HLD, v. 30, n. 6 (June 2002)
Third Circuit Holds Medical Malpractice
Plaintiff Substantially Complied With Affidavit Of Merit Statute
Plaintiff Romona Newell sued Abraham Ruiz, M.D.,
and the Radiology Professional Association (collectively defendants) for
medical malpractice, alleging that it failed to properly read and interpret her
mammograms and failed to detect breast cancer. Newell filed her suit in a
federal district court in New York, and complied with New York's statutory
requirement that she submit a "Certificate of Merit," which certifies that
Newell's attorney discussed the case with a physician who found a reason to
believe that defendants committed malpractice. Defendants filed their answers
in the New York court. Shortly thereafter, the case was transferred to a
federal district court in New Jersey. About eight months later, the defendants
filed a motion to dismiss the complaint for failure to comply with New Jersey's
"Affidavit of Merit" statute. Newell responded and supplied an Affidavit of
Merit, although it was untimely. Newell argued that she substantially complied
with the statute and had a meritorious claim. The district court granted
defendants motion to dismiss and Newell appealed.
The Third Circuit held that Newell substantially
complied with the New Jersey statute. The appeals court reiterated that the
doctrine of substantial compliance requires the defaulting party to 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 the petitioner's claim; and (5) a
reasonable explanation why there was not strict compliance with the statute."
The appeals court noted that the New Jersey Supreme Court has held that, if "a
reasonable effectuation of the statute's purpose has occurred," a plaintiff
need not strictly comply with the statute.
Applying the factors above, the appeals court
first determined that there was no legal prejudice to defendants because Newell
filed a Certificate of Merit in New York. Second, the appeals court determined
that, because she complied with the New York statute, Newell "effectively made
a threshold showing that the case had merit at an early stage of the
litigation, the primary goal of New Jersey's Affidavit of Merit Statute."
Third, the appeals court determined that defendants had reasonable notice of
the malpractice claim. Finally, the appeals court noted that the New Jersey
statute does not address the statute's applicability to cases that are transferred
from other jurisdictions, or in cases in which a "merit requirement" has been
met in the transferor state. The appeals court determined that Newell could
have reasonably believed that the New York statute applied to her case and that
she had satisfied the merit requirement. The appeals court concluded that
Newell had substantially complied with the Affidavit of Merit Statute and
therefore the district court erred in dismissing her claim.
Newell v. Ruiz, No.
00-2091, 2002 WL 503634 (3d Cir. Apr. 10, 2002) (11 pages).