HLD, v. 31 n. 5 (May 2003)
New Jersey Supreme Court Says Judge Should Reconsider Dismissal
Of Medical Malpractice Complaint With Prejudice
In September 1995, plaintiffs sued Atlantic City Medical Center
(hospital) and various healthcare practitioners (collectively defendants) for
wrongful death in state trial court, alleging defendants negligently diagnosed
and treated decedent Drew J. Kosmowski while he was a patient at the hospital.
Plaintiffs selected Dr. Aiden J. Doyle, a board certified neurosurgeon, as
their expert. On September 9, 1999, the trial judge informed plaintiffs' and
defendants' attorneys that the trial date had been set for July 10, 2000 and
further advised them that "[t]his is a specially assigned preemptory trial date
which will not be adjourned for any reason." Subsequently, plaintiffs' counsel
Richard Simon requested on two occasions an adjournment of the July 10, 2000
trial date, citing various reasons. The trial judge initially denied the
requests but eventually rescheduled the trial for February 5, 2001. Three days
before the scheduled trial date, plaintiffs' counsel learned that Doyle was in
Europe and his return date was uncertain. Doyle did return from Europe before
February 5, 2001 but informed plaintiffs' counsel that he was unavailable
during that week due to other commitments. Doyle indicated, however, that he
would be available the latter part of the following week. During proceedings on
February 5, 2001, plaintiffs' counsel sought an adjournment because plaintiffs'
expert was in Europe and was unavailable for the next two weeks. Plaintiffs'
counsel did not advise the trial judge of his recent conversation with Doyle.
The trial judge dismissed plaintiffs' complaint with prejudice. On rehearing,
the trial judge refused to reinstate the complaint after plaintiffs' counsel
denied telling the court that Doyle was unavailable because he was in Europe.
Plaintiffs appealed, arguing they were unfairly punished by a procedural
dismissal that resulted from the dishonest actions of their attorney.
The New Jersey Supreme Court remanded to the trial judge with
instructions to reassess his discretionary ruling. As a preliminary matter, the
high court noted that Best Practices did not proscribe plaintiffs' February 5,
2001 request for an adjournment due to Doyle's unavailability. The high court
recognized the tension between not punishing blameless litigants for the
failings of their attorneys and the court's interest in effective case
management. The high court agreed with plaintiffs that they were denied their
day in court because of their attorney's misconduct. While acknowledging the
trial court's discretion in addressing a request for adjournment, the high
court noted that dismissal with prejudice due to the first unavailability of an
expert is a drastic sanction that should be imposed "only sparingly." The trial
judge was understandably upset by the attorney's lack of candor, the high court
said, but he also indicated at the post-dismissal hearing that he would not
have dismissed the action had he known the expert was in the country. According
to the high court, the trial judge, since dismissing the case, also evidenced
some desire to reconsider the matter. Thus, the high court remanded the action
to the trial court for further consideration of whether restoring the complaint
would prejudice defendants.
Kosmowski v. Atlantic City Med. Ctr., No. A-144-01 (N.J.
Mar. 19, 2003) (8 Pages).
Health Lawyers thanks Lisa D. Taylor of St. John & Wayne,
L.L.C., in Newark, New Jersey, for sending us a copy of this decision.