Affidavit of Merit Revisited

By Michael Zerres

In the last couple blog entries, I discussed the frequently litigated issue of timely filing an Affidavit of Merit in a professional malpractice case.

As I stated below, in a malpractice case against someone like a physician, an Affidavit of Merit of a properly credentialed physician is required so that the case can move forward. The failure to timely serve an appropriate Affidavit of Merit can be fatal to the case and can result in the case being dismissed. Affidavits of Merit also apply to other professionals as well: nurse, pharmacists, engineers, architects.

As I also stated below, 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.

In another decision on the timely filing of an Affidavit of Merit, this one involving Accounting malpractice, attorneys are again reminded that where an Affidavit of Merit is not timely served, but where a Ferreira conference is not scheduled, the failure to hold a Ferreira conference will be a bar to the dismissal of the lawsuit.

On July 3, 2008, in the matter of Fairfield Bd. of Educ. v. Doerr, the trial Court in Essex County (Judge John Kennedy), reiterated that had, a Ferreira conference been held – as it is required to be in any professional negligence claim – any defects in the proper service of an Affidavit of Merit could have been addressed in a proper way. As such, the failure of the Court to schedule such a conference would be a reason to prevent the dismissal of a case for failure to properly serve such an Affidavit.

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