Camacho-Gardner v. Rubenstein, HUD-L-6541-10

By Michael Zerres

This medical malpractice action arises from alleged negligent neonatal care of the infant decedent following her delivery via C-section. The defendant physicians moved for summary judgment on the basis that plaintiff’s neonatologist expert was not qualified to testify under N.J.S.A. 2A:53A-41(a)(1) (The Patients First Act) because he was retired before the alleged malpractice occurred. The plaintiffs argue that, although the expert is retired from active clinical practice, because he is still Board Certified in neonatology, he is qualified.

The court held that the expert failed to meet the statutory requirements because he was no longer practicing at a hospital at the time of the occurrence, and thus, he was also not credentialed by a hospital at the time of the occurrence. Furthermore, the court determined the expert could not testify because he did not devote a majority of his professional time to the clinical practice of neonatology in the year preceding the occurrence, and, although he was teaching at the time of the occurrence, he was only teaching physician assistants, which does not satisfy the requirement that the expert be instructing students in the same health care profession in which the defendant is licensed.

Plaintiffs argue that defendants’ application here should be time-barred on both procedural and equitable grounds, because plaintiff’s expert had already been actively involved in the case for 25 months before defendants filed their motions with the Court. The Court elected to not preclude defendants’ application, but instead allowed plaintiffs the opportunity to cure the defect by retaining a qualified expert. Therefore, plaintiff’s expert who was a retired neonatologist was barred from testifying at the time of trial and the case was dismissed without prejudice. Plaintiffs were given leave to move, within fifteen days of the decision, to vacate the dismissal without prejudice, and, extend the Discovery End Date to procure a new expert, have him render a written report and have his deposition taken. The court further ruled that if plaintiffs fail to so move within fifteen days, would allow the defendants to move to have the case dismissed with prejudice.