Under plain language of waiver provision in affidavit of merit statute, “good faith effort” requirement for waiver of specialty requirement focuses solely on moving party's “effort” to secure specialty expert, not reasons why specialty expert declined to

The defendant physician, who is board certified in gastroenterology, performed a colonoscopy on the plaintiff. The procedure resulted in a perforated colon, thus prompting the filing of the suit. Plaintiff was unable to locate a board certified gastroenterology to author an affidavit of merit but was able to locate a board certified general surgeon who performed more than 100 colonoscopies. The defendant filed a motion to dismiss for failure to serve an affidavit of merit by a board certified gastroenterologist, and the plaintiff crossed moved seeking an Order waiving the specialty requirement in the Statute. The trial court granted plaintiff’s application, and the Appellate Division reversed on the grounds that plaintiff had not demonstrated a good faith effort to identify an expert who meets the requirements of N.J.S.A. 2A:53A-41(a). Ryan v. Renny, 408 N.J.Super. 590, 596-97, 975 A.2d 971 (App. Div.2009). In ruling, the panel denominated the absence of an explanation of why the three gastroenterologists declined to provide an opinion as "a crucial failure in plaintiff's application for a section 41c waiver." The court’s reasoning was that if a plaintiff could not obtain an affidavit from an equivalently-qualified expert to defendant, the claim was specious. This case presented the court the opportunity to interpret the waiver provision and to answer the question of whether the notion of a "good faith effort" contemplates a substantive explanation, to the court, why experts in defendant's field refused to supply plaintiff with an opinion. The court answered this question in the negative and reversed the appellate panel. The court disagreed with the argument set forth by the defendant physician, noting that it does not accord with the 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. 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. It is the effort of the movant that is the focal point of the waiver provision. Accordingly, the Legislature did not intend a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert.

Case Law Alert - 1st Qtr 2011