M.M. v. Atl. Health Sys.

1

M.M., Plaintiff-Appellant, v. ATLANTIC HEALTH SYSTEM, INC., OVERLOOK MEDICAL CENTER, MEDKEY LLC, RWJ BARNABAS HEALTH, INC., SAINT BARNABAS MEDICAL CENTER, MICHAEL TYSHKOV, MARIA TYSHKOV, ALLA GORDINA, M.D., NORTHWELL HEALTH, INC., STATEN ISLAND UNIVERSITY HOSPITAL, and PHYSICIANS OF UNIVERSITY HOSPITAL, P.C., Defendants-Respondents.

No. A-2218-22

Superior Court of New Jersey, Appellate Division

August 30, 2023

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued May 23, 2023

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5687-21.

Michael S. Misher (Zarwin, Baum, Devito, Kaplan, Schaer Toddy, PC) of the Pennsylvania bar, admitted pro hac vice argued the cause for appellant (Zarwin, Baum, Devito, Kaplan, Schaer, Toddy, PC, attorneys; Jay M. Leffler and Scott Zlotnick, on the brief).

Gary L. Riveles argued the cause for respondent Alla Gordina, M.D. (MacNeill, O'Neill, Riveles &Spitzer, LLC, attorneys; Anelia Dikovytska Brown, on the brief).

Before Judges Gilson, Rose, and Gummer.

PER CURIAM

Plaintiff M.M. alleged defendant Alla Gordina, M.D., "possessed information that would reasonably make her believe" defendant Michael Tyshkov (Tyshkov), a pediatric gastroenterologist, "was being inappropriate with and/or assaulting his female patients."^[1] Plaintiff asserted Gordina was negligent in failing to report Tyshkov to the Division of Child Protection and Permanency (DCPP) pursuant to N.J.S.A 9:6-8.10. With our permission, plaintiff appeals from a November 30, 2022 order granting Gordina's motion to dismiss the claim against her based on plaintiff's failure to provide an affidavit of merit pursuant to the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29. Because the motion judge erred in finding plaintiff was required to provide an affidavit of merit regarding her failure-to-report claim against Gordina, we reverse and remand.

I.

On July 21, 2021, plaintiff filed a complaint against defendants Tyshkov, Maria Tyshkov, Medkey LLC, Atlantic Health System, Inc., Overlook Medical Center, RWJ Barnabas Health, Inc., and Saint Barnabas Medical Center. She alleged Tyshkov, who began to treat plaintiff in 2007 when she was nine-years old, had sexually assaulted her when she was eighteen-years old during an April 2016 examination and on several other occasions. According to plaintiff, Tyshkov was arrested on March 29, 2019, and pleaded guilty to two counts of fourth-degree criminal sexual contact and one count of endangering the welfare of a minor on December 3, 2020.

On February 9, 2022, plaintiff amended her complaint, naming Gordina as a defendant. In count VIII, entitled "NEGLIGENCE AND GROSS NEGLIGENCE," plaintiff alleged Gordina had possessed information in late 2017 or early 2018 "that would reasonably make her believe . . . Tyshkov was being inappropriate and/or assaulting his female patients." Plaintiff asserted Gordina had failed to fulfill a mandatory duty under N.J.S.A. 9:6-8.10 to report Tyshkov's misconduct to DCPP. Plaintiff subsequently filed another amended complaint, naming additional defendants. Gordina filed an answer, demanding plaintiff provide an affidavit of merit, and subsequently moved to dismiss, with prejudice, plaintiff's claim against her based on plaintiff's failure to provide an affidavit of merit.

In opposition to the motion, plaintiff submitted her counsel's certification, in which he asserted plaintiff had learned about Gordina's knowledge of Tyshkov's actions after the prosecutor's office provided him with the non-privileged portion of its criminal investigation file regarding Tyshkov. According to plaintiff's counsel, after Tyshkov's arrest, two other people came forward, alleging he had sexually assaulted them during gastroenterological examinations. Plaintiff's counsel certified that the mother of one of the other alleged victims had informed investigators that she told Gordina, who was her child's pediatrician, Tyshkov had looked down her child's pants without another adult present. That mother allegedly asked Gordina, "if it was normal that Dr. Tyshkov was looking at [her] private parts without a nurse present." Gordina allegedly responded that "it was normal," but the patient had the right to refuse the examination. Plaintiff's counsel stated the mother had told investigators that about ten minutes after that conversation ended, Tyshkov called her, told her Gordina had told him about their conversation, and said he understood her concerns. Gordina purportedly told police: the mother had expressed concern Tyshkov had seen her child alone; Gordina responded that seeing the child alone was "weird"; and Gordina told the mother she would reach out to Tyshkov. Gordina also allegedly told police Tyshkov had informed her he did not have someone else in the room with him when he conducted the examination because he was short-staffed.

After hearing argument on November 30, 2022, the motion judge placed a decision on the record granting the motion based on her conclusion plaintiff was required to provide an affidavit of merit regarding her failure-to-report claim against Gordina. The motion judge found, "[t]his is a situation where . . . the fact finder has to know what the standard of care is." The judge also said she did not "see a separate cause of action for a failure to report." The judge issued an order granting the motion to dismiss "for failure to provide an [a]ffidavit of [m]erit."

In an order dated January 31, 2023, the judge denied plaintiff's reconsideration motion. In an attached statement of reasons, the judge held:

Since [p]laintiff has alleged personal injuries a properly qualified medical expert must opine as to the standard of care applicable to Dr. Gordina with respect to her duty if any, under N.J.S.A. 9:6-8.10. The Affidavit of Merit [Statute] is applicable to claims of negligence such as the claims asserted [against Gordina] in . . . [p]laintiff's [a]mended [c]omplaint. A qualified expert would have to opine on whether receiving information from a pediatric patient's parent regarding another medical provider's failure to utilize a chaperone during a physical examination would trigger the reporting requirement of N.J.S.A. 9:6-8.10.

The judge also stated "N.J.S.A. 9:6-8.10 does not establish an independent cause of action."

On leave granted, plaintiff contends no doctor-patient relationship existed between plaintiff and Gordina; thus, plaintiff cannot and did not assert a medical-negligence claim against Gordina and was not required to provide an affidavit of merit regarding the "simple negligence" claim against her. Plaintiff also argues the judge erred in finding no civil cause of action exists under N.J.S.A. 9:6-8.10.

In response, Gordina argues the judge correctly found plaintiff was required to provide an affidavit of merit regarding her claim against Gordina because plaintiff sought damages for personal injuries allegedly caused by the negligence of a licensed physician. Gordina contends plaintiff's allegations require proof Gordina deviated from the applicable standard of care. Gordina also asserts plaintiff cannot sue Gordina in an "individual capacity" under N.J.S.A. 9:6-8.10 because the language of the statute does not expressly create a civil cause of action. Further, Gordina argues she did not owe any duty of care to plaintiff given that, as plaintiff concedes, she and plaintiff had no doctor-patient relationship.

II.

We review de novo orders on motions to dismiss based on a failure to comply with the Affidavit of Merit Statute, Hoover v. Wetzler, 472 N.J.Super. 230, 235 (App. Div. 2022), in part because they involve a legal determination, specifically "the statutory interpretation issue of whether a cause of action is exempt from the affidavit of merit requirement," Cowley v. Virtua Health Sys., 242 N.J. 1, 14-15 (2020), and in part because they involve a dismissal of a complaint for failure to state a claim. "The submission of an appropriate affidavit of merit is considered an element of the claim." Meehan v. Antonellis, 226 N.J. 216, 228 (2016); see also N.J.S.A. 2A:53A-29. Thus, "[f]ailure to submit an appropriate affidavit ordinarily requires dismissal of the complaint with prejudice." Ibid.; see also Cowley, 242 N.J. at 16 (noting our Supreme Court has construed the Affidavit of Merit Statute "to require dismissal with prejudice for noncompliance").

The Affidavit of Merit Statute requires:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within [sixty] days following the date of filing of the answer to the complaint by the defendant, provide 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, fell outside acceptable professional or occupational standards or treatment practices.

[N.J.S.A. 2A:53A-27.]

A "licensed person" includes a "physician in the practice of medicine or surgery." N.J.S.A. 2A:53A-26(f). Plaintiff does not dispute Gordina falls within that definition. Instead, plaintiff contends she is suing Gordina in her personal, not professional, capacity.

Not every claim against a licensed person requires an affidavit of merit. "[A]n affidavit will only be needed when the underlying harmful conduct involves professional...