New Jersey Appellate Court Affirms Dismissal of Complaint After Failure to Offer an Affidavit of Merit in Both Specialties of Treating Physician
By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
News: Recently, a New Jersey appellate court affirmed a trial court’s dismissal of a medical malpractice plaintiff’s complaint for lacking an affidavit of merit, which often is a requirement in malpractice suits. The appeal of the trial court’s decision revolved around the sufficiency of an affidavit of merit in a situation where a defendant physician’s answer to the medical negligence complaint stated involvement in two specialties, but the plaintiff provided an affidavit of merit from a physician board-certified in only one of those specialties.
The appellate court applied precedent from another recent case, which held that if a defendant has board certifications in two specialties involved in the treatment of the patient, the plaintiff must submit an affidavit of merit from a physician certified in each of those specialties. The appellate court found that the trial court correctly applied the law and affirmed the dismissal of the plaintiff’s case.
Background: The plaintiff, the estate of the decedent who died allegedly as the result of medical negligence, filed a medical malpractice complaint against several of the plaintiff’s doctors who were involved in treating him. In answering the plaintiff’s complaint, one of the defendant doctors identified his specialties as cardiovascular disease and clinical cardiac electrophysiology. The defendant doctor stated that his treatment of the plaintiff involved both of those specialties.
This answer prompted the plaintiff to file an affidavit of merit from a cardiologist, but one who was not certified in clinical cardiac electrophysiology. The defendant doctors argued that the plaintiff’s affidavit of merit was insufficient as the plaintiff’s cardiologist was not board-certified in clinical cardiac electrophysiology. They argued that a New Jersey statute required “kind-for-kind” credentialing requirements when submitting affidavits of merit.
After a series of motions and hearings, the trial court ultimately agreed with the defendants and dismissed the plaintiff’s complaint when the plaintiff failed to provide a second affidavit of merit from a physician certified in clinical cardiac electrophysiology. The plaintiff appealed the ruling, arguing that the plaintiff’s affidavit of merit should suffice since the plaintiff’s expert was board-certified in cardiology, and the plaintiff’s complaint only alleged negligence with respect to the cardiology treatment, not the clinical cardiac electrophysiology treatment.
The court rejected the plaintiff’s argument, citing the New Jersey Medical Care Access and Responsibility and Patients First Act. This statute requires an affidavit of merit from a physician with the same specialty or subspecialty as the defendant.
The appellate court applied a recent precedent from another case establishing a rule that, if a defendant physician has board certifications in multiple specialties or subspecialties relevant to the treatment in question, the plaintiff must submit an affidavit of merit from a physician who is board-certified in each of those specialties. The plaintiff attempted to argue against the application of that case, contending that the affidavit of merit from their expert cardiologist should suffice, since both the defendant physician and the plaintiff’s expert were board-certified in cardiology. However, the appellate court upheld the requirement that plaintiffs must provide affidavits of merit from experts certified in each relevant specialty or subspecialty practiced by the defendant. The appellate court affirmed the dismissal of the plaintiff’s complaint for failing to meet the statutory “kind-for-kind” credentialing requirement.
What this means for you: In New Jersey, as in many other jurisdictions, medical malpractice lawsuits require plaintiffs to submit an affidavit of merit along with their complaint. An affidavit of merit is a sworn statement from a qualified medical expert affirming that the plaintiff’s claim has merit and that the defendant healthcare provider deviated from the accepted standard of care, leading to the plaintiff’s injury or harm. The requirement for an affidavit of merit serves several important purposes.
It helps to prevent frivolous or meritless medical malpractice claims from clogging up the court system. By necessitating expert testimony at the outset of a case, the court can quickly assess whether there is a legitimate basis for the lawsuit. An affidavit of merit means that a medical expert witness is putting their name behind the plaintiff’s theory of their injury. This requirement helps to conserve judicial resources and reduce the burden on both the court and the defendant healthcare providers.
Requiring an affidavit of merit also helps to ensure that plaintiffs have a credible case before subjecting defendants to the stress and expense of litigation. Medical malpractice cases can be complex, costly, and time-consuming to litigate, often involving extensive expert testimony and medical evidence. Requiring plaintiffs to obtain an affidavit of merit from a qualified medical expert helps to weed out cases that lack sufficient evidence of negligence or causation. Many states have similar requirements for medical negligence plaintiffs. In New Jersey, the requirement for an affidavit of merit is codified in the New Jersey Medical Care Access and Responsibility and Patients First Act. This statute sets forth the criteria for who can provide expert testimony in medical malpractice cases and under what circumstances.
It mandates that the expert providing the affidavit of merit must be licensed as a physician and must have specialization in the same specialty or subspecialty as the defendant doctor who provided the alleged negligent care.
It also is worth noting that the New Jersey appellate court rejected the plaintiff’s attempt to frame the case solely as one of negligence in cardiology. The plaintiff argued that this medical malpractice case was solely focused on cardiology, not cardiac electrophysiology, and that there was no need for an affidavit of merit from a doctor with a cardiac electrophysiology specialty. But the appellate court rejected this attempt, stating “In short, a plaintiff cannot choose the specialty that the defendant physician was practicing when treating the patient; the plaintiff must respond to the information provided by the doctor in the answer.” Although it sometimes is said that plaintiffs are the masters of their own complaint and can frame the case in their pleadings as they see fit, in the area of medical negligence, that right is limited by the defendant physician’s answer to the complaint.
However, the harsh result for the plaintiff in this case may have been entirely preventable. The trial court ordered the plaintiff to submit an affidavit of merit from a physician who is board-certified in clinical cardiac electrophysiology. The trial court only dismissed the case after counsel for the plaintiff failed to submit the required affidavit of merit and informed the trial court that the plaintiff would not be submitting one. The decision of the appellate court does not indicate the reason for plaintiff’s failure to do so, such as whether it was the plaintiff’s inability to obtain the required affidavit or some other reason. But it did note that the plaintiff did not opt to invoke the “waiver” portion of the New Jersey statute that allows a plaintiff to seek relief from the court when no licensed professional can be located to submit the affidavit. Regardless, counsel for the plaintiff was given an opportunity to avoid the dismissal but did not seize it.
The appellate court noted that the plaintiff had relied on precedent from the Supreme Court of New Jersey suggesting that, where a physician practices in more than one specialty, and the treatment involved falls within that physician’s multiple specialty areas, an affidavit of merit from a physician specializing in either area will be enough. But the appellate court said that this language was merely “dicta,” meaning that it was not essential to the holding of the case decided by the Supreme Court. The lesson here is that, even when you believe you have law from the Supreme Court on your side, take advantage of any opportunity the trial court gives you to correct the record while you still can.
The case underscores the importance of considering subspecialties when preparing affidavits of merit in medical malpractice cases, and relatedly of attacking these issues when on the defense. Even if the primary focus of the case is on one specialty, if the defendant physician has board certifications in multiple specialties or subspecialties relevant to the treatment in question, plaintiffs may be required to provide affidavits from experts certified in each of those specialties.
Reference
- Decided on May 20, 2024, in the Superior Court Of New Jersey, Appellate Division, Case No. A-3516-22.
Recently, a New Jersey appellate court affirmed a trial court’s dismissal of a medical malpractice plaintiff’s complaint for lacking an affidavit of merit, which often is a requirement in malpractice suits. The appeal of the trial court’s decision revolved around the sufficiency of an affidavit of merit in a situation where a defendant physician’s answer to the medical negligence complaint stated involvement in two specialties, but the plaintiff provided an affidavit of merit from a physician board-certified in only one of those specialties.
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