Buck v. Henry, A-0362-09TA (App. Div. 2010)

Choosing the right kind of doctor in a New Jersey malpractice case can be tricky.

The plaintiff, a depressed insomniac, was prescribed Zoloft and Ambien. The defendant was a board certified physician in emergency medicine but practicing family medicine. The plaintiff took the Ambien and fell asleep while "inspecting his .38 caliber Colt revolver." He was awakened by the sound of the telephone but forgot that the handgun was still in his hand, causing the barrel of the gun to enter his mouth and discharge. The plaintiff served two Affidavits of Merit, one from a board certified psychiatrist and the other from a physician who was board certified in emergency medicine. The court granted the defendant's motion to dismiss because neither affiant practiced in family medicine. The ruling turned on interpretation of a 2004 change to the statute that says that where the claim is against a medical specialist and "the care or treatment at issue involves that specialty," the person providing the affidavit must have the same specialty. Therefore, one must determine whether the medical provider is a specialist and the care and treatment at issue involves that specialty to determine whether the Affidavit of Merit is sufficient.

Case Law Alert - 3rd Qtr 2010