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Aster v. Shoreline Behavioral Health

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 13, 2001

In this appeal, we apply N.J.S.A. 2A:53A-28, a provision of the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to 29, and we do so in the context of the right of a patient or the patient’s legal representative to obtain his or her own medical records. Plaintiff, well before the institution of suit, and therefore before the running of the time for filing an affidavit of merit pursuant to N.J.S.A. 2A:53A-27,*fn1 requested that Shoreline Behavioral Health, now a defendant in this action, provide medical records that plaintiff contends had a substantial bearing on the preparation of an affidavit of merit. To support these requests, plaintiff supplied Shoreline with appropriate signed authorizations. Plaintiff also requested medical records by serving a formal notice to produce following the start of this litigation. Shoreline, however, never furnished the requested documents, either before or after suit was instituted, but it eventually moved to dismiss the complaint for failure to provide an affidavit of merit assertedly required by the statute. The Law Division dismissed the action. We reverse, holding that, in the circumstances before us, the records requested by plaintiff presumptively had a substantial bearing on the ability to prepare an affidavit of merit, Shoreline did not establish a basis for a contrary finding, and plaintiff timely complied with N.J.S.A. 2A:53A-28, which in prescribed conditions alleviates the requirement of filing an affidavit of merit.*fn2

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