AOM Failure Closes the Door, but for How Long?

To minimize frivolous professional malpractice claims, many states have enacted affidavit of merit statutes.  The range and substance of these statutes can be dizzying; indeed, that’s why we recently published a handy table with requirements and resources for each state.  The AOM rules provide defense attorneys with an important tool to help defend malpractice claims in certain jurisdictions. In the extreme scenario, dismissal may be appropriate due to a faulty, lacking or late AOM. But, the question remains, whether the plaintiff has the opportunity to cure that defect and continue with the litigation.

The New Jersey Appellate Division recently asked the state’s Supreme Court to reconsider a 17-year-old precedent holding that malpractice cases should be dismissed with prejudice when a plaintiff fails to provide a timely affidavit of merit. In the underlying dental malpractice suit, the court dismissed the case, with prejudice, because the plaintiff supplied an AOM 12 days past the allotted time period and had not shown extraordinary circumstances to excuse the untimely submission.

The appeals court disagreed that the dismissal should be with prejudice. In assessing the legislature’s intent, the court concluded that the statutory language could reasonably be construed as closing “the courthouse door, but not necessarily forever” to those plaintiffs who did not timely comply with the AOM statute.  This approach, the court reasoned, would keep a plaintiff out of court so long as she remained non-compliant with the statute, but would reopen the courthouse door when and if the plaintiff produced a satisfactory affidavit within the statute of limitations.

It will be up to New Jersey’s highest court to determine the impact of a dismissal pursuant to the AOM rules.  Regardless of the decision, the AOM rules are an important aspect of the professional arsenal even if dismissal is short-lived.  In certain jurisdictions it is up to the plaintiff to establish a proper claim supported by the opinion of a licensed professional. In most instances it is to the defendant’s benefit to insist upon compliance with these rules.