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The Zombie Ferreira Conference: How complaint amendments can revive the requirement
4/10/24
On February 16, 2024, the New Jersey Appellate Court addressed a question of fairness, when it ruled that all defendant doctors should have been provided an opportunity for a conference to determine whether a patient must provide a doctor’s preliminary affidavit supporting her claims of medical malpractice, also called a Ferreira Conference.
In Gonzalez v. Ibrahim, 477 N.J. Super. 647 (App. Div. 2024), a patient filed a medical malpractice case against a doctor and his medical practice for administering a nerve block injection into the wrong body part. She successfully petitioned the trial court to waive the statutory requirement that she produce a doctor’s Affidavit that the case has adequate merit to proceed because the error was “common knowledge.” However, after she later amended her complaint to add an anesthesiologist as a defendant, he demanded an Affidavit of Merit be filed as to his role and moved to dismiss the patient’s case when she failed to timely produce one.
The Appellate Division held that these circumstances created “an almost perfect storm” of injustice, and that the Court should have scheduled a Ferreira Conference after the newly added anesthesiologist filed his answer so that the plaintiff would have timely guidance on the affidavit requirement and whether the original order waiving it also applied to the anesthesiologist.
This decision is an important reminder that when complaints are amended, new defendants are entitled to the same procedural and substantive rights. Special consideration should be paid to see if the case must return to prior steps of litigation to ensure fairness and avoid perfect storms of injustice.
For more information on the topic, contact Courtney Knight at courtney.knight@fmglaw.com, or your local FMG relationship partner.
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