The Affidavit of Merit Statute and the Patients First Act have subjected the courts and the malpractice bar to a never-ending flood of motions and appeals. Recently, in Estate of Yearby v. Middlesex County, N.J. Super. (App. Div. 2018), Judge Fuentes joined a long list of judges to observe that: “This issue comes before this court with disturbing regularity and has been impervious to every attempt tried by our Supreme Court to avoid its recurrence.” The New Jersey Supreme Court has been required to consider the AMS or PFA at least 18 times, or approximately once a year beginning in 1997 with In re Hall, 147 N.J. 379 (1997). In A.T. v. Cohen, N.J. (2018), Justice LaVecchia, writing for a unanimous court, mandated the implementation of new rules in another attempt to rid the system of the problems cause by the AMS.

This cause was greatly advanced by the Appellate Division in the recently published Nicholas v. Hackensack Univ. Med'l Ctr., A-5165-15 (App. Div.  2018). In Nicholas, the plaintiffs filed a wrongful death case seeking damages arising out of the death of their four-year-old son. The defendants included three physicians who were board certified in pediatrics and specialized in pediatric critical care, and nurses. Plaintiffs served an affidavit of merit from Dr. Howard Eigen, who was board certified and credentialed by a hospital for at least five years in pediatric pulmonology and critical care, and who “devoted a majority of [his] professional time to the active clinical practice of pediatric pulmonology and critical care.” The parties waived the affidavit of merit conference.

When Dr. Eigen was deposed nearly three years later, he testified that he was:

[B]oard certified in pediatrics and in the subspecialty of pediatric critical care, and in 2011 was credentialed at the Riley Hospital for Children to practice pediatric and pediatric critical care medicine. He also testified that from 2006 through 2011, he served as the medical director of the hospital's PICU, and was on call approximately 10 weeks per year providing care to the PICU patients. When he was not on call, Dr. Eigen administered the PICU and served as the vice-chairman of pediatrics for clinical affairs. Dr. Eigen testified that between 2006 and 2011 he devoted 25 percent of his time to direct patient care in the PICU, 50 percent to administrative duties and 25 percent to seeing outpatients and teaching residents in the outpatient clinics.

The physician defendants moved for summary judgment, contending that the plaintiff's expert was not qualified to be an expert pursuant to the Patients First Act, N.J.S.A. 2A:53A-41. The court concluded that even though the plaintiff's expert was board certified in pediatrics and pediatric critical care, the plaintiff's expert was disqualified because he “only devoted a small percentage of his practice time to pediatric critical care in the year prior to the date of the alleged malpractice[.]” In a series of orders, the motion court barred plaintiffs' expert from testifying against the defendant physicians and entered summary judgment in their favor.

After additional motion practice, the motion court barred the plaintiffs' proposed expert from testifying as to either standard of care or even causation as to the hospital. The court concluded that plaintiff's claim against a hospital must be dismissed because plaintiffs' proposed expert was not qualified to testify against the defendant physicians. The court also barred plaintiffs' expert from testifying as to proximate causation, holding such testimony would be unduly prejudicial. Nearly four years after the case was filed, the court dismissed the case against the hospital and its employees, bringing the initial phase of litigation in the Law Division to a conclusion.

The Appellate Division began its analysis by first considering whether plaintiffs' proposed expert was qualified to testify. The Nicholas court quoted the relevant portion of the PFA, N.J.S.A. 2A:53A-41(a):

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties [ABMS] or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty …, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, … , as the party against whom or on behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty … the expert witness shall be:

(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action;

or

(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, … during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:

(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist …, the active clinical practice of that specialty or subspecialty …; or

(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist … accredited residency or clinical research program in the same specialty or subspecialty …; or

(c) both.

N.J.S.A. 2A:53A-41(a) (emphasis added).

The Appellate Division in Nicholas then observed that the plaintiff's proposed expert was a specialist in the same specialty as the defendant physicians and was credentialed by a hospital to treat the condition at issue. In explaining that this was all that was required by the PFA, the Appellate Division discussed the different requirements under section 1 and section 2 of the statute:

To satisfy N.J.S.A. 2A:53A-41(a)(1)'s requirements, the expert must be “credentialed by a hospital to treat the condition at issue ….” Nicholas, 213 N.J. at 482. To satisfy the requirements of N.J.S.A. 2A:53A-41(a)(2), the expert must be “board certified in the same specialty in the year preceding 'the occurrence that is the basis for the claim or action,'” ibid. (quoting N.J.S.A. 2A:53A-41(a)(2)), and during the year immediately preceding the occurrence he or she must have devoted a majority of his or her time to “either” clinical practice as defined in N.J.S.A. 2A:53A-41(a)(2)(a) or the instruction of students as defined in N.J.S.A. 2A:53A-41(a)(2)(b), ibid.

The Nicholas panel concluded that plaintiff's proposed expert was clearly qualified under the first section of the statute.

[W]e are convinced the court erred by determining Dr. Eigen was not qualified to testify against the defendant physicians. In the first instance, Dr. Eigen met the requirements of N.J.S.A. 2A:53A-41(a). He was a licensed physician and, at the time of the alleged malpractice, “specialized … in the same specialty, [pediatrics, and] subspecialty [pediatric critical care,]” involved in the treatment and care at issue. See N.J.S.A. 2A:53A-41(a). Although Dr. Eigen's administrative duties as director of the PICU and as a hospital administrator consumed a substantial amount of his professional time in 2011, his clinical practice was devoted exclusively to the practice of pediatrics and pediatric critical care. See Buck, 207 N.J. at 391 (finding “[a] physician may practice in more than one specialty”).

The Appellate Division then clarified an issue that has long plagued the courts. The court explicitly instructed that “N.J.S.A. 2A:53A-41(a) does not require that a proposed expert devote a majority of his or her professional time to the practice of the pertinent specialty.” This portion of the statute merely requires that the physician practice in the same specialty as the defendant and be credentialed to treat the condition or perform the procedure.

Additionally, the expert must only satisfy one of the two methods to qualify as an expert witness:

To be sure, Dr. Eigen's qualifications did not satisfy the requirements of N.J.S.A. 2A:53A-41(a)(2)(a). The court erred, however, because it did not consider that Dr. Eigen satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1). When the alleged malpractice occurred in 2011, Dr. Eigen was credentialed at the Riley Hospital for Children to provide pediatric and pediatric critical care, and thus “to treat patients for the medical condition, or to perform the procedure, that is the basis for” plaintiffs' medical malpractice claim. See N.J.S.A. 2A:53A-41(a)(1). Dr. Eigen satisfied the requirements of N.J.S.A. 2A:53A-41(a)(1), and his lack of qualifications under N.J.S.A. 2A:53A-41(a)(2) did not permit or require his disqualification as an expert witness against the defendant physicians.

Emphasis added.

The Bottom Line

Compliance with the AMS and PFA should now be as easy as 1, 2, 3.

1. Determine if the defendant is a specialist;
2. Determine if the treatment in issue involves the defendant's specialty;
3. Retain an expert (i) in the same specialty or subspecialty as the defendant, and (ii) who is credentialed to treat the condition or perform the procedure.

The AOM is only required for plaintiffs, but the PFA applies to all experts. If a proposed expert as to the standard of care in a malpractice case is either not a specialist in the same field as the defendant, or is not credentialed by a hospital to treat the condition or perform the procedure in issue, then one should retain another expert. For two decades, our courts and the malpractice bar have struggled with these two statutes. Once and, hopefully, for all, the minefield has been cleansed to permit those legitimate claims to proceed.

That is the AOM and PFA, made simple.

Jonathan Lomurro is a partner at the Freehold firm of Lomurro, Munson, Comer, Brown and Schottland. He is the co-author of New Jersey Medical Malpractice Law (8th Ed. 2019), and author of Digital Litigation: Litigation Technology for the Modern Practitioner (ICLE 2014). Abbott Brown is also a partner at the Lomurro firm, and the co-author of New Jersey Medical Malpractice Law (8th Ed. 2019).