Medical Malpractice Suit Dismissed for Inadequate Affidavit of Merit in Wrongful Death Following Kidney Biopsy

The decedent had undergone an elective kidney biopsy and suffered a large retroperitoneal bleed, resulting in her death. The plaintiff, individually and as the estate executor, appealed the trial court’s dismissal of her medical malpractice complaint based on the failure to provide a sufficient affidavit of merit. 

The defendant doctor argued that the affidavit of merit doctor did not share the same specialty or subspecialty; therefore, the affidavit of merit was non-compliant. The trial court found that the affidavit of merit was insufficient. The plaintiff argued there was no distinction in the level of expertise between the doctors’ certifications. 

The court noted that the defendant specialized in internal medicine and subspecialized in pulmonology and critical care medicine, while the affidavit of merit affiant specialized in general and vascular surgery with a subspecialty in surgical critical care. The court concluded that the plaintiff’s contention that the expert satisfied the requirements of the affidavit of merit statute, because of his subspecialty in surgical critical care, were unpersuasive. 

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