Medical Malpractice Dismissal Upheld by Appellate Division for Failure to Comply with Affidavit of Merit Statute – Lang v. Morristown Hospital A-0876-13T1 (Decided February 3, 2016)

This case involved a 17-year-old boy with a history of HADD and autism who, in September 2011, was admitted to Chilton Memorial Hospital with renal failure and septic shock. He underwent emergency colon surgery but, unfortunately, died a week later from a pulmonary embolism.

His family sued a number of practitioners, including the boy’s psychiatrist and the treating pediatric critical care, pediatric nephrology, and pediatric surgical providers. An Affidavit of Merit was served by a physician who practiced general surgery, who had not practiced since 2006, and who had not taught medicine since 2011. The Trial Court dismissed the action finding that the plaintiff had not served appropriate Affidavits of Merit.

In upholding the Trial Court dismissal, the Appellate Court held that: a. a general surgeon cannot opine as to the standard of care of a psychiatrist, pediatric critical care doctor, pediatric neurologist, or a pediatric surgeon; b. plaintiff’s expert was not actively engaged in the clinical practice, nor an instructor in medicine at an accredited institution in 2011; c. plaintiff’s counsel failed to timely file a motion under N.J.S.A. 2A:53A-41, seeking a ‘waiver’ of the Affidavit of Merit statute; and, d. even if such a motion had been timely made, has not made a showing that a ‘good faith effort’ was made to secure Affidavits from experts in the appropriate fields.

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