OF COUNSEL. (ACH APPEARANCES TENDERED). CHIEF JUSTICE RABNER: WELCOME KOUP
SILL, MS. VASSILIOU HARVEY. CHRISTINA VASSILOU HARVEY: THANK YOUS YOUR
HONOR'S. MAY I REQUEST TIME FOR REBUTTAL? CHIEF JUSTICE RABNER: OF COURSE.
CHRISTINA VASSILOU HARVEY: THANK YOU. BEFORE THE COURT IS WHETHER PLAINTIFFS
AFFIDAVIT OF MRT WAS SUFFICIENT AND IF IT WAS NOT SUFFICIENT, THEN WHETHER SHE SATISFIED
THE EXCEPTIONAL CIRCUMSTANCES AND/OR SUBSTANTIAL COMPLIANCE DOCTRINESES. WE BELIEVE
THAT THE AFFIDAVIT OF MERIT IN THIS CASE WAS SUFFICIENT UNDER OUR STAFT. STATUTE AND IN
ORDER TO RESOLVE THAT QUESTION THE COURT WOULD HAVE TO LK AT THE PLAIN LANGUAGE OF THE
STATUTE. THERE'S TWO ISSUES THAT DEFENDANTS HAVE RAISED THAT ARE NOT A PART OF THE PLAIN
LANGUAGE, AND THE PLAINTIFF IS ASKING THIS COURT TO REJECT ADDING IN THOSE CONDITIONS
THAT DON'T EXIST. THE FIRST OF WHICH IS ARE WHETHER OR NOT YOU HAVE TO
IDENTIFY THE DEFENDANT'S CONDUCT AND NAME HIM BY NAME, OR HER BY NAME. THE
STATUTE STATES THAT: NF RELEVANT PART UNDER 2A:53A-27, PROVIDES 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 THOUGH OUTSIDE ACCEPTABLE PROFESSIONAL OR O
CCUPATIONAL STANDARDS PRACTICES. IT DOESN'T SAY DEFENDANT'S CARE. IT DOESN'T
QUALIFY, AND DEFENDANTS ARE ASKING YOU TO ADD THAT REQUIREMENT IN. AND THE REASON THAT
THAT'S SO PRAB MATIC IN PROFESSIONAL MALPRACTICE CASES IS THAT AT THE BEGINNING OF THE
CASE, YOU MIGHT NOT KNOW ALL THE FACTS AND YOU ALLEGE P ANYONE YOU THINK MIGHT BE LIABLE
AND YOU ASK YOUR EBBS SPERT TO ROW VIEW, IS THERE ENOUGH T GO FORWARD AND WE PROVIDE A
GOOD-FAITH BASIS, THE SEA A THRESHOLD, THIS COURT IN ONE OF THE VERY 1ST CONDITION E
IN RE HALL CASE 147 N J AT PAGE 3 FUN, 1997, TALKED ABOUT WHAT THIS THRESHOLD MEANS AND
THE COURT SAID THE THRESHOLD IS HE SUMMARY IN NATURE. IT IS NOT AN EXPERT REPORT. YOU
CAN'T HAVE AN EXPERT REPORT AT THAT STAGE. AND I'LL GIVE YOU A HYPOTHETICAL
AS TO WHY IT'S SO IMPORTANT THAT WE REJECT THE TRIAL COURT'S COMMENTARY THAT THE AFFIDAVIT
OF MERIT IS NOT A MULTIPLE CHOICE EXAM. IT ACTUALLY IS, BECAUSE YOU'RE GIVING EVERYONE
ON NOTICE THAT THIS COULD GO FORWARD. SO LET'S SUPPOSE WE HAVE A SURGERY AND IT'S VERY
SIMPLE NEGLIGENCE IN THE PLACEMENT OF THE PLAINTIFF WHILE SHE'S UNDER THE PLACEMENT
LEADS TO DROPPED FOOT. YOU KNOW WHO IS IN THAT OPERATING ROOM, YOU DON'T KNOW, THOUGH,
AS THE PLAINTIFF ESPECIALLY AT THE VERY BEGINNING BEFORE THERE'S BEEN ANY DEPOSITION,
BEFORE YOU READ ANY INTERROGATORIES, WHO ACTUALLY PLACED THE PLAINTIFF, IT MIGHT BE IN THE
RECORDS BUT IT MIGHT IN THE BE. AND YOU NEED TO BE ABLE TO ALLEGE THAT ANY OF THOSE PARTIES
WERE NEGLIGENT. AND THAT'S WHY THE LEGISLATURE RESOLVED THAT, BECAUSE THEY
DIDN'T SAY, WELL, YOU HAVE TO ACTUALLY SAY IT WAS DEFENDANT'S CARE, SKILL OR KNOWLEDGE
EXERCISED, IT'S JUST THE CARE SHTHS SKILL OR KNOWLEDGE EXERCISED IN THE TRAP, PRACTICE,
THAT IS THE SUBJECT OF THE COMPLAINT. AND HERE IF WE LOOK AT THE SUBJECT OF OUR COMPLAINT,
PARAGRAPH 10, IT GOES INTO THE FACT THAT WE DON'T REEL KNOW WHO THE IDENTITY OF THE EMPLOYEES
ARE, BUT IT'S THOSE HOSPITAL EMPLOYEES OF JERSEY SHORE MEDICAL CENTER WHO FAILED TO TEST
THE GLUCOSE LEVELS ONCE PLAINTIFF WAS UNCOULDN'T SHUTS AND NONRESPONSIVE. AND
DEFENDANT HAD MADE COMMENT ABOUT HOW SHE HAD EARLIER REFUSED TREATMENT. FIRST OFF, WHILE
A MEDICAL RECORD MIGHT STATE THAT, THAT'S NOT THE BE ALL AND END ALL OF WHAT ACTUALLY
HAPPENS. AS WE KNOW, MEDICAL RECORDS ARE A HEARSAY DOCUMENT THAT'S DEFENDANT'S VERSION
OF WHAT HAPPENED. AND DEFENDANT WHICH LEADS INTO POINT 2 OF THE ADDS IN THE DEFENDANT
NTS WHAT, DEBT WNTS TO ADD IN THAT A PLAINTIFF NUFT MUST HAVE THE EXPERT REVIEW OF THE
MEDICAL RECORDS AND THE STATE REVIEWED THEM, BUT THE MEDICAL RECORD MIGHT BE COMPLETELY
WRONG. WE HAVE CASES WHERE WE'VE SEEN THAT THE DOCTOR, DOCTORS THE MEDICAL RECORDS, THEY
GO THROUGH AND EDIT THEM. JUSTICE SOLOMON: NOBODY IS CLAIMING THAT HAPPENED
HERE. OF. CHRISTINA VASSILOU HARVEY: NOT HERE BUT IT HABS, AND THAT'S
WIFE WE CAN'T ADD A REQUIREMENT THAT UFZ TO ROW LIE UPON SOMETHING THAT'S DEFENDANT'S OWN
CREATION. WHERE HERE THE PLAINTIFF HAS SERD FIGHTER MULTIPLE TIMES IN BOEM HER
OPPOSITIONS AND IN COURT THAT SHE WAS THERE THE LAST 6 HOURS OF HER DAUGHTER'S LIFE.
SHE KNOWS THAT THEY DIDN'T TEST THE BLOOD SUGARS THAT THAT SHOULD HAVE BEEN TESTING.
CHIEF JUSTICE RABNER: IT'S SUFFICIENT T ROW LIE OLD SOLELY ON THE BASIS
OF ASSERTION IN THE COMPLAINT? CHRISTINA VASSILOU HARVEY: I BELIEVE UNDER
THE STATUTE IT IS SUFFICIENT TO JUST RELY UPON THAT. AND HERE MR. MALTA SAYS WELL YOU CAN
HAVE SOMEONE GAMING THE STILL, FWHUT CAN HAPPEN ANY TIME AND HERE IN THIS PARTICULAR CASE
YOU DON'T HAVE THAT BECAUSE IS SHE'S CERTIFIED UNDER OATH RPTHS SHE'S CERTIFIED UNDER
PENALTY OF PERJURY, THIS IS WACHLTD AND ALSO IN THE RECORD P A-1 TWOOSHGS THE TRIAL COURT
ACKNOWLEDGES THAT DR. FALLON DID HAVE THE MEDICAL RECORDS. DR. FOOL LON MIGHT NOT HAVE
PUT IN THAT HE REFOOD THEM BUT THAT THAT IS THOT WHAT IS STATED IN THE STATUTE SHTS NOWHERE
WHERE I RAZE THAT YOU HAVE TO SAY SKOOKT MANY WHAT WAS WHAT WAS VIEWED TO COME UP WITH
THIS THRESHOLD DECISION. JUSTICE WAINER APTER: SORRY, SO THE SOUVENDED LEESHG
YOU WERE ARGUING THAT THE PRP WRITING THE AFFIDAVIT FD MED DIDN'T HAVE TO REVIEW THE
MEDICAL RECORDS BUTTER NOW YOU'RE SHIFTING THEY DON'T HAVE TO SPECIFICALLY STATE THEY
REVIEWED THEM. HERE IT'S ACKNOWLEDGED OR AT LEAST PLAINTIFF SAYS THAT HE DID REVIEW THE
MEDICAL RECORDS SHTS HE JUST DIDN'T BLIGHT IN THE A O P M AND I REVIEW THE MELTD RECORDS,
YEKT? CHRISTINA VASSILOU HARVEY: THTSDZ THIS CRAZE, HE DID RE VIEW THEM
BUT DIDN'T SAY HE REVIEWED THEM. HOWEVER, WHEN I'M ARGUING IN TERMS OF INTERPRETING THE
LAUSHGS THIS COURT BECAUSE IT COMES UP FL SO MANY KIESZ SO I'M UMPING THIS COURT THAT
YOU SHOULD EXPRESSLY STATE STH YOU DO NOT NEED TO REVIEW THE MEELD RECORDS.
JUSTICE PATTERSON: WHAT WOULD BE THE MERIT OF AFFIDAVIT THAT ADD DRE THE ACTUAL ISSUES
IN THE CASE. HOW COULD A DOCTOR BE ABLE TO OPINE AS T WHETHER OR NOT THERE WAS PROFESSIONAL
NEGLIGENCE EVEN IN AN AOM STAGE SHOFRT AN EKTS SPERT REPORT IN THE DOCTOR DOESN'T TAKE
THE TIME TO REVIEW THE MEDICAL RECORDS? CHRISTINA VASSILOU HARVEY: FROM
PLAINTIFF'S VEFRGS WHAT'S SAID, EAT IN THE COMPLAINT, THERE'S REALLY FOUR OF FACTUAL
CATEGORIES THAT THE EXPERT CAN LOOK AT. AND COME TO THE CONCLUSION THAT THERE'S GOOD FAITH
BASIS TO GO FORWARD IT'S FACTUALLY -- JUSTICE PATTERSON: IF THE PLAINTIFF
SAYS I WENT TO THE HOSPITAL AND GOT SICKER AND THEY'RE NEGLIGENT, THE DOCTOR CAN JUST
SAY IN MY PROFESSIONAL OPINION THAT THEY'RE NEGLIGENT? CHRISTINA VASSILOU
HARVEY: HE THOOS HAVE A BASIS FOR WHY THEY'RE NEGLECT. WHAT THE THE. JUSTICE
PATTERSON: WOULDN'T THE HAVE DOCTOR HAVE TO REVIEW THOSE RECORDS. OF.
CHRISTINA VASSILOU HARVEY: THE ARE RECORDS ARE NOT NECESSARILY ACCURATE.
JUSTICE WAINER APTER: THAT'S NOT NEDZ TO SDOID THIS CASE, YOU'RE ASKING THE COURT TO SAY
THAT FOR GUIDANCE GOING FORWARD BUT THE' NOT NEFS TO DECIDE THIS KISS OPERATE FACTUAL
RECORD HE DID REVIEW IT RESHGS JUST DID THAT TLOIT AOM AND I REVIEWED THE MALE RECORDS.
HOVER HAR CORRECT SDMRFRNLTSZ AND YOU ALSO HAVE A FAIRLY, HE WILL T YOU THE 4 FACTUAL
CATEGORIES. CHRISTINA VASSILOU HARVEY: FERS WOULD BE THE COMPLAINT ITSELF
COULD PRO VOID A BASIS FOR THE EXPERT TO PROVIDE A THEE ROW THAT THERE'S ENOUGH TO GO
FORWARD. SO IN THIS KATS RNGS THE HE CAN SPERT WAS GIVEN A VERY DETAILED BASE THAT SHE'S
UNRESPONSIVE, SHE HAD COMPLAINTS EARLIER IN THE DAY OF HYPER GLIE SEEM MILK SYMPTOMS AND
THAT THEN THE MEDICAL REPORT THAT KRAM OUT SHOWED THAT SHE DIDN'T, THEY NEVER TESTED FOR
GLUCOSE BUT THEY DID CLEK OPIATES AND 30S NO OH HEE YITD UNDER IN HAD STICHL, WHAT THE
DOCTOR SHOWED HAPPENED DIDN'T ACTUAL HAPPEN. AND I THINK THAT THAT AL GATH IS ENOUGH
TO GO FOFRMENTD AND THE OUGHT TOCHS ACTUALLY NOT PAFRT MALE RECORDS SHTS THAT'S OOT THECHG
THAT THEY COULD REVIEW, BURT IN TERMS OF THE 94 CATEGORIES WE FIRST HAVE THE SCOMPLAPT,
SECOND WE HAVE THAT THE EXPERT CAN INTERVIEW THE PLAINTIFF AND THAT HAPPENS ALL THE TIME
IN CASES AND I WOULD, BECAUSE THE AOM APPLIES TO ALL DIFFERENT KINDS OF CASES. SO IN
KNOW LEGAL MALPRACTICE KRASZ, MY LEGAL MED MAL EX SPERLT TALK TO THE PLAINTIFF TO FIND
HOUT WHAT HAPPENED THO FLUSH HOUT WHETHER OR NOT THERE'S MALPRACTICE AND THIN PURVIEW
VERY IMPORTANT TO FIENGD FOUT THART ENOUGH THO DPOE FORWARD, SO PATS THE SECOND CATEGORY.
THE 3RD CATEGORY IS THE MEDICAL RECORDS CAN WE ALL GROW WOULD BE REL VEN.
AND THEN THE 4TH CAN THE GOER IS THE UNION NORTHERLY INTERROGATORIES, FROM THE
ANSWER, UNDER RULE:17-1 B 2, WHAT'S ALSO DUE AT DAY 60 IS THE ANSWER TO THE UNIFORM TROEG
ATTORNEYS FL A MELD MA'AM PROO CASE, FORM C 3 NUMBER 7 PEFKLY SETS A ANY RP RRDZ OR IMENT
DOS THAT UFD REGARDING PLAINTIFF. AL WITH TIGHT TRAN SKRPGS OF ANY HAPPEN RAND RECORDS
OR DOUCHLT. SO PLAINTIFF BY DAY 60 SHOULD HAVE HAD THESE ANSWERS AND UNDER
THE ORAL ARGUMENT ON THE MOTION TO DISMISS, PLAINTIFF SAYS IT'S IMPOSSIBLE FOR ME TO GET
THE AOM WITHOUT THE MEDICAL RECORDS AND THE TRIAL COURT SAYS, WELL, YOUR NOTICE TO SPRUCE
TOO LATE, BUT THAT'S NOT TRUE, ARE THE NOTICE T PRODUCE IS ACTUALLY IRRELEVANT. THERE WAS
FACEBOOK TO FIND 2 OOCHLT 53 A-28 FOR A WAIVER BAUZ MORE THAN 45 DAYS HAD PASSED FROM
WHICH DEFENDANT BY COURT RULE WAS REQUIRED TO GIVE THE MEDICAL RECORD. NOW, SECTION 28
IS NOT LIMITED TO JUST MEELD RECORDS EITHER. IS WILL IFT SAYS PRO VOI PLAINTIFF WITH
MEDICAL RECORDS OR ODD RECORDS OR NF HAVING STAM WAFING ON THAT MREP YALGD THEY HAVE THAF.
AL OF THEEFT PS AS TO INTERROGATORIES ARE REL VEN TO PROVIDING THAT INFORMATION.
UNDER NUMBER 32, IT TAKES ABOUT THE DATES AND CIRCUMSTANCES OF THE UNDER WHICH YOU SAW
PLAINTIFF, ALL EXAMINATION, THE RESULTS OF THOSE DIAGNOSIS, THE PROGNOSIS RNGS TREATMENT.
MENT HAVE A SDUL TRITE TRIAL BY JURY AND THAT HAS BEEN LIMITED WITH THE AOM STATUTE BUT
ONLY BY THE TERMS OF THAT STATUTE. Z SO WE CAN'T GO ADDING IN ACTUAL REQUIREMENTS BOTH
PARTIES VER TOE ACT FAIRLY. TWOEF GIVE AN AOM BUT AT THE SAME TIME, DEFENDANT CAN'T
WITHHOLD THIS INFORMATION SO THAT WE CAN'T COMPLY. NEXT A POINT OF THAT'S THE POINT OF
SEK 28. AND IEPDZ MRS. MONTH SHE WILL RA WAS PRO SE SO IF THIS NOT PROPERLY SPELLED HOUT.
PUFT UNDER THE OFD THAT WAS IN EFFECT FO THE RELEVANT TIME PESHD, IT TALKS ABOUT IN
RECOGNITION OF THE PER HAVE I CIVILIAN AND SEVERE TACTS OF THE COVE VI 19 MUST BE MRIK
HAELT NL CRISIS THE DMORT ANY INDIVIDUAL MATTER CONSISTENT WITH RULE 1:1-2 A MAY SUTS
SPEND MEELDZ GDZ, EXPEND DISCOVERY OR OTHER DEAD LIECHTS OR OTHERWISE ACCOMMODATE THE
LEGITIMATE PIEDZ OF THE PARTIES, OTHERS IN THE INTEREST OF JUS THIS. IFT THE WITH REGARD
TO THE AOM SETS OL THOUGH IT SAID THE JN LULL EXTENSION OF DEADLINE FOR FILING ACHSD
OF MERIT VEN MEELD AND PROFESSIONAL MAL MRA CASES WILL CONCLUDE AS OF JULY 26TH, TWOJ TWENTIES
RGS 4 DAYS AFTER THIS COMPLAINT IS FILED, EX SFENGS MAY BE PROVIDED IN VICH SWUL KATSZ.
JUSTICE SOLOMON: I THOUGHT EVERYBODY AGREED THAT THE AFFIDAVIT OF MERIT
THAT WAS SUBMITTED IS IN DID HE SAY SPUT HERE WAS SUBMITTED THE DAY IT WAS DUE, THERE
WAS AS EXCEPTION TO DECEMBER 23RD, SHE GAVE IT TO THE DEFENDANT ON DECEMBER 23RDRD. SO
THAT EXTENSION ISN'T AN ISSUE, IS IT. HIENL THE GOES TO WHETHER OR NOT THIS COURT REJECT
THE SFISHTS SEE OF THE AOM, IT IS RELEVANT. BUT IF THIS. A R. N IS THE SUFFICIENT.
JUSTICE SOLOMON: ISN'T ONE OF YOUR ARGUETHS ALL THIS DISPUTE ABOUT WHAT WAS
IN, WHAT WASN'T IN, WHAT NEEDED TO BE IN, WHAT SHOULD HAVE BEEN IN, THE AFFIDAVIT OF THE
MERIT SHOULD HAVE BEEN REVOLVED BY THE KOSHT CONDUCTING A FER RARE WHAT CONFERENCE WHICH
IT NEVER CONDUCTED? CHRISTINA VASSILOU HARVEY: CORRECT, YOU WERE.
JUSTICE SOLOMON: AREN'T YOU RELYING ON THAT THAN THE, DEFICIENCY ON DECEMBER 23RD,
ALL THE COURT HAD TO DO WAS LETS A HAVE THAT CASE MANAGEMENT COULDN'T FREPS TO FIGURE
OUT WHAT THE DISPUTE IS SO WE CAN RESOLVE IT. CHRISTINA VASSILOU HARVEY:
OKAY. UNDER THE CASE E T VERSE COHEN 231 N J 347 THAT, THERE IT WASN'T AN ISSUE WITH
THE AUTOMATIC FAILURE AND THIS COURT SAID THAT THAT CONSTITUTED EXCEPTIONAL CIRCUMSTANCES.
SO THIS CASE, THOUGH, I THINK THAT THIS CASE SHOWS EXTRAORDINARY CIRCUMSTANCES EVEN MORE
THAN A T VERSUS COHEN BECAUSE IN THIS CASE THE TRIAL COURT MADE A CONSCIOUS DECISION TO
ADJOURN THAT FER RAR RA CONFERENCE SAYING THAT THE CONFERENCE SHOULDN'T BE HELD BECAUSE
THE THE AFFIDAVIT WAS NOT SUBMITTED. BUT THIS COURT WAS VERY CLEAR IN THE STEVENL OTHER
CASE THAT CAME AFTER THAT THAT THERE'S A TWOFOLD PURPOSE TO THE AFFIDAVIT OF MERIT
REQUIREMENT. ONE WAS IT SUBMITTED, IT'S A RELINE DER AND 2 IS IT SUFFICIENT. SO HERE
AS THE REMINDER -- PAFRT PAT BUT YUR SAYING TWOFOLD PURPOSE OF FERREIRA ASK HAR Y.
JUSTICE WAINER APTER: IN TERMS OF YOUR ARGUMENT THAT THE PERSON WHO IS ALLEGED TO
STR ACTED NEGLIGENTLY DOES NOT HAVE TO VICH WRL NIEMD AS A DEFENDANT, THAT SPECIFICALLY
APPLIES IN CASES THE SPOPDING SOUP JER LIABILITY WHEN YOU'RE TRY TO HOLD AN ENTITY CONDUCT
FOR THE THETS, YOU MAY NOT KNOW WHICH EMPLOYEE WAS NEGLIGENT, HERE DR. VEEG GUS SING NOW
KNOWN THE SIPG IN CHARGE OF THE EFFORTS TO RESUT AT ANY TIME DECEDENT, SO HE DOES LABLT
SPECIFIC LABEL OF DHEEFT HE AL LEPS BOW HAFD NEGATIVELY. IT'S DR. VEE KWUS SING WILL
THOT BEEN ADD AN AN INDIVIDUAL DEFENDANT, CORRECT? HAR YES TO THAT POINT BUT IT'S 2
FOEL. YES THAT DR. SINGH DOES HAVE TO BE A DEFENDANT AT ALL. JUSTICE WAINER
APTER: HE CAN JUST HOLD THE HOSPITAL LIABLE FOR HIS KUK, CORRECT? CHRISTINA
VASSILOU HARVEY: AND BECAUSE DR. SINGH WAS AN EMPLOY EMPLOYEE THERE'S AT LEAST ONE LEFT
DEFENDANT THAT HE HAVE ALLEGE NMENT AOM THAT THIS CASE STHOB KEPT ALIVE. JUSTICE
WAINER APTER: THAT'S BECAUSE THE DEFENDANT WAS THE ENTITY HACKENSACK MR. RID YE JUFRT
INJURE SHER SHOW UNIVERSITY MEDICAL EN SER. CHRISTINA VASSILOU HARVEY: CORRECT.
THE SECOND PART OF THAT UNDER PARAGRAPH 10 ALLEGES NEGLIGENCE BY THE EMPLOYEES AND DR.
FALLON'S AFFIDAVIT TALKS ALSO ABOUT EXHIBITED BY ONE OR MORE OF THE DEFENDANTS THERE IN
INCLUDING DR. SINGH RNGS ONE OF THE SKWON AND JIEN DOUGH DEFENDANTS SUED THERE IN. SO
HE'S TALK ABOUT INTERVIEWING THAT THE TWO PAGES THAT HE HAD AND IN REVIEWING THE COMPLAINT
THAT SOMEBODY PRAECHED THE STANDARD OF CARE AND THAT'S PAIL RWALL THE STATUTE REQUIRED,
SO WE MROOFB TIEBL GO FORWARD DPEP THE HOSPITAL RGS FIGURE OUT THESE NEGLIGENT PARTIES
WERE THROUGH DISCOVERY AND GO FORWARD. AND I ALSO THINKING THAT IT WAS ERROR FOR THE
TRIAL COURT TO SOY THAT WE DIDN'T VOPT DR. SINGH, IT WAS A MULTIPLE CHOISHGS TWAUP AP
MULTD MROBL GAVE, IT INCLUDING, IS INCLUSIVE, IT HAS TO REQUIRE IT. JUSTICE
PATTERSON: HOW DOES THE JUDGE IN A FERREIRA CONFERENCE OR A MOTION MAKE A DETERMINATION
AS TO WHETHER THE AUTHOR OF THE, YOU KNOW, THE AFFIANT, IN THE AOM HAS THE RIGHT SPECIALTY,
IF THERE'S NO DEFINITION ANYWHERE OF WHO IT IS THAT'S SUPPOSED TO HAVE BEEN, YOU KNOW,
WHAT HUMAN BEING IS SUPPOSED TO HAVE BEEN 70 AS OPPOSED TO AN ENTITY? CHRISTINA
VASSILOU HARVEY: IN THIS CASE, AND AEN AT THE IS THE ONLY ROW MAPING THE DEFENDANT AS
OF THAT COULDN'T FRERNS AS OF THE TIME OF THE MOTION. OPENLY EP AT THE THAT'S LEFT IS THE
HOSPITAL YOU LOCK AT LAFL LAND YOU PROVE IT BASED ON ANY PROFESSIONAL WHO HAS SXEERPSED
WITH THAT. HALF. CHRISTINA VASSILOU HARVEY: DEALT WITH AT SITUATION WHERE
THE ALLEGE NEGLIGENCE WAS BY A NONPROFESSIONAL. HERE ET SERNL ACH POERS FROM THE NAPE
CHESH OF THE ALLEGATIONS IS THERE IS NEGLIGENCE, PROFESSIONAL NEGLIGENCE IS THE P PREDICATE
OF THE RESPOND DEYIT SHOE YER THAT THE PLAINTIFF PURSUED, CORRECT? HALF LAND DOESN'T
ANSWER THAT QUESTION. AT SOME POINT THE JUDGE HAS TO MAKE A DETERMINATION IF THERE'S
A CHAL LEFRM TO AN AOM BASED UPON WHAT IS THE DRENGD SPECIALTY OR SUBSPECIALTY, WHO IN THE
VAST HOSPITAL HERE IS ALLEGED TO HAVE BEEN NEGLIGENT AND WHAT IS THE NAPE CHERP OF THE
NEGLIGENCE, DO YOU SEE WHAT I'M SAYING? LAR HAR I DOSHGS YOUR HONOR. JUSTICE
PATTERSON: IF WE WERE TO SAY DON'T EVEN WORRY BOIT, IF WE'RE SUING THE HOSPITAL RGS DON'T
WORRY ABOUT IDENTIFYING FOR THE COURT ANYBODY ELSE FOR THE DEFENDANT, WERE PERSON IS
SUPPOSED TO HAVE DIN THIS, YOU KNOW, OFTEN YOU SEE IN A JOHN DROE NEUROLOGIST, RADIOLOGIST,
THE SPECIALTIES ARE THERE FRL BUT IF TLERP TO SEA DON'T WORRY BAUER IT IF THEY SUE THE
HOSPITAL, IT REALLY DOESN'T MATTER, HOW CAN THERE BE OOD JUDE KATS KA CHAL LERJ TO THE
SPECIALTY OR SUBSPECIALTY OF THE AVENUE FEE YEPTS WHO PREPARE THE AOM. CHRISTINA
VASSILOU HARVEY: SO IN THIS CASE YOU LOOK AT 1ST THAT'S DR. SINGH AND DR. SINGH AS OF THE
DATE OF THE MALPRACTICE WHICH THE RECORD IS ACTUALLY WRONG ON THIS, BUT IF YOU LOOK AT
THE, THERE'S A PUBLIC RECORD. YOU CAN CHECK AS THERE'S A LICENSE IN NEW JERSEY, YOU CAN
CHECK WHEN THEY REESHED THEIR BOARD CERTIFICATION AND IN THIS CASE DR. SINGH WAS ONLY
A RESIDENT AT THE TIME WAS IN THE ENTITLED TO SPECIAL UNDER SECTION 41, HE'S BASICALLY
A GENERAL LIST. SO IN THAT CIRCUMSTANCE, DR. FALLON WHO IS C D WAS INCLUDED WAS TIEBL
GIVE THE AFFIDAVIT OF MERIT. THE ON THE PERPS WHO ARE YET IDENTIFIED, THEN
IT WOULD BE THAT YOU CAN GO FORWARD AND THEN ASK THEY ARE ENTITLED TO MORE THAN WHAT THE
HOCHT IS EP TEELTED TO UNDER SECOND 41 BECAUSE THEY CARE DEALS WITH THAT AND DWUFR RE
REVEALS THEY HAVE THAT THEN WOULD YOU HAVE TO DEAL WITH IT LAID. JUSTICE
PATTERSON: OLD WITH IT LATER HOW, A NEW AFFIDAVIT OF MERIT. CHRISTINA VASSILOU
HARVEY: UNDER BEGAN SAL LESS VERY I OBJECT HAM BUT IT CAME HOUT IN FEBRUARY IT WAS DRIETED
IN MY HUP SENL BRIEF, IT WAS IN THE APPELLATE DIVISION, I BELIEVE THEY ACTUALLY PT
CERTIFICATION FROM THIS COURT BUT IN THAT CASE, THAT WAS SOMETHING THAT P IS SIMILAR.
SO THERE THE PLAINTIFF MOVES FOR RNGS FATHER-IN-LAW'S A MOELTHS SAYING COMMON
KNOWLEDGE APPLIES AND THE COURT AGREES AND ENTERS AN ORDER BUT THIERS AN SAMENT AMENDMENT
ADDING IN A NEW DEFENDANT WHO ASKS FOR THE A 0 M TN THE COURT DOESN'T LERD A FERREIRA
COULDN'T FREN RS THE PLAINTIFF'S RESPONSE IS WE HAVE AN ORDER AND THAT ORDERS ENTAILED
YOUR CONDUCT AS WELL. SO THE DORT FIND THERE WERE EXCEPTIONAL SIRNGS TO GIVE MORE TIME
AND PLAINTIFF DID COMPLY AFTER THEY HAD A CONFERENCE TO GET THE AOM BUT IT WAS OUTSKIED
OF THE THAT WINDOW. JUSTICE PATTERSON: BUT WOULD YOU SAY THAT AT SOME
POINT IN THIS PROCESS THERE IS AN AOM REQUIREMENT THAT'S RELEVANT TO P OR THERE HAS TO BE
AN AOM THAT DEALS WITH THE SPECIALTY OR SUB SPECIAL DEOF THE PHYSICIAN NURSE, DENTIST
WHO EVER WHO IS ALLEGED TO HAVE THAT DEFENDANT AND AL LEFT-HAND TO PUT THE HOSPITAL ON THE
HOOK? SEE WHAT I'M SAYING? CHRISTINA VASSILOU HARVEY: I DO. BUT IN
TERMS OF YOU'RE ONLY ENTITLED TO THE SAME KREE DEN CLUL SHULG WHEN ETS ALWAYS UNDER SECTION
FWRUN. STOW ONLY A DWR WHO REEL IS BOARD CERTIFIED IS GOING TO HAVE THAT SPECIAL
REQUIREMENT. OTHERWISE ANYONE HAVING SXEERNTS IT WOULD BE SUFFICIENT. BUT WE'RE -- MAST
PAT ALL I'M SIGHING YOU DON'T KNOW THAT IF YOU DON'T DWENTS DPIE ANYBODY, VEN AT THE STAGE
OF THE CASE WHERE THE A O P IS DEK BREE PAIRED AND THERE'S POE TN YOU WILLY FERREIRA
CONFERENCE OR SHOULD BE A FERREIRA CONFERENCE, THE DEFENDANT IS REALLY NOT IN THE FOIGS
HAVE THAT, TO MAKE THO OBJECTION OR TO AT LEAST HAVE IT DECIDED UPON AND SHOULDN'T THERE
BE A REQUIREMENT AT SPL POINT THAT THERE HAS TO BE AN HACHLT O M THAT FITS WHAT TURNS
OUTS TO BE THE RELEVANT FIELD IF IT IS A SECTION 41-CASE. CHRISTINA VASSILOU
HARVEY: IS HE EEJ THERE DEFENDANT KNOWS BECAUSE IN TERMS OF THE COMPLAINT, AS LONG AS
THE COMPLAINT SUFFICIENTLY AM LEPS, LIKE IN THIS CASE, DEFENDANT KNOWS WHO THOSE ENTITIES
OR THOSE PROFESSIONALS WERE WHO TREATED PLAINTIFF DURING THOSE LAST, UP TO THE CODE BLUE.
JUSTICE PATTERSON: YOU HAVE A LOT OF EXPERIENCE, KNOWING WHO THE UNANIMOUS
VERSE OF TREAT TERTS E OBVIOUSLY THIS IS NOT A LONG HOSPITALIZATION BUT YOU COULD HAVE
SOMEBODY IN THE HOSPITAL FR A MONTH AND THERE COULD BE HUNDREDS OF PEOPLE WHO ARE TREATER.
SO THE PLAINTIFF NOISE WHERE YOU ARE, THE DEFENDANT KNOW AND THERE'S NEGLIGENCE,
THEREFORE THE HOSPITAL IS ON THE HOOK. I WOULD SUGGEST THE SUGGEST DOESN'T ANSWER THE
QUESTION. JUSTICE WAINER APTER: TO DPET THERE FORS THAT CRAZE AT ALL, BECAUSE
THE AOM SDCHLT DOES IDENTIFY DR. SINGH, CORRECT? A. KREFKT. Q. I THOUGHT AT 1 POICHT
DR. SIPG WAS BIRD CERTIFIED FL IN BOARD CERTIFIED IN EN TERN THUL NEDZ IN EN TERN YOU WILL
NULL THEDZ, HE THERE WOULD NOT BE A LACK OF MATCH UP BECAUSE DR. FAL LOP TOO WASLY BORT
CERTIFIED IN INTERNAL MEDICINE, DR. SIPG IS BUT AS THE NEGLIGENCE HE WAS NOT.
JUSTICE WAINER APTER: REGARDLESS, EVEN IF HE HAD BE AT THE SAT OF NEGLIGENCE DR. FALLON
CLEARLY SAID HE'S BOARD CERTIFIED IN INTERNAL MEDICINE, ZONE IF DR. SINGH, PER FEBT TO
MATCH? PT SOL SL WERE FAMILIAR LON'S DISPUTE THE WITH REGARD TO THAT AFFIDAVIT OF MERIT?
COIN SELL BELOW, IN THE RECORD THERE SEECHS TO BE SOME SUGGESTION BUT THEN IT SEEMED THERE WAS
RELEFT HLEND SO, IF IT WAS ARE SO IF I'M MISSTATING THAT. I BELIEVE THAT INITIAL MANY
THERE WAS A BRIEF SUBMITTED BY DEFENDANT TO STHA FAU NOT PROEP YUT BUT I THINK THEY THEN
CORRECTED IT BECAUSE IT IS APPROPRIATE. HE IS IN IRN TIRN NULL MEDICINE. JUSTICE
SOLOMON: LETS ASSUME THEY CONTESTED THAT AND IT WAS CONTESTED. IS THERE ANY OTHER IEN,'
REASON HE CAN MOVP TO 0 ARE YOU EX TEKTS THEM THAT ARGUE THAT IT'S NOT THE COURT TS
RESPONSIBILITY BASED POP THE Z HE FLUSHS THAT OUTER, WHAT THE QUALIFICATIONS ARE, WHETHER
THARTS SUED ABL ADD QUILT, THERT THARTS AN AFFIRMATIVE NEGLIGENCE AGAINST SOMEBODY WITH
SIMILAR KREES, AREN'T THOSE EXACTLY THE THING THAT HAPPEN A FERREIRA CONFERENCE AND REQUIRE
THEY BE HELD AND THAT'S THE COURT'S SPONTS ABILITY AND THAT DOESN'T HATCH HERE. A.
YES, HE WERE. THAT WAS THE CHOEL PURCHASE P FERREIRA CONFERENCE. JUSTICE
NORIEGA: CAN I ASK YOU, DO YOU HAVE ANY NOTCH IF THERE'S A DISPUTE AS TO WHETHER OR NOT
A FERREIRA CONFERENCE OCCURRED NNL CASE? P. CHRISTINA VASSILOU HARVEY:
SO THE RECORD SHOWS THERE THE THE CONFERENCE WAS ADJOURNED BY THE COURT. THE COURT TALKS
ABOUT IT AT ORAL ARGUMENT AND I BELIEVE SHE TALKS ABOUT. CHIEF JUSTICE RABNER:
SHE SAID IT WAS CAN DELD BECAUSE THREW AFFIDAVIT OF MERIT. THAT'S THE JUDGE.
SKWRAO: YES. THE PARTY AGREE SFS CONFERENCE THAT THERE WAS NO CONFERENCE. SO
IN TERMS OF THE REMAINING ARGUMENT, SUBSTANTIAL COMPLIANCE IECHL GE FO MERGE EXCEPTIONAL
CIRCUMSTANCES BECAUSE STEP 5 OF SUBSTANTIAL COMPLIANCE REALLY IS EX SPRORT NAER
CIRCUMSTANCES. BUT BOTH OF THOSE DORK TRINS ARE EQUITABLE IN NATURE, BOENL OF THAT REQUIRE
THE TOTALITY OF THE SISHSS. AM AP WE DON'T HAVE TO GET TO EITHER IF WE FOUVEND A O L IS
NOT SUFFICIENT, CORRECT? CHRISTINA VASSILOU HARVEY: THE MEDICAL ASSOCIATION
TAKEN THE PS WE SHOULD GET HID OF HE IS SEPGS IN THAT CIRCUMSTANCE, I DON'T THINK THE
COURTS SHOULD DO THIS FOR THIS SUBSTANTIAL COMPLIANCE DOCK DRIN THAT PLAINTIFF DID TROY
TO COMPLA, HAD HE 4 HAD A TEMPTS TO TRY COMPLASH THE LOT R NOTES OF HER CLIM, HER SERT
GAGS PROEF ROIDED, SKWAKT MANY WHAT SLE THOUGHT WENT BRONG, THAT ARE DR. LOP PRO PARZ
HAD WE BELIEVE IS SUFFICIENT AND THE COMPLAINT ITSELF WAS VERY SDISHT. THERE'S NO YEN
RUL COMPLOINS. JUSTICE SOLOMON: ARE YOU RAISING ANYTHING ABOUT THE COURT
IS DECISION FLOT TO GRANT THE PLAINTIFF LEAVE TO APPEAL, LEAVE TO AMEND THE COMPLAINT
TO NAME DR. SIPG INDIVIDUALLY. HARP HAR YES YOUR HONOR. THE COURT: YOU ARE
RAISING THAT ISSUE. T. CHRISTINA VASSILOU HARVEY: THE QUESTION DID NOT
AND CLUTSDZ AND IEBLG THAT WAS HASN'T ERROR BY THE TRIAL COURT THAT LEAVE TO APPEAL SHOULD BE GRAVENED IN FULLY IN THE INTEREST OF JUSTICE UPT THE VAN NET AT A CASE 2 N Y 1288, 187
NAME AND SHE WAS TRYING TO WIG OUT THE PRO HE IS AS TO HOW SHE CAN PT COMPLY WITH THE
STATUTE. STOW I BELIEVE THERE WAS A SUFFICIENT BASIS NOR THE INTEREST OF JUS DISTO COMPLAINT
A AMENDMENT. SHE DID RAISE JOHN ACTED TIMELY ONCE SHE WAS ALAR THE TO DRFRMENT SIPG'S
INVOLVEMENT. CHIEF JUSTICE RABNER: IF YOU PRE PAIL TO PART THE THE DISMISSAL
OF THE DISMISS TO CORRECT. CHRISTINA VASSILOU HARVEY: JUST THE
EXCEPTIONAL CIRCUMSTANCES THAT WE ALLEGED HERE AND I THINK THERE ARE A MULTITUDE UNDER
OUR PT PRIOR CASES, FOR INSTANCE, IN PEACH TREE 202 N J 415, IT WAS JUST CONFUSION OVER
THE LACK OF THE FERREIRA CONFERENCE THAT THIS COURT FOUND ENTITLED THE RELOAF UNDER
EXCEPTIONAL CIRCUMSTANCES. AND HERE IT WAS NOT ONLY CONFUSION BECAUSE THE AOM, IT WAS
COULDN'T FOUGS HOW TO APPLY, P IF WE HAD THE IN OTHER WORDS RA RARE CONFERENCE CAN THE
THIS COURT SAYS IT IS A BACK STOP BS WE WOULD HAVE A VIDED ALL OF THIS IF THERE WAS SGRUFT
A COULDN'T FRENTS AND THE COURT WEAPON OUT OF HTS WAY TO SOY WELL THE STAFF THAT YOU TALKED
PO TO RFRN EVEN GABLE GAVE I THAT INFORMATION OTS TO WHAT'S REQUIRE. SO HOW WOULD YOU
THIT PRO SATS TO COMPLIEZ? THE LAW LIBRARY AND DEFENDANT DISCOUNTS OF ROLE OF A LAW LIESH
BRAERN IN THIS INSTAPS, THEY CAN HELP GAF DATE WHICH THIS COURT IS WELL AWARE THAT THE
UNIVERSE OF AOM CASES IS EXPONENTIAL. SO THE FACT SHE DIDN'T HAVE THE RESORGS OF A LAW
LIBRARIAN HELP HER TO GO THROUGH THAT OR THE RESOURCES THE COURT TO SAY 0, IT HAS TO BE
CERTIFIED, OH, YOU NEED TO MAKE SURE THE ATE LIKE CREDENTIAL PERSON, THAT THIS SHOWED
EXCEPTIONAL SISHS. THERE ARE ALSO CIRCUMSTANCES GOING ON WITH COVID AND HOME SCHOOLING
HER SIX CHILDREN ARE THE DEATH OF HER UTTER B, THE DEATH OF HER UTTER IN LAW, HER OWN
DEPREKTS WHICH ACTUALLY THAT PARAGRAPH 11. COMPLAINT IS PRT HER RELEE LEAF THAT THERE
IS EMOTIONAL DISTRESS THAT FOR HER OBSERVING THE CODING OF HER DAUT AND THE INABILITY
OF THE PROFESSIONALS TO HELP. SO P I THINK HERE THERE WAS A SUFFICIENT BASIS AND I WILL
ROW LIE ON THE BRIEF FOR THE ITEMIZATION OF ALL OF THOSE CIRCUMSTANCES TO JUSTIFY EXCEPTION
NOTHING OI I ROW INSTATE THE COMPLAIN. CHIEF JUSTICE RABNER: RELYING ON
THE AS WELL THE DELAYING PAPERS FROM THE SURROGATES PURPOSE. CHRISTINA
VASSILOU HARVEY: SO THE DELAY WAS TWOFOLD, THAT THE SPOUSE OF THE DECEDENT HAD TO GIVE
CONSENT AS WELL AS THE ESTRANGED FATHER OF DESEED DEPARTMENT HAD TO GIVE CONSENT AND THERE WAS
DELAY BECAUSE THE HE IS CHARNLED FATHER CAN'T TWONT RENOUNCE HIS RIGHTS AND PLAINTIFF
DIDN'T EVEN KNOW WHERE HE RESIDED IN ORDER TO TRACK TIM POUN DOWN SERVE HIM WITH PAPTS, I
ALL OF THIS GOING ON WITHIN THE PANDEMIC. SHE DID ARRIVE IN JULY OF TWOJ TWENTIES AND
HIEBL THAT CONSTITUTE EXCEPTIONAL CIRCUMSTANCES UNDER THE TOE SALT ATATTLE OF THIS PARTICULAR
CASE. CHIEF JUSTICE RABNER: ANY QUESTIONS. MR. MALTA. OF MERIT, AOM AFTER
FEEPT AFFIANT AFFIANT KRENLS CREDENTIALS KRENLS CHIEF JUSTICE RABNER: MR.
MALTA. RUSSELL J. MALTA: MAY IT PLEASE THE COURT. OUR POSITION
IS THAT THE ONE THING THAT THIS COURT MUST TO IN DECIDING THIS CASE IS TO MAKE EXPLICIT
WHAT HAS BEEN IMPLICIT IN THE AOM STATUTE SENSE ITS VERY ENACTMENT. WE SUBMIT THAT A
PLAINTIFF'S EXPERT AFFIANT MUST REVIEW PERTINENT RECORDS, DOCUMENTS OR SOME ORIGINAL PACKET
YOU'LL MATERIAL BEFORE SIGNING ON TO AN AFFIDAVIT OF MERIT. THE PLAINTIFF
HAS TO NONE THAT THERE IS SUCH A REVIEW AND WHAT THE REVIEW CONSISTED OF UPON DEMAND OR
CHALLENGE BY THE DEFENDANT. THERE ARE THREE REASONS WE WOULD SUBMIT FOR THIS.
NOCHL 1, COMMON SENSE. HOW IN THE WORLD CAN ANYONE, ANY EXPERT
SWEAR UNDER OATH THAT A REASONABLE BASIS EXISTS TO DETERMINE THAT A NEGLIGENT ACT OCCURRED
IF THEY DON'T KNOW WHAT HAPPENED. THEY NEED A SOURCE OF KNOWLEDGE FOR THAT. I MEAN THAT
JUST MAKES PERFECT SENSE. IT'S ALWAYS BEEN PRESUMED THAT IN ORDER TO HAVE
AN EXPERT AFTER FEEPT SIGN AN AFFIDAVIT OF MERIT IN GOOD FAITH THAT THEY REVIEW THE PURSUIT
PERTINENT DOCUMENTS, WE'RE NOT SAYING THAT EVERY SINGLE DOCUMENT FROM BIRTH UNTIL THE
END OF MALPRACTICE AND BEYOND, WE'RE SAYING THOSE DOCUMENTS THAT ARE RELEVANT TO THE
CLAIM THAT IS BEING MADE AGAINST THE PARTICULAR DEFENDANT OR DEFENDANTS.
SECONDLY, WE MAKE AN ANALOGY TO THE REQUIREMENT THAT THE PLAINTIFF PRODUCE EVIDENCE THAT
HIS OR HER EXPERT HAS THE REQUISITE QUALIFICATIONS UNDER SECTION 41. THAT'S A
STATUTE. THERE IS NOWHERE IN THE AFFIDAVIT OF MERIT STATUTE, INCLUDING 41, WHICH SAYS
THAT THE PLAINTIFF IS REQUIRED TO SET FORTH THE QUALIFICATIONS OF THE EXPERT AN YET THIS
COURT HAS MANDATED THAT. SO, THIS IS NOT AN UNUSUAL OR NEW CONCEPT THAT THERE ARE
CERTAIN ESSENTIAL THENGS LINED BEHIND THE AFFIDAVIT OF MERIT THAT THIS COURT HAS
REQUIRED. NO. 1, THERE IS THAT. NO. 2, THIS COURT HAS EVEN GRAFTED
ONTO THE STATUTE THE REQUIREMENT THAT DEFENDANTS IN THEIR ANSWER SPECIFY THEIR AREA OF
SPECIALTY AND THEIR CREDENTIALING AN QUALIFICATIONS; THAT'S NOWHERE IN THE STATUTE
AN YET THIS COURT HAD NO TROUBLE IN MANDATING IN BUCCAL V HEN RETHAT THAT BE DONE.
FURTHERMORE, THE FER RARE RA CONFERENCE. THE FER RARE RA CONFERENCE WAS A CONCEPT
CREATED BY THIS COURT. THERE IS NOWHERE IN THE AFFIDAVIT OF MERIT STATUTE THAT SAYS THE
COURT MUST MONITOR AND ASSIST PLAINTIFF'S ATTORNEYS IN COMPLYING WITH THE CLEAR
MANDATES OF THE LAW AND YET THIS COURT HAS DONE SO. SO, IT IS NOTHING ALIEN,
UNUSUAL OR FREAK'ISH FOR THIS COURT TO MAKE EXPLICIT WHAT PRETTY MUCH 99 PLUS PERCENT
OF LITIGANTS UNDERSTAND AND THAT IS THAT BEFORE THEIR EXPERT PROVIDES AN AFFIDAVIT OF
MERIT, THEY REVIEW RECORDS. WE SUBMIT THAT THAT IS A CLEAR REQUIREMENT.
FINALLY, IF YOU READ THE AFFIDAVIT OF MERIT STATUTE IN PAR RA MAT TEAR YEAH WITH
SUBSECTION 28, THAT'S THE SUBSECTION THAT PERMITS THE PLAINTIFF, IF THEY ARE UNABLE TO
OBTAIN IMPORTANT AND RELEVANT AND MATERIAL DOCUMENTS OR OTHER FACTUAL INFORMATION, THEY
CAN SET, SIGN AN AFFIDAVIT TO THAT EFFECT AND USE THAT AS AN SUBSTITUTE IN LIEU OF AN AFFIDAVIT
OF MERIT FROM THE REQUIRED EXPERT. THAT SUBSECTION WOULD BE COMPLETELY
UNNECESSARY IF NO REVIEW OF ANY FACTUAL MATERIAL WAS REQUIRED ON THE PART OF THE AFFIANT.
NOW, IN THIS CASE, THERE'S BEEN, YOU KNOW, A CENTRAL ISSUE RAISED BY THE PLAINTIFF
CONCERNING THE FACT THAT A FERREIRA CONFERENCE DID NOT OCCUR. THAT IS TRUE, ALTHOUGH
IT WAS SCHEDULED THREE TIMES. THE FIRST TIME IT WAS SCHEDULED BECAUSE THERE WAS NO AFFIDAVIT
WHATSOEVER AND THE PLAINTIFF WAS REMINDED PRESIDED OVER TRIAL BY THE COURT AND DEFENSE
COUNSEL THROUGH CORRESPONDENCE AND SUBMISSIONS THAT AN AFFIDAVIT OF MERIT WAS REQUIRED
AND SPECIFIC CITATION TO THE STATUTE WAS MADE SO IT WAS CERTAINLY POSSIBLE FOR THE PLAINTIFF
TO REFER TO THAT. SECONDLY, WE KNOW THAT PLAINTIFF WAS AWARE OF HER OBLIGATIONS
BECAUSE SHE SUBMITTED NOT ONE, NOT TWO, BUT THREE DOCUMENTS IN RESPONSE TO THE MOTION
PRACTICE. SO OUR POSITION -- I'M SORRY. THE COURT: FINISH YOUR SENTENCE.
RUSSELL J. MALTA: OUR POSITION IS THAT YES, NO FER RARE RA CONFERENCE TOOK
PLACE BUT ALL THE PURPOSES FOR THE FER RARE RA CONFERENCE WERE SATISFIED BY THE MOTION
PRACTICE THAT OCCURRED, THE EXCHANGE OF DOCUMENTS AND FEENLLY BY THE ORAL ARGUMENT ON THE
MOTION WHICH STILL OCCURRED BEFORE THE 120 DAY SO AS THE COURT IN FERREIRA AN OTHER CASES
FOLLOWING FERREIRA POINTING OUT THE PURPOSE OF THE FERREIRA CONFERENCE IS TO NO. 1, LET
THE PLAINTIFF, REMIND THE PLAINTIFF WHO SHOULD ALREADY KNOW THAT AN AFFIDAVIT IS REQUIRED
AND, NO. 2, TO FLESH OUT ANY DESHS CEASE. EVERY TIME THE PLAINTIFF SUBMITTED
A MOVED DOCUMENT WE POINTED OUT THE DEFICIENCIES. THE COURT: IN THIS CASE
THE JUDGE SAID THE FER RARE RA CONFERENCE ISN'T MEANT, IS NOT DESIGNED TO SAY YOU NEED
TO FILE AN AFFIDAVIT OF MERIT. IT'S DESIGNED TO GO OVER BETWEEN THE PLAINTIFF AND THE
BLANK THE SUFFICIENCY OF WHAT WAS PROVIDED. IS THE JUDGMENT'S STATEMENT A
CORRECT STATEMENT OF LAW. RUSSELL J. MALTA: WELL, YOUR HONOR, I DON'T KNOW.
I THINK IT'S A LITTLE CONFUSING. THE COURT: HERE IS WHAT FERREIRA SAYS.
IF NO AFFIDAVIT HAS BEEN SERVED THE COURT WILL REMIND THE PARTIES OF THEIR OBLIGATIONS
UNDER THE STATUTE AN CASE LAW AND IN J C THE JUDICIARY FAULTED TO TO WHAT WAS EX SPEBLTD
MAINLY ACT AS A BACKDROP. NO ONE IS FAULTING YOU FOR THIS BUT THERE WAS NO FERREIRA CONFERENCE
AN THE REASON THERE WAS NO FERREIRA CONFERENCE SEEMS TO BE AT ODDS WITH WHAT THIS COURT
HAS ALREADY SAID. RUSSELL J. MALTA: I CAN'T DISPUTE THAT. THE COURT:
WHAT SHOULD HAPPEN, WHAT IS THE REMEDY, IF ANY, WHEN THERE IS NO FERREIRA CONFERENCE?
RUSSELL J. MALTA: ALL THE CASES SAY THAT WE'RE GOING TO FINE SOME EXCEPTIONAL
CIRCUMSTANCES IN THIS PARTICULAR CASE, BUT WE'RE NOT GOING TO DO IT ANYMORE GOING FORWARD.
UNFORTUNATELY, THAT NEVER HAPPENS WHEN I REFER TO JUST RIF SOET'S APARTMENT
REFERRING OPINION IN THE PARAGON CASE, IT SEEMS THAT EVERY TIME THERE IS AN ISSUE IN THIS
REGARD, EVEN THOUGH THE LITIGANTS AN THIS INCLUDES PRO SE LITIGANTS AS MUCH AS
REPRESENTED ONES, EVEN THOUGH THEY FAIL TO CONFORM THE PRETTY SIMPLE, ULTIMATELY AN CLEAR
DICTATES OF THE STATUTE, SOMEHOW EVERYTIME THERE IS A FAILURE, THE FINGER FWETS POINTED
SOMEWHERE ELSE ON THE COURT, ON THE OPPOSING COUNSEL. THE COURT: SO THE
DICTATES OF HOLDING A FERREIRA CONFERENCE ARE EQUALLY CLEAR AT THIS POINT. IS
IT APPROPRIATE TO CONSIDER -- HOW IS IT APPROPRIATE TO FACTOR THE ABSENCE OF A
FERREIRA CONFERENCE IN? RUSSELL J. MALTA: WELL, YOUR HONOR, NONE OF THE
CASES THAT ARE CITED, NEITHER FERREIRA NOR THE ONES THAT CAME AFTER IT, INCLUDING PAR
AGON, NONE OF THEM SAY THAT IF THERE IS NO FERREIRA CONFERENCE, THEN THE AFFIDAVIT OF
MERIT GOES OUT THE WINDOW. THE COURT: IS IT APPROPRIATE TO CONSIDER THE ABSENCE
OF A FERREIRA CONFERENCE AS PART OF THE ANALYSIS UNDER EXCEPTIONAL CIRCUMSTANCES.
RUSSELL J. MALTA: I THINK IT CAN BE CONSIDERED, BUT IF THAT'S REALLY THE ONLY SUBSTANTIVE
PROBLEM, ESPECIALLY IN A CASE LIKE THIS WHERE THE FACTS ARE SUCH THAT THE PURPOSES OF
HAVING THE FERREIRA CONFERENCE WERE, IN HAD FACT, SATISFIED BY THE MOTION PRACTICE THAT
OCCURRED, WHEN YOU HAVE THAT KIND OF SITUATION, I DON'T THINK THAT ALL OF THOSE FACTORS
ADD UP TO EXCEPTIONAL CIRCUMSTANCES. THE COURT: RELATED TO THAT, CAN YOU
TELL US HOW YOUR CLIENT IS HARMED UNDER THE CIRCUMSTANCES OF THIS CASE WITH ALL THE
NOTICE AND ALL THE CONVERSATIONS AND MOTIONS AND DISCUSSION THAT HAVE TAKEN PLACE THROUGH
FOUR FAILED AFFIDAVITS OF MERIT? IN. RUSSELL J. MALTA: I WOULD QUOTE FROM
THE CONCURRING OPINION OF JUSTICE RIF VER RA SOET TOE IN THE PARAGON CASE, IT IS DEEP
LY TROUBLING THAT IN RESULT OF THE RELIEF ORDERED TODAY, THE KEY ENGINEERS INC. EFFECTIVELY
WILL BE DENIED THE SPECIFIC RIGHT DPRANTD TO IT BY LAW, IT'S STATUTORY TIELT L MENT TO
EITHER THE RECEIPT TO A PROMPT AN TIMELY AFFIDAVIT OF MERIT OR THE DISMISSAL OF CLAIMS
AGAIN IT. THE COURT: IS YOUR CLIENT SUFFICIENTLY ON NOTICE. RUSSELL
J. MALTA: I'M SORRY SFLFRMENTS WAS YOUR CLIENT SUFFICIENTLY ON NOTICE BY WHAT TRANSPIRED
IN THIS CASE. RUSSELL J. MALTA: WE WERE ON NOTICE THAT THERE WAS A SUIT,
YOUR HONOR. HERE IS THE TROUBLING POINT -- JUSTICE WAINER APTER: SORRY
WEREN'T YOU ALSO ON NOTICE IN THE AFFIDAVIT OF MERIT THAT THERE WAS A SPECIFIC ALLEGATION
THAT IT WAS TRCHLT ZINC WHO ACTED NEGLIGENTLY AND HE IS AN EMPLOYEE OF YOUR CLIENT, CORRECT?
RUSSELL J. MALTA: YES, YOUR HONOR, BUT I WOULD TAKE ISSUE WITH A NUMBER
OF THENGS THAT HAVE BEEN SAID CONCERNING DR. SINGH. FIRST OF ALL, THERE IS
NOTHING IN THE RECORD BELOW INDICATING WHAT HIS SPECIALTY AREA IS; THAT'S NO. 1.
JUSTICE MICHAEL NORIEGA: THERE IS SOMETHING IN THE RECORD. RUSSELL J. MALTA:
I DISPUTE THAT, AS WELL. AS I INDICATED IN MY BRIEF, THE DOCUMENT THAT THE
PLAINTIFF RELIES ON SPECIFICALLY HAS A CAVEAT IN IT THAT SAYS THAT THIS IS NOT TO BE RELIED
ON FOR ANY OF THOSE PURPOSES. JUSTICE MICHAEL NORIEGA: WHAT IS DR. SINGH'S
SPECIALTY. RUSSELL J. MALTA: IT'S NOT A RELIABLE SOURCE. JUSTICE
MICHAEL NORIEGA: COUNSEL. RUSSELL J. MALTA: THAT SAYS IT RIGHT IN THE SOURCE
DOCUMENT. JUSTICE MICHAEL NORIEGA: WHAT IS DR. SINGH'S SPECIALTY.
RUSSELL J. MALTA: CANDIDLY I DO NOT KNOW. JUSTICE WAINER APTER: HE IS AN
EMPLOYEE OF YOUR CLIENT, CORRECT? RUSSELL J. MALTA: NOT ANY LONGER. AT THE
TIME -- AND HASN'T BEEN SINCE BEFORE THE SUIT WAS FILED. JUSTICE PIERRE-LOUIS:
NOTWITHSTANDING WHAT TRCHLT ZINC'S SPECIALTY IS, CAN WE GO BACK TO THE QUESTION THAT THE
CHIEF JUSTICE ASKED. HOW HAS YOUR CLIENT BEEN PREJUDICED, THE COMPLAINT WAS
FAIRLY DISMISSAL DETAILED CONCERNING THE CLAIM, SEVERAL AFFIDAVITS OF MERIT WERE SUBMITTED
EXPLAINING THE PACE SIS OF THE CLAIM AND WHAT HAS BEEN ALLEGED. HOW IS IT
THAT YOUR CLIENT HAS BEEN PREJUDICED HERE. RUSSELL J. MALTA: I DISAGREE
WITH ALL OF THAT. JUSTICE PIERRE-LOUIS: THE COMPLAINT DID NOT GIVE THE
HOSPITAL -- DID NOT PUT THE HOSPITAL ON NOTICE OF THE DECEDENT ISSUE, THE DATE OF THE STINT
OR ANYTHING, IS THAT WHAT YOU'RE STATING? RUSSELL J. MALTA: NO, WHAT THE
DEFENDANT IS ENTITLED TO AND WHAT EVERY CASE FROM CORN BLAT ON DISCUSSING THIS ISSUE SAYS
IS THAT THE DEFENDANT IS ENTITLED TO EARLY -- AN EARLY NOTICE THAT THERE IS ACTUAL MERIT
TO THE CASE. THE DEFENDANT MAINTAINS THAT THERE WAS NO MERIT. JUSTICE SOLOMON:
THAT'S NOT WHAT ANY OF THEM SAID. THEY SAID THERE IS A REASONABLE BASIS TO PROCEED.
JUSTICE WAINER APTER: REASONABLE PROBABILITY. RUSSELL J. MALTA:
I WILL FIND MY CITATION, IF I MAY. JUSTICE SOLOMON: AND BEFORE YOU HEAD
TOWN THAT ROAD, ISN'T THAT EXACTLY WHY YOU HAVE TO HAVE A FERREIRA CONFERENCE TO STUS
EXACTLY THESE THINGS SO THE COURT CAN SAY THAT THESE THINGS YOU'RE SAYING THAT HAVE NEVER
BEEN FLESHED OUT IN COURT HAVE ANY MERIT AT ALL. RUSSELL J. MALTA: ALL
OF THESE THINGS WERE FLESHED OUT AT THE MOTION HEARING. IF I MAY, AS I SAID
EARLIER THE CON TRENS WAS SCHEDULED THREE TIMES. JUSTICE SOLOMON: WHAT WAS
SAID AT THE MOTION HEARING AS THE REASON THERE WAS NO FERREIRA CONFERENCE NEEDED REQUIRED
OR THAT WE SHOULD SUGGEST IT SHOULD HAVE BEEN HAD HERE TO EFFECTUATE THE PURPOSE THAT
FERREIRA SAYS THE CONFERENCE SHOULD BE HAD; THAT'S WHAT YOU'RE GOING TO RELY ON, AT THE
MOTION HEARING, THE MOTION TO DISMISS, THE MOTION THAT KNOCKED HER OUT OF COURT, PREVENTED
HER FROM AMENDING HER COMPLAINT, PREVENTED HER FROM NAMING DR. SINGH WHO YOU KNEW FROM
THE VERY GENG BECAUSE YOUR CLIENT PROVIDED THE MEDICAL RECORDS THAT NAMED HIM THAT THAT
MOTION IS WHAT SUBSTITUTES FOR THE FERREIRA CONFERENCE WHEN THE PLAINTIFF, PRO SE IS TOLD
YOU NEED MORE OR MAYBE YOU DON'T NEED MORE. WE DON'T KNOW BECAUSE THE CONFERENCE NEVER
TOOK PLACE; THAT'S WHAT YOU'RE RELYING ON? HAD. RUSSELL J. MALTA: THE PLAINTIFF
WAS TOLD AT THE MOTION. JUSTICE SOLOMON: IS THAT WHAT YOUR EE RELYING ON
FOR THE MOTION HERE. RUSSELL J. MALTA: FOR THAT PART OF IT YOUR HONOR.
IF THE ISSUE IS THAT THIS COURT IS NOW GOING TO HAVE A NEW DECISION THAT SAYS
ANY TIME THERE IS NO FERREIRA CONFERENCE THEN THE AFFIDAVIT OF MERIT. JUSTICE
SOLOMON: LET ME TELL YOU SOMETHING. THIS COURT WILL DECIDE THE DECISION AND THE BREATH
OF IT, NOT YOU, SO BEFORE YOU SUGGEST WHAT WE'RE GOING TO DO, WHY DON'T YOU ANSWER MY
QUESTION. ARE YOU RELYING ON THAT MOTION HEARING WHEN THE COMPLAINT WAS
DISMISSED WITH PREJUDICE TO SAY THAT SATISFIES WHAT WAS REQUIRED UNDER FERREIRA.
RUSSELL J. MALTA: UNDER THE FACTS OF THIS CASE, YES, YOUR HONOR. JUSTICE
SOLOMON: THAT'S ALL I AM ASKING. THE COURT: UNDER THE FERREIRA CONFERENCE
WOULDN'T IT LIKELY HAVE COME OUT WHAT SPECIALTY DR. SINGH HAD. RUSSELL J. MALTA: IT'S POSSIBLE. THE COURT: WOULDN'T THE JUDGE OR COUNSEL OR PRO SE PLAINTIFF
STATUTE. RUSSELL J. MALTA: IT'S POSSIBLE, BUT IF I MAY FOE BACK TO MY VERY
FWENG, THE PROBLEM WITH THIS CASE HAS LESS TO TO WITH WHETHER DR. FALLON WAS QUALIFIED,
WHETHER THERE WAS A MATCH UP. I MEAN I'VE POENTD OUT THOSE PROBLEMS IN PART TO RESPOND
TO PLAINTIFF'S ARGUMENT AN TO QUESTIONS HERE, BUT AS I SAID IN THE BEGINNING, THERE IS
TWO PAGES OF A VOLUMINOUS MEDICAL RECORD HERE. THE CLAIM HERE IS NOT -- IF THIS WAS A
CLAIM WHERE THE PLAINTIFF CLAIMED THAT A -- DURING THE COURSE OF A SURGEON ZIK KAL
PROCEDURE A COMPLICATION OCCURRED, THE URETER WAS CLIPPED, ALL YOU WOULD NEED, ARGUABLY
IS THAT SURGEON ZIK KAL OPERATIVE REPORT. JUSTICE WAINER APTER: I'M SORRY,
HERE PLAINTIFF DOES STATE THAT DR. FALLON DID REVIEW THOSE TWO PAGES, HE JUST DID NOT
WRITE IN THE AFFIDAVIT OF MERIT AND I REVIEWED THESE TWO PAGES, CORRECT?
RUSSELL J. MALTA: WELL, FOR PURPOSES OF THIS ARGUMENT I WILL CONCEDE THAT WAYNE WAEN
GREAT. SO THEN IF THAT IS THE CASE THEN WHERE IN THE AFFIDAVIT OF MERIT STATUTE
DOES IT SAY AND THE AFFIDAVIT OF MERIT MUST STATE THAT THE DOKT -- EXACTLY WHAT THE DOCTOR
REVIEWED OR THE DOCTOR REVIEWED THE TWO PAGES OF MEDICAL RECORDS THAT THE DEFENDANT SUBMITTED.
RUSSELL J. MALTA: IT DOESN'T SAY THAT, NOR DOES IT SAY THAT THE DEFENDANT
HAS TO IDENTIFY IN THEIR ANSWER THEIR SPECIALTY QUALIFICATIONS. IT SAYS NOWHERE THAT
THERE SHOULD BE A FERREIRA CONFERENCE. JUSTICE WAINER APTER: I UNDERSTAND
THAT THIS COURT HAS IMPOSED ADDITIONAL OBLIGATIONS ON DEFENDANTS, HOWEVER THIS COURT
HAS ALSO SAID THAT IT REFUSES TO, QUOTE, ADD REQUIREMENTS NOT EXPLICITLY SET FORTH THAT
DENY PLAINTIFFS THEIR DAY IN COURT. SO, WHERE HAVE WE EVER ADDED ADDITIONAL
REQUIREMENTS ON A PLAINTIFF TO THE AOM STATUTE AND SAID EVEN THOUGH THE STATUTE DOES NOT
REQUIRE THIS HAD PLAINTIFF, YOU WILL NOW NOT BE ENTITLED TO YOUR DAY IN COURT UNLESS YOU
COMPLY WITH THESE ADDITIONAL REQUIREMENTS THAT WE ARE PLACING ON YOU. RUSSELL J.
MALTA: I CAN'T CITE TO A CASE BUT AS I UNDERSTAND IT IF AN AOM IS CHALLENGED A PLAINTIFF
IS REQUIRED TO DEMONSTRATE THE QUALIFICATIONS. JUSTICE PATTERSON: SUBSPECIALTY
IS NOT IN THE STATUTE THAT'S A CASE LAW ADDITION IS IT NOT. RUSSELL J. MALTA:
NO, THAT'S SECTION 41. JUSTICE WAINER APTER: APPROPRIATELY LICENSED PERSON.
RUSSELL J. MALTA: AN ITS -- I'M SORRY YOUR HONOR. JUSTICE WAINER
APTER: THE STATUTE REFERS TO AN APPROPRIATELY LICENSED PERSON, CORRECT, AN THEN IT ALSO
SAYS THE PERSON MUST HAVE PARTICULAR EXPERTISE IN THE SPECIFIC SPECIALTY THAT'S WHAT THE
STATUTE SAYS. RUSSELL J. MALTA: RIGHT, BUT WHAT WAS ADDED WAS PROVING IT.
L JUST LIKE IT DOESN'T SAY IN THE STATUTE THAT -- JUSTICE WAINER APTER:
IT WAS ADDED THAT THE DEFENDANT HAD TO PROVIDE THAT INFORMATION SO THAT THE PLAINTIFF
WOULD BE ABLE TO HAVE THE MATCH YUP. WHERE HAVE WE EVER ADDED A REQUIREMENT ON THE PLAINTIFF
AND SAID EVEN THOUGH THE STATUTE SPELLS OUT THESE REQUIREMENTS, WE ARE NOW ADDING ANOTHER
ONE. RUSSELL J. MALTA: SO AM I TO UNDERSTAND THEN THAT THE PLAINTIFF IS
NOT REQUIRED TO PROVIDE A CV OR ANY QUALIFICATIONS FROM THEIR EXPERT WHEN THEY
SERVE THE AFFIDAVIT OF MERIT. JUSTICE WAINER APTER: IT SAYS THE EXPERT HAS
TO BE AN APPROPRIATE LICENSED PERSON SO YOU COULD SAY THAT IN ORDER TO SHOW THAT THE PERSON
IS APPROPRIATELY LICENSED THEY WOULD HAVE TO SHOW THAT THEY ARE LIENSED AND WHAT APPROPRIATE
MEANS, BUT THE STATUTE DOES SAY THAT. RUSSELL J. MALTA: THE --
JUSTICE WAINER APTER: THAT THE PERSON WRITING THE AFFIDAVIT OF MERIT IT SAYS PROVIDE EACH
DEFENDANT WITH AN AFFIDAVIT OF AN APPROPRIATE LICENSED PERSON SO IT DOES SAY THAT YOU
CAN'T JUST HAVE A PERSON ON THE STREET WRITE IT UP AN SUBMIT IT. RUSSELL J.
MALTA: YES, BUT IF THE RF SAYS THAT MY EXPERT IS AN APPROPRIATELY LICENSED PERSON OR IT
SAYS IN THE AFFIDAVIT, I AM AN APPROPRIATELY LICENSED PERSON TO OPINE ON THIS CASE AND
IT IS MY OPINION THAT THERE IS A REASONABLE LIKELIHOOD THAT THE CARE AND TREATMENT THAT
WAS PROVIDED FELL SHORT OF ACCEPTABLE STANDARDS, THAT'S ALL WE GET BECAUSE THAT'S ALL THIS
STATUTE SAYS. JUSTICE WAINER APTER: NO THE STATUTE ALSO TALKS ABOUT HAVING
PARTICULAR EXPERTISE IN THE GENERAL AREA OR THE SPECIALTY INVOLVED IN THE ACTION AS EVIDENCED
BY BOARD CERTIFICATION OR DEVOTION OF THE PERSON'S PRACTICE SUBSTANTIALLY TO THE
GENERAL AREA OR SPECIALTY INVOLVED IN THE ACTION FOR AT LEAST FIVE YEARS SO THE STATUTE
IS VERY PARTICULAR. WHERE HAVE WE IMPOSED ADDITIONAL THE REQUIREMENTS BEYOND
THOSE IN THE STATUTE ON A PLAINTIFF? RUSSELL J. MALTA: I AM SAYING THE
COURTS HAVE UNIVERSALLY REQUIRED PLAINTIFFS TO DEMONSTRATE THAT THOSE FACTS ARE THE CASE
AND THAT'S WHAT WE'RE ASKING FOR HERE. JUSTICE MICHAEL NORIEGA: IF YOU HAD
A BASIS TO CHALLENGE THE EXPERT, THAT MIGHT BE NECESSARY. IN THIS CASE, WHERE
DO YOU HAVE ANY BASIS TO CHALLENGE THE TASH DASH WHAT THE EXPERT RELIED ON, KNOWING THAT
YOU PROVIDED THE TWO PAGES THAT TALKED ABOUT THE CODE BLUE AND TALKED ABOUT EVERYTHING
THAT OCCURRED THAT NIGHT. RUSSELL J. MALTA: SO TWO -- THAT'S A TWO-PART
QUESTION. THE FIRST PART OF IT IS I ONLY MAKE THAT ARGUMENT AS SUPPORT FOR
OUR ARGUMENT THAT THE LF SHOULD BE REQUIRED ON BEING CHAL LEPGED TO SHOW THAT THERE WAS
A FACTUAL BASIS FOR THE AFFIANT TO MAKE THE CLAIM, THAT'S NO. 1. NO. 2, IT'S
TRUE THAT WE SUPPLIED TWO PAGES OF THE RECORD, BUT THE -- IT'S NOT THE COMPLETE RECORD
EVEN OF THE CODE. THAT CODE -- THERE IS A CODE SHEET THAT OCCURS. L THIS IS A CODE PROGRESS
NOTE THAT IS WRITTEN AFTER THE FACT. THE IMPORTANT PIECE OF INFORMATION, IN EVERY CODE
THAT IS RUN IN EVERY HOSPITAL, THERE IS A -- THERE ARE MULTIPLE PEOPLE INVOLVED IN THE
CODE. ONE OF THOSE INDIVIDUALS IS CHARGED WITH MAKING A CONTEMPORANEOUS RECORD OF EVERYTHING
THAT HAPPENS, INCLUDING EVERY MEDICATION ADMINISTERED. JUSTICE WAINER
APTER: YOU NEVER PROVIDED THAT TO PLAINTIFF, RIGHT. RUSSELL J. MALTA:
CORRECT, IT WAS NEVER REQUESTED. JUSTICE WAINER APTER: YOU'RE SAYING THE
AFFIDAVIT OF MERIT WAS INSUFFICIENT BECAUSE THE PERSON DIDN'T REVIEW A DOCUMENT THAT YOU
NEVER PROVIDED. RUSSELL J. MALTA: BECAUSE IT WAS NEVER REQUESTED. CORRECT.
CORRECT. I MEAN, WE HAVEN'T YET ADOPTED THE FEDERAL PRACTICE WHICH REQUIRES AUTOMATIC
DISCOVERY AND PRODUCTION OF DOCUMENTS WITHOUT DEMAND, THAT HASN'T OCCURRED YET IN NEW
JERSEY PRACTICE. IN GOING FORWARD, MAYBE THAT WILL HAPPEN, BUT THERE WAS NO -- THE SECTION
28 CLEARLY SAYS THAT THE -- AND THE CASE LAW DECIDED UNDER IT IN ORDER TO SERVE AN
AFFIDAVIT IN LIEU OF AN AFFIDAVIT OF MERIT, THERE HAS TO BE SHOWN THAT A PROPER REQUEST
HAS BEEN MADE. AND THAT WAS NEVER ARGUED BEFORE. I, ALSO, HASTEN TO ADD, A LOT OF THINGS
HAVE BEEN INJECTED INTO THIS RECORD NOT ONLY AT THE APPELLATE DIVISION AFTER THE TRIAL COURT
BUT IN THIS COURT EVEN AFTER THE PETITION FOR CERTIFICATION WAS GRANTED SO --
JUSTICE MICHAEL NORIEGA: THEY ARE CHALLENGING DR. FALLON'S AOM AND THE TWO PAGES THAT
HE DID REVIEW. RUSSELL J. MALTA: SO THIS IS A PARTICULAR TYPE OF CASE AS
I STARTED TO SAY EARLIER BEFORE I FWOT A LITTLE BIT SIDETRACKED. IF THIS WERE A CASE
ALLEGING THAT DEFENDANT AFFIRMATIVELY DID SOMETHING NEGLIGENCE JEPT TO THE PATIENT ALL
YOU WOULD NEED IS THAT FACTUAL APPLICATION. WHAT HAPPENED WITH THE ALLEGATION
HERE AND ONE THING THAT IS CLEAR AND YOU CAN'T IGNORE -- WELL, LET ME JUST SAY THE
ALLEGATION HERE, WHAT IS CLEAR ABOUT IT IS THAT IT IS A CLAIM OF OMISSION. NOW,
HOW CAN A -- IN GOOD FAITH, HOW CAN ANY AFFIANT SAY THAT THERE WAS REASONABLE LIKELIHOOD
TO BELIEVE THAT SOMETHING DIDN'T HAPPEN IF THEY DON'T HAVE ALL OF THE INFORMATION, INCLUDING
INFORMATION THAT MIGHT SAY JUST AND CLEARLY IN BLACK AN WHITE IN FIVE DIFFERENT PLACES
THAT THAT ACTION ACTUALLY DID HAPPEN. JUSTICE WAINER APTER: ARE YOU ALLEGING
THAT THAT IS THE CASE IN THIS RECORD. RUSSELL J. MALTA: ALL THAT IS MISSING
FROM THE RECORD AND WE KNOW THAT IF A PATIENT IS IN THE HOSPITAL FOR THREE DAYS.
JUSTICE WAINER APTER: NO, BUT YOUR CLIENT HAS THE MEDICAL RECORD. IT'S NOT MISSING FROM
YOU. RUSSELL J. MALTA: WELL, IT'S MISSING FROM ME PERSONALLY, BUT IT IS
NOWHERE IN THE RECORD THAT DASH DSH. JUSTICE MICHAEL NORIEGA: HOW CAN YOU
MAKE THAT ARGUMENT IF YOU DON'T KNOW THE ANSWER? RUSSELL J. MALTA: BECAUSE
THE ARGUMENT IS THAT PLAINTIFF HAS AN OBLIGATION HERE TO OBTAIN AN AFFIDAVIT OF MERIT.
JUSTICE MICHAEL NORIEGA: WHICH SHE DID. RUSSELL J. MALTA:
I'M SORRY. JUSTICE MICHAEL NORIEGA: WHICH SHE DID. RUSSELL J. MALTA:
WELL IT HAS TO BE AN AFFIDAVIT OF MERIT THAT IS BASED ON SOMETHING. I WAS ASKED ABOUT
PREJUDICE BEFORE AND I GOT A LITTLE BIT SIDETRACKED ON THAT, BUT THE PREJUDICE TO THE
CLIENT HERE IS THAT WE COULD FWOE THROUGH TWO OR MORE YEARS OF DISCOVERY ONLY TO FIEND
OUT AFTER ALL OF THAT HAPPENS THAT, IN FACT, THERE WAS GLUCOSE LAB TESTING PERFORMED,
THE LAB TESTS CAME BACK THE WAY THEY DID. THE NURSING NOTES INDICATE THAT THEY CARRIED
OUT THE PHYSICIAN'S ORDERS. THE PHYSICIAN'S ORDERS ARE ALL PROPER -- JUSTICE
WAINER APTER: WHY WOULD YOU HAVE TO GO THROUGH DISCOVERY. I'M STILL CONFUSED ABOUT THIS.
THAT IS KNOWLEDGE IN YOUR CLEENT'S POSSESSION SO WHY WOULD YOU HAVE TO GO THROUGH TWO
YEARS OF DISCOVERY TO FIND THAT OUT YOUR CLEENTS KNOW THAT FROM DAY 1. RUSSELL J.
MALTA: AN WE CONTEND ALL THAT HAPPENED, BUT BECAUSE OF THE STATUS OF THE CASE, THE MOTION
CAME ABOUT BECAUSE THE PLAINTIFF DIDN'T BOTHER TO FIND ANY OF THAT OUT. THE PLAINTIFF
DID NOT BOTHER TO ASCERTAIN THAT THERE ACTUALLY WAS A MERITORIOUS CASE BASED ON WHAT ACTUALLY
HAPPENED IN THE CASE. JUSTICE PATTERSON: I AM NOT ASKING WHAT REALLY
HAPPENED, BUT IS IT THE HOSPITAL'S CONTENTION THAT THERE WAS GLUCOSE TESTING IN THIS CASE.
RUSSELL J. MALTA: YES. IN FACT, THAT'S EVEN INDICATED IN THE TWO PAEJS
THAT WE HAVE. IF I MAY REFER TO THOEGS EXHIBITS. JUSTICE PATTERSON: WERE
THE TWO PAGES PROVIDED TO THE PLAINTIFF. RUSSELL J. MALTA: YES, THESE ARE
THE ONES THAT ARE IN THE RECORD THAT THE PLAINTIFF RECEIVED AND THAT THE PLAINTIFF IS
USING TO SUPPORT THE CLAIM THAT SHE PROVIDED IT TO DR. FALLON AND THAT, THEREFORE, YOU
KNOW, THAT'S WHAT HE BASED IT ON. WHAT WE HAVE HERE IS -- FIRST OF ALL.
JUSTICE PATTERSON: GIVE US A CITATION TO THAT. RUSSELL J. MALTA: THIS WOULD BE
ON THE CONFIDENTIAL. CHIEF JUSTICE RABNER: IS THIS DA. RUSSELL J.
MALTA: C R 4 AND C R 5. ON THOSE TWO PAGES THERE IS INDICATION THAT THE. THE
COURT: I HAVE A SENSE WE'RE LOOKING AT THE SAME DOCUMENT BECAUSE OF HOW HARD IT IS TO
READ. RUSSELL J. MALTA: IT IS. WELL, LET ME GO BACK TO WHAT
I FOUND EASILY. THE PATIENT HERE REFUSED LAB TESTING MULTIPLE TIMES DURING THE COURSE
OF THE DAY. THAT CAN'T BE LAID AT THE FOOT OF THE PHYSICIANS. THE COURT:
IS THIS SOMETHING THAT REALLY WOULD DPET RESOLVED AT THE AFFIDAVIT OF MERIT STAGE?
RPT THESE DEFENSES THAT WOULD APPROPRIATELY BE PRESENTED AT THE TIME OF
TRIAL? RUSSELL J. MALTA: SO, I GUESS WHAT THE ARGUMENT IS IS THAT THE --
IF THERE WAS A DISPUTE ABOUT IT, YES. BUT, HERE, THERE IS JUST AN IGNORING OF THE FACTS.
JUSTICE PATTERSON: OR A SUMMARY JUDGMENT MOTION COULD BE MADE ABOUT THIS.
RUSSELL J. MALTA: AND, AGAIN, THAT WOULD NOT BE EFFECTIVE UNTIL AFTER ALL
EXPERT REPORTS HAD BEEN SERVED AND USUALLY AFTER EXPERT DISCOVERY, SO, AGAIN, A COUPLE
YEARS DOWN THE ROAD. IF YOU LOOK AT THE THREE DOCUMENTS THAT THE PLAINTIFF
SUBMITTED IN SUPPORT OF HER CONTENTION THAT THERE WAS SUBSTANTIAL COMPLIANCE, FIRST OF ALL,
ASIDE FROM THEIR OTHER MULTIPLE DEFICIENCIES, WHAT THEY ALL SAY IS THAT THERE IS A
REQUIREMENT OF PRUD FRU COMPANIES TESTING WITHIN ONE TO TWO HOURS AFTER THE PATIENT BECOMES
UNRESPONSIVE. IF YOU LOOK AT, BEN, C R-4, THE ENTIRE CODE LASTED JUST MINUTES
OVER AN HOUR, SO, AGAIN, ON ITS FACE, CONTRARY TO WHAT PLAINTIFF'S EXPERTS SEEM TO BE
SAYING IN GENERAL TERMS, THE STANDARD OF CARE WAS COMPLIED WITH. JUSTICE SOLOMON:
WE'RE NOT HERE LITIGATING THE MERITS. WE'RE HERE DISCUSSING THE AFFIDAVIT OF MERIT, THE
REQUIREMENTS OF THE AFFIDAVIT OF MERIT THINGS THAT AREN'T -- WHAT YOU ARE ARGUING IS
GERMANE TO THE CASE, BUT NOT NECESSARILY GERMANE TO THE ISSUE BEFORE THE COURT.
RUSSELL J. MALTA: ALL I AM TRYING TO ESTABLISH, YOUR HONOR, IS THAT THERE NEEDS TO BE
AN ACTUAL CONTROVERSY IN ORDER TO JUSTIFY GOING THROUGH ALL OF THE JUDICIAL RESOURCES.
JUSTICE PIERRE-LOUIS: BUT THERE IS A CONTROVERSY. YOU'RE STATING -- IT
SOUNDS LIKE YOU'RE STATING ON THE MERITS THERE DIDN'T REALLY NEED TO BE TESTING BECAUSE
IT IS IT WAS JUST OVER AN HOUR THAT THE CODE LASTED. THEIR ALLEGATION IS SHE WAS ADMITTED
AS A KNOWN TYPE 1 DIABETIC FOR KEET TOE ACIDOSIS AN DURING THE ENTIRE HOUR OF THE KOED
BLUE THERE WAS NO TESTING AND THE ASSUMPTION WAS MADE THAT IT WAS DRUG ADMINISTERED THAT'S
WHY NEWARK CANE WAS ADMINISTERED. FOR AN AFFIDAVIT OF MERIT PURPOSES ALL THAT NEEDS TO
SHOW IS THERE WAS A REASONABLE PROBABILITY THAT THE CARE, ACKNOWLEDGE AND EXERCISED FOEL
OUTSIDE THE PROFESSIONAL OR OCCUPATIONAL STANDARDS? DO YOU AGREE THAT
THAT IS WHAT THEIR ALLEGATION IS, CONTRARY TO WHAT YOU ARE ARGUING, WHICH IS THE MERIT?
HAD. RUSSELL J. MALTA: WELL, THAT'S THE ALLEGATION OF THE PRO SE PLAINTIFF
WHO IS NOT A PHYSICIAN SO WE HAVE A PRO SE PLAINTIFF WHO IS MAKING ARGUMENTS BASED ON
MEDICINE THAT SHE IS NOT COMPETENT TO DO. JUSTICE PIERRE-LOUIS: AN THEN
SHE OBTAINED AN AFFIDAVIT OF MERIT FROM A PHYSICIAN. RUSSELL J. MALTA:
FROM A PHYSICIAN WHO DID NOT REVIEW THE MATERIALS THAT EVERY PHYSICIAN -- JUSTICE
PIERRE-LOUIS: SO IN EVERY CASE ARE THE COURTS TO GET INTO THE WEEDS OF EXACTLY HOW MANY
PIECES OF PAPER A PHYSICIAN OR AFFIANT ON THE AFFIDAVIT OF MERIT HAS REVIEWED? IN.
YOU CONCEDED AT THE BEGINNING OF YOUR ARGUMENT THAT YES, ALTHOUGH TRCHLT FALLON
DIDN'T STATE THAT HE REVIEWED THE MEDICAL RECORDS, HE DID HAVE THOSE RECORDS, THE TWO
PAGES THAT PLAINTIFF OBTAINED BUT NOW YOU'RE ARGUMENT IS THAT DOESN'T MATTER HE DIDN'T
REVIEW ENOUGH. RUSSELL J. MALTA: UNDER THE PARTICULAR FACTS OF THIS CASE,
THAT'S CORRECT. I THINK THERE HAS TO BE A DETERMINATION. IN OTHER WORDS,
IF AN EXPERT GETS THE ADMITTING NOTE AND SAYS THAT A PATIENT WAS ADMITTED FOR DIAGNOSIS
X, IS IN THE HOSPITAL FOR SEVEN OR EIGHT DAYS AND THEN THE PATIENT EXPIRES BECAUSE IT
TURNS OUT THAT THE -- THROUGH THE COURSE OF WORKING THE PATIENT UP, THE PATIENT HAD A
COMPLETELY DIFFERENT DISEASE, BUT BASED ON THE ADMITTING NOTE, WHICH IS THE ONLY THING
THE EXPERT HAS SEEN, THE EXPERT SAYS WELL, THERE IS A REASONABLE PROBABILITY THAT THEY
MISDIAGNOSED THE PATIENT WITHOUT SEEING THAT OVER THE COURSE OF THE HOSPITALIZATION, THE
CORRECT TG SIS -- THE PATIENT WAS CORRECTLY WORKED UP AN CORRECTLY DIAGNOSED SO NOW WE
HAVE TO GO THROUGH TWO PLUS YEARS OF LITIGATION, DISCOVERY AND EXPERT REVIEW AND EXPERT
REPORTS AND DEPOSITIONS IN ORDER TO ESTABLISH THAT THE CASE NEVER HAD MERIT TR DAY 1;
THAT'S WHAT THE STATUTE WAS DESIGNED. THE COURT: COUNSEL I THINK WE HAVE
YOUR POSITION IS THERE ANYTHING YOU WOULD LIKE TO ADD TO CLOSE OUT YOUR ARGUMENT?
RUSSELL J. MALTA: BRIEFLY, LET ME JUST CHECK MY NOTE FOR ONE MINUTE. OKAY,
SO JUST THE ONE POINT THAT WE HAVEN'T TOUCHED ON IN MY DISCUSSION AND I WILL TRY AN HIT
IT VERY QUICKLY, IN THE FINGERPRINT CASE, THE FINGER CASE ITSELF, SAYS THAT IN A CASE
INVOLVING CLOP F I N K CLOP IN A CASE INVOLVING AN AFFIDAVIT OF MERIT THE STATUTE REQUIRES
THAT A PLAINTIFF PROVIDE AN AFFIDAVIT DETAILING A REASONABLE PROBABILITY THAT AT LEAST
ONE CLAIM CONCERNING EACH DEFENDANT HAS MERIT. SO WHAT WAS POINTED OUT BOTH
IN THE TRIAL COURT AND IN THE APPELLATE DIVISION IS THAT THE EXPERT IN THIS CASE DID NOT
SAY AND COULD HAVE SAID IF IT WERE TRUE AND HE COULD VERIFY IT, THAT EVERY PERSON WHO
TREATED -- EVERY PROFESSIONAL WHO TREATED THIS PLAINTIFF DEVIATED FROM ACCEPTED STANDARDS
OF CARE, THAT COULD BE A SUFFICIENT AFFIDAVIT. JUSTICE WAINER APTER: NO,
BUT HE DID SAY THAT AT LEAST ONE OF THE JOHN AN JANE DOE, NOW KNOWN TO BE DR. SINGH, FELL
BELOW THE STANDARD AND THAT PERSON WAS THE EMPLOYEE OF THE HOSPITAL, CORRECT? M.
RUSSELL J. MALTA: YES, BUT WHAT HE IS SAYING IS IT COULD HAVE BEEN TRCHLT ZINC,
OR IT COULD HAVE BEEN ANOTHER PHYSICIAN WITH A SPECIALTY THAT I DON'T HAVE.
JUSTICE WAINER APTER: THE ONLY PERSON THAT HE MENTIONS BY NAME HE SAYS THE DEFENDANT
MICHAEL P CARSON AND AT LEAST ONE OF THE JOHN OR JANE DOE DEFENDANTS NOW KNOWN TO BE DR.
VOOEK ZINC, THE ONLY PERSON NOT NAMED BECAUSE AT THAT POENT THEY SAID DR. CARSON WASN'T
INVOLVED HE IS NOW THROWING OUT 600 NAMES THAT HE IS NOT THROWING OUT 6 HUNDRED HN NAMES
THE HOSPITAL HAS TO GO FIND, ONE PERSON, POINTING TO THE HOSPITAL. RUSSELL J.
MALTA: I WANT TO BACK OFF OF SOMETHING IMPLIED EARLIER IN THAT THE ARGUMENT WAS MADE
BY PLAINTIFF IN THAT WE WERE SAYINGER SINGLE DEFENDANT HAD TO BE IDENTIFIED BY NAME;
THAT'S NOT WHAT WE'RE SAYING, BUT THEY HAVE TO BE IDENTIFIED AT LEAST IN TERMS OF WHAT
CARE THEY PROVIDED TO THE PATIENT AND IF THEY ARE PHYSICIAN, WHAT THEIR MEDICAL SPECIALTY
IS BECAUSE OTHERWISE YOU CANNOT -- JUSTICE WAINER APTER: IT SAYS THE PHYSICIAN
IN CHARGE OF THE EFFORTS TO RESUSCITATE DECEDENT IT SAYS EXACTLY WHAT HE SAID.
JUSTICE MICHAEL NORIEGA: AND EVEN DR. CARSON WHO IS MENTIONED IN THE AFFIDAVIT IS LISTED
AS THE ON CALL PHYSICIAN, THE ATTENDING PHYSICIAN IN THE TWO PAGES OF NOTES.
RUSSELL J. MALTA: THAT'S CORRECT, BUT HE WAS NEVER PRESENT FOR THE CODE.
JUSTICE MICHAEL NORIEGA: BUT HE RECEIVED CALLS DURING THE CODE. RUSSELL J.
MALTA: NO NOT DURING THE CODE. DURING THE COURSE OF THE DAY. IT IS VERY CLEAR HE DID
NOT RECEIVE ANY CALL DURING THE CODE. JUSTICE WAINER APTER: WHICH IS WHY
THE AOM SPECIFICALLY MENTIONS DR. SING, IN CHARGE OF THE EFFORTS TO RESUSCITATE DECEDENT
HOW COULD THAT NOT GIVE YOU NOTICE AS TO WHICH EMPLOYEE OF THE HOSPITAL THEY'RE TALKING
ABOUT. RUSSELL J. MALTA: BECAUSE HE SAYS IT'S EITHER DR. SINGH OR ANY ONE
OF THE OTHER INDIVIDUALS WHO WERE INVOLVED IN THE CODE OR OTHER PEOPLE AS WELL.
JUSTICE WAINER APTER: YOU SAY THIS PERSON WAS NEGLIGENT AN OTHER PEOPLE MIGHT HAVE BEEN
ALSO, THAT'S NOT ENOUGH. RUSSELL J. MALTA: THAT'S NOT WHAT HE SAYS. HE
DOESN'T SAY TRCHLT ZINC DEFINITELY WAS OR EVEN WAS AND MAY BE OTHERS. WHAT HE SAYS IS
ONE OF THIS LIST AND THE LIST INCLUDES DR. SINGH, ONE OF THOSE, SO WEE EE GOT DR. SINGH,
DR. CARSON, I WILL SAY DR. A, B, C, D AND E. JUSTICE WAINER APTER: HE DOESN'T
MENTION THOSE, DOES HE. RUSSELL J. MALTA: YES, HE DOES. JUSTICE
WAINER APTER: HE NEVER SAYS DR. A, B, C OR D. RUSSELL J. MALTA: HE SAYS
JOHN DOE SO HE TRACKS THE COMPLAINT. JUSTICE WAINER APTER: BUT HE SAYS
INCLUDING. RUSSELL J. MALTA: YEAH, INCLUDING THE JOHN DOES. JUSTICE
WAINER APTER: THE PROBLEM IS THAT HE WROTE INCLUDING DR. SINGH -- NO, I'M SORRY. I'M
READING THIS AGAIN. THE COURT: IT SESZ INCLUDING DR. SINGH, ONE OF THE JOHN
DOE'S. JUSTICE WAINER APTER: WHAT IS THE PROBLEM WITH THAT WHEN HE SAYS
DR. SINGH WAS NEGLIGENT AND HE WAS ONE OF THE JOHN DOE'S. RUSSELL J. MALTA:
HE IS NOT SAYING THAT. HE IS SAYING TRCHLT ZINC MIGHT HAVE BEEN. JUSTICE WAINER
APTER: THERE EXISTS A REASONABLE RENL PROEBLT THAT THE CARE SKILL OR ACKNOWLEDGE EXERCISED
OR EXHIBIT BY ONE OR MORE OF THE DEFENDANTS THEREIN, ONE OF THE. READ FAST.
IN THE TREATMENT FELL OUTSIDE THE ACCEPTABLE STANDARDS OF PRACTICE.
WHERE IN THOSE WORDS IS HE SAYING ACTUALLY LOTS OF PEOPLE WERE NEGLIGENT AND I CAN'T POSSIBLY
KNOW WHO? HAD. RUSSELL J. MALTA: I GUESS WE JUST READ THAT SENTENCE DIFFERENT
LY. THE WAY THAT -- WHAT THAT SENTENCE MEANS TO ME IS THAT ONE OF THE PEOPLE THAT HE
IS LISTING AND HE LISTS ZINC, JOHN DOES AN DR. CARSON, ONE OR MAYBE MORE OF THEM.
JUSTICE WAINER APTER: IT DOESN'T LIST DR. CARSON IN THAT PARAGRAPH AND HE DOESN'T LIST
AS THE CHIEF POINTED OUT HE ONLY SAYS THAT TRCHLT ZINC IS ONE OF THE JOHN DOE OR JAN DOE
DEFENDANTS HE DOESN'T SAY SPECIFICALLY THAT OTHER JOHN OR JAN DOE DEFENDANTS COULD HAVE BEEN
NEGLIGENT. THE COURT: BEEL LET YOU HAVE THE LAST WORD BUT I ASSURE YOU WE HAVE
THE ARGUMENT YOU RAISED. RUSSELL J. MALTA: I DON'T WANT TO DEBATE THE LANGUAGE.
I THINK I'VE SAID WHAT IT IS. YOU'RE GOING TO HAVE TO KEEP READING IT. I INTERPRET IT
DIFFERENTLY. THE COURT: THANK YOU MR. MALTA. RUSSELL J. MALTA:
THANK YOU, YOUR HONOR SFLFRNLTS MS. FLYNN. CHIEF JUSTICE RABNER: MISS FLIN
MS. FLYNN. CATHERINE J. FLYNN: YOUR HONORS, THERE HAS BEEN SIGNIFICANT AN
SUBSTANTIAL DISCUSSION ON THE MERITS OF THE CASE BY BOTH THE PETITIONER AND RESPONDENT.
SUFFICE IT TO SAY THAT WHATEVER THE COURT'S STIGS IS HERE WITH RESPECT TO THE FERREIRA
CONFERENCE BEING REQUIRED AND RESOLVING THIS MATTER, I THINK IT BEST FOR ME JUST TO FOCUS
ON SOME OF THE PRINCIPLES THAT APPLY WITH RESPECT TO WHY THE AFFIDAVIT OF MERIT STATUTE
WAS ENACTED TO FWIN WITH AND THE CIRCUMSTANCES AS THEY AFFECT PHYSICIANS AND THE PROVISION
OF PATIENT CARE. THE PLAINTIFF HAS REQUESTED CERTAIN RELIEF THAT HASN'T YET
BEEN ADDRESSED SO I WOULD JUST LIKE TO GO THROUGH SOME HAD COMMENTS ON THE PHYSICIAN'S
PERSPECTIVE HERE AND WHY THAT STATUTE IS IMPORTANT TO PHYSICIANS AND THE PUBLIC AT
LARGE AND THE PATIENT POPULATION THAT THEY PROVIDE CARE TO. THE AFFIDAVIT OF
MERIT STATUTE WAS ENACTED TO INSULATE HEALTHCARE PROVIDERS FROM BEING SUBJECT TO MERIT
LESS LIABILITY CLAIMS THAT ADVERTISE STRAKT FROM THE PROVISION OF CARE FROM THE PROFESSION
OF CARE IN NEED OF SAME. AN EROSION OF THE INTENT T AN MANDATE TO THE ACT
WILL HARM THE VERY PATIENTS THE LEGISLATION SEEKS TO PROTECT AND I CAN EXPLAIN HOW.
A PHYSICIAN'S TIME AN RESOURCES NECESSARY TO DEFEND AGAINST MERIT LESS
LITIGATION AS DEFINED BY THE ACT WILL INCREASE PRECIPITOUSLY AS FURTHER EXCEPTIONS TO
THE STATUTE ARE FOUND. NOW, COUNSEL FOR PETITIONER MADE A COMMENT THAT THE
MEDICAL SOCIETY WOULD HAVE YOU BELIEVE THERE SHOULD BE NO EXCEPTIONS; THAT'S NOT OUR
ARGUMENT. HERE, WA WE BELIEVE IS FERREIRA PROVIDES THIS COURT THE BASIS TO
TEEL WITH THE ISSUES IN THIS PARTICULAR MATTER, BUT WHEN MAKING A DECISION ON WHAT SHOULD BE
DONE, PLEASE KEEP IN MIND THE PHYSICIAN'S PERSPECTIVE. NOW, PLAINTIFF HAD
REQUESTED, IN A VERY BRIEF PARAGRAPH AT THE VERY END OF HER MOTION OR OPPOSITION TO OUR
MOTION FOR LEAVE TO APPEAR THAT THIS COURT DEVELOP TWO EQUITABLE DOCTRINES, ONE THE
TRIAL COURT'S FAILURE TO HOLD A TIMELY FERREIRA CONFERENCE, TOLD A PRO SE'S TIME FOR FILING
AN AFFIDAVIT OF MERIT AN NO. 2 A PLAINTIFF, PARTICULARLY A PRO SE PLAINTIFF MAY SEEK
RELIEF FROM THE AFFIDAVIT OF MERIT REQUIREMENTS WHEN THE DEFENDANTS ACT IN A CONFUSING
MANNER AS TO THE AFFIDAVIT OF MERIT REQUIREMENT. T. THOSE ARE THE EXCEPTIONS
OR EXTRAORDINARY CIRCUMSTANCES THAT WE DO TAKE EXCEPTION TO. WE THINK THERE IS ENOUGH
HERE FOR THE COURT, IF THE COURT WERE TO DECIDE THE FERREIRA CONFERENCE NOT HELD REQUIRES
THE CASE BEING SENT BACK, IT SHOULD END THERE. THERE ARE ESHS -- JUSTICE
PATTERSON: YOU'RE SUGGESTING WE SHOULDN'T ADOPT A LAWYER CONFUSION STANDARD.
CATHERINE J. FLYNN: PROBABLY NOT JUSTICE THAT WOULD -- YES, THAT WOULD WREEK HAVOC
THROUGHOUT THE SYSTEM I WOULD ASSUME. PHYSICIANS ARE PREJUDICED BY THE CONTINUED
FIENDING OF EXCEPTIONS TO THE AFFIDAVIT OF MERIT AND THAT'S WHAT THIS WOULD DO, A TOLLING
FOR PRO SE PLAINTIFFS OR FOCUSING ON PRO SE PLAINTIFFS. JUSTICE PATTERSON:
JUST TO MAKE CLEAR YOUR VIEW IS THAT THE EXTRAORDINARY CIRCUMSTANCES STANDARD, YOU'RE
NOT HERE TO SAY IT SHOULD BE ABOLISHED FLEN FLIN THAT'S NOT OUR POSITION. THAT'S NO ARGUMENT
THAT WE'VE MADE. I'M QUITE FRANKLY NOT SURE WHERE THAT CAME FROM ARE. BUT IN THIS
PARTICULAR CASE WE DID MAKE THE ARGUMENT AS ALREADY COVERED BY PETITIONER AND RESPONDENT
THAT IT HAS BEEN SATISFIED. MY FOCUS RIGHT NOW IS THAT TO GO FURTHER THAN
IS NAS AND BY GOING FURTHER, MEANING TOLLING A PRO SE PLAINTIFF'S TIME FOR FILING AN
AFFIDAVIT OF MERIT OR ALLOWING A PRO SE PLAINTIFF TO SEEK RELIEF OF THE AFFIDAVIT OF MERIT
REQUIREMENT WHEN THE DEFENDANTS ACT IN A CONFUSING MANNER. THAT'S SO AMBIGUOUS.
THE COURT: MS. FLYNN IF I COULD COULD HELP, WE UNDERSTAND YOUR ARGUMENT.
CATHERINE J. FLYNN: THANK YOU, YOUR HONOR. THE COURT: THANK YOU.
MS. HARVEY, DID YOU WANT TO OFFER REBUTTAL. CHRISTINA VASSILIOU HARVEY: YES, YOUR
HONOR. THE DEFENDANT HAD INDICATED AN INCORRECT STATEMENT OF THE LAW THAT WE
DON'T FOLLOW THE FEDERAL STANDARD FOR REQUIRING THE RECORD TO BE SUPPLIED, BUT HERE IS
WHAT WE DO REQUIRE. UNDER OUR UNIFORM INTERROGATORIES 4:17-1 B 2 A PARTY DEFENDANT
SERVES A COMPLAINT IN AN ACTION SUBJECT TO UNIFORM INTERROGATORIES AS THIS ONE IS SHALL
BE DEEMED TO HAVE BEEN SIMULTANEOUSLY SERVED WITH SUCH INTERROGATORIES. THE DEFENDANT
SHALL SERVE ANSWERS TO THE APPROPRIATE UNIFORM INTERROGATORIES WITHIN 60 DAYS AFTER SERVICE
BY THAT DEFENDANT OF THE ANSWER TO THE COMPLAINT. SO, HERE, WITHIN 60 DAYS,
BEFORE THE 120 WOULD HAVE RUN, MS. MOSCHELLA WAS ENTITLED TO THE ENTIRE RECORD NOT JUST
TWO PAGES SO FOR COUNSEL TO STAND UP HERE AND SAY WELL, SHE SHOULD HAVE HAD ALL OF THAT,
THAT GOES TO MY ARGUMENT L AS TO THIS CONFUSION OF COUNSEL. JUSTICE PATTERSON:
REMEEPD ME, COUNSEL. REMIND ME, COUNSEL, IS THE ATTACHMENT OF THE MEDICAL
RECORD PART OF THE INTERROGATORIES OR IS THAT A DOCUMENT -- CHRISTINA VASSILIOU
HARVEY: IT'S IN THE INTERROGATORIES, CORRECT. IT'S NO. 7 OF C-3, ATTACH A COMPLETE COPY
OF ANY WRITTEN RECORDS OR DOCUMENTS THAT YOU HAVE REGARDING PLAINTIFF SO IT WAS REQUIRED.
MRS. MOSCHELLA WAS PRO SE AND DIDN'T UNDERSTAND THAT SO WHEN THE TRIAL COURT
SAID WELL, YOU DIDN'T MAKE YOUR REQUEST IN TIME THAT ALSO WAS AN INCORRECT STATEMENT BY
THE TRIAL COURT. THE ISSUE THAT -- IN TERMS OF WHAT I WAS REALLY ASKING FOR
AS TO THIS CONFUSION STANDARD IS THAT HERE, THAT RECORD THAT WAS ATTACHED THAT SHE DID
HAVE SAID DR. CARSON WAS THE ATTENDING, THAT HE WAS SUPERVISING THE CARE. AND WHAT I
AM REALLY DRAWINGING IN THE YAG NEXT DECISION AT 467 N J SUPER 91 APPELLATE DIVISION 2021
AND WHAT I AM ASKING THIS COURT IS TO REALLY FLESH OUT FOR EXCEPTIONAL CIRCUMSTANCES THAT
WHEN THE DEFENDANT'S CONDUCT ADDS TO THAT CONFUSION THAT THEN PLAINTIFF DOESN'T
UNDERSTAND TO COMPLY BECAUSE HERE THE RECORD IS CLEAR FROM THE ORAL ARGUMENT THAT PLAINTIFF
DIDN'T UNDERSTAND CAN I JUST SUBMIT THIS AFFIDAVIT WITHOUT THE FERREIRA CONFERENCE AND
WHAT DO I DO WHEN CARSON WAS AN ATTENDING. JUSTICE PATTERSON: YOU WOULD
AGREE THAT OBVIOUSLY SOME CASES ARE BROUGHT BY PRO SE PLAINTIFFS. A DEFENDANT IS NOT
AN SHOULD NOT BE PUT IN ANY SITUATION OF TRYING TO ADVISE THE PLAINTIFF HOW TO PROCEED.
THAT'S A COMPLETE CONFLICT OF INTEREST AN ITS RELATIONSHIP WITH THE COURT. SO
YOU'RE NOT SUGGESTING THERE WAS SOME DUTY TO UNRAVEL FOR THE PLAINTIFF WHAT THIS WAS ALL
ABOUT. CHRISTINA VASSILIOU HARVEY: NO I AM SAYING FACTUALLY WHEN THE KUK
LED TO THE CONFUSION AND THE FAILURE TO COMPLY WITH THE STATUTE, THEN THAT FORMED THE
BASIS FOR EXCEPTIONAL CIRCUMSTANCES AS SET FORTH IN YAK KNEE. THE COURT:
IT IS PERHAPS MORE COMPLICATED IF YOU PHRASE IT THAT WAY BECAUSE I UNDERSTOOD COUNSEL
TO BE ARGUING CONFUSION IS HARDLY A RIGOROUS STANDARD THAT PEOPLE CAN OBJECTIVELY
INTERPRET. IF YOU HAVE MISCONDUCT BY THE OTHER SIDE, YOU CAN RAISE THAT AS A POINT, BUT
THE RELIEF THAT WAS ARTICULATED, MAY NOT BE QUITE THAT PRECISE. CHRISTINA
VASSILIOU HARVEY: BUT ALSO UNDER THE EXCEPTIONAL CIRCUMSTANCES IT IS NOT PRECISE IT'S
THE TOTALITY OF THE CIRCUMSTANCES CASE SO WHAT I AM SAYING IS THAT IN THIS CASE, HOW THIS
ALL UNFOLDED, PARTICULARLY DURING A DMROEBL PANDEMIC, THAT GLOBAL PANDEMIC IT CREATED
EXCEPTIONAL CIRCUMSTANCES SFLFRMENTS TO BE CLEAR I AM NOT SUGGESTING THERE WAS MISCONDUCT
IN THIS CASE. CHRISTINA VASSILIOU HARVEY: YOU DON'T HAVE TO REACH THE
MISCONDUCT BECAUSE THE EFFECT OF WHICH WAS CONFUSION UPON MRS. MOSCHELLA.
JUSTICE PATTERSON: PATH THERE IS NO ALLEGATION OF MISCONDUCT HERE JUST TO BE CLEAR.
CHRISTINA VASSILIOU HARVEY: CORRECT. IT IS JUST THE MANNER IN WHICH IT CREATED CONFUSION
OF ATTACHING SOMETHING THAT SAID HE'S THE ATTENDING BUT THEN SAYING HE IS NOT INVOLVED
LED TO THE CIRCUMSTANCES THAT SHE DIDN'T UNDERSTAND TO INCLUDE DR. CARSON IN THAT
AFFIDAVIT OF MERIT SO I THINK THE COURT HAS MY ARGUMENT AND I WOULD JUST POINT OUT THAT
MUCH OF WHAT MR. MALTA HAD ARGUED COULD HAVE BEEN RESOLVED IN THE RER RAR RA CONFERENCE
INCLUDING THAT PROBLEMATIC LANGUAGE THAT HE HAS. I THINK IT IS CLEAR AS DAY THAT DR.
SINGH WAS INCLUDED BUT TO THE EXTENT THAT THERE IS JUST A CONFUSION IN HOW IT'S FRAMED
THEN THAT'S THE POINT OF THE FER RAR RA CONFERENCE AND IN THIS CASE IT WORKED AN IN
JUSTICE. JUSTICE SOLOMON: MR. MALTA I WANT TO APOLOGIZE FOR LOSING MY TEMP
ER YOU WERE VERY PROFESSIONAL IN THE WAY YOU HANDLED IT. THE COURT: MR.
MALTA I WILL ADD TO THAT HOWEVER THIS CASE COMES OUT IT IS CLEAR THAT THE HOSPITAL HAS
CAPABLE COUNSEL REPRESENTING THEM. RUSSELL J. MALTA: THANK YOU SFLFRNLTS
THANK YOU AGAIN MS. FLYNN AND MS. HARVEY YOU TOOK THIS CASE AT APPOINTMENT OF THE COURT
AND APPEARED HERE TODAY PRO SE AS PART OF THE FINEST TRAD DISHGSZ OF THE BAR AND WE
APPRECIATE THAT. THE COURT: PRO BONO. THE COURT:
CHRISTINA VASSILIOU HARVEY: THANK YOU.