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The Necessity of Following the Rules and the Repercussions When They’re not Followed

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Jun 2, 2016 |


Judges and lawyers are expected to follow the rules. When they do not, chaos ensues. Doris Armstrong had a stroke while she was at Crane’s Mill Nursing Home. She sued, claiming malpractice against the nursing home and the physician who treated her, Dr. Patel. As required by law, she submitted an Affidavit of Merit (“AOM”) from an expert stating that the care she received deviated from accepted standards. The doctor answered, and claimed that the AOM was deficient because he was Board certified in geriatrics and the plaintiff’s expert was not. However, at the time he made this statement, Dr. Patel was not, in fact, Board certified, although he once had been.

Dr. Patel moved to dismiss the complaint for lack of an adequate AOM. In support of the motion, Dr. Patel’s attorney submitted a certification to the court stating that Dr. Patel was Board Certified in Geriatrics, even though the lawyer had no personal knowledge of that alleged fact. The lawyer also submitted a document showing that the certification had expired. Apparently, neither the lawyer nor the court bothered to look at the document, as the motion was granted.

When plaintiff found out the truth, she appealed. The Appellate Division chastised the lawyer for submitting a certification that contained facts not within his personal knowledge; the certification should have come from Dr. Patel. The Appellate Division also chastised the trial judge for basing a decision on incompetent evidence – that is, the lawyer certification that contained statements of fact not within the lawyer’s personal knowledge. Dr. Patel was ordered to amend his answer, giving a truthful account of his status, and plaintiff was given time to file an appropriate AOM.

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