Plaintiff brought this medical malpractice alleging that defendants, Drs. Mynster and Sehgal, provided negligent care by failing to refer the patient to a facility with a hyperbaric chamber for appropriate treatment of carbon monoxide poisoning. Dr. Mynster was board certified in emergency medicine and Dr. Seghal was board certified in family medicine. Plaintiff served an affidavit of merit signed by expert witness, Dr. Lindell K. Weaver., who was not board certified in either emergency medicine or family medicine, but instead, was board certified in preventive medicine with subspecialty certifications in undersea and hyperbaric medicine, and, who had a clinical practice in hyperbaric medicine and critical care, which included evaluating and managing patients with acute carbon monoxide poisoning.
Defendants moved to bar plaintiff’s expert and for summary judgment under the Patient’s First Act, asserting that, under N.J.S.A. 2A:53A-41 he did not have the credentials to testify as to the standard of care of defendants because he was not board certified in either emergency medicine or family medicine. The trial court denied defendant’s motion, finding that this deficiency went only to the credibility, and not the admissibility, of Dr. Weaver’s testimony. The court ruled that expertise in the treatment of the condition was sufficient even if the expert did not share the same medical specialty as the defendant physicians. The Appellate Division further denied defendants’ motion for leave to for an interlocutory appeal.
The Supreme Court, on a motion by defendant’s for leave to appeal, reversed (213 N.J. 463 (N.J. 2013)) , and held that N.J.S.A. 2A:53A-41 of the Patients First Act requires that plaintiff’s medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians. Therefore, because plaintiff’s expert, Dr. Weaver, did not specialize in either emergency or family medicine, he was barred from testifying as to the standard of care relating to the named defendants. Furthermore, because the Supreme Court disqualified plaintiff’s expert, the Court also granted summary judgment in favor of defendants because plaintiffs have no statutorily qualified expert who could render an opinion regarding the standard of care, or breach of same, applicable to the defendants.
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