Case Against Orthodontist Dismissed with Prejudice Claim for Failure to Timely Serve an Appropriate Affidavit of Merit; Trial Court Decision Upheld – Meehan v. Antonellis, (A-0140-13T4) Decided August 21, 2014 (Appellate Div.)

Plaintiff’s complaint alleged that Dr. Antonellis fitted plaintiff with a “positioner” for use while sleeping, to reduce the symptoms of sleep apnea. Dr. Antonellis assured plaintiff that the “positioner” would not cause his teeth to shift. However, his teeth did shift, causing him to incur more dental work, including a crown, and symptoms such as chronic muscle pain and headaches.

During a case management conference the court addressed the statutory requirement that plaintiff file an appropriate affadavit of merit in accordance with N.J.S.A.2A53A‑27. Plaintiff subsequently produced an affidavit of merit from Mark F. Samani, D.M.D., a licensed dentist with a speciality certificate in prosthodontics and expertise in sleep apnea treatment. Defendant moved to dismiss the complaint due to an insufficient affidavit of merit, which the trial court granted pursuant to Buck v. Henry, 207 N.J. 337 (2011), on the premise that Dr. Samani was a dentist, while defendant practiced as an orthodontist. The court rejected plaintiff’s argument that defendant’s answer failed to identify defendant as an orthodontist and therefore did not comply with Rule 4:5‑3, that Dr. Samani was a qualified expert in prosthodontics and sleep apnea, for which defendant had treated in his capacity as a dentist rather than orthodontist, and, that the parties had agreed at previous case management conference that a dentist was an appropriate expert.

Relying on Nicholas v. Mynster, 213 N.J. 463, (2013), and N.J.S.A. 2A:53A‑27, the Court here affirmed the ruling of the trial court, stating that “a plaintiff’ s medical expert must possess the same specialty or subspecialty as the defendant physician.” The Court further stated that “when a physician is a specialist and the basis of the malpractice action ‘involves’ the physician specialty, the challenging expert must practice in the same specialty.” (Quoting Nicholas). “Therefore, the first inquiry must be whether a physician is a specialist or general practitioner, while the second inquiry must be whether the treatment that is the basis of the malpractice action ‘involves’ the physician’s specialty. Because plaintiff’s expert was a dentist holding a specialty certificate in prosthodontics, who has an expertise in sleep apnea, and, where the defendant was an practicing orthodontist, Dr. Samani – the plaintiff’s expert – lacked the requisite statutory qualifications to issue an affidavit of merit against defendant.

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