SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2100-19

LISA BOBAL,

Plaintiff-Appellant,

v.

ATLANTICARE,

ATLANTICARE EMERGENCY 

DEPARTMENT HAMMONTON,

Defendant-Respondent.

____________________________

Submitted January 26, 2021 – Decided April 27, 2021

Before Judges Moynihan and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-1282-19.

Lento Law Group, PC, attorneys for appellant (Joseph 

D. Lento, on the briefs).

Jill R. O'Keeffe, attorney for respondents.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-2100-19

In this medical-negligence case, plaintiff appeals an order granting 

defendant's motion for summary judgment and dismissing with prejudice 

plaintiff's complaint due to plaintiff's failure to comply with the Affidavit of 

Merit Statute, N.J.S.A. 2A:53A-26 to -29. Because we agree plaintiff was 

required to submit an affidavit of merit and failed to submit a statutorilycompliant affidavit, we affirm.

Plaintiff Lisa Bobal filed a complaint on May 15, 2019, and the next day 

filed another document also labeled "complaint"1 naming as defendants 

"Atlanticare" and "Atlanticare Emergency Department Hammonton"2as well as

fictitious defendants she described as "medical doctors and/or medical personnel 

and/or hospital administrative staff." According to plaintiff, the "medical 

professionals specializ[ed] in the field of emergency medicine . . . were duly 

licensed to practice medicine . . . and held themselves out to the public, as being 

1

 The differences between the first-filed complaint and the second-filed 

complaint appear to be stylistic rather than substantive. We quote language from 

the second-filed complaint. 

2

 According to AtlantiCare Regional Medical Center, it was improperly pleaded

as "Atlanticare" and "Atlanticare Emergency Department Hammonton." 

Accordingly, we will refer to AtlantiCare Regional Medical Center, 

"AtlantiCare," and "AtlantiCare Emergency Department Hammonton" as 

"AtlantiCare," "hospital," or "defendant." 
3

A-2100-19

skilled, careful and diligent in the practice of their profession and specialty as 

emergency medical care professionals." 

Plaintiff alleged she had sought treatment on or about May 16, 2017, at

defendant's emergency room because she was "unable to walk and keep her 

balance." According to plaintiff, an "[e]mergency [r]oom physician wanted to 

prescribe [her] medication for [a]nxiety despite presenting with mobility 

symptoms" and she was "discharged without the proper diagnoses and/or 

evaluation" and "was made to leave the [e]mergency [r]oom . . . without staff 

assistance or assistance of a wheelchair." Plaintiff contended that as a result, 

she became unstable when exiting the emergency room, fell, hit her head, and 

suffered "a severe head injury." Plaintiff asserted she "was refused, neglected 

or not provided the treatment sought and her symptoms were misdiagnosed" and 

described the negligence of defendant and its agents as "consist[ing of] their 

failing to diagnose and rendering proper treatment and attention to [her]." 

The hospital filed an answer, including a demand that "plaintiff produce 

an appropriately licensed and qualified expert with respect to any direct claims 

against the hospital or its employees, prepared in accordance with N.J.S.A. 
4

A-2100-19

2A:53A-27 within sixty (60) days." After the court conducted a Ferreira3

conference, plaintiff produced an affidavit authored by Lawrence J. Guzzardi, 

M.D.4 In the affidavit, "[b]ased upon the records [he had] reviewed," Dr. 

Guzzardi opined "there is a reasonable probability that the care, skill, or 

knowledge exercised or exhibited in the treatment of [plaintiff] while at the 

AtlantiCare Emergency Department . . . by the AtlantiCare Emergency Room 

Staff, . . . fell outside of the professional care and treatment standards for 

Emergency Medicine." 

In the affidavit, Dr. Guzzardi certified that he was a "licensed physician" 

in Pennsylvania and had been "[b]oard certified and recertified in [e]mergency 

[m]edicine and [f]amily [p]ractice." When plaintiff fell outside of defendant's 

emergency room, he was "[b]oard certified in the field of [m]edical 

[t]oxicology." He does not claim he was board certified in emergency medicine

when plaintiff fell. He included emergency medicine in a list of subjects about

which he previously had testified. He also stated that "[f]or the last five years 

3 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

4

 Plaintiff did not submit any other affidavits, such as an affidavit from a nursing 

specialist, and has not asserted the common-knowledge exception to the 

Affidavit of Merit Statute applies. See Cowley v. Virtua Health Sys., 242 N.J. 

1, 16-17 (2020). 
5

A-2100-19

[he had] limited [his] practice to study and testimony in [e]mergency [m]edicine 

and [m]edical [t]oxicology to include correctional care and substance abuse." 

He did not state he was "credentialed by a hospital" or engaged in "active clinical 

practice" or "the instruction of students" at any time in the past five years. See

N.J.S.A. 2A:53A-41.

Defense counsel objected to the affidavit, stating it failed to comply with 

the requirements of the Affidavit of Merit Statute in that the affiant "has not 

been board certified in emergency medicine since 2009 nor does it appear that 

he practices in the area of emergency medicine or in an emergency department."

Defense counsel also complained that she had not received a copy of the affiant's 

curriculum vitae even though she had requested one. According to defendant, 

plaintiff did not respond to that letter. 

Defendant moved for summary judgment, arguing that plaintiff had failed 

to submit an affidavit by an appropriately licensed person pursuant to the 

Affidavit of Merit Statute. In a certification, defense counsel complained about 

not receiving a copy of the affiant's curriculum vitae; contended the affiant's 

website, https://lawrenceguzzardi.com/forensic-toxicologist.html, revealed he 

had not been board certified in emergency medicine since 2009 and had not 

practiced in the field of emergency medicine in the last five years; and attached 
6

A-2100-19

a copy of the affiant's credentials from his website. Those credentials referenced 

"litigation consulting" and contained the assertions that Dr. Guzzardi "can 

provide the insight you need on these matters in the courts and when dealing 

with insurance companies" and that "his commitment to make himself available 

full time for testimony shows that he is a capable and concise witness." The

credentials did not state that Dr. Guzzardi was "credentialed by a hospital" or 

engaged in "active clinical practice" or "the instruction of students" at any time 

in the past five years. See N.J.S.A. 2A:53A-41. Plaintiff did not dispute 

defendant's summary of Dr. Guzzardi's credentials. 

At oral argument, defense counsel represented to the court that plaintiff 

had been treated by Dr. Louis Sabatini, "an emergency medicine physician," and 

that Dr. Sabatini was board certified. When the court asked defense counsel if 

Dr. Sabatini was board certified in emergency medicine, she responded, "[h]e 

is." She then relayed the basis of that assertion.

[DEFENSE COUNSEL]: And that was information 

that I actually just Googled . . . I didn't have that 

information. He is not an employee, so I just took the 

liberty of Googling him by looking at his name in the 

record, and, you know, under the – the appropriate 

[b]oard specialty website, and found that he was 

[b]oard certified. 
7

A-2100-19

Defense counsel did not identify the "[b]oard specialty website" she had 

reviewed and did not provide a copy of what she had reviewed or of any 

document establishing Dr. Sabatini was board certified in emergency medicine. 

Defendant had not supported its motion with a certification from Dr. Sabatini or 

anyone with personal knowledge of his credentials and expertise. Cf. Buck v. 

Henry, 207 N.J. 377, 383 n.1, 387 (2011) (noting that the summary-judgment 

record was "sparse" but included a certification of the treating physician in 

which he certified what his specialty was, that his specialty was recognized by 

the American Board of Medical Specialties, and that his treatment of plaintiff 

involved his specialty). 

Neither the court nor plaintiff's counsel questioned the source of defense 

counsel's assertion. Instead, plaintiff's counsel contended he did not have 

records regarding plaintiff's visit to defendant's emergency room and that 

defendant had not previously identified Dr. Sabatini as plaintiff's treating 

physician. 

Defense counsel assured the court Dr. Sabatini was named in records 

defendant had provided to plaintiff, pointing out that in his affidavit, Dr. 

Guzzardi stated he had reviewed records. She contended plaintiff's counsel had

not advised her he was missing records and had not submitted pursuant to 
8

A-2100-19

N.J.S.A. 2A:53A-28 a sworn statement in lieu of an affidavit of merit stating 

defendant had failed to provide records. She advised the court she did not have 

the records with her and asked if she could supplement the record. The court 

granted that request. 

When the court asked plaintiff's counsel if Dr. Guzzardi had reviewed 

records produced by defendant, plaintiff's counsel conceded Dr. Guzzardi had 

reviewed some records and advised the court he was "a little gun shy of . . . 

making a representation which I may not know," telling the court he had been 

"asked to cover this hearing." He nevertheless went on to make several 

unsupported representations to the court about Dr. Guzzardi, including that he 

"did practice in emergency medicine," "taught in emergency medicine," 

"continues to practice medicine," "is a teacher," and "does continue to have a 

practice where he deals mostly with inmates . . . where he obviously is aware of 

emergency medicine." Plaintiff's counsel provided no support for those 

assertions. The record is devoid of any evidence that Dr. Guzzardi had been 

engaged in "active clinical practice" or "the instruction of students in an 

accredited medical school" at any time in the past five years. See N.J.S.A. 

2A:53A-41. 
9

A-2100-19

Citing N.J.S.A. 2A:53A-41, defense counsel also argued that even if the 

plaintiff's treating physician was not board certified or if plaintiff did not know 

the treating physician was board certified, she was required to submit "for non-

[b]oard certified emergency room physicians that specialize in emergency 

medicine which all – all of them do" an affidavit of merit from someone 

"practicing or working at the time in that specialty, which Dr. Guzzardi did not 

do." In response, plaintiff's counsel argued Dr. Guzzardi was specialized "at 

one point" and "[n]o one says he is still not specialized, he is just not [b]oard 

certified in that area."

The court advised counsel "what is missing in my mind in order for me to 

rule on this motion . . . is the issue of whether or not those records were in fact 

in plaintiff's possession," noting the court found it "hard to believe that the case 

would get this far without plaintiff having secured the very medical records that 

are apparently at issue." The court asked defense counsel to supplement the 

record, gave plaintiff an opportunity to respond to defendant's supplemental

submission, and asked plaintiff's counsel to submit Dr. Guzzardi's curriculum 

vitae. The court stated, "if I am satisfied that those records were in plaintiff's 

possession and those records include Dr. Sabatini's name, I am inclined to grant 

the motion." 
10 A-2100-19

The court granted the motion in a written opinion. In the "Party 

Contentions" section of the opinion, the court stated that since oral argument, 

"defendant provided the court with records illustrating that Louis Sabatini, D.O., 

a doctor board certified in emergency medicine, was the physician who attended 

plaintiff." The court did not specify what those records were or what, if any,

evidence in the motion record supported defendant's assertion that Dr. Sabatini 

was board certified in emergency medicine. Defendant included in its appellate 

appendix documents it identifies as "RECORDS FROM ATLANTICARE 

REGIONAL MEDICAL CENTER," which "include[] the visit in question."

Defendant did not confirm that these records were the records provided to the 

trial court. The records identify Dr. Sabatini as the "Attending Provider." They 

do not state whether Dr. Sabatini was board certified. 

In the "Findings of Fact" section of the opinion, the court found Dr. 

Guzzardi "is presently board certified in [m]edical [t]oxicology," "was board 

certified in [e]mergency [m]edicine from 1979 to 2009," and "has not practiced 

[e]mergency [m]edicine in the last five years." 

In the "Discussion" section of the opinion, the court concluded emergency 

medicine was a specialty recognized by the American Board of Medical 

Specialties; the treatment plaintiff received involved the specialty of emergency 
11 A-2100-19

medicine, citing plaintiff's allegation in her complaint that "medical 

professionals" who had treated her "specializ[ed] in the field of emergency 

medicine . . . [were] duly licensed to practice medicine . . . and held themselves 

out to the public, as being skilled, careful and diligent in the practice of their 

profession and specialty as emergency medical care"; and plaintiff knew or 

should have known Dr. Sabatini was the treating physician based on the records

provided to her. Having drawn those conclusions, the court applied the 

"heightened requirements" of N.J.S.A 2A:53A-41 and held that Dr. Guzzardi's 

affidavit failed to comply with the Affidavit of Merit Statute because he had not 

been board certified in emergency medicine since 2009 and had not been 

engaged in "the active practice of emergency medicine or teaching student[s]

emergency medicine at an accredited school." The court also held that plaintiff 

had not "plead[ed] substantial compliance or illustrated extraordinary 

circumstances" excusing plaintiff's failure to comply. The court issued an order 

granting defendant's motion and dismissing plaintiff's complaint with prejudice.

On appeal, plaintiff asserts that, contrary to defense counsel's 

representation to the trial court at oral argument, Dr. Sabatini was board certified 

in family medicine and not board certified in emergency medicine. To support 

that assertion, plaintiff included in her appellate appendix a document she 
12 A-2100-19

described as "America Board of Medical Specialties Website Excerpts for Dr. 

Louis Sabatini (05/11/2020)." Dated more than five months after the court's 

order, that document clearly was not part of the motion record. Plaintiff argues 

that because Dr. Sabatini was not board certified in emergency medicine, Dr. 

Guzzardi was not required to be board certified in emergency medicine and, 

thus, his affidavit was compliant with the Affidavit of Merit Statute. Plaintiff 

argues she substantially complied with the Affidavit of Merit Statute because 

Dr. Guzzardi previously had been board certified in emergency medicine from 

1979 to 2009 and "continues to testify in a variety of disciplines, including 

emergency medicine." If the affidavit is deemed not compliant, she asks for the 

opportunity to "find another physician to complete another [affidavit]." Plaintiff 

again places the blame for her failure to comply on defendant for not previously 

identifying Dr. Sabatini as plaintiff's treating physician.

In response, defendant again asserted Dr. Sabatini was board certified in 

emergency medicine, now relying on a document produced apparently for the 

first time in its appellate appendix. That document, which was not attached to 

any certification of Dr. Sabatini or anyone with personal knowledge, see R. 1:6-
13 A-2100-19

6 and Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986),5

appears to be a December 12, 2018 letter to Dr. Sabatini from the American 

Board of Physician Specialties, stating, "[t]he Board of Certification in 

Emergency Medicine, an affiliate of the American Board of Physician 

Specialties, is pleased to inform you that you have passed the written 

examination and have now successfully met all requirements for board 

recertification in [e]mergency [m]edicine." Defendant argues plaintiff 

submitted for the first time in her appellate appendix Dr. Guzzardi's curriculum 

vitae, which confirms that he is not qualified to author an affidavit of merit in 

this case because he has not worked in emergency medicine in a hospital since 

1998, has not been board certified in emergency medicine since 2009, has not 

5

 Information from this document is not included in Dr. Sabatini's professional 

profile made public pursuant to the New Jersey Health Care Consumer 

Information Act, N.J.S.A. 45:9-22.21. That Act authorizes the New Jersey 

Division of Consumer Affairs in the Department of Law and Public Safety to 

collect and maintain information on all physicians licensed in New Jersey for 

the purpose of creating a profile that is accessible by the public. See N.J.S.A.

45:9-22.22. According to the New Jersey Division of Consumer Affairs website, 

Dr. Sabatini self-reported that he was board certified in emergency medicine in 

1997 and that that board certification expired in 2007. See The State of New 

Jersey, New Jersey Health Care Profile, https://www.njdoctorlist.com/home.jsp

(last visited Apr. 7, 2021). The website states that the self-reported board 

certification information was provided "by the practitioner but has not been 

independently verified by the State Board of Medical Examiners or the Division 

of Consumer Affairs." Ibid. 
14 A-2100-19

had any teaching responsibilities since 1990, has not sat on any hospital 

committees since 1988, has not published or lectured in the field of emergency 

medicine since the 1990s, was not in active clinical practice, and did not instruct 

students at an accredited institution. Defendant also argues plaintiff did not 

meet the elements of substantial compliance.

In reply, plaintiff asserts that to be board certified under N.J.S.A. 2A:53A41, Dr. Sabatini must have been certified by the American Board of Medical 

Specialties or the American Osteopathic Association and that his purported 

certification by the American Board of Physician Specialties, the entity that 

authored the December 12, 2018 letter to Dr. Sabatini, does not render him board 

certified for purposes of the Affidavit of Merit Statute. Plaintiff asks us to 

sanction defendant under Rules 2:9-9 and 2:11-4(c).

"The submission of an appropriate affidavit of merit is considered an 

element of the claim." Meehan v. Antonellis, 226 N.J. 216, 228 (2016). Thus, 

"[f]ailure to submit an appropriate affidavit ordinarily requires dismissal of the 

complaint with prejudice." Ibid.; see also Cowley, 242 N.J. at 16. Accordingly, 

we review de novo the legal issues presented in an affidavit-of-merit motion. 

Id. at 230. We also review a trial court's grant of summary judgment de novo 

under the same standard that applies to trial courts. Templo Fuente De Vida 
15 A-2100-19

Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). We view the facts 

in a light most favorable to non-moving party. Brill v. Guardian Life Ins. Co. 

of Am., 142 N.J. 520, 536 (1995). We give deference to the trial court's factual 

findings but not to the application of law to those findings. Lee v. Brown, 232 

N.J. 114, 126-27 (2018). To be entitled to deference, a trial court's factual 

finding must be supported by credible evidence in the record. Zaman v. Felton, 

219 N.J. 199, 215 (2014).

The Affidavit of Merit Statute requires a plaintiff "[i]n any action for 

damages for personal injuries . . . resulting from an alleged act of malpractice 

or negligence by a licensed person in his profession or occupation" to "provide 

each defendant with an affidavit of an appropriate licensed person 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. The purpose of the statute is "to weed out 

frivolous claims against licensed professionals early in the litigation process." 

Meehan, 226 N.J. at 228; see also Haviland v. Lourdes Med. Ctr. of Burlington 

Cnty., Inc., ___ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 6) (intent of 

Legislature was to ensure parties did not waste time or resources on unnecessary 
16 A-2100-19

litigation, including discovery). Thus, pursuant to the statute, a plaintiff must 

provide a defendant with "an affidavit that indicates the plaintiff's claim has 

merit." Fink v. Thompson, 167 N.J. 551, 559-60 (2001). 

To demonstrate a claim is meritorious in accordance with the Affidavit of 

Merit Statute, a plaintiff must "obtain[] an affidavit from an appropriate, 

licensed expert attesting to the 'reasonable probability' of professional 

negligence." Ferreira, 178 N.J. at 149-50. An affidavit of merit must be 

executed by a like-licensed professional. Hill Int'l, Inc. v. Atl. City Bd. of Educ., 

438 N.J. Super. 562, 587 (App. Div. 2014). As set forth by our Legislature in 

N.J.S.A. 2A:53A-27 and -41, in medical malpractice cases, that requirement 

means that if the allegedly negligent doctor was a specialist in a recognized 

specialty, the affiant must be a specialist in that specialty; if the allegedly 

negligent doctor was board certified in a recognized specialty, the affiant must 

be board certified in that specialty. See N.J.S.A. 2A:53A-41(a). If the allegedly 

negligent doctor was not specialized and was a general practitioner, then the 

affiant need not be specialized but must be a general practitioner. See N.J.S.A. 

2A:53A-41(b). The Legislature defined general practitioner as someone who:

during the year immediately preceding the date of the 

occurrence that is the basis for the claim or action, shall 

have devoted a majority of his professional time to:
17 A-2100-19

(1) active clinical practice as a general 

practitioner; or active clinical practice that 

encompasses the medical condition, or that 

includes performance of the procedure, that is the 

basis of the claim or action; or

(2) the instruction of students in an accredited 

medical school, health professional school, or

accredited residency or clinical research program 

in the same health care profession in which the

party against whom or on whose behalf the 

testimony is licensed; or

(3) both.

[Ibid.]

The parties' extensive arguments on appeal, which were supported by 

documents the parties had not submitted to the trial court, about whether Dr. 

Sabatini was board certified in emergency medicine are of no moment. The real 

issue on board certification is that in its summary-judgment motion, defendant 

failed to provide the trial court with credible evidence of Dr. Sabatini's purported 

board certification. Defense counsel's unsworn statement about her Google 

search results is not credible evidence that the trial court could have considered 

in deciding defendant's summary-judgment motion. Defendant cannot cure that 

critical omission by submitting on appeal a document it failed to provide to the 

trial court. Because it was not part of the motion record, we cannot consider the 

December 12, 2018 letter, just as we cannot consider the May 11, 2020 website 
18 A-2100-19

excerpt plaintiff submitted. See Townsend v. Pierre, 221 N.J. 36, 45 n.2 (2015)

("We do not consider [evidence] that was not presented to the trial court and that 

was submitted by the parties for the first time on appeal."); Davis v. Devereux

Found., 209 N.J. 269, 296 n.8 (2012) ("As this Court has long held, appellate 

review is limited to the record developed before the trial court."). 

Our inquiry does not end there. The trial court did not base its decision 

on Dr. Guzzardi's lack of emergency-medicine board certification; it based its 

decision on the undisputed fact that Dr. Guzzardi did not specialize in 

emergency medicine when plaintiff fell. N.J.S.A. 2A:53A-41(a) provides:

If the party against whom or on whose behalf the 

testimony is offered is a specialist or subspecialist 

recognized by the American Board of Medical 

Specialties or the American Osteopathic Association 

and the care or treatment at issue involves that specialty 

or subspecialty recognized by the American Board of 

Medical Specialties or the American Osteopathic

Association,[6] the person providing the testimony shall 

have specialized at the time of the occurrence that is the 

basis for the action in the same specialty or 

subspecialty, recognized by the American Board of 

Medical Specialties or the American Osteopathic

Association, as the party against whom or on whose 

behalf the testimony is offered.

[(Emphasis added.)]

6

It is undisputed that, as the trial court found, the American Board of Medical 

Specialties recognizes emergency medicine as a specialty and that the treatment 

at issue involves that specialty. 
19 A-2100-19

Plaintiff complains defendant untimely provided plaintiff with 

information regarding Dr. Sabatini. But it is clear from her own complaint that 

plaintiff knew when she filed her complaint that her treating physician 

specialized in emergency medicine. In her complaint, she stated that defendants 

were "medical professionals specializing in the field of emergency medicine" 

who "held themselves out . . . in the practice of their profession and specialty as 

emergency medical care professionals." She also asserted that it was "[t]he 

[e]mergency [r]oom physician" who "wanted to prescribe [plaintiff] medication 

for [a]nxiety despite presenting with mobility symptoms." Having been treated 

by an emergency-medicine specialist, plaintiff was required to submit an 

affidavit from a physician who specialized in emergency medicine at the time 

of her fall.

As the trial court correctly found based on the record evidence before it, 

Dr. Guzzardi did not specialize in emergency medicine at the time of plaintiff's

fall. The credentials Dr. Guzzardi posted on his website do not include any 

position involving the active clinical practice of emergency medicine or 

teaching of emergency medicine at an accredited school at the time of plaintiff's 
20 A-2100-19

fall.

7

 In his affidavit, Dr. Guzzardi conceded that for the last five years he had 

"limited [his] practice to study and testimony in [e]mergency [m]edicine and 

[m]edical [t]oxicology." Studying and testifying is not actively practicing a 

medical specialty.

Even if Dr. Sabatini had no specialty and worked only as a general 

practitioner, Dr. Guzzardi's affidavit would not be statutorily compliant because 

Dr. Guzzardi does not meet the Legislature's requirements for a general 

practitioner. Plaintiff's submissions make clear that during the year immediately 

preceding plaintiff's fall, Dr. Guzzardi did not devote a majority of his 

professional time to "active clinical practice as a general practitioner" or "the 

instruction of students in an accredited" school or program. See N.J.S.A.

2A:53A-41(b).

The trial court correctly concluded that plaintiff has not demonstrated 

substantial compliance with the Affidavit of Merit Statute. To establish 

substantial compliance, a plaintiff must show "(1) the lack of prejudice to the 

defending party; (2) a series of steps taken to comply with the statute involved; 

7

It is not clear to us whether the curriculum vitae of Dr. Guzzardi plaintiff 

submitted on appeal was submitted to the trial court in response to its request at 

oral argument. Even if we were to consider it, his curriculum vitae demonstrates 

that he did not practice in emergency medicine or teach about emergency 

medicine at the time of plaintiff's fall. 
21 A-2100-19

(3) a general compliance with the purpose of the statute; (4) a reasonable notice 

of petitioner's claim; and (5) a reasonable explanation why there was not a strict 

compliance with the statute." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 

347-48 (2000); see also Ferreira, 178 N.J. at 151. "Establishing those elements 

is a heavy burden." Galik, 167 N.J. at 357. Plaintiff did not engage in a series 

of steps to comply with the statute and has not offered a reasonable explanation 

as to why she did not comply with the statute. Having pleaded in her complaint 

that she was treated by an "Emergency Room physician" and "medical 

professionals specializing in the field of emergency medicine," having received 

notice from defendant that she was not in compliance with the statute, and 

having participated in a Ferreira conference, plaintiff nevertheless submitted an 

affidavit from someone who, based on his own credentials and statements, 

clearly was not in active clinic practice of medicine, and certainly not emergency 

medicine, at the time of her fall. That is not substantial compliance.

Finally, we decline plaintiff's invitation to sanction defendants. Both 

parties violated our appellate rules by submitting documents that were not before 

the trial court. See Catton v. N.J. Full Ins. Underwriting Ass'n, 242 N.J. Super. 

5, 6-7 (App. Div. 1990).

Affirmed.