A.T., AN INFANT BY HER MOTHER AND NATURAL GUARDIAN,
T.T., AND T.T., INDIVIDUALLY VS. M. COHEN, M.D., ET AL.
A-0589-14T1
The issue in this medical malpractice case is whether a minor plaintiff can take a voluntary dismissal without prejudice under Rule 4:37-1(b) to avoid a dismissal with prejudice of her complaint for the failure to provide an affidavit of merit (AOM) within the required timeframe. The court concludes that Rule 4:37-1(b) cannot be used to circumvent the time strictures in the AOM statute even if the statute of limitations has not expired.
Plaintiff's counsel failed to file an AOM within 120 days of the filing of the answer. No extraordinary circumstances were presented; just an "oversight" of counsel. After defendants moved for summary judgment, counsel requested leave to take a voluntary dismissal under Rule 4:37-1(b), reasoning that there remained many years until the expiration of the statute of limitations due to plaintiff's status as a minor and there was no prejudice to defendants.
The court finds that permitting a voluntary dismissal in these circumstances would render the AOM statute and its underlying purpose meaningless. The minor's claim was pursued by her guardian ad litem and she was represented by counsel. The Legislature did not choose to carve out an exception for minors under the AOM statute as it has done with the statute of limitations in tort cases.
Judge Fisher dissents, concluding that a trial judge should have the authority to exercise discretion and grant a voluntary dismissal, if appropriate, to preserve the future of a minor's malpractice action. He notes the protections afforded minors, including the equitable tolling of a minor's suit under the
Wrongful Death Act and the process requiring judicial approval of settlement reached on behalf of minors, R. 4:44. He finds the minimal prejudice incurred by defendants can be addressed by the trial judge with the imposition of any terms necessary to alleviate that harm upon the re-filing of the complaint.
