Medical Malpractice – The Affidavit of Merit Requirement
In this article, Louis J. DeVoto discusses the affidavit of merit. Furthermore, he also talks about the affidavit of merit requirement, as the title states.
AFFIDAVIT OF MERIT
Hot Tips for Civil
Litigators
ICLE- NJ
September 17, 2011
Louis J. DeVoto
ROSSETTI & DEVOTO, PC
20 Brace Road
Suite 115
Cherry Hill, NJ 08034
856-354-0900
ldevoto@rossettidevoto.com
I. History
The Affidavit of Merit (AOM) was created in 1995 by the enactment of the Affidavit
of Merit statute, N.J.S.A. 2A:53A-26A
et seq. The statute has undergone some
modifications since its original enactment, particularly with respect to what
professions it applies to and what experts may sign the affidavit, it remains a
pre-requisite for all medical malpractice actions in New Jersey.
Moreover, the earliest cases interpreting the Act
make it clear that the purpose of the statute is “to require plaintiffs in
medical malpractice cases to make a threshold showing that their claim is
meritorious, in order that meritless lawsuits readily could be identified at an
early stage of litigation.” In re Hall, 147 N.J. 379, 391 (1997).
The original statute provided that the “Licensed Person[s]” entitled
to an AOM included dentists, physicians, podiatrists, chiropractors, reg_istered
nurses and certain health care facilities. In 2001, physical therapists and
pharmacists were added. Recently, midwives were added. The Affidavit of Merit statute originally
required the expertise of the expert to be “evidenced by board certification or
by devotion of the person’s practice sub_stantially to the general area or
specialty involved in the action for a period of at least five years.” N.J.S.A.
2A:53A-27.
2004 Statute
In fact, in 2004, the statute was amended
by the New Jersey Medical Care Access and
Responsibility and Patients First Act; N.J.S.A. 2A:53A-37 to 42, which added
additional requirements for experts executing affidavits. Moreover, the latest requirements provide that if
the defendant is a specialist or subspecialist and the care or treatment at
issue involves that specialty or subspecialty, the expert must have specialized
in the same specialty or subspecialty. See N.J.S.A. 2A:53A-41.
Additionally, if the defendant is board certified
and the care at issue involved that specialty or subspe_cialty, the expert must
be board certified in the same specialty or subspecialty or credentialed by a
hospital to treat patients for the condition or perform the procedure in
question; and during the year before the date of the claim, must have devoted a
majority of her professional time to either clinical practice or the
instruction of students in the same specialty or subspecialty.
However, if the defendant
is a “general practitioner,” the expert witness must have devoted a majority of
his professional time in “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 to teaching
same. N.J.S.A. 2A:53A-41(b).
Still, recent controversies and reported cases have arisen regarding the
interpretation of the expert qualifications.
The Affidavit of Merit statute does not apply to contract
claims or to assault and battery claims. See Darwin
v. Gooberman, 339 N.J. Super. 467 (App. Div 2001) certif. denied 169 N.J. 609 (2000). It also does not apply to the elements
of causation or damages within a malpractice case but is strictly limited to
the deviation from the accepted standard of care. Hubbard v.
Reed, 168 N.J. 387 (2001);
Darwin, supra at 480-481.
II. Statutes
N.J.S.A. 2A:53A-26. “Licensed
person” defined
As used in this act [C.2A:53A-26
through C.2A:53A-29], “licensed person”
means any person who is licensed as:
a. an accountant pursuant to P.L.1997, c.259 (C.45:2B-42 et seq.);
b. an architect pursuant to R.S.45:3-1 et seq.;
c. an attorney admitted to practice law in New Jersey;
d. a dentist pursuant to R.S.45:6-1 et seq.;
e. an engineer pursuant to P.L.1938, c.342 (C.45:8-27 et seq.);
f. a physician in the
practice of medicine or surgery pursuant to R.S.45:9-1 et seq.;
g. a podiatrist pursuant to R.S.45:5-1 et seq.;
h. a chiropractor pursuant to P.L.1989, c.153 (C.45:9-41.17 et seq.);
i. a registered professional nurse pursuant to P.L.1947, c.262 (C.45:11-23 et seq.);
j. a health care facility as
defined in section 2 of P.L.1971, c.136 (C.26:2H-2);
k. a physical therapist
pursuant to P.L.1983, c.296 (C.45:9-37.11 et seq.);
l. a land surveyor pursuant to P.L.1938, c.342 (C.45:8-27 et seq.);
m. a registered pharmacist
pursuant to P.L.2003, c.280 (C.45:14-40 et seq.);
n. a veterinarian pursuant to R.S.45:16-1 et seq.;
o. an insurance producer pursuant to P.L.2001, c.210 (C.17:22A-26 et seq.); and
p. a certified midwife,
certified professional midwife, or certified nurse midwife pursuant to R.S.45:10-1 et seq.
Pursuant to N.J.S.A. 26:2H-2, a Health Care
facility is defined broadly to include:
“Health care facility” means the facility or institution
whether public or private, engaged principally in providing services for health
maintenance organizations, diagnosis of treatment of human disease, pain,
injury, deformity or physical condition, including, but not limited to, a general hospital, special hospital,
mental hospital, public health center, diagnostic center, treatment center,
rehabilitation center, extended care facility, skilled nursing home, nursing
home, intermediate care facility, tuberculosis hospital, chronic disease
hospital, maternity hospital, outpatient clinic, dispensary, home health care
agency, residential health care facility, and bioanalytical laboratory (except
as specifically excluded hereunder) or central services facility serving one or
more such institutions but excluding institutions that provide healing solely
by prayer and excluding bioanalytical laboratories as are independently owned
and operated, and are not owned, operated, managed, or controlled, in whole or
in part, directly or indirectly by any one or more health care facilities, and
the predominant source of business of which is not covered by contract with
health care facilities within the State of New Jersey and which solicit or
accept specimens and operate predominantly in interstate commerce.
N.J.S.A. 2A:53A-27. Affidavit of lack
of care in action for professional, medical malpractice or negligence;
requirements
In any action for damages for personal injuries, wrongful
death or property damage resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or occupation, the plaintiff
shall, within 60 days
following the date of filing of the answer to the complaint by the defendant,
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. The court may grant no more than one additional
period, not to exceed 60 days, to file the affidavit pursuant to this section,
upon a finding of good cause.
In the case of an action for medical
malpractice, the person executing the affidavit shall meet the requirements of
a person who provides expert testimony or executes an affidavit as set forth in
section 7 of P.L. 2004, c. 17 (C. 2A:53A-41). In all other
cases, the person executing the affidavit shall be licensed in this or any
other state; have particular expertise in the general area or specialty
involved in the action, as evidenced by board certification or by devotion of
the person’s practice substantially to the general area or specialty involved
in the action for a period of at least five years. The person shall have no
financial interest in the outcome of the case under review, but this
prohibition shall not exclude the person from being an expert witness in the
case.
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N.J.S.A. 2A:53A-41. Requirements for person giving expert
testimony, executing affidavit
In an action alleging medical malpractice, a person shall not
give expert testimony or execute an affidavit pursuant to the provisions of
P.L. 1995, c. 139 (C. 2A:53A-26 et seq.) on the appropriate
standard of practice or care unless the person is licensed as a physician or
other health care professional in the United States and meets the following
criteria:
a. 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, 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, and if the person against whom or on whose behalf the testimony is
being offered is board certified and the care or treatment at issue involves
that board specialty or subspecialty recognized by the American Board
of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
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(1) a physician credentialed by a hospital to treat patients for the
medical condition, or to perform the procedure, that is the basis for the claim
or action;
or
(2) a specialist
or subspecialist recognized by the American Board of Medical Specialties or the
American Osteopathic Association who is board certified in the same specialty
or subspecialty, recognized by the American Board of Medical Specialties or the
American Osteopathic Association, and 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 either:
(a) the active clinical practice of the same health care profession in
which the defendant is licensed, and, if the defendant is a specialist or
subspecialist recognized by the American Board of Medical Specialties or the
American Osteopathic Association, the active clinical practice of that
specialty or subspecialty recognized by the American Board of Medical
Specialties or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other
accredited health professional school or accredited residency or clinical
research program in the same health care profession in which the defendant is
licensed, and, if that party is a specialist or subspecialist recognized by the
American Board of Medical Specialties or the American Osteopathic Association,
an accredited medical school, health professional school or accredited
residency or clinical research program in the same specialty or subspecialty
recognized by the American Board of Medical Specialties or the American
Osteopathic Association; or
(c) both.
b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert
witness, 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:
(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.
c. A court may waive the same specialty or subspecialty recognized by the
American Board of Medical Specialties or the American Osteopathic Association and
board certification requirements of this section, upon motion by the party
seeking a waiver, if, after the moving party has demonstrated to the
satisfaction of the court that a good faith effort has been made to identify an
expert in the same specialty or subspecialty, the court determines that the
expert possesses sufficient training, experience and knowledge to provide the
testimony as a result of active involvement in, or full-time teaching of,
medicine in the applicable area of practice or a related field of medicine.
d. Nothing in this section shall limit the power of the trial court to
disqualify an expert witness on grounds other than the qualifications set forth
in this section.
e. In an action alleging medical malpractice, an expert witness shall not
testify on a contingency fee basis.
f. An individual or entity who threatens to take or takes adverse action
against a person in retaliation for that person providing or agreeing to
provide expert testimony, or for that person executing an affidavit pursuant to
the provisions of P.L. 1995, c. 139 (C. 2A:53A-26 et seq.), which adverse action
relates to that person’s employment, accreditation, certification,
credentialing or licensure, shall be liable to a civil penalty not to exceed $
10,000 and other damages incurred by the person and the party for whom the
person was testifying as an expert.
N.J.S.A. 2A:53A-28 Affidavit
not required; conditions
An affidavit shall not be required pursuant to section 2 of
this act if the plaintiff provides a sworn statement in lieu of the affidavit
setting forth that: the defendant has failed to provide plaintiff with medical
records or other records or information having a substantial bearing on
preparation of the affidavit; a written request therefor along with, if
necessary, a signed authorization by the plaintiff for release of the medical
records or other records or information requested, has been made by certified
mail or personal service; and at least 45 days have elapsed since the defendant
received the request.
N.J.S.A. 2A:53A-29. Noncompliance deemed failure to state
cause of action
If the plaintiff fails to provide an affidavit or a
statement in lieu thereof, pursuant to section 2 or 3 of this act, it shall be
deemed a failure to state a cause of action.
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III. Case
Law
1. Does the Affidavit of Merit Apply to Federal
Court Actions? Yes. New Jersey Affidavit of Merit statute, NJSA 2A:53A-26 et
seq., applies to a medical malpractice complaints filed in the United States
District Court of New Jersey on the ground of diversity of citizenship because
there is no direct conflict between the New Jersey statute and Fed. R. Civ. P. 8 and Fed. R. Civ. P. 9, the New Jersey statute
was substantive law that was outcome determinative on its face, failure to
apply it would encourage forum shopping and lead to the inequitable
administration of the law, and there was no overriding federal interest that
would have prevented application of the state law by the federal courts. Chamberlain
v. Giampapa,
210 F.3d 154 (3d Cir. N.J. 2000).
2. Who
is entitled to the Affidavit of Merit? Only those licensed professionals
specifically listed in the statute.
Saunders v. Capital Health System
at Mercer, 398 N.J. Super. 500
(App. Div 2008).
3. What language must be included in the Affidavit? The affidavit must include the
language 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”.
See sample affidavit below.
4. Do you have to include each medical
defendant by name? Yes,
whenever possible. The affidavit
should specifically identify the individual defendants who deviated from the
standard of care whenever possible.
Fink v. Thompson, 167 N.J. 551 (2001). While the Statute is silent as to naming
each defendant in the affidavit (stating that the affidavit need only be served
on each defendant) the better practice is to identify as specifically as possible
the identity of each defendant, if not by name then by description. See Medeiros
v. O’Donnell and Naccarato, 347 N.J. Super. 536, 542 (App. Div. 2002).
5. Time for serving Affidavit of Merit? 60 days following the answer for each
particular defendant. This time
limit can be extended to 120 days upon filing of a motion to extend by
plaintiff’s attorney during the initial 60 day period. Where defense counsel files a motion to
dismiss after the 120-day deadline and before plaintiff has forwarded the
affidavit, the plaintiff should expect that the complaint will be dismissed
with prejudice provided the doctrines of substantial compliance and
extraordinary circumstances do not apply. Ferreira v.
Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
However, a delay in serving the
Complaint on a defendant will not allow a plaintiff to thwart the time
requirement under the statute. See Czepas v. Schenk, 362 N.J. Super. 216 (App. Div. 2003) (Patient’s counsel’s intentional
delay in serving the summonses and complaint in order to avoid application of
the Affidavit of Merit statute warranted dismissal of the medical malpractice
complaint).
6. Does the “Ferreira conference” toll the
time limit for filing the Affidavit of Merit? No. The Appellate Division most recent
decision rejected the argument that the trial court’s failure to schedule the
case management conference required by Ferreira v.
Rancocas Orthopedic Associates, 178 N.J. 144 (2003) tolled the
time to file or otherwise excused the malpractice claimant’s failure to timely
file an affidavit of merit.
In Paragon
Contractors, Inc. v. Peachtree Condominium Assn., 406 N.J. Super. 568 (App. Div. 2009), the Appellate Division addressed
the trial court’s failure to conduct a case management conference within 90
days of the filing of the third-party defendant’s answer, as mandated by the
Supreme Court in Ferreira v. Rancocas
Orthopedic Associates, 178 N.J.
144 (2003).
In this case, the plaintiff contractor sought damages from the
defendant condominium association for unpaid fees in connection with a
construction project. The defendant filed a third-party complaint against a
design professional alleging that its work was incomplete and defective, but
did not file a timely Affidavit of Merit.
In response to the design professional
motion to dismiss, the defendant argued that the civil division manager’s
office advised a legal assistant in its counsel’s office that a case management
conference would be scheduled, and that the Affidavit of Merit need not be
filed prior to the conference. The trial court rejected this argument and
dismissed the defendant’s third-party complaint.
The Appellate Division affirmed the trial court, holding that the trial court’s
failure to conduct the case management conference within 90 days of the filing
of an answer does not serve to toll the time to file or otherwise excuse the
requirement to file an Affidavit of Merit.
In rejecting the argument that the
court’s failure to schedule the conference required by Ferreria should toll the time in
which to file the Affidavit of Merit, the Paragon
Court noted that the Supreme Court did not impose the early conference
requirement “as a means of altering or amending the statute, nor, in adopting
this innovation, did the Court reveal any intention other than to continue to
enforce and respect the 120-day deadline crafted by the Legislature.” 406 N.J. Super. at 582. As such, the
attorney’s failure to file the Affidavit of Merit was fatal to the professional
negligence claim. The court
disagreed with its earlier decision in Saunders v. Capital Health, 398 N.J. Super. 500 (App. Div. 2008), which
allowed tolling in a similar case.
In its discussion, the court also noted that the defendant’s counsel’s failure
was excused by neither of the equitable remedies substantial compliance or
extraordinary circumstances available to claimants in the Affidavit of Merit
context, as there was no indication that the defendant ever had an Affidavit of
Merit in its possession, notwithstanding its counsel’s acknowledgment of the need
to file one. Further, the court noted that neither attorney inadvertence nor
counsel’s carelessness constitute extraordinary circumstances in the context of
the Affidavit of Merit statute.
7. Does
the Affidavit of Merit apply to informed consent cases? Yes. The Affidavit of Merit statute applies
to a patient’s medical malpractice complaint alleging lack of informed consent
because a plaintiff could not prevail on a lack of informed consent claim under
New Jersey law without expert testimony that the relevant risk was recognized
by the professional community even if an expert was not required to establish a
standard for disclosure or to prove that a physician failed to meet the
standard. See also, Risko v. Ciocca,
356 N.J. Super. 406 (App. Div. 2003).
8. Does
the expert affiant have to issue the affidavit under oath. Yes. The affidavit is not a certification and
must be a swearing under oath. A patient’s
malpractice suit against a doctor was properly dismissed for failure to comply
with the Affidavit of Merit statute as the failure to place a declarant under
oath was not a technical deficiency for which the doctrine of substantial
compliance could be invoked, but went to the very nature of an affidavit. Tunia v. St.
Francis Hosp., 363 N.J. Super. 301 (App.Div.
2003).
9. Is
the Affidavit of Merit required in common knowledge cases? No. Where defendant
physician acknowledged misreading lab results and had misdiagnosed an ectopic
pregnancy, performing unnecessary surgery on a non-pregnant plaintiff,
plaintiff was not required pursuant to N.J.S.A. 2A:53A-27 to file an
affidavit of merit because the common knowledge exception recognized that
meritorious claims could move forward without the added and unnecessary cost of
hiring an expert to execute an affidavit when that expert was not going to
testify at trial. Palanque v.
Lambert-Woolley, 168 N.J. 398 (2001).
Where mother sued dentist for
malpractice after dentist’s associate extracted the wrong tooth from child’s
mouth, mother’s suit was improperly dismissed for failure to comply with
affidavit of merit requirement because there was a common knowledge exception
to the statutory requirement where expert testimony was not required to
establish that dentist’s care fell below acceptable professional standards. Hubbard v.
Reed, 168 N.J. 387 (2001).
10. Sworn Statement
in lieu of Affidavit Based On Defendant’s Withholding Medical Records. Defendants in medical malpractice cases
must supply all relevant and requested medical records. If not supplied, the Affidavit of Merit
is waived upon the timely filing by plaintiff’s attorney (within 60 days—but
120 at the latest) that the medical records were requested but not provided and
prevented the expert from being able to produce an affidavit. See N.J.S.A.
2A:53A-28; Aster v. Shoreline Behavioral,
346 N.J. Super. 536 (App. Div 2002).
However, a defendant can rebut the attorney’s sworn statement that the
records had a “substantial bearing” on the preparation of the affidavit. For example, in Davies v. Imbesi, 328 N.J. Super. 372 (App. Div. 2000) the
court refused to apply the waiver since the unproduced medical records applied
to causation and not to deviation from the standard of care. Causation and proximate cause are not
relevant to the requirements under and the preparation of the Affidavit of Merit. See also, Balthazar v. Atlantic City Medical Center, 358 N.J. Super. 13 (App. Div. 2003).
11. Will the Doctrine of Substantial Compliance
protect a plaintiff who fails to technically comply with the statute? The Doctrine of substantial compliance
can be invoked to avoid dismissal of a medical malpractice action with
prejudice, but requires the moving party to show:
(1) the lack of prejudice to the
defending party;
(2) a series of steps taken to
comply with the statute involved;
(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 strict compliance with the statute.
Galik v. Clara Maass Medical Center, 167 N.J. 341 (2001).
In Galik,
the court found that the application of the doctrine was very fact specific and
that the doctrine would not be applied easily. The fact that the delay was caused by
litigation in “previously uncharted waters” was significant in the decision to
invoke the doctrine. Id.
12. Will the
Doctrines of Waiver/Equitable Estoppel protect a plaintiff who fails to
technically comply with the statute? Possibly. Just as plaintiffs are required to file
a timely affidavit under N.J.S.A. 2A:53A-27,
defendants must also act timely and cannot sleep on their rights; thus, where a
doctor let the deadline for receipt of an affidavit pass without filing a
dismissal motion and where the doctor, instead, engaged in the exchange of
interrogatories, deposed the patient and her husband and submitted to a
deposition, obtained the patient’s expert report, and had the patient
physically examined, the doctor’s fourteen-month delay barred his ability to
file a motion to dismiss under the doctrines of equitable estoppel and laches. Knorr v. Smeal, 178 N.J. 169 (2003). See also, Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003) (where the Supreme Court
reiterated that the goal of the Affidavit of Merit statute was to “weed out
frivolous lawsuits” and thereby applied the equitable doctrine in a case where
the affidavit of merit had been obtained within the appropriate time but not
supplied prior to the deadline).
In a malpractice case, a hospital was not entitled to
dismissal of the case based on the patient’s failure to provide an Affidavit of
Merit as required by N.J.S.A. 2A:53A-27 because the
hospital waited more than 20 months after it filed its answer to move for
dismissal and the parties had already engaged in extensive discovery. Mottola v. City of
Union City, 2008 U.S. Dist. LEXIS
21605 (D.N.J. Mar. 14 2008).
13. What if the plaintiff cannot find an
expert in the same specialty?
A court may waive the same specialty or subspecialty recognized by the
American Board of Medical Specialties or the American Osteopathic Association
and board certification requirements of N.J.S.A. 2A:53A-41 upon motion by the party seeking
a waiver, if, after the moving party has demonstrated to the satisfaction of
the court that:
1. A good faith effort has been made to
identify an expert in the same specialty or subspecialty; and
2. The court determines that the
expert possesses sufficient training, experience and knowledge to provide the
testimony as a result of active involvement in, or full-time teaching of,
medicine in the applicable area of practice or a related field of medicine.
The Supreme Court of New Jersey interprets that language as
a broad grant of discretion to the trial judge that does not bear with
it a temporal requirement that the proposed expert be engaged in performing the
medical procedure at issue on the date of the occurrence giving rise to the
claim.
Rather, the expert may have derived his training, experience, and
knowledge as a result of prior practice in the field; but that is not to
suggest that a lapse of time may not bear on a judge’s assessment of an expert’s
training, experience, and knowledge, only that it is not an automatic
disqualifier. The Supreme Court upheld the trial court’s use of discretion in
allowing the waiver. Ryan v. Renny, 203 N.J. 37 (2010).
14. Does the Affidavit of Merit apply to a
defendant’s third party claims?
No. In Highland Lakes Country Club and Community
Assoc. v. Nicastro, et al., 406 N.J. Super. 145 (App. Div. 2009), the
court confronted the situation arising when a defendant files a third-party
action against a licensed professional based on a plaintiff’s claim against the
defendant. In Highland Lakes, the
plaintiff country club sued the defendants, who were owners of an adjoining
residential property, contending that defendants were encroaching on six acres
of the country club’s property.
The defendants commenced a third-party action against
their surveyor, arguing that they relied on a survey prepared by the surveyor
prior to commencing construction. The defendants opted not to file an Affidavit
of Merit, rationalizing that their claims for contribution, indemnification,
and damages would not accrue unless and until the plaintiff country club
established an error in the survey on which the defendants relied. The trial
court denied the surveyor’s motion to dismiss.
On appeal, the Appellate Division affirmed the trial court’s decision, holding
that the defendants were not required to file an Affidavit of Merit because
their third-party claims against the surveyor were not yet ripe. The court’s
rationale was that the Affidavit of Merit Statute’s goal of preventing
frivolous claims against professionals from proceeding was not implicated by
third-party claims that are asserted to protect against possible liability
based on the negligence of the professional.
As the defendants had not asserted
that the survey was inaccurate or that they had been damaged by errors in the
survey, the court found that, as a practical matter, application of the Statute
was not necessary to preclude the defendants’ claims because they would only
pursue those claims when and if the plaintiff provided evidence of an error in
the survey to support its claim against the defendants. The court was also persuaded by the
unfairness to the defendants that would result if they were required to file an
Affidavit of Merit at this stage, stating that the Affidavit of Merit requirement
was not intended to “eliminate claims not yet ripe for adjudication without
regard to merit when assertion of probable merit would require a defendant to
support the claims asserted against it by a plaintiff who has not come forward
with competent proof of the error it alleges.” 406 N.J. Super. at 154-155.
The court suggested, however, that once the
plaintiff provides evidence of an error in the survey, the defendants’ claim
for professional negligence accrues, which would likely trigger the 120-day
clock for filing an Affidavit of Merit.
The New Jersey Supreme Court recently affirmed the Appellate Division decision
in a short per curiam opinion. Highland Lakes Country Club & Cmty. Ass’n v. Nicastro, 201 N.J. 123 (2009). In doing so, the Court noted that its
affirmance was based on “substantially . . . the reasons expressed in the
thorough and thoughtful opinion” of the Appellate Division.
15. Recent confusion concerning experts and
qualifications to render the Affidavit of Merit:
In Harbeson v.
Underwood Memorial Hospital, 2009 N.J. Super. Unpublished LEXIS 1676 (App. Div.), the Appellate Division held
that an affidavit was required to be filed against a nurse anesthetist even
though that profession is not specifically designated by N.J.S.A. 2A:53A-26.
In Harbeson, the plaintiffs
alleged that a nurse anesthetist improperly delayed the administration of a
pre-operative antibiotic. The Harbeson Court utilized the definition of a
“health care provider” in N.J.S.A.
2A:53A 40(e) rather than those is 2A:53A-26 stating:
The Medical Care Act did not define “medical
malpractice action.” However, one of the significant changes it made to
the State’s tort liability system was to provide an “affidavit of
noninvolvement” as a means to secure the dismissal of a
medical-malpractice action. N.J.S.A.
2A:53A-40. Specifically, “[a] health care provider named as a defendant in
a medical malpractice action may cause the action against that provider to be
dismissed upon the filing of an affidavit of noninvolvement with the
court.” N.J.S.A. 2A:53A-40(a).
It further defined “health care provider” as:
an individual or entity which, acting within the
scope of its licensure or certification, provides health care services, and
includes, but is not limited to: a physician, dentist, nurse, pharmacist or
other health care professional whose professional practice is regulated
pursuant to Title 45 of the Revised Statutes; and a health care facility
licensed pursuant to P.L. 1971, c. 136 (C. 26:2H-1 et seq.).
[N.J.S.A.
2A:53A-40(e).]
Thus, a medical-malpractice action is an action
against a licensed individual providing health care services as specified in N.J.S.A. 2A:53A-40(e). Consequently, an
affiant on an affi_davit of merit in an action against a health-care provider,
as defined by N.J.S.A. 2A:53A-40(e),
must meet the requirements of N.J.S.A.
2A:53A-41.
The
court then declared that a nurse-anesthetist is a “general practitioner” and that
same Board certification was not required.
The court held that the expert must meet the criteria of N.J.S.A. 43A 41(b), and remanded the case back to the trial
judge to make more specific findings regarding whether the experts met those
practice qualifications.
In Buck v. Henry, 203 N.J. 432 (2011) Supreme Court
reversed an Appellate Division dismissal of a medical malpractice action for
the plaintiff’s failure to comply with the Affidavit of Merit requirement of
having like qualified experts where the plaintiff sued a family practitioner but
obtained affidavits from a psychiatrist and an emergency medicine doctor.
The facts were such that the plaintiff, a depressed insomniac,
consulted the defendant, who was board certified in emergency medicine but was
practicing family medicine. The defendant prescribed Zoloft to improve the
plaintiff’s mood and Ambien to help him sleep. The plaintiff took the Ambien
and fell asleep while he was “inspecting his .38 caliber Colt revolver.
Thereafter, plaintiff was awakened by what he thought was the sound of a
telephone ringing. Forgetting that the handgun was still in his right hand, he
reached for the telephone with his left hand. According to plaintiff, this
action caused the barrel of the handgun to enter his mouth and discharge.”
The plaintiff served two Affidavits of Merit, one from a board-certified
psychiatrist and another form a physician board certified in emergency
medicine. The defendant moved to dismiss because neither affiant practiced
family medicine.
The Appellate Court agreed, holding:
[W]e accept Dr. Henry’s certification that he is a family medicine
specialist because he has devoted his medical practice to that rec_ognized
specialty area . . . Because plaintiff was required to submit an affidavit of
merit from a physician who specialized in family medicine, and he failed to do
so, the motion judge correctly granted Dr. Henry’s motion to dismiss his
complaint.
The
Supreme Court reversed and remanded for a case management conference finding
that enough confusion existed regarding the defendant’s specialty to excuse
plaintiff’s mistake. The confusion
stemmed from the failure of the trial court to hold a Ferreira conference
coupled with the fact that the defendant physician was board certified in
emergency medicine and was providing psychological treatment that shows
plaintiff’s efforts were in good faith.
Thus, the two affidavits, although subsequently determined to be
incorrect, were obtained in good faith and show that plaintiff did not sleep on
his rights but was justifiably confused regarding which specialty the defendant
was practicing when he administered the care that was the subject of the
suit. Going forward, the Supreme
Court has requested that the Rules Committee require a defendant to disclose
the specialty he was practicing at the time of the treatment to avoid any future
problems.
It
is therefore prudent to obtain an Affidavit from an expert who is board
certified in the same area as the defendant and, if the defendant is practicing
out of his field, a second Affidavit from an expert who actively treats the
condition or performs the procedure in question.
In Ryan v. Renny, 203 N.J. 37 (2010), a case arising out of the performance of a colonoscopy by a
gastroenterologist, the Supreme Court upheld the trial court’s determination
granting a plaintiff’s application for waiver of the same
specialty/qualification and in so doing allowed a surgeon who was not board
certified in gastroenterology and who had not performed a colonoscopy in years qualified
to render the Affidavit of Merit. The plaintiff’s attorney certified that he
had contacted three gas_troenterologists who would not review the case. The
plaintiff’s attorney then secured the services of a general surgeon who had
substantial experience with colon surgery and who had performed colonoscopies,
albeit long ago.
Justice Long writing for the Supreme Court set
forth the standard that a plaintiff must demonstrate to invoke the waiver but
also gave the trial court broad discretion in reviewing the application with no
one factor being determinative. The
key language was as follows:
[T]he plain
language of the waiver provision, which directs the judge to focus on the
“effort” the moving party made to obtain a statutorily-authorized
expert, and not on the reasons why a particular expert or experts declined to
execute an affidavit. That focus reflects a legislative judgment that the
moving party should make a legitimate attempt to obtain an
equivalently-qualified expert and should not be relieved of that burden by
desultory undertakings or half-hearted endeavors. It follows that, to prove a good faith
effort, a moving party must show what steps he undertook to obtain an expert
qualified according to N.J.S.A. 2A:53A-41(a)
or (b).
By way of example, that would include:
the number of experts in the field; the number of experts the moving party
contacted; whether and where he expanded his search geographically when his
efforts were stymied; the persons or organizations to whom he resorted for help
in obtaining an appropriate expert; and any case-specific roadblocks (such as
the absence of local sub-specialty experts) he encountered. However, the
experts’ reasons for declining simply do not bear on the robustness of movant’s
efforts.
Indeed, the very existence of the waiver provision makes
it obvious to us that the Legislature did not intend a malpractice case to
stand or fall solely on the presence or absence of a same-specialty expert. However, if that were the case, the Legislature
would not have provided for waiver or, at the very least, would have declared
that waiver was somehow limited by the substance of an expert’s refusal to
execute an affidavit. It did not do
so.
By the broad waiver provision, the Legislature explicitly recognized that there
would be legitimate malpractice claims for which a plaintiff would not be able
to obtain an affidavit of merit from an equivalently-qualified expert or even
from an expert in the same field. Thus, it created a safety valve for those
cases by providing the judge with broad discretion to accept an expert with
“sufficient training, experience and knowledge to provide the testimony”,
but only if plaintiff made a good faith effort to satisfy the statute. Moreover, the
Legislature left it to the “satisfaction of the court” to determine
whether an honest “effort” was made to identify an expert in the same
specialty or subspecialty. Hence, it is the “effort” of the movant that is the
focal point of the waiver provision.
16. Affidavit
of Merit – Must still be obtained against the negligent professional even where
the public entity is the only defendant sued. McCormick v. State, 446 N.J.
Super. 603 (App. Div. 2016).
Same is true if plaintiff sues only a professional corporation and not
the professional. Shamrock
Lacrosse, Inc., v. Klehr, Haririson,
Harvey, Branzburg & Ellers,
LLP, 416 N.J. Super. 1 (App. Div. 2010).
17. Specialists- Only Doctors are specialists under the
AOM statute. The specialization
requirement of section 41 of the PFA only apply to physicians (NOT applicable
to nurses, lawyers, dentists etc.).
Meehan v. Antonellis, 226 N.J.
216 (2016). For other professionals
who are not doctors, the expertise requirement can overlap more easily and need
not be identical to that of defendant to TESTIFY or offer AOM.
18.
American
Board of Medical Specialties (ABMS)
Approved
General and Subspecialty Certificates
ABMS Member Boards certify physicians in more than 150
specialties and subspecialties. The following chart lists the current specialty
and subspecialty certificates offered by ABMS Member Boards. See www.abms.org
for more information.
|
General Certificate(s) |
Subspecialty Certificates |
|
American |
|
|
Allergy |
No |
|
American |
|
|
Anesthesiology |
Critical Care Medicine Hospice and Palliative Medicine Pain Medicine Pediatric Anesthesiology 1 Sleep Medicine 1 |
|
American |
|
|
Colon |
No |
|
American |
|
|
Dermatology |
Dermatopathology |
|
American |
|
|
Emergency |
Emergency |
|
American |
|
|
Family |
Adolescent |
|
American |
|
|
Internal |
Adolescent Medicine Advanced Heart Failure and Transplant Cardiology Cardiovascular Disease Clinical Cardiac Electrophysiology Critical Care Medicine Endocrinology, Diabetes and Metabolism Gastroenterology Geriatric Medicine Hematology Hospice and Palliative Medicine Infectious Disease Interventional Cardiology Medical Oncology Nephrology Pulmonary Disease Rheumatology Sleep Medicine Sports Medicine Transplant Hepatology |
|
American |
|
| Clinical Biochemical Genetics* Clinical: Cytogenetics* Genetics (MD)* Molecular Genetics* |
Medical Biochemical Genetics Molecular Genetic Pathology |
|
American |
|
|
Neurological |
No |
|
American |
|
|
Nuclear |
No |
|
American |
|
|
Obstetrics |
Critical |
|
American |
|
|
Ophthalmology |
No |
|
American |
|
|
Orthopaedic |
Orthopaedic |
|
American |
|
|
Otolaryngology |
Neurotology |
|
American |
|
|
Anatomic |
Blood Banking/Transfusion Medicine |
|
American |
|
|
Pediatrics |
Adolescent Medicine |
|
American |
|
|
Physical |
Hospice |
|
American |
|
|
Plastic |
Plastic |
|
American |
|
|
Aerospace |
Medical |
|
American |
|
|
Psychiatry* |
Addiction |
|
American |
|
|
Diagnostic |
Hospice |
|
American |
|
|
Surgery* |
Complex |
|
American |
|
|
Thoracic |
Congenital |
|
American |
|
|
Urology |
Female |
|
*Specific |
American Osteopathic Association
Approved Board Specialties
& Subspecialties
This
table shows the types
of certification available from
each Specialty Certifying Board.
For updated information go to www.osteopathic.org
Updated April 10, 2010
|
_Certifying |
Primary |
_Certification of Special Qualifications |
Certification of Added Qualifications (CAQ) |
|
Anesthesiology_ |
Anesthesiology__ |
None |
Addiction Critical Pain |
|
Dermatology_ |
Dermatology_ |
None |
Dermato-pathology MOHS-Micrographic |
|
Emergency Medicine_ |
Emergency |
None |
Emergency Medical Sports Undersea
|
|
Family Physicians |
Family |
None offered |
Addiction Adolescent/ Adult Geriatric Sports Undersea Hospice Sleep
|
|
Internal Medicine |
Internal |
Allergy/Immunology Cardiology Endocrinology Gastroenterology Hematology Hematology/ Infectious Pulmonary Nephrology Oncology Rheumatology_
|
Addiction Critical Clinical Interventional Geriatric Sports Undersea Hospice Sleep
|
|
Neurology & Psychiatry_ |
Neurology |
Child/Adolescent Psychiatry Child/Adolescent Neurology/Psychiatry*
|
Addiction Neurophysiology Geriatric Hospice Sleep
|
|
Neuromusculoskeletal Medicine_ |
Neuromusculoskeletal Medicine & OMM Special Proficiency in Neuromusculoskeletal |
None |
Sports |
|
Nuclear Medicine |
Nuclear |
None |
Nuclear Nuclear In
|
|
Obstetrics & Gynecology_ |
Obstetrics Obstetrics |
Gynecologic Maternal Reproductive
|
None |
|
Ophthalmology & Otolaryngology |
Ophthalmology Otolaryngology Facial Otolaryngology/Facial
|
None |
Otolaryngic Allergy Sleep |
|
Orthopedic Surgery_ |
Orthopedic |
None |
Hand |
|
Pathology_ |
Laboratory Anatomic Anatomic
|
Forensic |
Blood Chemical Cytopathology* Dermatopathology Hematology-Pathology* Immunopathology* Medical Neuropathology*
|
|
Pediatrics_ |
Pediatrics_ |
Adolescent Neonatology Pediatric Pediatric Pediatric
_ |
Sports |
|
Physical Medicine & |
Physical Medicine & Rehabilitation_ |
None |
Sports Medicine Hospice & Palliative Medicine_ |
|
Preventive Medicine_ |
Preventive Preventive Preventive Preventive
|
None offered_ |
Occupational Medicine**** Sports Medicine* Undersea and Hyperbaric Medicine
_ |
|
Proctology_ |
Proctology_ |
None |
None |
|
Radiology |
Diagnostic Radiation Diagnostic Radiology* Roentgenology*_
|
Radiation |
Body Diagnostic Neuroradiology* Nuclear Pediatric Angiography
|
|
Surgery_ |
Surgery Neurological Plastic Thoracic Urological General
|
None offered_ |
Surgical |
|
_ |
_ |
_ |
_ |
|
SAMPLE AFFIDAVIT OF MERIT
AFFIDAVIT OF MERIT
STATE OF :
§:
COUNTY OF :
I,
_______________, M.D., F.A.C.S., being over eighteen years of age, hereby state
and swear:
1. I
am a licensed physician in the State of New York. I am Board Certified in general surgery
(a copy of my C.V. is attached hereto).
2. For
at least the last five years, my practice has been substantially devoted to
general surgery (including laparoscopic surgery to the gallbladder).
3. I
have no financial interest in the outcome of this case.
4.
Based upon the records which I have reviewed, there is a reasonable probability
that the care, skill or knowledge exercised or exhibited in the treatment of
_________ on August 6, 2009 by ________________, M.D. and ________ Surgical
Associates, fell outside the professional treatment standards.
____________________________________
___________________,
M.D., F.A.C.S.
Sworn and Subscribed before me this
______ of ________________, 2010.
______________________________
NOTARY PUBLIC
III. Practical
Tips/Pointers
1. Get
the medical records early and not on the eve of the statute;
2. If
a treating physician cannot be identified, send a letter to the medical
facility requesting the names of all treating physicians and their practice
specialty and enclose pages applicable to the treating doctor;
3. Find
out what medical specialties and board certifications pertain to the treating
doctor and what capacity he/she was acting in at the time of treatment;
4. If
sending a Tort Claims Notice, put the above requests (#2 & #3) in the Tort
Claims Notice;
5. Utilize
experts that are practicing/teaching in the same medical specialty and have the
same board certifications as the defendant. When in doubt get multiple affidavits;
6. Make
sure the Affidavit of Merit complies with the statutory requirements and update
it on a regular basis;
7. File
the Affidavit of Merit with your Complaint and attach it as an exhibit;
8. Be
ready to anticipate additional defendants and/or third party defendants in the
event you have to amend the complaint;
9. Keep
in mind that the Affiant does not have to be the ultimate expert utilized in
your case;
10. When
in doubt, call a colleague and get help before it’s too late.
