This was a medical malpractice action against medical brought as a result of alleged negligent treatment of tuberculosis meningitis. Prior to trial, the plaintiff served an Affidavit of Merit prepared by a Dr. Ackley, who was board certified in internal medicine. However, one of the defendants, Dr. Ahn, was board certified in family medicine. Dr. Ahn’s counsel did not pose any objection to the sufficiency of Dr. Ackley’s Affidavit of Merit, and moreover, counsel for Dr. Ahn provided plaintiff with a signed waiver acknowledging the sufficiency of the Affidavit.
At trial, no pretrial motion was filed to bar Dr. Ackley’s expert testimony under N.J.S.A. 2A:53A-41 (the Patients First Act.) As the case proceeded, plaintiff’s counsel notified the Court that they would be calling Dr. Ackley to testify the following day. Defense counsel for Dr. Ahn stated that he would be filing a motion to bar Dr. Ackley’s testimony as to Dr. Ahn since Dr. Ackley was not a family practitioner.. Plaintiff’s counsel objected to the delayed objection to Ackely’s qualifications, noting that the case had been in litigation for five years. The Court ordered a hearing pursuant to N.J.R.E. 104 to determine if Dr. Ackley could testify. The Court found that under the Patients First Act, Dr. Ackley’s testimony was barred because he was not board certified in the same specialty or subspecialty as Dr. Ahn. Therefore, because plaintiff had no other expert to offer standard of care testimony as to medical defendant Dr. Ahn, the Trial Court granted Dr. Ahn’s motion to dismiss plaintiff’s complaint.
Plaintiff appealed the Trial Court’s decision. On August 2, 2013, the Appellate Division, affirmed the Trial Court’s order barring the expert’s testimony because he did not meet the qualification requirements of the Patients First Act. However, the Appellate Court reversed the order dismissing plaintiff’s Complaint. The Court held that because defendant’s counsel waited five years to object to the expert despite knowing of the lack of qualifications and because counsel’s conduct during that period induced plaintiff to believe that he could rely on his expert’s testimony to prove his case, plaintiff should be given a reasonable amount of time to obtain a family practice expert as to Dr. Ahn as was required by N.J.S.A. 2A:53A-41.
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