Appellate Division affirms trial court's grant of motion to bar plaintiff's expert where the expert failed to meet requirements of N.J.S.A. 2a:53a-41.
The plaintiff, a 68-year-old woman, reported complaints of vaginal bleeding to her gynecologist. Her gynecologist referred the plaintiff to the defendant specialist who was board certified in both obstetrics and gynecology, as well as gynecologic oncology. The defendant performed a total abdominal hysterectomy, removal of the plaintiff's fallopian tubes and a para-aortic lymph node dissection. The plaintiff alleged that the defendant negligently cut her ureter during the procedure and then failed to recognize the injury.
At deposition, the plaintiff's expert, who was not board certified in gynecologic oncology, was questioned regarding his performance of similar procedures. He testified that, while he had done such procedures in the past, such cases are now referred out to specialists in gynecologic oncology or general surgeons. The plaintiff's expert testified that he had not performed such a procedure in the last twenty years. Nonetheless, he offered testimony as to the standard of care and maintained the defendant deviated in this case, noting the same standard applies for a "generalist" as it does for a specialist.
Before trial, the defendant moved to bar the plaintiff's expert, relying on N.J.S.A. 2A:53A-41 and arguing that if a defendant is a board certified specialist, then the expert offering testimony against him must be similarly qualified. The trial court granted the defendant's motion, recognizing that by virtue of the plaintiff's expert's own testimony, the standard of care now requires a gynecologist to refer a patient needing a para-aortic dissection to a gynecologic oncologist. Neither the trial court nor the appellate panel in affirming was persuaded by the plaintiff's expert's testimony that he had performed this procedure in the past and was, thus, qualified to opine. Instead, the panel held that the plaintiff's expert was "not competent to review and opine on a procedure" performed by the defendant under the "extremely difficult surgical conditions." In so ruling, the appellate panel strictly interpreted the provisions of N.J.S.A. 2A:53A-41 and was guided by the recent Supreme Court opinion in Buck v. Henry, 207 N.J. 377 (2011).
Case Law Alert - 3rd Qtr 2012