [of

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12

N.J.S.A. 2A:53A-27]." Hyman Zamft & Manard, LLC v. Cornell, 309 N.J.

Super. 586, 593 (App. Div. 1998)). The 120-day deadline for which to file an

AOM will not be extended for "carelessness, lack of circumspection, lack of

diligence, or ignorance of the law." Balthazar v. Atl. City Med. Ctr., 358 N.J.

Super. 13, 26 (App. Div. 2003).

In addition, "[p]rocedural rules are not abrogated or abridged by plaintiff's

pro se status." Rosenblum v. Borough of Closter, 285 N.J. Super. 230, 241 (App.

Div. 1995). If litigants choose to represent themselves, "they must understand

that they are required to follow accepted rules of procedure promulgated by the

Supreme Court to guarantee an orderly process. Such litigants are also presumed

to know, and are required to follow, the statutory law of this State." Tuckey v.

Harleysville Ins. Co., 236 N.J. Super. 221, 224 (App. Div. 1989).

There were no extraordinary circumstances here to warrant extension of

the 120-day deadline. The 120-day deadline expired on April 26, 2017. Plaintiff

knew of her obligation to provide an AOM as of December 27, 2016, when

Kindred filed its answer and demand for an AOM. Plaintiff knew as of January

30, 2017 that Pflueger's first AOM was not appropriate and that Kindred would

file a motion to dismiss with prejudice if she did not timely provide an

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appropriate AOM. This occurred well before plaintiff fell ill in February 2017

and was hospitalized in March 2017.

In addition, while plaintiff claims she was hospitalized throughout March

2017, Kindred notified her on February 14, 2017 that Pflueger's second AOM

was not appropriate and Kindred would file a motion to dismiss the complaint

with prejudice if she did not timely provide an appropriate AOM. Further,

Kindred again notified plaintiff on April 6, 2017, after her release from the

hospital, that Pflueger's second AOM was not appropriate and Kindred would

file a motion to dismiss the complaint with prejudice if she did not timely

provide an appropriate AOM. However, plaintiff made no effort to provide an

appropriate AOM before the 120-day time period expired on April 26, 2017, nor

did she notify Kindred or the court of her health concerns or request an extension

of time to file the AOM prior thereto. In fact, despite that Kindred filed its

motion to dismiss on May 7, 2017, plaintiff did not attempt to serve a third AOM

until May 22, 2017, well after the 120-day deadline.

The AOM statute "does not impose overly burdensome obligations. The

plaintiff must keep an eye on the calendar and obtain and serve the [AOM]

within the statutory timeframe." Estate of Yearby v. Middlesex Cty., 453 N.J.

Super. 388, 407 (App. Div. 2018) (quoting Ferreira, 178 N.J. at 146). We do

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not find extraordinary circumstances where the record "shows an undisputed

pattern of inattentiveness coupled with outright ignorance of the legal

requirements of the [AOM statute][.]" Ibid.

Although plaintiff alleges her health problems prevented her from timely

serving an appropriate AOM, she had approximately three months, including the

time before and after her health issues began, to do so and nevertheless made no

attempt to comply. Thus, plaintiff has not demonstrated extraordinary

circumstances warranting an exception to the 120-day deadline.

Nevertheless, plaintiff argues that Pflueger's June 16, 2016 AOM

substantially complied with the AOM statute. We disagree.

The doctrine of substantial compliance "is invoked so that technical

defects will not defeat a valid claim" and provides that "[a] complaint will not

be dismissed if the plaintiff can show that he has substantially complied with

the statute." Ferreira, 178 N.J. at 151. In order to establish substantial

compliance, the plaintiff must show:

(1) the lack of prejudice to the defending party; (2) a

series of steps taken to comply with the statute

involved; (3) a general compliance with the purpose of

the statute; (4) a reasonable notice of petitioner's claim;

and (5) a reasonable explanation why there was not

strict compliance with the statute.

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[Ibid. (quoting Galik v. Clara Maass Med. Ctr., 167 N.J.

341, 353 (2001)).]

Substantial compliance "is a concept that requires a court to go beyond the literal

language [of the statute] in order to implement the legislative intent and its

policy mandate." Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198,

205 (App. Div. 2000).

Plaintiff has not established any of the elements of substantial compliance.

In particular, she did not attempt to comply with the clear mandate of the AOM

statute during the 120-day maximum statutory timeframe despite Kindred

repeatedly advising her of her obligation to do so. She also did not request a

Ferreira conference, inform Kindred or the court of any difficulty she

experienced in obtaining an appropriate AOM, or produce any evidence showing

"a general compliance with the purpose of the statute." Estate of Yearby, 453

N.J. Super. at 403 (quoting Palanque v. Lambert-Woolley, 168 N.J. 398, 405

(2001)).

Our case law "has acknowledged repeatedly that the primary purpose of

[the AOM statute] is 'to require plaintiffs in malpractice cases to make a

threshold showing that their claim is meritorious, in order that meritless lawsuits

readily could be identified at an early stage of litigation.'" Fink, 167 N.J. at 559

(quoting In re Petition of Hall, 147 N.J. 379, 391 (1997)). "Requiring a threshold

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showing of merit balances the goal of reducing frivolous lawsuits and the

imperative of permitting injured plaintiffs the opportunity to pursue recovery

from culpable defendants." Ibid. Thus, substantial compliance has been found

where a clear statement of the plaintiff's theory of negligence and the expert's

opinion concerning the theory's validity is provided. See id. at 562-64.

Pflueger's June 16, 2016 AOM did not provide a clear statement of

plaintiff's theory of negligence and his opinion concerning the theory's validity.

Rather, the AOM merely stated that "there is a reasonable probability that the

care, skill or knowledge exercised or exhibited in the treatment, practice or work

of [Kindred] upon [the decedent] fell outside acceptable professional treatment

standards."

"[E]xcept for the generic, non-descriptive allegations reflected in the

complaint" Pflueger did not identify the standard of care applicable to Kindred

or its employees, nor did he "describe what actions defendants took or failed to

take that deviated from the relevant standard of care." Estate of Yearby, 453

N.J. Super. at 403-04. Thus, plaintiff has not demonstrated a general compliance

with the purpose of the AOM statute or a reasonable notice of the claims against

Kindred within the 120-day time period.

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Moreover, "[t]he [AOM] statute requires a plaintiff to show 'that the

complaint is meritorious by obtaining an affidavit from an appropriate, licensed

expert attesting to the "reasonable probability" of professional negligence.'"

Stoecker v. Echevarria, 408 N.J. Super. 597, 611 (App. Div. 2009) (quoting

Ferreira, 178 N.J. at 149-50). "'[T]he challenging expert' who executes an

affidavit of merit in a medical malpractice case, generally, should '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)). Accordingly,

we have held that an AOM should be executed by a like-licensed professional

because a licensed professional "who makes a mistake and harms another person

should reasonably anticipate that he or she can be held to account for that

mistake by the professional board that has issued him or her a license to

practice." Hill Int'l, Inc. v. Atl. City Bd. of Educ., 438 N.J. Super 562, 587 (App.

Div. 2014). We also held:

Assuming the affiant is such a like-licensed

professional, the affiant must also satisfy the additional

criteria . . . requiring that the affiant have "particular

expertise in the general area or specialty involved in the

action," which can be established either by board

certification or the affiant's devotion of a substantial

amount of his or her practice to that relevant general

area or specialty within the past five years.

[Id. at 588 (quoting N.J.S.A. 2A:53A-27).]

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Pflueger is Board certified in internal medicine and nephrology and has

devoted a substantial portion of his practice to these areas of medicine. He

therefore is not a like-licensed professional who has particular expertise in the

general area or specialty involved in this matter.

In addition, in his June 16, 2016 and May 22, 2017 AOMs, Pflueger did

not identify persons within Kindred that he believed deviated from accepted

standards of care. Although his May 22, 2017 AOM contained additional

information regarding the decedent's treatment at Kindred, and the conditions

that Pflueger believed were caused by that treatment, Pflueger did not identify

the medical professionals within Kindred who were alleged to have deviated

from the applicable standard of care, nor did he identify the roles those

individuals played in the decedent's treatment. To the extent the May 22, 2017

AOM did identify medical professionals by stating "the nurse refused to rectify

the problem," Pflueger is not qualified to provide an AOM regarding a nurse's

conduct, as physicians and nurses are not like-licensed professionals. See ibid.

Thus, the untimely May 22, 2017 AOM failed to comply with the AOM statute.

See Fink, 167 N.J. at 560 (finding the AOM statute "requires that a plaintiff

provide an affidavit to each defendant detailing a reasonable probability that at

least one claim concerning each defendant has merit").

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II.

Plaintiff contends that if she was required to provide an AOM, the court

erred by not holding a second Ferreira conference to address the deficiencies in

Pflueger's June 16, 2016 AOM and whether Plfueger was qualified to provide

an AOM. We reject this contention.

In Ferreira, our Supreme Court "required that a 'case management

conference be held within ninety days of the service of an answer in all

malpractice actions.'" Buck, 207 N.J. at 394 (quoting Ferreira, 178 N.J. at 154).

The Court stated:

At the conference, the court will address all discovery

issues, including whether an [AOM] 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 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, 178 N.J. at 155.]

Ferreira conferences are "designed to identify and alleviate issues regarding the

[AOM,]" Meehan v. Antonellis, 226 N.J. 216, 221 (2016), and "to serve as a

reminder of the obligation and to facilitate early identification of 'any deficiency

in [an] affidavit' already served by a plaintiff." A.T., 231 N.J. at 347 (alteration

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in original) (quoting Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202

N.J. 415, 423-24 (2010)). However, the Ferreira conference "was never

intended, nor could it have been, as an overlay on the statute that would

effectively extend the legislatively prescribed filing period." Ibid. (quoting

Paragon, 202 N.J. at 419). Accordingly, "the failure to hold [a Ferreira

conference] does not toll the time limits of the AOM statute." Triarsi, 422 N.J.

Super. at 121-22. Thus, "reliance on the scheduling of a Ferreira conference to

avoid the strictures of the [AOM] statute is entirely unwarranted and will not

serve to toll the statutory time frames." A.T., 231 N.J. at 348 (quoting Paragon,

202 N.J. at 426).

Here, although plaintiff concedes the court held a Ferreira conference on

June 17, 2016, it is undisputed that Kindred did not attend because plaintiff did

not properly serve Kindred with the summons and complaint. Thus, the issue is

whether the court should have held a second Ferreira conference after Kindred

filed its answer.

Plaintiff claims a second conference was necessary because she was

unaware of the requirements for an AOM "on a claim against a facility," and the

requirements would have been clarified if a Ferreira conference had been held.

However, this argument not only lacks merit, it also does not allow the court to

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toll the 120-day period. Although a trial court is required to hold a Ferreira

conference within ninety days of an answer being filed, in order to address the

plaintiff's obligations under the AOM statute, the court's failure to do so will not

excuse a plaintiff's failure to comply with the AOM statute. Paragon, 202 N.J.

at 425-26. In fact, we have explicitly held that "[w]hile an early case

management conference may well have clarified for the defendants . . . the need

to file an [AOM] . . . the failure to conduct such a Ferreira conference does not

toll the timeframes set forth in the [AOM] statute." Alpert, Goldberg, Butler,

Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 542 (App. Div. 2009).

A Ferreira conference was never intended "as an overlay on the statute

that would effectively extend the legislatively prescribed filing period ." A.T.,

231 N.J. at 347-48 (quoting Paragon, 202 N.J. at 419). Thus, the failure of the

court to hold a second Ferreira conference here did not excuse plaintiff's failure

to timely provide an appropriate AOM as to Kindred. Quinn, 410 N.J. Super.

542. Further, plaintiff's claim that she was unaware of her obligations under the

AOM statute lacks merit, as she attended a Ferreira conference as to Select and

was advised multiple times of her obligation to provide an appropriate AOM as

to Kindred within the statutory period.

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There was no confusion about whether the time to serve an appropriate

AOM was tolled pending a Ferreira conference. Plaintiff does not claim she was

waiting for the court to hold a second conference before providing an AOM as

to Kindred, and Kindred repeatedly advised her of her obligation to timely

provide an appropriate AOM and of its intent to file a motion to dismiss with

prejudice if she failed to comply. See Triarsi, 422 N.J. Super. at 122.

Accordingly, regardless of whether or not the court was obligated to

conduct a second Ferreira conference, its failure to do so did not toll the 120-

day deadline and did not bar dismissal of plaintiff's complaint with prejudice.

See Stoecker, 408 N.J. Super. at 616 (finding that, where the trial court

conducted several case management conferences and ordered plaintiff to serve

her expert reports before the deadline for filing an AOM, the court's failure to

explicitly order plaintiff to serve her AOM did not bar dismissal of plaintiff's

complaint).

For all of the foregoing reasons, we are satisfied the court properly granted

Kindred's motion to dismiss the complaint with prejudice for plaintiff's failure

to comply with the AOM statute.

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III.

Following the close of discovery, Select filed a motion for summary

judgment and to dismiss plaintiff's complaint with prejudice for failure to serve

an expert's report. The court entered an order on August 21, 2017, granting the

motion. Plaintiff argues the court erred in granting summary judgment because

Select failed to comply with Rule 4:46-2(a) by not including a statement of

material facts and citations to the record, and did not request an expert's report.

The record contradicts plaintiff's argument. Select included a statement

of facts in its summary judgment brief with citations to exhibits, which complied

with Rule 4:46-2(a). In addition, Select served Form A(1) Uniform

Interrogatories on plaintiff. Interrogatory nine required plaintiff to identify all

proposed experts, set forth in detail their qualifications, and attach a copy of

their current resume and written reports.

"To prove medical malpractice, ordinarily, 'a plaintiff must present expert

testimony establishing (1) the applicable standard of care; (2) a deviation from

that standard of care; and (3) that the deviation proximately caused the injury.'"

Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150

N.J. 359, 375 (1997)). The plaintiff in a medical malpractice action must

therefore demonstrate that the defendant's deviation from the applicable

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standard of care was, to a reasonable degree of medical probability, the

proximate cause of the harm alleged. Germann v. Matriss, 55 N.J. 193, 208

(1970). In medical malpractice cases, the standard of care is usually not a matter

of common knowledge and must be established by an expert who specializes in

a field of medicine similar to that of the defendant. Komlodi v. Picciano, 217

N.J. 387, 409-10 (2014).

Plaintiff did not provide an expert's report to support her theory of

causation or to establish the standard of care for her medical malpractice claim

against Select. Accordingly, summary judgment and dismissal of plaintiff's

complaint with prejudice as to Select was proper.

Affirmed.

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