I have been counsel for one or more amici in many of the important Supreme Court cases involving the affidavit of merit (AOM), including Nicholas, Ryan, Ferreira, Cornblatt, Hall and others. In the first 15 years of the Affidavit of Merit Statute, I hardly ever received an objection to an AOM. Now, I receive objections to almost every affidavit I serve. I get emails or calls every day about the AOM, but I hesitate to give anyone advice about how to proceed.

My confusion is due to the recent inconsistent opinions in Buck v. Henry, 207 N.J. 377 (2011), and Nicholas v. Mynster, 213 N. J. 463 (2013), where the Supreme Court considered and then reconsidered who is qualified to render an affidavit of merit or testify in a malpractice case against a physician who is a specialist or subspecialist in a particular field of medicine. Both cases interpreted N.J.S.A. 2A:53A-41(a), which provides, in essence, that if the defendant is a specialist or subspecialist, and the care involves that specialty or subspecialty, the expert must have specialized in the same specialty or subspecialty. In addition, if the defendant is board certified and the care involves that board specialty or subspecialty, the expert witness must be either board certified in the same specialty or subspecialty, or credentialed by a hospital to treat the condition or to perform the procedure in issue. Finally, the expert must have actively practiced or taught students in the same specialty or subspecialty during the year before the malpractice occurred.

However, Buck and Nicholas raise many questions. In Buck, the plaintiff sued a doctor who was board certified in emergency medicine, but who was maintaining a family medicine practice. The defendant diagnosed depression and insomnia, and prescribed an antidepressant and a sleep aid. Several weeks later, the plaintiff fell asleep in a chair while inspecting a hand gun. The plaintiff was awakened by a phone ringing, and reached for the phone, but placed the gun into his mouth and it discharged, resulting in severe injuries.

The plaintiff served an affidavit of merit of a psychiatrist who treats patients with insomnia and depression. The defendant asserted that the psychiatrist was not qualified to render the affidavit because the defendant was a family practitioner. The plaintiff then served a second affidavit of merit of a physician specializing in emergency medicine because the defendant was board certified in emergency medicine. The defendant successfully moved for summary judgment, as the trial court found that the defendant was a specialist in family medicine, and that the plaintiff was required to serve an affidavit from a specialist in family medicine. The Appellate Division affirmed, but the Supreme Court reversed and remanded the case.

The Buck opinion began with the statement that the plaintiff must serve an affidavit from an “equivalently credentialed physician” swearing under oath that there exists a reasonable probability that the defendant’s treatment fell outside acceptable professional standards. See N.J.S.A. 2A:53A-27.” This was confusing to some, as credentialing is a term of art in medicine. The Buck court also held that: “A physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that case, an affidavit of merit from a physician specializing in either area will suffice.” This comment was interpreted by many to mean that in cases of overlapping specialties an expert from either specialty would suffice.

The Buck court remanded the case for a case management conference to decide “the adequacy of plaintiff’s affidavits of merit.” Obviously, the court contemplated circumstances where the affidavit of a psychiatrist would be sufficient in a case against a doctor who practiced family medicine, because it provided the plaintiff with 30 days to supplement it if the affidavits of merit were deemed deficient. Significantly, the decision was applied prospectively.

However, the Supreme Court promptly revisited the issue in Nicholas, and in that case construed the statute quite literally and quite differently. This most recent interpretation appears to be in conflict with several prior pronouncements of the court, and leaves many issues unresolved.

The plaintiff in Nicholas was brought to the hospital suffering from carbon monoxide poisoning. The plaintiff came under the care of the defendants, Dr. Mynster, who is board certified in emergency medicine, and Dr. Sehgal, a physician who is board certified in the practice of family medicine. The plaintiff served affidavits of merit from a Dr. Weaver, who is board certified in internal medicine and critical care, as well as another internist.

However, the plaintiffs only served an expert report from Dr. Weaver, who opined that the standard of care required that the plaintiff be treated with hyperbaric oxygen. The plaintiff’s case was weakened when his expert conceded during his deposition that “there was a difference of opinion in the literature in 2005 as to the indications for hyperbaric oxygen for carbon monoxide poisoning,” and, further, that ” [H]e neither practiced nor was board certified in the specialties of emergency medicine or family medicine. Dr. Weaver conceded that he did not know how the average physician practicing family medicine would have treated Nicholas in 2005.”

The defendants moved to bar Dr. Weaver from testifying and for summary judgment, arguing that he could not establish the standard of care “because he did not practice in the same medical specialty as defendants.” The trial court denied the motion, concluding that “expertise in the treatment of the condition was sufficient even if the expert did not share the same medical specialty as the defendant physicians.” The Appellate Division denied the defendants’ motion for leave to appeal.

In a rare action, the Supreme Court granted an interlocutory motion for leave to appeal a trial court’s denial of a motion for summary judgment, and reversed, holding that a literal reading of N.J.S.A. 2A:53A-41 requires that the plaintiff’s expert must “have specialized at the time of the occurrence that is the basis for the malpractice action in the same specialty or subspecialty” as the defendants. The Nicholas court explained:

The underscored word “and” that appears in the quoted portion of the statute separates the credentials a challenging expert must have (1) if the defendant physician practices in a specialty but is not board certified and (2) if the defendant is board certified in the specialty. When a physician is a specialist and the basis of the malpractice action “involves” the physician’s specialty, the challenging expert must practice in the same specialty.

The Nicholas court explicitly rejected the argument that a physician credentialed by a hospital to treat patients for the same medical condition “need neither practice in the same medical specialty nor be board certified in that specialty.” In fact, the court ordered that the case be dismissed despite the fact that:

Dr. Weaver unquestionably is an expert in the treatment of carbon monoxide poisoning and the use of hyperbaric oxygen as a treatment modality. But in addition to the expert-witness qualifications required by N.J.R.E. 702, the Legislature has imposed the requirements set forth in N.J.S.A. 2A:53A-41. Dr. Weaver and Drs. Mynster and Sehgal practice in different ABMS specialties. The statute does not permit Dr. Weaver to testify about the standard of care exercised by a physician practicing in a different specialty.

The Nicholas decision has raised many concerns. The decision appears to be a reversal of the longstanding policy of the court, beginning with In Re Hall, that the Affidavit of Merit Statute should be construed “to avoid the risk that even a few meritorious cases may be dismissed for noncompliance with the Statute.” The Nicholas court also did not rely upon its statement in Ferreira that “there is no legislative interest in barring meritorious claims brought in good faith.” As recently as Buck, the Supreme Court reiterated that the legislature did not intend “to create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.” Nicholas certainly appears to be inconsistent with Buck, which the court remanded to determine the “adequacy of plaintiff’s affidavits of merit,” in a case where a psychiatrist had rendered the affidavit of merit in a case against a self-declared specialist in family medicine.

Second, it is still not clear how the statute will be applied to the increasingly common practice of doctors who treat conditions and perform procedures that, traditionally, were well outside of their specialty. Who provides the affidavit in a case involving an anesthesiologist who performs complex spinal fusions or the family medicine doctor who is subcertified in “sports medicine” and responds to serious fractures in the emergency room as the “on-call” orthopedist? How does one even find an anesthesiologist who performs complex spinal fusions?

Third, it is equally unclear how one is determined to be a specialist. Virtually all doctors now claim that they are “specialists” in something, and every defendant does so. Indeed, the determination of who is a “specialist” remains somewhat arbitrary. Is a doctor a “specialist” simply because she says she is?

Finally, the Nicholas decision may dramatically increase the number of experts who are required and therefore the cost to all parties for what is already an extraordinarily expensive type of personal injury litigation. This may result in the denial of access to the courts for many victims of medical errors.

Although it appears that the Supreme Court intended to clarify this area of law by reaching out to take a denial of a motion to dismiss by a trial court, this decision may result in the unintended consequence of the dismissal of many meritorious claims and defenses. The problem may be compounded by the fact that the court did not make the Nicholas decision prospective, as was the case in previous affidavit of merit cases. The decision has already resulted in a flurry of so-called “Nicholas motions,” and we can anticipate yet another round of affidavit of merit and Patients First Act decisions. Unless this flawed statute is declared unconstitutional, or amended, we will continue to waste substantial time and resources on the process, when we should be getting to the merits of our cases.¢

Next Week…

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