De LaRoche v. Advanced Laparoscopic Association et al. (A-5403-1474) Decided 2/28/2017

By Michael Zerres

Plaintiff appealed two orders of the Trial Court. One which granted the defendant surgeon’s motion to dismiss plaintiff’s Complaint for failure to comply with the Affidavit of Merit Statue. The second Order denied plaintiff’s cross motion for a waiver of the specialty requirement on N.J.S.A 2A:53A-41(a).

The Appellate Court affirmed the Trial Court’s denial of plaintiff’s motion for a waiver of the specialty requirement, based upon the fact that plaintiff’s expert lacked active involvement in the area of medicine at issue in the case, as required by N.J.S.A. 2A:53A-41(C). The plaintiff’s proposed expert had not published in defendant’s area of practice (general surgery), and had never been a board-certified surgeon. More importantly, the record did not show that the expert was treating surgical patients at or near the time of plaintiff’s surgery, let alone patients with plaintiff’s specific medical issues.

Therefore, the court held that the Trial Court properly considered the expert’s lack of recent experience when it analyzed whether he had knowledge, experience and training necessary to execute an Affidavit of Merit. Hence, the Appellate Division affirmed the Order denying plaintiff’s application for a specialty waiver.

However, the Appellate Court remanded to the Trial Court the dismissal of plaintiff’s medical malpractice Complaint for failure to comply with the Affidavit of Merit Statue. The Court reasoned, as a Ferreira Conference had not taken place at the trial level, and as plaintiff had demonstrated a “good faith” effort to obtain an Affidavit of Merit, it would be inequitable not to afford plaintiff an opportunity to obtain a substitute Affidavit of Merit from another qualified expert.

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