affidavit of merit
Buck v. Henry: Supreme Court Makes Important Change to Affidavit of Merit Law
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.”
Court Rules “Affidavit of Merit” Not Required in Claim against Psychiatrist for Failure to Report Child Abuse
The United States District Court for the District of New Jersey recently ruled that, while an Affidavit of Merit must normally be served in action for negligence or malpractice against a licensed psychologist and that the failure to timely do so may result in the action being dismissed pursuant to NJSA 2A:53A-27, such an Affidavit is not required in a lawsuit filed against a licensed medical professional where the allegation stems from the failure of the physician to report child abuse as required by NJSA 9:6-8.10,
In the matter of Carter v Lewis, 08-cv-1301, District Court Judge Joel A. Pisano ruled that New Jersey has a reporting statute that states that any person having reasonable cause to believe that a child has been abused has a duty to report such abuse to the Division of Youth and Family Services. This reporting requirement applies to all citizens, not just health care providers. As a result, plaintiff’s claim in Carter against Dr. Jeffrey Allen does not sound in professional negligence, thereby triggering the requirement to serve an Affidavit of Merit, but, rather, is a claim based only in ordinary negligence as the reporting statute in question applies to everyone. As such, there is no requirement that an Affidavit of Merit be served.
Therefore, the Court also ruled that Dr. Allen’s attempt to dismiss the plaintiff’s complaint for failure to serve an Affidavit of Merit must be denied.
Affidavit of Merit of Specialist Not Always Needed in Case against a Specialist
Generally speaking, when a plaintiff in New Jersey sues a board-certified medical specialist, an Affidavit of Merit is required to be served by the plaintiff’s attorney from a board-certified physician who is in the same specialty as the defendant(s) being sued. New Jersey’s Affidavit of Merit Statute, N.J.S.A. 2A:53A-27, et .seq. requires that, but only “where the care or treatment at issue involves that specialty.” So, for example, if a plaintiff is suing a gastroenterologist over a negligently performed colonoscopy, an Affidavit of Merit from a specialist in gastroenterology will be required as “the care or treatment at issue involves” gastroenterology. Ryan v. Renny 408 N.J. Super. 590 (app. Div. 2009) However, where the specialist care involves area of general medicine or an area of medicine outside his or her specialty, a plaintiff need not serve an Affidavit of Merit from a doctor who has the same specialty as the defendant(s). So says a federal Court in Jorden v. Glass, 2010 U.S. Dist. LEXIS 20073, decided on March 5, 2010.
In Jorden, Dr. Glass was a specialist in psychiatry, treating his patient in a clinical trial for schizophrenia. However, the patient’s family alleges that Dr. Glass was negligent in the diagnosis and treatment of the patient when he presented to Lourdes Medical Center with chest pain. Ultimately, the patient died from a heart attack. In that situation, since the treatment of chest pain does not specifically involve the specialty of psychiatry, the plaintiff was not obligated to serve an Affidavit of Merit from a physician with a specialty in psychiatry. Rather, it was found that Affidavits of Merit of an internist and cardiologist, who do evaluate and treat chest pain, were sufficient.
Affidavit of Merit Not Required in Lawsuit against an Optometrist
In most medical malpractice cases filed in New Jersey, an Affidavit of Merit is required from a healthcare professional specialist in the same field of practice as the defendant that is being sued. For example, in a suit against an obstetrician, one would need an Affidavit of Merit from a practicing obstetrician. In a suit against an internist, cardiologist and infectious disease doctor, one would need a separate Affidavit of Merit from three (3) separate practicing specialists in those fields.
If an Affidavit of Merit is not timely served, a plaintiff’s lawsuit can be dismissed. However, the Affidavit of Merit statute, NJSA 2A:53A-27, only requires an Affidavit of Merit for a lawsuit against those “licensed persons” identified by the statute. And, as the recent case of Mirow v. Lebovic, 2009 U.S. Dist. LEXIS 118507, points out, an optometrist is not a licensed person under the statute, and, no Affidavit of Merit need be served by a plaintiff. This follows the New Jersey Appellate Division holding in Saunders v. Capital Health System at Mercer, 147 (NJ Super. App. Div. 2008) which indicated that an Affidavit of Merit is not required to be served in a lawsuit against a certified nurse midwife, as a midwife is also not a “licensed person” specifically identified under the New Jersey statute.