The New Jersey Supreme Court places another requirement upon litigants under the Affidavit of Merit Statute.

The plaintiff was diagnosed with mild depression and insomnia and was prescribed Zoloft and Ambien by the defendant physician. Weeks later, the plaintiff took an Ambien and fell asleep while inspecting his gun. He awoke in the middle of the night to what he thought was a ringing phone. The plaintiff had his gun in his right hand, then allegedly reached for the phone with his left, somehow discharging the barrel of gun into his mouth, resulting in serious and permanent injuries.

The plaintiff filed suit against Dr. Henry, a board certified emergency medicine physician, alleging medical malpractice, and against Sanofi-Aventis, alleging product liability. The plaintiff served two Affidavits of Merit, one from a psychiatrist and another from a specialist in emergency medicine. The defendant contended he was rendering care and treatment to the plaintiff in his role as a practitioner in family medicine. The trial court did not conduct a Ferreira case management conference despite being requested by the defendant.

The defendant filed a summary judgment motion contesting the sufficiency of the Affidavits of Merit. The defendant physician submitted a certification that he specialized in family practice medicine when providing care and treatment. The plaintiff opposed, arguing the psychiatry Affidavit of Merit was sufficient as treating a patient with insomnia fell within the "general practice" of medicine. The plaintiff further argued that one cannot be a specialist in family medicine absent board certification. The trial court ultimately granted the motion, and the Appellate Division Affirmed in an unpublished opinion.

The Supreme Court reversed and remanded. The Court relied on the fact that the plaintiff did not have the defendant's certification, which provided he was a family-medicine practitioner when treating the plaintiff, until the pendency of the motion for summary judgment. The Court further noted, "There are no villains here, but we have a record that bespeaks confusion." The Court held this was not the type of meritless lawsuit the Affidavit of Merit was intended to "weed out."

Ultimately, the Supreme Court carved out a requirement that, moving forward, "a physician defending against a malpractice claim (who admits treating the plaintiff) must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty."

Case Law Alert - 1st Qtr 2012