Gina Sanders – Fotolia

The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29, became effective in 1995. Since then, the courts and parties to malpractice cases have been subjected to a never-ending flood of motions and appeals involving the AMS. The Appellate Division recently observed “This issue comes before this court with disturbing regularity and has been impervious to every attempt tried by our Supreme Court to avoid its recurrence.” Estate of Yearby v. Middlesex County, N.J. Super. (App. Div. 2018). Indeed, the New Jersey Supreme Court has considered the AMS 18 times, starting with In re Hall, 147 N.J. 379 (1997), through most recently, in A.T. v. Cohen, N.J. (2018), where Justice LaVecchia, writing for a unanimous court, mandated the implementation of new rules which may finally resolve the distractions presented by the AMS.

The relevant facts of A.T. were undisputed. The plaintiff’s child was born in 2011, and suffered a right brachial plexus injury during the delivery. The plaintiff’s counsel filed suit in 2013, asserting that the plaintiff’s child suffers from an Erb’s Palsy as a result of the defendants’ negligence. The defendants filed an answer on Dec. 5, 2013, and the AOM was therefore due on April 4, 2014. The trial court did not hold a Ferreira conference, and the plaintiff did not serve an AOM before the statutory deadline. On April 7, 2014, defendants filed a motion for summary judgment. On May 22, 2014, plaintiff served an AOM and counsel for plaintiff opposed the motion by admitting that the “failure to timely submit an AOM was due to counsel’s own oversight,” and cross-moving for a dismissal without prejudice.

The trial court dismissed the action with prejudice. The appellate division affirmed, over a dissent. A.T. v. Cohen, 445 N.J. Super. 300 (App. Div. 2016). Judge Fisher, dissenting, would have dismissed the case without prejudice given (1) the age of the child, (2) the fact that the delay in service of the AOM was due to attorney neglect, and (3) the absence of any prejudice to the defendants.

The Supreme Court reversed, explaining the dismissal was due to an “inexperienced practitioner” who “was not as assiduous as he could or should have been.” The court also noted the complaint was filed “well before any statute of limitations period was close to expiring,” and observed:

That result worked a double frustration. The Judiciary’s key tool to promote satisfaction of the AMS’ salutary policy goals was not employed. And the pruning of plaintiff’s claim was not the pruning that the AMS is intended to achieve. The statute’s intended objective — to curtail insubstantial claims through the claimant’s inability to present a supportive affidavit early on, before significant litigation time and expense are incurred — was not advanced.

The court added that a Ferreira conference was not held, and that plaintiff’s counsel did serve an AOM soon after the defendants filed a motion for summary judgment. “We presume from plaintiff’s swift compliance upon the filing of the motion that we are dealing with a non-frivolous matter, not the type of case that the AMS intended to weed out.” The A.T. court additionally observed the “harsh consequence of dismissal with prejudice was meted out in this matter despite the fact that there is no prejudice to defendants that the equitable powers of our courts cannot address.”

Of most significance to those other than the parties to this specific case, the court announced that it will implement new rules and a “case management system to ensure that, going forward, necessary and expected conferences are scheduled to enhance parties’ compliance with requirements under the Affidavit of Merit Statute (AMS or the statute), N.J.S.A. 2A:53A-26 to -29.” The Civil Practice Committee’s Proposed rule, 4:5B-4, “Professional Malpractice Case Management,” was published for comment on Feb. 19, 2018. See 224 N.J.L.J. 449, SS-3 (Feb. 19, 2018). The proposed rule creates the following procedure in all malpractice cases to avert protracted AOM litigation:

  1. A case management conference must be held within 90 days of the filing of the first answer. The conference shall address all discovery issues as well as the adequacy of the AOM and the qualifications of the affiant.
  2. The plaintiff shall supply the defendant with a “reasonably current” curriculum vitae of the affiant at least 30 days before the conference.
  3. If the defendant objects to the AOM, the defendant must serve the court and all parties with all “specific written objections” to the AOM at least 15 days before the conference.
  4. The trial court must enter a case management order which shall address “the sufficiency of the affidavit of merit” and in “medical malpractice cases, any agreements to address by motion the sufficiency of the qualifications of the affiant or the plaintiff’s designated medical expert under the Patients First Act.”

A similar process will apply to any defendants joined after the case management conference. The new defendant may object as above within 15 days, and if the parties do not agree about the AOM, the defendant must “promptly file a motion to resolve the issue.” Similarly, a related proposal to amend Rule 4:24-2(b), “Motions Required to Be Made During Discovery Period, Disputes Regarding the Credentials of Experts,” will generally require every motion to challenge a medical malpractice expert’s qualifications or credentials be made in writing within “30 days from service of that expert’s report.”

Practice pointer: Talk to your expert, and confirm the expert is credentialed by a hospital to treat the condition or perform the procedure using the equipment involved in the case. It is equally important to confirm that your expert has “devoted a majority of his professional time to either the active clinical practice of the same health care profession in which the defendant is licensed.” Obviously, the expert should have the same board certification and sub-certification as the defendant.

Judge Quinn utilized the same procedure in In Re: Osteo Relief Medical Malpractice Litigation, docket number MON-L-1754-17, where approximately 50 patients filed suit alleging that they contracted serious infections after being injected with a joint lubricant at the defendant medical clinic. The defendants include multiple corporate entities and doctors who practice in multiple specialties. Judge Quinn conducted a case management conference and entered an order that an affidavit of merit from a physician with a board certification in Physical Medicine & Rehabilitation will satisfy the requirements of the AMS as to all defendants. Both Orders were entered at the very earliest stage of the litigation, before the exchange of any discovery. None of the defendants in either case have appealed, and both cases are now proceeding to discovery of the facts and the merits of the claims and defenses of the parties.

Practitioners should be aware that federal courts do not hold Ferreira conferences because they are considered procedural. Bancsenko v. CFG Health Sys., (D.N.J. Jan. 23, 2018). Bancsenko created a process pursuant to F.R.C.P. 16 to ensure that the AOM was compliant. The court advised that the parties should address the sufficiency of the AOM at the Rule 16 conference

The recent appellate decision referenced at the opening of this article, Estate of Yearby, expressed the hope that “the measures adopted by the Court in A.T. v. Cohen, N.J. (2018), will significantly reduce the number of cases in which this issue is the predominant problem.” Most of these motions involve the failure to serve an AOM on time, as was the case in A.T., and questions about the qualifications of the experts. We believe that the new case management rules will go a long way to ending the never-ending flood of motions and appeals involving the AMS, and let us finally proceed to the merits of these cases.

 

Comer and Lomurro are partners at Lomurro, Munson, Comer, Brown and Schottland in Freehold. Comer argued A.T. v. Cohen as counsel for the Amicus, New Jersey Association for Justice, for which her served as president in 2014-2015. Lomurro is the co-author of New Jersey Medical Malpractice Law (7th Ed. 2018).