new jersey affidavit of merit statute
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.
Ferreira Conference Not Required for Medical Malpractice Case Filed in New Jersey Federal Court
New Jersey’s Affidavit of Merit Statute requires that an Affidavit of Merit be served within 60 days of a defendant’s filing an Answer, and, no later than 120 days if leave to file is sought and good cause is shown. NJSA 2A:53A-27. If, after expiration of 120 days, an Affidavit of Merit is not served, a plaintiff’s case can be dismissed with prejudice; a dismissal “without prejudice” may occur if extraordinary circumstances are present. Attorney inadvertence (i.e., a mistake by the lawyer) will not result in a dismissal “without prejudice,” but will generally result in a dismissal with prejudice. However, under New Jersey State Court procedural law, the Supreme Court decision of Ferreira v. Rancocas Orthopedic Assocs., 178 NJ 144 (NJ 2003), requires a case management conference early in the stages of malpractice actions to address sufficiencies and/or deficiencies in a plaintiff’s Affidavit of Merit. At such a conference, a Court may, for example, give additional time to a plaintiff to correct a deficient Affidavit.
In Vitale v. Carrier Clinic Inc., 2010 U.S. App. LEXIS 25855, the 3rd Circuit Court of Appeals of the United States, ruled that a District court’s failure to hold a so-called “Ferreira conference” where a proper Affidavit of Merit was not timely served by a plaintiff in a medical malpractice case will not toll the 120 day time-limit prescribed by the legislature. In that case, the plaintiffs malpractice action against the Carrier Clinic was dismissed as a) an Affidavit of Merit timely served by plaintiffs was not by an appropriately licensed specialist, and, b) an Affidavit of Merit served by an appropriately licensed specialist was not timely. The plaintiffs appealed, complaining that the District Court failed to hold a Ferreira Conference, at which time they may have been afforded additional time to serve an Affidavit from an appropriately licensed person. The 3rd Circuit rejected this argument, explaining that a Federal District court is not required to follow the case management procedures imposed on New Jersey state trial courts by the New Jersey Supreme Court. Hence, practitioners are forewarned to serve an Affidavit of Merit of an appropriate specialist in a medical malpractice case filed in NJ Federal Court or face having their case dismissed with prejudice.
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.