Fernandez v. Jersey City Medical Center

These consolidated appeals constitute one medical malpractice action that presents yet another unresolved question concerning application of the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29: if the negligent act is committed before the effective date of the statute, but by virtue of the discovery rule the cause of action does not accrue until after the effective date of the statute, is a plaintiff obligated to file and serve an affidavit of merit? We, like the trial judge who denied defendants’ motions to dismiss for failure to submit an affidavit of merit, conclude that plaintiffs are not so obligated on these facts. We believe Cornblatt v. Barow, 153 N.J. 218 (1998) directs such a result although the defendants also rely on Cornblatt in arguing for the opposite conclusion.

For present purposes, the parties agree that the alleged negligence concerning the diagnosis of Adriana Fernandez’s breast cancer happened prior to June 29, 1995, the effective date of the Affidavit of Merit statute. L. 1995, c. 139, � 5. The negligence was not discovered by plaintiffs until after that date, sometime in 1996. Suit was initiated in February 1998, within two years of discovering the basis for an actionable claim. The precise dates of these events are not essential to a decision of the question before us.