New Jersey Supreme Court Justice Faustino J. Fernandez-Vina. Photo: Carmen Natale/ALM

The state Supreme Court has ruled that a third-party defendant in a medical malpractice suit  facing contribution and common-law indemnification claims made by a defendant—even one lacking an affidavit of merit—must participate in the underlying liability trial.

The court's unanimous ruling Monday stems from plaintiff Samuel Mejia's lawsuit against Quest Diagnostics and Dr. Simon Santos for allegedly failing to detect his late wife Tania's cervical cancer. Quest, in turn, filed a third-party complaint against Tania's doctor, Dr. Jacinto Fernandez.

Fernandez argued that since he was not sued by the plaintiff, and because an affidavit of merit was never served on him by any party, he should not have been included in the litigation, according to Supreme Court Justice Faustino Fernandez-Vina's opinion.

The doctor pointed to Burt v. West Jersey Health Systems, in which defendants in a similar case were dismissed for failure to timely serve an affidavit.

However, Fernandez-Vina, noting that the trial court denied Fernandez's request, distinguished the cases because the defendants in Burt were "dismissed meritoriously."

"We agree and affirm" the trial court and Appellate Division, Fernandez-Vina said. "Third-party defendants are subject to the contribution claims filed against them by joint tortfeasors, unless there exists a right to a dismissal of the claims against them.

"Here, Fernandez fails to present a meritorious right to dismissal. Fernandez is therefore an active third-party defendant who must participate at trial," the justice wrote.

Fernandez-Vina said it was undisputed that Quest properly filed a third-party complaint.

"Pursuant to that claim for contribution, Fernandez is an active party in the litigation as a joint tortfeasor, regardless of plaintiff's decision not to file an affirmative claim against Fernandez. Therefore, a trial is necessary for the trier of fact to determine the allocation of percentage of negligence to each defendant," Fernandez-Vina said.

"While plaintiff cannot recover from Fernandez directly," he continued, "we agree with the Appellate Division that if the trier of fact determines defendants Quest or Santos to be sixty percent or more at fault, then plaintiff can recover the full amount of damages from that party,  and if Fernandez is found to be between one and forty percent at fault, then he would be liable for his percentage of fault in contribution to the party that paid the full amount of damages to plaintiff."

Brian Mahoney of Blume, Forte, Fried, Zerres & Molinari represents Mejia and did not respond to a request for comment.

William Brennan of The Law Office of William L. Brennan represents Fernandez and also did not respond to a request for comment.