A Liberal Interpretation of the Affidavit of Merit Statute in New Jersey

In a New Jersey malpractice action, choosing the proper expert to provide an affidavit of merit can by complicated. The affidavit of merit statute requires that in any medical malpractice action the plaintiff must provide each defendant with an expert's affidavit within 60 days after the filing of the defendant's answer. N.J.S.A. 2A:53A-27. An affidavit of merit must be signed by an appropriately licensed person. In 2004 the statue was amended, requiring that "if the party against whom or on whose behalf the testimony is offered is a specialist...and the care or treatment at issue involves that specialty...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."

In the federal case of Jorden v. Glass, 2010 U.S. Dist. LEXIS 20073 (D.N.J. Mar. 5, 2010), the court was concerned with the nature of the treatment, not the type of specialty. The Jorden case involved allegations of negligent treatment related to the decedent's medical condition. The decedent was part of a clinical trial concerning the dosage and food effects of a new medicine for schizophrenic patients. The plaintiff alleged that the defendant, Dr. Glass, failed to act appropriately in the face of the decedent's complaints and pain, which led to his heart attack and death. According to the death certificate, the decedent died from an acute myocardial infarction. The plaintiff provided affidavits of merit authored by a general internal medicine physician, as well as a board certified internist and cardiologist. Dr. Glass, a board certified psychiatrist, sought to dismiss the claims because the plaintiff's affidavits of merit were not prepared by a doctor who specializes in psychiatry.

Dr. Glass relied on Ryan v. Renny, 408 N.J. Super. 590 (App. Div. 2009). In that case, the plaintiff alleged that Dr. Renny, a board certified internist and gastroenterologist, negligently performed a colonoscopy. The plaintiff submitted an affidavit of merit prepared by a surgeon who was not board certified in gastroenterology and who had not performed a colonoscopy in several years. Plaintiff's counsel provided the physician's curriculum vitae and portions of a deposition transcript indicating that the physician performed a colonoscopy several years prior to 2004. Plaintiff's counsel also argued that as a general surgeon, the physician is constantly involved in the colon surgery relating to the colon and procedures relating to the colon. The Appellate Division reversed and dismissed the complaint for failing to comply with the affidavit of merit statue, finding that the affidavit of merit must be executed by a physician who practices either internal medicine or gastroenterology and is board certified in either specialty.

The plaintiff in this matter argued that his cause of action was not directed to Dr. Glass' specialty in psychiatry but rather to the general treatment of chest pains. The court agreed, finding that Dr. Glass' treatment of the decedent's chest pains involved the application of general medical principles, not specialized psychiatric care. The court further commented that Dr. Glass failed to submit evidence that the treatment of a patient's chest pains while involved in a phase I clinical drug study is different than the treatment afforded to an ordinary patient with chest pains. The Jorden Court distinguished the Renny case, stating that when a gastroenterologist performs a colonoscopy, she is utilizing her special knowledge rather than the general skill and knowledge she acquired in medical school.

Practical Tip: When determining the sufficiency of an affidavit of merit, first identify whether the defendant is a specialist or subspecialist. If so, then determine whether the treatment involves that specialty or subspecialty. In order to accomplish this, determine whether the defendant was utilizing her special knowledge rather than the general skill and knowledge acquired in medical school. If the answer to both inquiries is affirmative, then the expert offering the affidavit of merit must specialize at the time of the occurrence in the same specialty or subspecialty.

*Phil is an associate in the firm's Health Care Department. He works in our Cherry Hill, New Jersey, office and can be reached at (856)-414-6005 or at pjanderson@mdwcg.com.

Defense Digest, Vol. 16, No. 2, June 2010