TRENTON, N.J. (Legal Newsline) - The family of a New Jersey woman who committed suicide can sue a doctor for medical malpractice without filing a required certificate of merit from an expert because the doctor – who was later stripped of his opioid-prescribing privileges by the state – failed to turn over requested records.
New Jersey’s Superior Court, Appellate Division reversed a trial judge’s dismissal of the case, ordering it reinstated under a different judge after reviving it for a second time.
Laura Semprevivo died in 2016. Her survivors, Patricia and Ronald Semprevivo, sued Drs. Hassan Lahham and Liviu Holca two years later, accusing them of prescribing opioids “without regard for her health, safety and wellbeing.”
Dr. Lahham never responded to the suit and was sentenced to nine years in 2013 after pleading guilty to conspiring to illegally distribute oxycodone in 2013. Dr. Holca was arrested in 2014 and ultimately pleaded guilty to overprescribing painkillers, surrendering his license and paying more than $100,000 in fines.
A trial judge dismissed the complaint against Dr. Holca in 2019 for lack of prosecution, first without prejudice and then, on a motion from the defendant, with prejudice so it couldn’t be re-filed. The appeals court reversed that order in 2021 and sent the case back to the trial court. The judge then granted Dr. Holuca’s request to reclassify the case as medical malpractice, requiring an affidavit of merit from an expert.
The trial judge granted plaintiffs an extension to file a certificate of merit until Nov. 6, 2021. The day before the deadline, their lawyer filed a certification stating the defendant had failed to provide medical records necessary for the expert to produce the certification. They specifically sought records from Dr. Holca’s defense lawyer, John Bruder, in the criminal case.
At a Nov. 8 hearing, a lawyer for Dr. Holca said he’d gotten documents from Bruder but none of them were relevant to Semprevivre’s case. “It's amazing how I serve a subpoena and I get the records but somehow plaintiffs' counsel who has the same information I have with regard to Mr. Bruder never sent him a subpoena for the records," the lawyer said at the hearing.
The trial judge then dismissed the case again, ruling that the plaintiffs had failed to file a certificate of merit within the deadline. The plaintiffs appealed again, arguing state law granted them an exception because the defense had failed to turn over the records they requested.
The appeals court reversed again, ruling the defendant couldn’t just state there were no relevant records to turn over, but had to file a sworn statement.
“Defendant did not certify he had never treated the decedent,” the court ruled. “Defendant did not certify he had engaged in a good-faith search for medical records regarding the decedent and had not located any.”
The appeals court reinstated the case, eliminated the need for a certificate of merit and ordered it to be heard by a different trial judge.