Warning: the underlying facts and procedural history are cringeworthy. This is the saga of a medical malpractice case which is dismissed, leading to a legal malpractice case, which is wrongfully dismissed, leading to an Appellate Division case which exposes all the flawed decision-making.

Plaintiff died, allegedly of bedsore complications in a Jersey City nursing home in 2012. His daughter, as the representative of her father’s estate, retained defendant attorney to handle the medical malpractice case against the nursing home.

Defendant had never handled a medical malpractice case, but in preparation for this matter he read a book and researched the Affidavit of Merit (AOM) statute. Believing no AOM was necessary, defendant filed the complaint in 2013. He “initiated the action without conducting an investigation, a medical records review, or consulting with any experts before or after the complaint was filed.” (Opinion at 4). In April of 2014 the complaint was dismissed with prejudice for failing to file an AOM. Defendant then advised plaintiff she may have a cause of action against him for legal malpractice.

On May 26, 2017 plaintiff filed a legal malpractice complaint against defendant attorney. The Discovery End Date (DED) was September 15, 2018. Plaintiff sought to extend it by 60 days by consent, but defendant refused to consent. After a motion, the DED was extended to November 13, 2018.

The deposition of defendant attorney was compelled, with the order additionally providing that plaintiff and defendant serve expert reports by September 13, 2018 and October 13, 2018 respectively. A trial date was set for January 28, 2019.

Pursuant to the “case within a case” doctrine, plaintiffs’ medical malpractice expert report was timely filed opining the bedsores were a proximate cause of death. Defendant objected to this report saying it was prejudiced by this new late theory, which plaintiff countered was not new at all. Plaintiff’s legal malpractice report was filed five weeks past the deadline, and defendant did not allege any prejudice.

Defendant moved for summary judgment alleging the medical malpractice report created a new theory of negligence. Plaintiff cross-moved for a short extension of the DED and a short adjournment of the trial date. On the return date for both motions, defendants’ motion for summary judgement was heard before the trial judge, and plaintiffs’ cross motion to extend the DED and adjourn the trial date was heard before the Civil Presiding Judge.

The cross-motion was heard first by the Presiding Judge and denied in an opinion the Appellate Division characterized as containing “little more than his fleeting comments, and not the analysis required”. (Opinion at 4).  An hour later the trial judge granted the summary judgment motion in an “opinion” characterized by the Appellate Division as “terse” and lacking the requisite findings. (Opinion at 5). The Appellate Division reversed and remanded for trial, stressing that justice and not expediency should be the goal.

Bottom line? Plenty of mistakes abound here and many lessons. Medical malpractice is not an area to dabble in. AOMs are critical and highly technical. There should be solid documented reasons if expert reports cannot be submitted timely. (The need to move to compel a critical fact deposition and the illness of plaintiffs’ counsel’s father were cited as factors here). Judges need to keep their eye on the principles of fairness. (Admittedly, this can be difficult when they are under oftentimes relentless pressure to move their cases in a timely and efficient manner. Those pressures can be internal, borne from worries about reappointment or fear of appearing weak or indecisive, or from the management style of a Presiding Judge, or of an Assignment Judge, or of the AOC, or all of the above.)

The Estate of McClenton v. Anthony Carbone, Esq., 2019 WL 7183680, Decided December 26, 2019