RAYMOND TREPKAU VS. ST. CLARE'S HOSPITAL(L-1686-14, MORRIS COUNTY AND STATEWIDE)
A-4069-14T4
N.J. Super. App. Div. UAug 24, 2017Background
- Trepkau filed a fictitious-party complaint alleging ER medical and nursing malpractice against St. Clare's Hospital for June 11, 2013 care.
- An affidavit of merit under N.J.S.A. 2A:53A-27 to -29, via Dr. Bojko, preceded proceedings.
- On March 2, 2015, the trial court dismissed the complaint without prejudice for affidavit deficiencies in an off-record, unmemorialized discussion.
- A second affidavit of merit was served March 19, 2015; plaintiff sought reinstatement/amendment.
- May 5, 2015 the court dismissed the complaint with prejudice for failure to satisfy the affidavit requirements; no written reasons were provided.
- The Appellate Division reversed and remanded for a proper Ferreira conference and subsequent discovery and motion practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Ferreira conference properly conducted on the record and memorialized? | Trepkau argues the Ferreira conference was not conducted on the record. | St. Clare's contends the court conducted a Ferreira conference as required. | Remand for a proper on-record Ferreira conference. |
| Was the dismissal with prejudice appropriate given the Ferreira process deficiencies? | Plaintiff contends dismissal with prejudice was premature without proper proceeding. | Hospital argues the affidavit deficiencies warranted dismissal with prejudice. | Remand to assess extraordinary circumstances and whether prejudice dismissal was proper. |
| Can a plaintiff pursue an ordinary negligence claim against nurses under the common knowledge doctrine after an affidavit-of-merit issue? | Plaintiff asserts ordinary negligence may proceed where expert testimony is not required. | Nurses are licensed professionals; affidavit requirements may apply. | Dismissal of ordinary negligence claim with prejudice was erroneous; remand to assess viability. |
Key Cases Cited
- Meehan v. Antonellis, 226 N.J. 216 (2016) (Ferreira conference purpose and preparation directives)
- Hubbard v. Reed, 168 N.J. 387 (2001) (common knowledge doctrine permits ordinary negligence claims without an affidavit)
- Buck v. Henry, 207 N.J. 377 (2011) (affidavit of merit requirements; no extraordinary circumstance absent)
- Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998) (draconian effect of dismissal with prejudice under affidavit statute)
- Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198 (App. Div. 2000) (statutory purpose to weed out frivolous actions without denying meritorious claims)