Affidavit of Merit Not Required in Suit Against Midwife

By Michael Zerres

Serving an Affidavit of Merit in most medical malpractice suits is a prerequisite for the case to go forward.

For example, in a suit against an obstetrician, a plaintiff must normally serve an Affidavit of Merit of a qualified obstetrician within 60 days of the filing of an Answer by the defendant or risk having the case dismissed.

NJSA 2A:53A-26, the Affidavit of Merit statute, provides a list of 15 specified licensed persons, such as physicians and nurses, for whom an Affidavit of Merit must be provided if such a licensed professional is sued. However, in the recent case of Saunders v. Capital Health System, decided by the Appellate Division on 3/5/08, the Court held that since the Affidavit of Merit statute does not specifically list a certified nurse midwife as a ‘licensed person’ for whom an Affidavit of Merit is required, one need not be provided by the plaintiff. As a result, the failure to serve one will not result in dismissal of a plaintiff’s lawsuit.

In addition, the Court reminded that, at the trial court level, the Courts, as mandated by the Supreme Court in Ferreria v. Rancocas Orthopedic, should conduct an accelerated case management conference within 90 days of the filing of an Answer to address the sufficiency of a plaintiff’s affidavits of merit, and, that the failure to timely hold one may result in an otherwise late served Affidavit of Merit to be considered served on time.

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