The Affidavit of Merit (AOM) Statute, N.J.S.A. 2A:53A-26 to -29, and the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-41, require the plaintiff and defendants in malpractice cases to retain qualified experts. In the first “affidavit of merit” case, In Re Hall, 147 N.J. 379, 391 (1997), the Supreme court declared that the purpose of the AOM statute is to require plaintiffs to make “a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.” In our view, and those of the medical malpractice lawyers who have endorsed this opinion, this laudable goal of the AOM statute has become twisted and distorted into a minefield of traps and pitfalls when considered with the recent construction of the PFA. The interpretation of the PFA by our Supreme Court in Nicholas v. Mynster, 213 N.J. 463 (2013), has resulted in a tremendous waste of judicial resources and legal time. We must now all suffer with interminable motion practice and adjournments of trials to permit parties to retain new experts.
In Nicholas, the Supreme Court held that a board-certified internist who was credentialed to treat the condition in issue, carbon monoxide poisoning, was not qualified to testify against a family medicine doctor who was the “attending physician.” There is no indication that this doctor had ever treated the plaintiff before the encounter in the hospital. In reality, the attending physician was practicing as a house doctor. If this defendant really was a specialist in family medicine practicing her specialty, then the Nicholas decision has essentially repealed N.J.S.A. 2A:53A-41(b), dealing with what we used to know as “general practitioners.” Despite the new interpretation of these statutes, the plaintiff in Nicholas was not given a chance to obtain a “qualified” expert.
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