Snyder v. Pascack Valley Hosp , 303 F.3d 271 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
8-22-2002
Snyder v. Pascack Valley Hosp
Precedential or Non-Precedential: Precedential
Docket No. 01-4102
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PRECEDENTIAL
Filed August 22, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4102
THERESA SNYDER, Administratrix of the Estate of
STANLEY SNYDER, Deceased; THERESA SNYDER,
in her own right,
v.
PASCACK VALLEY HOSPITAL; DIRECTCARE MEDICAL
SERVICES, L.L.C.; MARDIK DONIKYAN, M.D.;
CLYDE A. HERSHAN, M.D.
(D.C. No. 00-cv-02097)
THERESA SNYDER, Administratrix of the Estate of
STANLEY SNYDER, Deceased; THERESA SNYDER,
in her own right,
v.
PASCACK EMERGENCY SERVICES, P.A.
(D.C. No. 01-cv-00633)
Theresa Snyder, Administratrix of the
Estate of Stanley Snyder,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. Nos. 00-02097 & 01-00633)
District Judge: Honorable Harold A. Ackerman
Argued July 16, 2002
Before: McKEE, WEIS and DUHE,*
Circuit Judges.
Filed August 22, 2002
Clifford E. Haines, Esquire
(ARGUED)
LITVIN, BLUMBERG, MATUSOW
& YOUNG
The Widener Building, 18th Floor
1339 Chestnut Street
Philadelphia, PA 19107
Attorney for Appellant
William J. Buckley, Esquire
(ARGUED)
Kimberly A. Boyer, Esquire
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
1845 Walnut Street
Philadelphia, PA 19103
Attorney for Mardik Donikyan, M.D.
Lawrence H. Jacobs, Esquire
(ARGUED)
Robert J. Maloof, Esquire
HEIN, SMITH, BEREZIN, MALOOF
& JACOBS
Court Plaza East
19 Main Street
Hackensack, NJ 07601
Attorney for Pascack Valley Hospital
_________________________________________________________________
* Honorable John M. Duhe, Jr., United States Circuit Judge for the Fifth
Circuit Court of Appeals, sitting by designation.
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OPINION OF THE COURT
WEIS, Circuit Judge:
New Jersey legislation requires the plaintiff in a
malpractice suit to provide an affidavit of merit within 120
days after defendant’s answer is filed. Using the date
defendant filed his answer to the first amended complaint
as the beginning point, the District Court found that
plaintiff ’s affidavit was untimely and dismissed the suit. We
conclude that the time limit began to run on the date the
defendant filed his answer to the second amended
complaint and, therefore, was timely. Accordingly, we will
reverse and remand for further proceedings.
On February 11, 1999, plaintiff ’s husband, Stanley
Snyder, became ill while on a business trip in New Jersey.
He was taken to Pascack Valley Hospital, where defendant
Dr. Mardik Donikyan diagnosed Mr. Snyder’s condition as
cardiac arrhythmia, pneumonia, hypoglycemia, and
dehydration. The patient was released that day and
returned to his home in Pennsylvania.
Two days later, on February 13, 1999, he entered the
Chester County Hospital, where doctors discovered that he
was suffering from a pulmonary embolism. He was
evacuated to the University of Pennsylvania Medical Center,
where he died the following day. In September 1999,
plaintiff ’s counsel obtained an opinion from a pulmonary
specialist that "there had been a deviation from the
acceptable standards of care in treating Mr. Snyder at the
Pascack Valley Hospital . . . ."
In May 2000, plaintiff began a wrongful death action in
the United States District Court for the District of New
Jersey, alleging malpractice against Dr. Donikyan, the
hospital, and Directcare Medical Services, L.L.C. After the
parties filed various pleadings, defendants Donikyan and
the hospital moved to dismiss the suit because plaintiff had
failed to timely file an affidavit of merit certifying the
validity of her claims, as required by a New Jersey statute.
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After reviewing the text and purposes of the New Jersey
legislation, the District Court concluded that the statute’s
time limits began to run when the various defendants filed
their original answers, rather than their subsequent
answers to an amended complaint. On that basis, the
Court found plaintiff ’s affidavit of merit untimely and
dismissed the case with prejudice.
While the Court deliberated the timeliness issue, plaintiff
requested permission to dismiss her case without prejudice
so that she could file another suit and comply with the
affidavit of merit requirement in a timely fashion. After
dismissing the suit, the District Court denied that motion,
reasoning that plaintiff ’s plans to refile her suit amounted
to an attempted evasion of the statute. Plaintiff has
appealed both rulings.
Because plaintiff is a Pennsylvania citizen and the
defendants are citizens of New Jersey, we have jurisdiction
under 28 U.S.C. S 1332. This Court reviews de novo the
District Court’s determinations of New Jersey state law.
Grimes v. Vitalink Communications Corp., 17 F.3d 1553,
1557 (3d Cir. 1994).
In an effort to discourage the filing of frivolous
malpractice suits, New Jersey enacted legislation in 1995
requiring plaintiffs to make a threshold showing that their
claims are meritorious. The legislative history of this statute
and its accompanying provisions is reviewed in some detail
in Alan J. Cornblatt, P.A. v. Barow, 708 A.2d 401 (N.J.
1998), and need not be repeated here.
The part of the statute pertinent to this case sets out the
obligation of the plaintiff in a malpractice suit as follows:
"[t]he plaintiff shall, 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. The court may grant no more than
one additional period, not to exceed 60 days, to file the
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affidavit pursuant to this section, upon a finding of
good cause."
N.J. Stat. Ann. 2A:53A-27.
We have held that a district court’s application of this
statute does not conflict with the Federal Rules of Civil
Procedure and hence is enforceable in the district courts
when New Jersey law applies. Chamberlain v. Giampapa,
210 F.3d 154, 157 (3d Cir. 2000).
Not infrequently, a statute that seems clear in its text
presents unexpected problems in its application. The
factual variations and the questions generated by resort to
the relatively new statute at issue here are reflected in the
number of appeals brought to New Jersey’s intermediate
appellate court, as well as its supreme court.
Eschewing an overly restrictive interpretation, the
Supreme Court of New Jersey undertook to fill gaps in the
statute by looking to the legislative objectives that led to its
enactment. The Court asserted that the statute’s goals were
twofold, intending "not only to dispose of meritless
malpractice claims early in the litigation, but also to allow
meritorious claims to move forward unhindered." Burns v.
Belafsky, 766 A.2d 1095, 1099 (N.J. 2001). In that case,
the Court held that the plaintiff was not required to request
an extension of time for "good cause" within the original
sixty-day period in order to gain the additional sixty days
within which to file the affidavit of merit. Id . at 1100-01.
The Burns Court also concluded that inadvertence of
counsel could constitute good cause for invocation of the
sixty-day extension. "Absent demonstrable prejudice, it is
neither necessary nor proper to visit the sins of the
attorney upon . . . [the] blameless client." Id. at 1101
(internal quotations omitted).
Only a few months after it published the Burns opinion,
the New Jersey Supreme Court reiterated its opposition to
a wooden construction of the statute. Galik v. Clara Maass
Med. Ctr., 771 A.2d 1141 (N.J. 2001). Galik held that the
plaintiff ’s submission of medical reports to the defendants’
insurance carrier before trial in an effort to settle the claim
constituted substantial compliance with the affidavit of
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merit requirement. Defendants were unable to demonstrate
prejudice, and plaintiff had taken steps to comply with the
statute by obtaining medical reports even before bringing
suit.
Galik held that under these circumstances, the untimely
filing of an affidavit in proper form was permissible. Again,
the Court emphasized that errors of counsel should not be
visited on the client. Id. at 1149-52. See also Fink v.
Thompson, 772 A.2d 386 (N.J. 2000) (untimely service of
affidavit on physician-defendant previously identified in
pre-suit report amounted to substantial compliance.).
The Appellate Division of New Jersey’s Superior Court
has also been confronted with a variety of factual
circumstances requiring interpretation of the statute. In
Barreiro v. Morais, 723 A.2d 1244 (N.J. Super. Ct. App. Div.
1999), the Court anticipated Galik in holding that the 120-
day limitation was not a bright line beyond which
extraordinary circumstances could not apply. 723 A.2d at
1249. Concerned that defendants could improperly use
such an interpretation of the statute as a sword, the Court
viewed the extraordinary circumstances exception as a
means of preventing such improper use. Id. at 1248.
That is not to suggest, however, that the statute has
become a toothless tiger. In many instances, the failure to
comply with its requirements has resulted in dismissal.
See, e.g., Charles A. Manganaro Consulting Engrs, Inc. v.
Carneys Point Twp. Sewerage Auth., 781 A.2d 1116 (N.J.
Super. Ct. App. Div. 2001) (negligence counterclaim
dismissed for failure to file affidavit of merit); 1 Scaffidi v.
Horvitz, 779 A.2d 439 (N.J. Super. Ct. App. Div. 2001)
(plaintiff who did not ask for materials for affidavit was not
excused for untimely filing thereof); Kritzberg v. Tarsny, 768
A.2d 810 (N.J. Super. Ct. App. Div. 2001) (affidavit served
_________________________________________________________________
1. We note that the New Jersey Supreme Court, having analyzed
Manganaro and other cases, held that a breach of contract claim does
not trigger the affidavit of merit statute. Admonishing trial judges to look
beyond the labels of "tort" and "contract," the Court concluded that
affidavits are required only where the claim requires proof of a deviation
from the applicable professional standard of care. Couri v. Gardner, ___
A.2d ___, 2002 WL 1732928 (N.J. July 29, 2002).
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more than three months late did not relate back nunc pro
tunc to answers to interrogatories); Kubiak v. Robert Wood
Johnson Univ. Hosp., 753 A.2d 166 (N.J. Super. Ct. App.
Div. 2000) (functional equivalent of affidavit that has been
obtained but not provided to defendant does not constitute
substantial compliance). See also Chamberlain , 210 F.3d at
162-63 (no extraordinary circumstances present).
With this brief summary of New Jersey case law, we now
consider the facts in the case before us. Because the
sequence of the procedural steps is a critical factor in the
resolution of this appeal, we set out the chronological
history of the pleadings in detail.
- Plaintiff filed an amended complaint on May 15,
2000.
- Dr. Donikyan filed his answer on June 16, 2000.
- Plaintiff attempted to file a second amended
complaint on June 29, 2000, but the District Court
Clerk’s Office declined to accept the document.
- The Hospital filed its answer to the second amended
complaint on August 16, 2000.
- The Court issued a consent order on August 25,
2000, approving the filing of the second amended
complaint.
- Directcare Medical Services, L.L.C. filed its answer
on August 31, 2000.2
- The second amended complaint was filed and
docketed on September 5, 2000.
- Dr. Donikyan filed his answer to the second
amended complaint on September 25, 2000.
- Dr. Donikyan filed a motion to dismiss on January
2, 2001.
- Plaintiff faxed an affidavit of merit to defendants’
attorneys on January 3, 2001 and filed the affidavit
with the Court on January 4, 2001.
_________________________________________________________________
2. Directcare Medical Services, L.L.C. was later dismissed from the case
by stipulation and it is not a party to this appeal.
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- The Hospital filed its motion to dismiss on January
12, 2001.
This chronology is unusual in two respects. First, in his
opinion dismissing the case, the district judge determined
that the Clerk’s Office erred in failing to accept the second
amended complaint when it was presented on June 29,
2000. Not until August 25, 2000, some two months later,
did the Court enter a Consent Order permitting the second
amended complaint to be filed and that was not
accomplished until September 5, 2000.
Second, the parties had attended a status conference
before a magistrate judge on August 9, 2000. All
defendants had copies of the proposed second amended
complaint at that time. Counsel for the Hospital made it
clear that he would file an answer to the second amended
complaint, rather than the first amended complaint. He did
so one week later, on August 16, 2000, before the
magistrate judge had signed the Consent Order for the
filing of the second amended complaint. Thus, the Clerk’s
Office erred again in accepting an answer before the
complaint to which it responded was filed.
Unquestionably, the errors of the District Court Clerk
affected the orderly progress of the litigation. The confusion
generated by these mistakes should not affect the plaintiff ’s
right to proceed on a claim that on its face appears
meritorious.
Dr. Donikyan contends that the 120-day period as to him
began to run on June 16, 2000, when he filed his answer
to the first amended complaint. He argues that because the
second amended complaint did not change the allegations
against him, the plaintiff ’s obligation under the statute
began when he answered her original allegations of
negligence.
The statute does not address this issue, referring simply
to "the answer to the complaint." The legislation does not
purport to resolve all procedural intricacies that might
occur during litigation, and it is reasonable to assume that
the customary pleading rules would apply. An amended
complaint supercedes the original version in providing the
blueprint for the future course of a lawsuit.
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Under New Jersey procedural rules, as well as those in
the federal system, a defendant is required to answer the
amended complaint even if the new version does not change
the charges against him. See Fed. R. Civ. P. 15(a) ("A party
shall plead in response to an amended pleading .. . .")
(emphasis added); N.J. R. Civ. Prac. 4:9-1 (same, except as
to number of days within which response is required). It is
quite possible, moreover, that an amended complaint (or an
answer to it) could affect the content of an affidavit of merit.
Thus, it appears that the statute’s purpose is best
implemented here by establishing as the beginning point of
the 120-day limitations period the date on which a
defendant files his answer to the final amended complaint.
This construction allows meritorious cases to proceed
without opening the door to frivolous claims.3 Cf. Hyman
Zamft and Manard, L.L.C. v. Cornell, 707 A.2d 1068, 1072
(N.J. Super. Ct. App. Div. 1998) (suggesting that filing of
new pleadings would establish "a new sixty-day window" for
submitting affidavit).
Moreover, we cannot overlook the extraordinary
circumstances present here; the errors of the Clerk’s Office
contributed to the confusion that marked the early stages
of this case. We shall not allow the Clerk’s mistakes, albeit
under extremely rare procedural circumstances, to impair
the plaintiff ’s right to proceed.
Plaintiff candidly concedes inadvertence in failing to file
the affidavit of merit within the sixty-day period following
Dr. Donikyan’s answer to the second amended complaint.
The New Jersey Supreme Court in Burns concluded that an
attorney’s honest oversight constituted good cause
permitting the sixty-day extension provide by the statute.
Accordingly, we conclude that the plaintiff properly filed an
affidavit as to Dr. Donikyan within the 120 day period.
The Hospital’s position is somewhat different. It never
_________________________________________________________________
3. We do not overlook the possibility that plaintiffs could file a series of
amended complaints for the sole purpose of garnering additional time for
providing an affidavit of merit. We are confident, however, that trial
courts would not permit plaintiffs to engage in such tactics simply to
evade the statute.
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responded to the first amended complaint, answering only
the second. Consequently, we do not have the problem of
deciding which answer must be the starting point. That, of
course, assumes that the limitations period for filing the
affidavit began at a different time for each defendant based
on the time each filed its respective answer.
On that point, again, the statute does not provide a
solution. There is a strong argument that the time for filing
the affidavit in a multiple-defendant case begins at the
point when the last answer is filed. We alluded to that view
in Chamberlain, where we said, "The . . . affidavit is not a
pleading, is not filed until after the pleadings are closed,
and does not contain a statement of the factual basis for
the claim." 210 F.3d at 160.
We were not confronted in Chamberlain with the question
of whether the last answer filed provided the starting point,
and we have found no New Jersey cases ruling squarely on
the point. We acknowledge that in In re Petition of Hall, 688
A.2d 81, 87 (N.J. 1997), the New Jersey Supreme Court
commented that "[t]he time for filing the affidavit is
calculated not from the date the complaint is filed but from
the date of each defendant’s answer." Although that
statement is dicta because the case did not turn on that
issue, the Superior Court later treated it as a precedential
ruling. Kubiak, 753 A.2d at 168. We have our doubts about
that construction of the statute but find it unnecessary to
address it in the matter before us.
Here, although the Hospital filed its answer on August
16, 2000, the second amended complaint was not filed until
September 5 of that year. Only on that latter date did the
answer become effective, and we will, therefore, consider it
filed as of September 5, 2000. The affidavit faxed to counsel
on January 3, 2001 was thus provided within 120 days of
the Answer to the second amended complaint in
accordance with the statute’s requirements.
Because we conclude that the affidavit of merit was
timely provided to both defendants, plaintiff complied with
the statute. Accordingly, we need not discuss the motion for
voluntary dismissal.
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The judgment of the District Court will be reversed and
the case remanded for further proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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