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Buck v. Henry: Supreme Court Makes Important Change to Affidavit of Merit Law

By Attorney Michael B. Zerres on September 6, 2011

In the future, that is from August 22, 2011 and on, all doctors who are defendants in medical malpractice cases in New Jersey must include in his/her filed Answer the medical specialty he/she was practicing at the time care was provided to the plaintiff. This will limit any confusion that may exist with respect to what type of practitioner a plaintiff must serve an Affidavit of Merit from for each named defendant.

In almost all medical malpractice cases, a plaintiff must serve an Affidavit of Merit from a physician in the same field as the defendant(s) that “there exists a reasonable probability that” the defendant(s) treatment “fell outside acceptable professional standards.” If such an Affidavit is timely supplied, the plaintiff’s case will be dismissed. To limit the number of motions to dismiss for failure to comply with the New Jersey Affidavit of Merit statute, the Supreme Court in Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (2003) required that the Trial Court, in all medical malpractice cases, hold a conference within 90 days of a defendant’s filing an Answer to determine if there are any objections to a plaintiff’s Affidavit of Merit. If the Court found a plaintiff’s Affidavit deficient, the plaintiff would have until the end of the statutory 120 day period to serve a proper Affidavit. The reasoning for the conference by the Ferreira Court was that “an ounce of prevention is worth a pound of cure.”

In Buck, the plaintiff filed a lawsuit against James R. Henry M.D alleging that the doctor was negligent in prescribing Ambien, resulting in Mr. Henry accidentally shooting himself with a gun. The doctor, who was a board certified ER physician, and who was treating a psychiatric condition, ie, a sleep disorder, was served by plaintiff’s counsel with an Affidavit of Merit of both an ER specialist and psychiatrist. Regrettably, the trial Court never conducted the Supreme Court mandated Ferreira conference.

Notably, the defendant never became board-certified in Family Medicine; yet, Dr. Henry filed a motion for Summary Judgment to dismiss the Complaint certifying that he treated the plaintiff as a “family practitioner,” and, that Mr. Buck’s lawyer never served an Affidavit from a doctor specializing in family practice. The Court granted defendant’s motion and the Appellate Division affirmed.

The Supreme Court, in reversing, remanded the case to the trial Court, directing it to conduct a Ferreira conference, and, further stated that, in all future medical malpractice cases, the defendant must indicate in his/her Answer the medical specialty he/she was practicing while caring for the plaintiff-patient and whether the treatment of the plaintiff “involved that specialty.”

The Buck Court noted that a defendant need not be board-certified in a certain specialty in order to practice in that field, specifically stating, as it pertains to this case, that “one can practice family medicine without board certification.” However, since the defendant never fully disclosed his status as a family practice doctor until he submitted a Certification with his motion to dismiss after the time to file an Affidavit expired, the Court recognized that “[t]his case represents a perfect example of the pitfalls facing a plaintiff’s attorney and of the need for timely Ferreira conferences.” Had such a conference been held by the trial Court in Buck, the Supreme Court acknowledged that it would have likely led to the timely filing of an Affidavit of Merit from a family medicine specialist and “obviated the need for the summary-judgment motion that led to the dismissal of plaintiff’s cause of action.”

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