Affidavit of Merit Not Required in Lawsuit Against an Optometrist

By Michael Zerres

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.

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