NJ Appellate Division affirms trial court ruling: experts must have been practicing within medical specialty at issue at time of alleged malpractice in order to offer standard of care testimony.

The defendants, board certified ophthalmologists, gave care to the plaintiff within their field of specialty between 2007 and 2010. The plaintiff’s liability expert, while board certified in ophthalmology and having treated patients similar to the plaintiff during his career, fully retired on January 1, 2007, prior to the defendants’ dates of treatment. The defendants successfully challenged the expert’s qualifications pursuant to the Patients First Act N.J.S.A. 2::53A37-42. The motion court ruled, “[t]he expert witness was not credentialed nor specialized at the time of the alleged deviation as required…” The dismissal order was entered despite arguments by the plaintiff that the expert was board certified, had held privileges at hospitals for ophthalmology and had held teaching positions within the field of ophthalmology. The Appellate Division affirmed the motion court’s ruling.

This is a cautionary tale which highlights the need to ensure that standard of care experts are not only similarly board certified and have expertise in the area, but are also practicing in that area during the time of the alleged malpractice. This statutory “strict time limit” requirement is unforgiving and subject to virtually no discretion by the court. Practitioners should also be reminded that this provision only applies to standard of care experts, not to proximate cause or damages experts.

_{Case Law Alerts, 4^th Quarter, October 2015}

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