The Affidavit of Merit Statute In Medical Malpractice Cases Continues to Evolve In New Jersey

New Jersey – Health Care Liability

Key Points:

• Defendants in medical malpractice cases must now include in their answer the field of medicine in which the physician specializes and whether the treatment of the plaintiff involved that specialty.
• Ferreira conferences are once again called for, and the lack of a conference may factor in a court’s determination of whether a plaintiff has made a good faith effort to provide an appropriate affidavit of merit.

In 1995 the New Jersey Legislature passed the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26–29, with the intention of weeding out frivolous claims against certain professionals, including physicians, and letting only meritorious cases continue. Many cases have been heard since that time by the New Jersey Supreme Court, and as of 2010, it appeared that the landscape was settled. However, in 2011 the Court returned to this area of the law and added a new requirement on defendants. Now, when defendants are answering a plaintiff's complaint in medical malpractice cases, the defense must include in its answer the field of medicine in which he specializes, if any, and whether his treatment of the plaintiff involved that specialty. This is meant to avoid any confusion and put the plaintiff on notice of the defendant's specialty so that the plaintiff can then get the appropriate specialist to prepare the affidavit of merit.

In a professional malpractice matter, a plaintiff must comply with N.J.S.A. 2A:53A-26–29, the Affidavit of Merit Statute, in order to make a showing that the claim is meritorious so that meritless lawsuits can be readily identified in the early stages of litigation. In re Hall, 147 N.J. 379 (1997). The Affidavit of Merit Statute, N.J.S.A. 2A:53A-27, provides in relevant part:

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.

The statute goes on to provide that "[i]f the plaintiff fails to provide an affidavit or a statement in lieu thereof…it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. The plaintiff's failure to serve the affidavit of merit within the time prescribed is tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice. Palanque v. Lambert-Wooley, 168 N.J. 398, 404 (2001).

Defendants have continually argued that the language of the statute is clear and that an affidavit of the appropriate specialist must be provided within 120 days of the answer of the defendant. The statute states that a court may not extend the time beyond 120 days. However, the courts have inserted several steps so that the plaintiff is not left unaware on day 120 of a case that is believed to be meritorious.

First, the New Jersey Supreme Court instituted a requirement that a conference be held within 90 days of the service of the initial answer so that the issue of an affidavit of merit could be addressed. Ferreira v. Rancocas Orthopedics Associates, 178 N.J. 144 (2003). The idea was that, if no affidavit of merit had been served by that time, the plaintiff was reminded. If an affidavit was served and the defendant had some dispute regarding its adequacy, this could be addressed at the conference. However, in most cases, when an affidavit of merit was served that the defense found to be adequate, the parties were permitted to waive the conference.

By 2010 it was thought this system was set. However, in the case of Paragon Contractors, Inc. v. Peachtree Condominium Association, 202 N.J. 415 (2010), the Supreme Court saved a case where an affidavit of merit was not served within the 120-day time frame. The original complaint was for payment of construction work. Thereafter, a third-party complaint was filed, and the case was moved to the professional liability malpractice track. After 120 days passed from the answer to the third-party complaint, a motion was filed to dismiss for failure to provide an affidavit of merit. Once the motion was filed, the third-party plaintiff then filed the affidavit of merit. The third-party plaintiff's defense was that a conference had not been held under the Ferreira case as the court had previously required. In this case, the Supreme Court found some confusion and, therefore, permitted the late filing of the affidavit of merit. However, the Court then stated that, going forward, whether or not a Ferreira conference took place would not serve to toll the statutory time frames. (The Court apparently believed that, now, fifteen years after the enactment of the statute, the requirements were clear.)

However, in 2011, the Court appears to have made an about-face. It now states that the need for a Ferreira conference is more vital today due to the complexity of the statute on affidavits of merit in medical malpractice cases. The Court now requires answers to include the field of medicine in which a defendant specializes, if any, and whether the defendant's treatment of the plaintiff involved that specialty.

This arises from the case of Buck v. Henry, 207 N.J. 377 (2011). Plaintiff Robert Buck had sleep issues and was treated by defendant Dr. James Henry, a physician board certified in emergency medicine. Dr. Henry prescribed Zoloft, an anti-depressant, and Ambien, a sleep aid. Several weeks later, after taking Ambien, the plaintiff fell asleep while inspecting a gun he owned. He stated he was awakened by what he believed was a telephone ringing and forgot he was holding his gun in his right hand. He reached for the receiver with his left hand, somehow causing the barrel of the gun to enter his mouth and discharge. As a result of the gunshot wound, the plaintiff suffered permanent physical injuries.

The plaintiff brought suit against Dr. Henry, and an answer was filed. The plaintiff forwarded an affidavit of merit signed by a psychiatrist. Dr. Henry's counsel wrote to the plaintiff advising that the psychiatrist was not qualified to author an affidavit of merit as, at the time of the treatment, Dr. Henry was engaged as a family practitioner.

For some reason, the trial court inadvertently issued an order that a Ferreira conference was not necessary as all counsel had confirmed that issues regarding the affidavit of merit had been addressed appropriately. At some point, the plaintiff apparently became aware that Dr. Henry was board certified in emergency medicine and served a second affidavit of merit, this time from an emergency physician. After 120 days passed, the defendant filed a motion for summary judgment stating that the affidavits of merit provided by the plaintiff were inadequate. The trial court granted summary judgment, holding that defendant Dr. Henry was practicing in family medicine and, therefore, the two affidavits provided by the plaintiff were inadequate.

The Appellate Division affirmed, but the New Jersey Supreme Court reversed, noting the problem that a Ferreira conference had not been held and that the plaintiff had taken the steps to provide two separate affidavits of merit. The Court stated that, if the Ferreira conference had actually been held, then the issues regarding appropriateness of the affidavit would have been addressed. As the Ferreira case called for this conference to take place within 90 days of the filing of the answer, the plaintiff would have had at least 30 days to provide the appropriate affidavit. The Supreme Court remanded the case back to the trial level, ordering that a Ferreira conference be held and that the plaintiff be provided 30 days from the date of the conference to provide another affidavit if the affidavits already provided were deemed inadequate.

What can be gleaned from this latest turn of events? The key point is that the New Jersey Supreme Court seems to give the benefit of the doubt to plaintiffs who have made good faith efforts to comply with the Affidavit of Merit Statute and where there is some particular confusion in the case. Given the Court's new requirement that defendants advise of their specialty in the original answer, the intention is that there be no confusion from this point forward and that plaintiffs now comply with the strict language of the statute. As for the defense, Marshall Dennehey will continue to fight for our clients by pressing plaintiffs to provide an affidavit of merit from an appropriately licensed physician and, if such an affidavit is not provided, file the appropriate motion to get the complaint against our client dismissed.

*Eric is an associate in our Roseland, New Jersey, office who can be reached at 973.618.4119 or elgrogran@mdwcg.com.

Defense Digest, Volume 18, No. 1, March 2012