The opinion of the Court was delivered by STEIN, J.
This appeal invites our consideration of whether pre-suit depositions may be authorized pursuant to the Rules Governing Civil Practice to assist plaintiffs contemplating filing malpractice actions in complying with the requirements of the recently-enacted Affidavit of Merit Statute. L. 1995, c. 139 (codified at N.J.S.A. 2A:53A-26 to -29).
On the petition of Sandra Hall, guardian ad litem of Woodrow Hall, the Law Division ordered pre-suit depositions of various health care professionals pursuant to Rule 4:11-1. The Appellate Division summarily affirmed. We granted certification, 143 N.J. 517, 673 A.2d 276 (1996), and stayed the depositions. While the appeal was pending, Sandra Hall, individually and as guardian ad litem for Woodrow Hall and their minor children, filed suit against Burdette Tomlin Medical Center, several health care professionals, and various fictitious-name defendants. In the course of that litigation, plaintiffs have already deposed Dr. Robert Salasin, John D. Marstella, C.R.N.A., Dr. Baltazar Rodericks, and Dr. Ashokkumar Patel, the prospective defendants that previously had been
I
The medical malpractice action filed subsequent to the Rule 4:11-1 petition for pre-suit depositions involves injuries sustained by plaintiff Woodrow Hall during surgery at Burdette Tomlin Memorial Hospital (BTMH) in August 1995. Hall was admitted to the emergency room at BTMH on August 15, 1995, after a surfing accident in which he lacerated the jugular vein on the left side of his neck. During the surgery to repair the laceration, Hall suffered cardiac arrest and was without oxygen for more than ten minutes. Hall currently is a patient at Mediplex Rehabilitation Center in Camden and remains in a low-level cognitive state.
Shortly after surgery, Dr. Robert Salasin, Hall's surgeon, informed members of Hall's family that he believed the cardiac arrest during surgery was caused by a problem with the endotracheal tube inserted in Hall to facilitate anesthesia. Hall's family then retained counsel in order to determine whether Hall's permanent brain damage was caused by the negligence of any of the health care professionals who participated in the surgical procedure. Hall's counsel obtained the BTMH operative records, that were stamped "incomplete," and contained an anesthesia record that was substantially illegible. The anesthesia record contained no legible indication of any irregularity concerning the endotracheal tube and the operative records did not explain why cardiac arrest occurred during surgery. Hall's counsel attempted to meet with Dr. Salasin, but Dr. Salasin's attorney advised him not to discuss the matter.
The Law Division granted the petition, ordering that the depositions be conducted within twenty days. The prospective deponents appealed to the Appellate Division, which denied a stay of the depositions pending appeal. This Court, however, granted a stay. (Apparently, Dr. Salasin did not seek a stay of his deposition, which was taken on October 18, 1995.) The Appellate Division granted Woodrow Hall's motion for summary disposition, affirming the order of the Law Division granting pre-suit depositions. We granted the petition for certification filed by the prospective deponents, and again stayed the depositions.
Subsequently, in February 1996, suit was instituted on behalf of Woodrow Hall and his dependents against BTMH and various health care providers. In that proceeding, the deposition of defendant John D. Marstella began on March 29, 1996; the deposition of Dr. Roderick was taken on April 28, 1996; and the deposition of Dr. Patel was taken on July 1, 1996. Although the hospital records are silent about any problem concerning fluid replacement during surgery, counsel for Woodrow Hall asserts that both Dr. Rodericks and Nurse Marstella testified that Hall needed fluid replacement during surgery, and that Dr. Salasin ordered that blood sent to the operating room for Hall be returned to the blood bank. Dr. Rodericks expressed the view that Hall's blood loss and lack of fluid replacement contributed to his cardiac arrest.
In addition, Hall's counsel alleges that although the hospital records omit any mention of replacement of the endotracheal tube during surgery, both Dr. Salasin and Dr. Patel, the anesthesiologist who entered the operating room during Hall's surgery, confirmed that the tube was replaced. Dr. Patel testified that he changed the tube because the carbon dioxide monitor registered a zero reading and he detected no breath sounds from Hall's lungs. Marstella and Rodericks confirmed that the tube was replaced
After several of the health care defendants filed answers to the complaint, counsel for Woodrow Hall sought an order declaring that the requirement to file an affidavit of merit was waived because of defendants' failure adequately to provide requested medical records, or extending the time to file the affidavits. The Law Division declined to excuse filing of the affidavits of merit, but extended the time for filing. The Appellate Division denied leave to appeal. This Court stayed the order of the Law Division requiring filing of the affidavits of merit in the pending action.
II
A. Rule 4:11-1
Relying on Rule 4:11-1, the Law Division ordered pre-suit depositions of several health care providers identified by plaintiff's counsel as individuals likely to possess knowledge about whether Woodrow Hall's injuries were caused by malpractice. The petition alleged that plaintiff was unable to file suit without ascertaining in advance through depositions what had transpired in the operating room, and that compliance with the affidavit of merit statute would be extremely difficult without pre-suit depositions.
Rule 4:11-1 provides in part as follows:
We note that Rule 4:11-1 is substantially identical to Rule 27(a) of the Federal Rules of Civil Procedure (FRCP), its principal difference from FRCP 27(a) deriving from its authorization to perpetuate documentary evidence as well as testimony. Because our Rule 4:11-1 was based on FRCP 27(a), reference to federal decisions addressing the scope and application of FRCP 27(a) informs our understanding of the intended use of Rule 4:11-1. See Freeman v. Lincoln Beach Motel, 182 N.J.Super. 483, 485, 442 A.2d 650 (Law Div. 1981).
The federal court decisions applying FRCP 27(a) uniformly hold that the rule's authorization of pre-suit depositions was not designed to assist plaintiffs in framing a cause of action, but was intended for cases in which there existed a genuine risk that testimony would be lost or evidence destroyed before suit could be filed and in which an obstacle beyond the litigant's control prevents suit from being filed immediately. Thus, in In re Ferkauf, 3 F.R.D. 89 (S.D.N.Y. 1943), the petitioner alleged an intention to file suit against his former employer to recover unpaid overtime as well as minimum wages, and sought pre-suit depositions to ascertain the dates and times that he had worked in order to acquire the facts necessary to permit the filing of a complaint. In denying the petition, the court noted that the Advisory Committee that drafted the Federal Rules of Civil Procedure intended FRCP 27(a)
Similarly, in In re Johanson Glove Co., 7 F.R.D. 156 (E.D.N.Y. 1945), the petition for pre-suit depositions alleged that the prospective plaintiff required depositions in advance of suit to determine whether to file a complaint seeking legal or equitable relief. Rejecting the petition, the court observed that
Thus, the federal courts consistently deny FRCP 27(a) petitions filed to ascertain evidence on which to base a cause of action, and require as a prerequisite to the grant of FRCP 27(a) petitions a showing that testimony is in danger of being lost unless depositions are taken immediately. See, e.g., Ash v. Cort, 512 F.2d 909, 913 (3d Cir.1975) (affirming denial of FRCP 27(a) petition requesting perpetuation of testimony based only on conclusory allegation that corporate officers and directors of prospective defendant are over fifty years of age with fading memories); In re Sims, 389 F.2d 148, 149-51 (5th Cir.1967) (reversing denial of FRCP 27(a) petition where petitioners were barred from filing federal habeas corpus petitions until state remedies were exhausted and essential
Those states that have adopted a pre-suit deposition rule patterned after FRCP 27(a) generally have followed the criteria relied on by federal courts in resolving pre-suit applications to perpetuate testimony. See, e.g., In re Miranne, 626 So.2d 744, 745 (La. App. 1993) (denying petition to perpetuate testimony where petitioner's admitted purpose was to use deposition in effort to establish grounds for suit); Powers v. Planned Parenthood, 677 A.2d 534, 537-38 (Me. 1996) (affirming order to perpetuate testimony where prospective plaintiff was afflicted with cancer, had two weeks to live, and could not file suit until malpractice pre-litigation screening panel had reviewed claim and made recommendation); Allen v. Allen, 105 Md.App. 359, 659 A.2d 411, 418-19 (1995)
The only other reported decision in this state to consider the appropriate use of Rule 4:11-1 applied the rule in a manner consistent with the analogous federal and out-of-state decisions. In Sturm v. Feifer, 186 N.J.Super. 329, 452 A.2d 686 (App.Div. 1982), decedent's will left his estate to his second wife. Decedent's children from his first marriage alleged that an agreement existed between their late father and his second wife to make reciprocal wills pursuant to which the second wife would leave her estate to the children. Believing that the second wife would not fulfill the alleged contract or would change her will to disinherit them, the children filed a Rule 4:11-1 petition to depose the drafter of their father's will and a witness who allegedly had knowledge of the agreement to make reciprocal wills. The drafter and the witness were the only sources of evidence that petitioners had to prove the existence of the agreement. Clearly, petitioners could not file a
Occasional criticism has been expressed about the restrictive manner in which FRCP 27(a) and its state counterparts have been applied. See Nicholas A. Kronfeld, The Preservation and Discovery of Evidence Under Federal Rule of Civil Procedure 27, 78 Geo. L.J. 593, 621 (1990) (urging expanded use of pre-suit depositions in cases requiring specific allegations of fault in or contemporaneously with initial pleading and in which requisite facts cannot be discovered without pre-suit depositions). A North Dakota Supreme Court Justice has criticized the federal decisions that preclude use of FRCP 27(a) to establish facts necessary to frame a cause of action:
Similarly, a Minnesota Supreme Court Justice urged that that state's pre-suit deposition rule be applied more flexibly to facilitate compliance with Minnesota's affidavit of merit statute:
B. Affidavit of Merit Statute
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, on which Woodrow Hall relies in asserting the need for pre-suit depositions in this and similar cases, applies to actions for damages for personal injuries, wrongful death or property damage resulting from malpractice or negligence by a licensed person engaged in his profession or occupation. The term "licensed person" includes accountants, architects, attorneys, dentists, engineers, physicians, podiatrists, chiropractors, professional nurses and health care facilities. See N.J.S.A. 2A:53A-26. The statute mandates that in suits to which the statute applies the plaintiff, within sixty days of the filing of an answer to the complaint by each defendant, must provide that defendant with an affidavit by a qualified licensed expert in the professional field involved in the action certifying "that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. For good cause, a court may grant one extension of time for filing the affidavit, not to exceed sixty days. Ibid. Failure to file an affidavit of merit concerning a specific defendant constitutes a failure to state a cause of action against that defendant. N.J.S.A. 2A:53A-29. No affidavit of merit shall be required if the plaintiff files a sworn statement certifying (1) that the plaintiff, by certified mail or personal service, requested the defendant in question to deliver medical records or information having a substantial bearing on preparation of the affidavit and enclosed an authorization for release of the records, and (2) that the defendant failed to deliver the requested records or information notwithstanding the passage of forty-five days since service of the request. N.J.S.A. 2A:53A-28.
III
Our thorough review of the federal cases applying FRCP 27(a) and the state cases implementing state rules of practice based on FRCP 27(a) demonstrates that Rule 4:11-1 was not intended to authorize pre-suit discovery for the sole purpose of assisting a prospective plaintiff in acquiring facts necessary to frame a complaint. The weight of authority throughout the country compels the conclusion that the Law Division's pragmatic application of Rule 4:11-1 in order to facilitate plaintiff's compliance with the Affidavit of Merit Statute was inconsistent with the prevailing understanding of the Rule's intended use. That understanding reveals that a plaintiff's possible inability to plead a cause of action, or to comply with the mandate of an affidavit of merit statute, does not constitute an adequate showing to justify the grant of a petition for pre-suit discovery.
Nevertheless, despite the historical understanding of the appropriate use of FRCP 27(a) and its state counterparts, we cannot be indifferent to the concerns expressed by plaintiff's counsel and by amicus curiae that the Affidavit of Merit Statute occasionally will impose a burdensome mandate on plaintiffs with meritorious malpractice claims and that judicial discretion to authorize pre-suit discovery may be an essential mechanism to guard against the dismissal of valid claims.
We note that the statute contains built-in safeguards to prevent deliberate obstruction or frustration of the statutory mandate. The time for filing the affidavit is calculated not from the date the complaint is filed but from the date of each defendant's answer.
We also note that the content of the expert's affidavit is summary in nature, and that the required statement of opinion that the defendant's work or treatment fell outside acceptable professional standards need not be accompanied by the same detailed explanation and analysis that ordinarily would be contained in an expert's report required to be furnished pursuant to Rule 4:17-4(e). In that respect, the statute requires only that the expert whose affidavit is filed certify that a reasonable probability exists that the defendant in question deviated from professional standards. If the affiant is also to serve as an expert witness at trial, the detailed analysis supporting that conclusion need not be provided until the defendant demands production of expert reports.
Defendants contend that pre-trial discovery adequately provides malpractice plaintiffs with the opportunity to obtain information sufficient to enable a qualified expert to provide an affidavit of merit within the statutory time frame. Plaintiff contends that in unique cases, such as the one before us, even expedited discovery may not uncover sufficient information about a deviation from accepted standards to provide a basis for the timely filing of an affidavit of merit. Moreover, plaintiff and amicus curiae contend that dilatory tactics by defense counsel in malpractice cases could frustrate attempts to conduct and complete expedited discovery in time to comply with the statutory mandate.
Although we assume that pre-suit discovery, as a mechanism for enabling compliance with the Affidavit of Merit Statute, will be essential only in exceptional circumstances, our Rules Governing Civil Practice should be sufficiently flexible to avoid the risk that even a few meritorious cases may be dismissed for non-compliance
Pending receipt and implementation of the Civil Practice Committee's recommendations, trial courts are authorized in exceptional circumstances to grant petitions for pre-suit discovery in malpractice cases if in their discretion they are persuaded, notwithstanding the safeguards contained in the statute, that such relief is essential in order to permit the plaintiff to comply with the provisions of the Affidavit of Merit Statute. Any such orders granting pre-suit discovery should be issued pursuant to Rules 4:11-1 and 1:1-2. We anticipate that such orders will be issued sparingly and only where necessary to avoid unjust dismissals.
IV
The legal issue that was the subject of the Court's grant of certification having been rendered moot, we neither affirm nor reverse the judgment of the Appellate Division. We vacate the order staying the Law Division's order requiring filing of the affidavits of merit in the pending action.
For vacation — Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN — 7.
Opposed — None.
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