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.

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