Ferreira v. Rancocas Orthopedic Associates

*156 Justice LONG,

concurring in part and dissenting in part.

I have no quarrel with the court’s ultimate disposition of this matter. Reinstatement of the complaint is the obviously correct outcome. My point of departure from my colleagues is a global one. I am no longer willing to pen or join in the reasoning of yet another opinion that limns excessively fine distinctions solely to avoid the injustice that necessarily flows from the holding of Alan J. Comblatt, P.A. v. Barow, 153 N.J. 218 , 708 A.2d 401 (1998), that all deviations from the Affidavit of Merit statute warrant dismissal with prejudice except for the narrowly prescribed category of “exceptional circumstances.” I therefore write separately to express my view that it is time for Comblatt to be modified.

When the Legislature enacted the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, as a tort reform measure, it declared that that initiative was “designed to weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward.” Galik v. Clara Maass Med. Ctr., 167 N.J. 341 , 350, 771 A.2d 1141 , 1147 (2001) (citing Comblatt, supra, 153 N.J. at 242 , 708 A.2d at 413 ). Obviously underlying that scheme was the wholly unremarkable notion that, if a plaintiff in a malpractice case cannot obtain an expert’s report regarding deviation, his or her claim should not stand. To relieve the system and individual litigants of the burdens of prosecuting and defending against such claims, the Legislature set forth within the statute a methodology for the filing of an affidavit of merit. N.J.S.A. 2A:53A-27. Plaintiffs failure to provide an affidavit pursuant to the act is “deemed a failure to state a cause of action.” N.J.S.A. 2A.-53A-29.

In Comblatt, this Court held that deviation from the Affidavit of Merit statute should result in a dismissal with prejudice except in extraordinary circumstances. Cornblatt, supra, 153 N.J. at 247 , 708 A.2d at 415 (citing Hartsfield v. Fantini, 149 N.J. 611, 618 , 695 A.2d 259, 263 (1997)). In line with the legislative intent, Comblatt was on firm legal ground in concluding that, if a plaintiff is unable to provide an affidavit of merit in a malpractice case, a fundamental element necessary to the ultimate rendering of a *157 judgment (the fact of deviation) is absent. Presumably, that is what led the Court to state that “[t]he violation giving rise to the dismissal goes to the heart of the cause of action as defined by the Legislature,” Cornblatt, supra, 153 N.J. at 244 , 708 A.2d at 414 , and to conclude that dismissal with prejudice is the proper response. Id. at 245 , 708 A.2d at 414 (citing Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 , 563 A.2d 31 (1989)).

However, experience over the past eight years has taught us that there are two distinct classes of cases arising under N.J.S.A. 2A:53A-27. The first is the class that infused Cornblatt. It makes perfect sense that, where a plaintiff is unable to provide an affidavit at all, the omission should be considered substantive, resulting in a merits-dismissal with prejudice.

The vastly more common category is entirely different. It does not involve the inability of a plaintiff to produce an affidavit regarding deviation, but arises out of procedural slip-ups in filing or service or out of curable technical deficiencies. Such defects do not “go to the heart of the cause of action.” Indeed, because they do not reflect negatively on the merits of a plaintiffs malpractice claim, dismissing the complaint does nothing to advance the legislative goal of ridding the system of frivolous cases. On the contrary, it thwarts the stated aim of allowing meritorious cases to go forward. That was never the intention of the Legislature when it enacted the Affidavit of Merit statute.

Accordingly, Comblatt’s mandatory dismissal with prejudice rule should be limited to those eases in which' a plaintiff cannot or will not produce an affidavit of merit at all. Con-comitantly, trial judges should have available to them a full panoply of discretionary remedies for procedural deficiencies in complying with the Affidavit of Merit statute, including dismissal with or without prejudice and discovery-type sanctions such as reasonable expenses incurred in obtaining the affidavit along with counsel fees. See R. 4:23-1 et. seq. In each case, the trial judge should assess the facts, including the willfulness of the violation, the proximity of *158 trial and any prejudice that would accrue to the party aggrieved by the filing deviation, and apply the appropriate remedy. The availability of sanctions short of dismissal with prejudice would align the Affidavit of Merit procedure with R. 4:37-2(a) for the first time since the statute was enacted. Moreover, it would provide judges with a response that is proportionate to most procedural violations and also would serve to save for trial the meritorious eases of injured victims of malpractice. Nothing in the statute itself precludes such an approach. It is only Cornblatt that stands in the way.

Modifying Comblatt will not offend notions of stare decisis. Certain expectations about Affidavit of Merit litigation, particularly that it would spring from cases in which plaintiffs could not support their claims of deviation, obviously underpinned Comblatt and directed its result. Those expectations have not materialized. In fact, the heartland of Affidavit of Merit cases involves nothing more than procedural mistakes that are entirely irrelevant to the legitimacy of the cause of action. That reality not only justifies but requires a modification of Comblatt.

Stare decisis operates to control change, not to prevent it. Fox v. Snow, 6 N.J. 12, 23 , 76 A.2d 877, 883 (1950) (Vanderbilt, J., dissenting). Indeed, as Justice Vanderbilt observed in Fox , that doctrine does not require us “to adhere blindly to rules that have lost their reason for being.” Ibid. The broad mandatory dismissal with prejudice language of Comblatt falls into that category. Until it is modified, we will be required to continue on our course of painstakingly deconstructing the facts in every single Affidavit of Merit case in order to find some basis on which to escape Comblatt and achieve a just result. Stare decisis does not require that of us.

One final note. The preventive case management scheme the majority has put into place essentially carves a class of cases out of the template for case management set forth in R. 4:5. That rule was enacted as part of the Best Practices initiative and fundamentally altered the way cases are managed in order to *159 render our system more effective and efficient. Under the majority’s opinion, not only is the judicial discretion and flexibility that is a hallmark of R. 4:5 altered, but the very notion that a case-management conference is “not automatic” becomes a nullity. Given the ameliorative goals of the Best Practices revisions, that kind of piecemeal amendment of the new rules seems counterproductive at best. More importantly, I deem it unlikely that the court’s innovation will forestall a new round of litigation. Rather, I see it as simply moving the field of battle to a different location. For those reasons, although I concur in the result, I cannot agree with the Court’s rationale.

Justice ZAZZALI and Judge PRESSLER (temporarily assigned) join in this opinion.