If a defendant physician in a New Jersey medical malpractice case has board certifications in two specialties or subspecialties at the relevant time and the allegedly negligent treatment involved both of those credentials, then a plaintiff is required to serve an affidavit of merit (AOM) from a physician who is board certified in each of the defendant’s specialties.
In an appeal decided by the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) in an unpublished Per Curiam opinion filed on May 20, 2024, the defendants’ answer stated that the defendant “specialized in [c]ardiovascular [d]isease and [c]linical [c]ardiac [e]lectrophysiology at the time that he rendered treatment to plaintiff, with such treatment involving cardiovascular disease and clinical cardiac electrophysiology.”
The plaintiff’s expert was a board certified physician specializing in cardiology. The expert’s AOM stated there was “a
reasonable probability that the skill, care, and knowledge exercised by [Dr. Corbisiero], in the cardiac treatment of [plaintiff], fell outside accepted standards of medical care.”
The plaintiff asserted that the AOM from his expert cardiologist suffices, since the defendant physician’s other subspecialty of clinical cardiac electrophysiology is allegedly irrelevant. Alternatively, even if both subspecialities were involved, the plaintiff asserted the AOM is sufficient because both the defendant physician and the AOM physician are board certified in cardiology.
The New Jersey Appellate Court stated, “The plain language of the PFA [New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42] does not state, as plaintiff argues, that a plaintiff’s AOM affiant does not have to specialize in each subspecialty practiced by a defendant physician that is involved in the plaintiff’s care and treatment. The statute recognizes that multiple specialties or subspecialties can be involved in a plaintiff’s care, and that the AOM physician’s credentials must match the specialties or subspecialties that were involved.”
“We are mindful the trial court was presented with conflicting assertions by Dr. Corbisiero and Dr. Charash disputing whether plaintiff’s care did or did not involve the specialty (or subspecialty) of clinical cardiac electrophysiology. The Supreme Court’s jurisprudence to date has not addressed how a trial court should resolve such a factual dispute … In the absence of a Supreme Court opinion or directive requiring such a plenary hearing, we decline to remand for that purpose. The trial court’s decision did not run afoul of existing precedent, and there are at least substantial, albeit not uncontested, grounds in the record to support the court’s determination of the “involved” subspecialty.” Putting aside the AOM affiant’s disagreement, there is no indication that Dr. Corbisiero’s assertion of his subspecialty’s involvement in plaintiff’s care was misleading or unfounded.”
The New Jersey Appellate Court upheld the trial court’s ruling that the AOM supplied by plaintiff failed to meet the statute’s “kind-for-kind” credentialing requirement.
Source Pike v. Corbisiero, M.D., Docket No. A-3516-22.
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