Justice Jaynee LaVecchia.

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 on Dec. 14 in A.T. v. Cohen, the court said a medical malpractice case should not have been dismissed when an out-of-state attorney, who was admitted to practice in New Jersey but apparently unaware of New Jersey's filing deadlines, failed to file a timely affidavit of merit.

Going forward, wrote Justice Jaynee LaVecchia for the court, the judiciary will be responsible for notifying parties in malpractice actions of their deadline obligations.

“[A]dvancements in our automated case management system will permit electronic notification of (1) the [affidavit of merit] filing obligation and (2) the scheduling” of conferences to determine the validity of the affidavits, LaVecchia said.

The lawsuit at hand stems from the May 11, 2011, birth of a child, identified only as A.T., at Newark Beth Israel Hospital. The action against the hospital, four doctors and other involved personnel alleged that their malpractice led to A.T. being born with Erb's palsy.

The child's mother, identified as T.T., filed the suit on behalf of her child on Sept. 25, 2013. The defendants filed their answer on Dec. 5, 2013, and demanded the filing of affidavits of merit against the defendants.

Under New Jersey statute, plaintiffs have 60 days from the filing of an answer to a professional malpractice claim to file an affidavit of merit attesting to the legitimacy of the claim. The Legislature enacted the statute in an effort to quickly weed out non-meritorious claims. Judges are allowed, on request, to give plaintiffs another 60 days to file an affidavit, according to the statute.

In 2003 in Ferreira v. Rancocas Orthopedic Associates, the court mandated that hearings be held to determine whether affidavits have been properly filed and if they met statutory requirements—such as the requirement that they be authored by a professional licensed in the same or an equivalent field.

The plaintiffs' attorney at the time—whom the court and the lawyers involved now have declined to identify—failed to comply with the statute, and no one else moved to schedule a Ferreira conference, according to the decision.

A trial judge eventually dismissed the complaint for failure to comply with the statute, and the mother appealed. An appeals court, in a 2-1 ruling, affirmed the trial court's decision. An appeal to the Supreme Court followed.

The court reversed, reinstating the suit.

LaVecchia said a presumably valid complaint should not have been dismissed because of a lawyer's noncompliance with a statute.

“The court is persuaded that equitable relief should be afforded to plaintiff,” LaVecchia said.

The court, however, issued a warning that all efforts should be made to comply with the affidavit of merit statute even with the new notification methods, which are to be developed by the state Administrative Office of the Courts.

“[C]ounsel are on notice that disregarding the scheduling of the [Ferreira] conference will not provide a basis for relief from [statutory] obligations,” LaVecchia said.

The family's attorney, Alan Roth, said the court is setting clear guidelines for attorneys' requirements to properly comply with the statute.

“This case would not have been dismissed had there been a Ferreira conference,” said Roth of Bendit Weinstock in West Orange.

Both the New Jersey Association for Justice, the state's main plaintiff bar organization, and the New Jersey Physicians United Reciprocal Exchange participated as amici.

Lawyers for both groups said the court's decision to have the AOC take a more proactive role in notifying lawyers of their obligations under the statute is a positive one.

“The court is not going to allow an injustice just because the trial court didn't do what he or she was supposed to do,” said the NJAJ's attorney, Thomas Comer, of Lomurro, Munson, Comer, Brown & Schottland in Freehold.

Eric Poe, who represented New Jersey Physicians Reciprocal Exchange, said that while he disagreed with the court's ruling in this case, he agrees with the philosophy behind the court's broader holding.

No valid cases should be dismissed because an attorney “fell asleep behind the wheel,” said Poe, who runs a firm in Princeton. Nevertheless, Poe added, an attorney who focuses his or her practice on malpractice cases “should be knowledgeable of the rules.”

The attorney for the defendants, Lauren Strollo of Union's Vasios, Kelly & Strollo, did not return a call seeking comment.