Affidavit of Merit Now Required for Lawsuits Against Midwives

By Michael Zerres

The NJ Legislature, in response to an apparent oversight on their part, amended the “Affidavit of Merit“ statute, effective last year, to include midwives as ‘licensed persons.’ NJSA 2A:53A-26. With this amendment, affidavits of merit must now be served in cases filed against midwives for professional malpractice.

Previously, midwives had been omitted from the statute and NJ Courts had ruled that affidavits need not be served in lawsuits against CNMs. Saunders v. Capital Health System at Mercer, 147 (NJ Super. App. Div. 2008)

Obviously, with respect to cases alleging inadequate prenatal care and/or delivery negligence, this was a proper correction of the statute as there is not much difference regarding the standards of care applicable to midwives and obstetricians (who were already included in the list as ‘licensed persons’). However, the legislature has not yet seen fit to extend the affidavit requirement against certain other medical professionals. For example, optometrists are still not considered ‘licensed persons’ under NJSA 2A:53A-26 and malpractice lawsuits may proceed against O.D.’s without the need of serving an Affidavit of Merit. Mirow v. Lebovic, 2009 U.S. Dist. LEXIS 118507

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