It may be cliché, but “a little knowledge is a dangerous thing.” Today, formal training has been pushed aside as people are flooded with information—so much so that they can unofficially deem themselves as experts. This is especially true in the area of medicine with TV ads selling prescription medicine and websites overflowing with symptoms, causes and treatments, so people can literally try to diagnose themselves.

Now imagine a judge with no formal medical background trying to decide whether a claim of medical malpractice was such a clear case of negligence that they can deem unnecessary an Affidavit of Merit (the “Affidavit”), which is required by law to confirm whether a lawsuit has any merit and the accused physician deviated from the “standard of care” in the eyes of a professional peer. This is what happens when the Affidavit of Merit Act (N.J.S.A. 2A:53A-27 to -29) (the “AOM”) crosses paths with the courtroom “common knowledge exception.” Two very different mandates—the former being statutory law created by publicly elected legislators and signed by a governor, and the latter, common law created by judges to serve as a judicial remedy to address trial evidentiary issues.

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