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.
