Does N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, require plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties?
Under the statute’s kind-for-kind requirement, the physician executing the AOM must be qualified in the specialties practiced by the defendant physician. There are three categories of equivalency that satisfy the “kind-for-kind” requirement of N.J.S.A. 2A:53A-41: (1) those who are specialists in a field recognized by the American Board of Medical Specialties but who are not board certified in that specialty; (2) those who are specialists in a field recognized by the
American Board of Medical Specialties and who are board certified in that specialty; and (3) those who are general practitioners.
Rule 4:5-3 provides that “[a] physician defending against a malpractice claim who admits to treating the plaintiff must include in his or her answer the field of medicine in which he or she specialized at that time . . . and whether his or her treatment of the plaintiff involved that specialty.”
In a New Jersey medical malpractice case on appeal, the defendant doctor’s answer to the complaint included a specialty statement: “”At all relevant times, these defendants practiced the medical specialties of [i]nternal [m]edicine and [g]astroenterology and their treatment of plaintiffs’ decedent involved the medical specialties of [i]nternal [m]edicine and [g]astroenterology.”
In its published opinion dated April 18, 2024, the Superior Court of New Jersey Appellate Division held: “we conclude plaintiffs’ submission of only Dr. Fitzgibbons’s AOM as an internist did not comply with the underlying purpose of the Act and did not suffice to support the continuation of the lawsuit … Because plaintiffs failed to present the statutorily required AOM and did not request an extension of time to do so, the complaint should have been dismissed with prejudice. However, plaintiffs contend they requested a waiver of the AOM requirement pursuant to N.J.S.A. 2A:53A-41(c).”
Waiver
N.J.S.A. 2A:53A-41(c) provides that: “A court may waive the same specialty or subspecialty . . . and . . . board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and
knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.”
“It is clear plaintiffs did not make a formal motion for a waiver. But the record reflects they raised the issue in opposition to the dismissal motions, and during oral argument on the motions. In response to the discussion, the court permitted supplemental briefing specifically as to plaintiffs’ efforts “to acquire a gastroenterology expert.” Thereafter, plaintiffs submitted a supplemental memorandum and a certification from an additional physician. We cannot put form over substance here when the parties and the court discussed the waiver issue during two oral arguments, and the parties presented additional submissions with accompanying documents at the court’s request. The issue was raised both during the consideration of the dismissal motions and the reconsideration of those motions. Although we do not abrogate the requirement for a formal motion under the statute, the waiver issue was thoroughly addressed by the parties. Therefore, it should be considered on its merits.”
Source Wiggins v. Hackensack Meridien Health d/b/a JFK University Medical Center, Docket No. A-3847-22.
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