by Christina Vassiliou Harvey
The Affidavit of Merit Statute, N.J.S.A. 2A:53A-26, et seq., places hefty burdens on a plaintiff in a malpractice case, particularly in a medical malpractice suit. Pursuant to N.J.S.A. 2A:53A-27, “[i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.”
In medical malpractice cases, the burden is heightened to require not just any physician or nurse, but any medical professional practicing within the last five years with the same specialty or subspecialty involved in the treatment or care at issue. N.J.S.A. 2A:53A-41. The Affidavit of Merit Statute further provides that a board certified physician in a specialty may provide an affidavit of merit for a non-board certified physician but not the reverse.
To remedy the harsh sanctions of dismissal for failure to provide a proper affidavit of merit, the New Jersey Supreme Court fashioned an equitable remedy that requires all malpractice cases to schedule a Ferriera conference (so named for the case of Ferriera v. Raqncocas Orthopedic Assocs., 178 N.J. 144, 154 (2003)). This conference is scheduled within 90 days of the filing of the first defendant’s answer. The conference addresses whether plaintiff provided an affidavit of merit and permits the defendant to address any issues with the validity of that affidavit.
In the New Jersey Supreme Court’s recent decision, Buck v. Henry, the plaintiff treated with Dr. Henry, who prescribed plaintiff Ambien. Plaintiff was permanently injured as a result of taking Ambien and sued Dr. Henry. The plaintiff filed an affidavit of merit from a psychiatrist because the negligence alleged related to Dr. Henry’s prescription of Ambien. Dr. Henry’s counsel objected to the affidavit of merit based upon the specialty of psychiatry. Plaintiff then sought an affidavit of merit from a board certified emergency room physician because the New Jersey Division of Consumer Affairs listed Dr. Henry as a certified emergency room physician by the American Board of Emergency Medicine. At issue in the case was whether the plaintiff had a way to discern prior to the 60 days running that Dr. Henry was acting within the scope of a different specialty of family medicine.
Without a Ferriera conference, Dr. Henry moved for summary judgment on the basis that he specialized in family medicine, and since no affidavit of merit had been filed by a family medicine practitioner, plaintiff had failed to state a claim. The Supreme Court noted that plaintiff did not receive that certification of the defendant’s specialty within the time for which plaintiff had to file his affidavit of merit. The Supreme Court further noted that if the Ferriera conference were held, a proper affidavit of merit would have been filed. The Supreme Court remanded the matter for plaintiff to file an affidavit of merit from an expert with the correct specialty.
The Supreme Court also utilized the case to set forth a new procedural requirement in medical negligence actions. The Supreme Court required that each physician who defends against a malpractice claim and admits treating the plaintiff must include in his or her answer, the field of medicine in which he or she specialized, if any, and whether the treatment of plaintiff involved that specialty.
Justice Helen Hoens dissented on the basis that she believed the requirement shifted the burden from the plaintiff to the defendant because she found factually the plaintiff could have realized defendant’s specialty. However, the majority decision noted that the new rule kept the burden on plaintiff to obtain the appropriate affidavit while taking away plaintiff’s “guessing” about the defendant’s specialty.
The holding in Buck is welcome news to plaintiffs in medical negligence matters because the defendant now has the duty to advise the plaintiff of the specialty involved. This change will avoid the harsh remedy of dismissal for plaintiffs who act diligently in identifying experts to draft affidavits of merits.