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Plaintiff’s Complaint Saved Notwithstanding Attorney’s Failure to Timely File Affidavit

December 28, 2017

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A decision by the New Jersey Supreme Court requires judiciary administrators to begin notifying parties litigating professional malpractice claims of their statutory obligations to file affidavits of merit and to schedule hearings to determine whether those affidavits are satisfactory.  In a unanimous ruling in <a href="http://njcourts.gov/attorneys/assets/opinions/supreme/a_12_16.pdf"><em>A.T. v. Cohen</em></a>, the court held that a medical malpractice case should not have been dismissed when an out of state attorney, admitted to practice in New Jersey but unaware of New Jersey’s filing deadlines, failed to file a timely affidavit of merit.
The judiciary will now be responsible for notifying parties in malpractice actions of their deadline obligations.  The judiciary will use its newly implemented e-filing system to electronically notify malpractice plaintiffs of their obligation to file an affidavit of merit within sixty days from the filing of defendant’s answer to the complaint.  The judiciary will also notify litigations of the scheduling of mandatory conferences to determine the validity of the affidavits (known as <em>Ferreira </em>conferences).
The <em>Cohen </em>case arose from the birth of a child and the alleged malpractice of doctors and a hospital leading to the child’s birth defect.  The plaintiff’s attorney at the time failed to comply with the statute requiring the filing of an affidavit of merit.  As a result, the trial court dismissed plaintiff’s complaint.  The Appellate Division affirmed, but the Supreme Court reversed, holding that equitable relief should be afforded to plaintiff.  The Supreme Court was persuaded that a presumably valid complaint should not be dismissed because of a lawyer’s non-compliance with a statute.
Going forward, attorneys are on notice that disregarding the scheduling of a <em>Ferreira </em>conference will not provide a basis for relief from statutory obligations.
Thanks to Michael Noblett for his contribution to this post.
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