Francisco J. Rodriguez, Esq. BOARDWALK SEMINAR® 2014 April 30 - May 2, 2014 Ballys Atlantic City Atlantic City, NJ Medical Negligence: Best Practices for Working with Experts By Francisco J. Rodriguez Goldsmith Ctorides & Rodriguez, LLP Englewood Cliffs New York Philadelphia Cherry Hill [email protected] Thanks to the most recent opinion from the New Jersey Supreme Court, the Affidavit of Merit Statute became an even larger trap than when it was initial enacted. The case of Nicholas v. Mynster, 213 N.J. 463 (2013), held that a expert who was not board certified in the same specialty or subspecialty as the defendant cannot sign an Affidavit of Merit even though the expert may be credentialed by a hospital to treat the condition in question or procedure at issue. This means that if the case relates to malpractice during spine surgery performed by an board certified orthopedic surgeon, a neurosurgeon who also does spine surgery cannot sign an Affidavit of Merit against the orthopedic surgeon. This and many other patently absurd results is now the law. This paper seeks to provide a roadmap for making certain that the plaintiff’s attorney does not run into trouble with the Affidavit of Merit Statute. Unfortunately, the state of the current law is such that the plaintiff’s attorney cannot always avoid running into trouble and cannot always be certain that the expert has the appropriate credentials and will not be challenged by the defense. Unfortunately, there will be times when the defense will be able to use this uncertainty to its advantage and require the plaintiff to obtain a second AOM from a second expert with different credentials. All too often, the plaintiff’s attorney will need to err on the side of caution, rather than battle the defense attorney in court on affidavit of merit issues. The risks to the plaintiff are simply too great to take unnecessary chances. Two New Jersey Supreme Court cases will be analyzed, Nicholas and Buck v. Henry, 207 N.J. 377 (2011). In Nicholas, the Supreme Court held that the plaintiff’s expert was not qualified to sign the AOM and dismissed the action with prejudice. The matter involved the alleged failure by a board certified emergency medicine physician (Dr. Mynster) to properly manage a patient in the emergency room when he was found to have carbon monoxide poisoning, requiring a hyperbaric oxygen chamber for treatment. Specifically, the Supreme Court found that the plaintiff’s expert that signed the AOM against the defendant who was board certified in emergency medicine was not qualified to sign the AOM because the plaintiff’s expert was not board certified in emergency medicine, and the fact that the plaintiff’s expert was board certified in internal medicine with subspecialty certifications in critical care medicine and pulmonary disease, and was board certified in preventative medicine with subspecialty certifications in undersea and hyperbaric medicine did not make the expert qualified to sign the AOM. In addition, the fact that the expert had a clinical practice in hyperbaric and critical care, which included “evaluating and managing patients with acute carbon monoxide poisoning and had the privileges in a hospital to treat the condition in question. The Supreme Court held specifically that under the plain text of N.J.S.A. 2A:53A41, which requires that plaintiffs’ medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians, plaintiffs cannot establish the standard of care through an expert who, although credentialed by a hospital to treat the same condition, does not practice in the same specialties as defendant. Thus, if the alleged malpractice involves the specialty or subspecialty of the defendant, the plaintiff must obtain the AOM from someone who practices in the same specialty or subspecialty. Unfortunately, the circumstances of individual cases do not necessarily make this clear. Buck v. Henry delineated the specialty requirements for filing an AOM when suing a board-certified physician in a medical malpractice case when the defendant board-certified physician claims that the treatment that he/she rendered to the plaintiff falls outside of their area of board certification. As a result of the ruling Buck v. Henry, the Supreme Court required that the court rules be amended so that defendant physicians now have to indicate in their answer if they acknowledge treating the plaintiff and identify the specialty, if any, in which the physician was involved when treating the plaintiff. In Buck v. Henry, the plaintiff sued Dr. James R. Henry, who was a boardcertified emergency room physician. The plaintiff, Robert Buck, claimed that Dr. Henry negligently prescribed to Mr. Buck a sleeping pill called Ambien. The attorneys for the plaintiff in the matter timely filed two Affidavits of Merit, one from a board-certified psychiatrist and another from a board-certified emergency room physician. The attorneys for Dr. Henry timely requested a Ferrara conference, and the court inadvertently failed to schedule one. The trial court ended up dismissing plaintiff's complaint as a result of a summary judgment motion filed by the attorneys for Dr. Henry in which a certification was submitted by Dr. Henry wherein he claimed that he treated the plaintiff in his role as a family medicine specialist even though he had no board certification family medicine. The trial court held that the plaintiff should have served the Affidavit of Merit of an equivalent specialist in family medicine, and the Appellate Division affirmed the trial court's holding. Id. at 382-83. In reversing the trial court and the Appellate Division, the Supreme Court held that the "purpose of the affidavit of merit statute is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones." Id. at 383. The court also held that the confusion that led the plaintiff's attorney to file two allegedly deficient affidavits of merit should have been addressed and resolved at a Ferreira conference, not upon a summary judgment motion. The Supreme Court also held that for future cases, the defendant physician would have to indicate in the physician's answer to complaint if he acknowledged treating the plaintiff and whether the treatment rendered involved a particular specialty. Id. at 390. The Supreme Court also acknowledged that a defendant physician may practice in more than one specialty, and when this occurs and negligent treatment fell within one of those multiple specialties, the physician signing the affidavit of merit need only be a specialist in one of those areas specialized in by the defendant physician. Id. at 391. As a result of Buck v. Henry, New Jersey Court Rule 4:5–3 has been amended to include the following language: A physician defending against a malpractice claim who admits to treating the plaintiff must include in his or her answer the field of medicine in which he or she specialized at that time, if any, and whether his or her treatment of the plaintiff involved that specialty. So it is now crucial that when you file your medical malpractice case on behalf of the plaintiff and you subsequently receive the answer from the defendant physician, that you review the answer to find this information! The greatest risk is that you end up in a situation where you have a board-certified defendant physician in a particular specialty and you obtain the Affidavit of Merit from an identically board-certified physician, but buried within the physician's answer is a statement from the defendant that he or she was actually practicing in some different specialty from that in which he or she has board certification when he or she treated the plaintiff. If you miss such a statement in the answer and the court forgets to schedule a Ferreira conference, you run the risk that you find out about the fact that your expert actually is not practicing in the same specialty as the one in which defendant claims he rendered treatment to your client when it is too late. If you end up in that situation, you need to contact your expert immediately and find out if he or she actually practices in the same specialty in which the defendant claims he treated your client. If so, get an affidavit to this effect. If not, decide whether the claimed specialty is legitimate or the asserted specialty is frivolous. It is most certainly a concern that the specialty asserted in the answer will be asserted for the purpose of making plaintiff's counsel spend more time and waste more money. If the asserted specialty in the answer is not frivolous, go and obtain an expert affidavit of merit from someone who specializes in the claimed specialty. Prior to obtaining an affidavit of merit, it is most certainly now important to analyze the board certification of the defendant versus the specialty that could potentially be claimed as being the area specialty in which the treatment was rendered. Of course, in many cases it will be difficult to predict the specialty that will be claimed was the specialty under which treatment was rendered when the answer eventually is filed. In other cases, it will be obvious. Regardless, in those cases where it is not obvious, one should always err on the side of obtaining the Affidavit of Merit from a board-certified physician in the same specialty as the defendant. Although certainly in Buck v. Henry, it was the Supreme Court's intention to fashion a remedy that would help plaintiffs avoid dismissal based on affidavit of merit grounds based upon sharp practice or confusing areas of specialty, it is a real concern that the Supreme Court may have only fashioned another trap inadvertently. It is now good practice to ask the board-certified expert who is going to be signing your Affidavit of Merit if the area of practice in which the care and treatment was rendered by the defendant constitutes a different specialty that is recognized by the American Board of Medical Specialties than the specialty in which the expert is board certified. If not, add that statement to the expert's Affidavit of Merit. If so, consider obtaining an expert in the same specialty in addition to the expert you already have. With the Supreme Court subsequently having decided Nicholas, it now is also crucial to confirm both whether the area of specialty is an ABMS board-certified area of practice, most are, AND whether the alleged malpractice actually invovles that specialty or subspecialty. The answers to the questions will determine the type of expert the plaintiff obtains. Also, there will be occassions where, to be safe, the plaintiff will retain two different experts to sign two different AOMs against the same defendant so as to avoid any risks with the AOM. Medical Negligence: Best Practices for Working with Experts By Francisco J. Rodriguez Goldsmith Ctorides & Rodriguez, LLP Englewood Cliffs Cherry Hill New York [email protected] Philadelphia Nicholas v. Mynster, 213 N.J. 463 (2013) • Under the plain text of N.J.S.A. 2A:53A-41, which requires that plaintiffs’ medical expert must “have specialized at the time of the occurrence that is the basis for the [malpractice] action in the same specialty or subspecialty” as defendant physicians, plaintiffs cannot establish the standard of care through an expert who, although credentialed by a hospital to treat the same condition, does not practice in the same specialties as defendant. • This holding represented a much stricter interpretation of the AOM statute. • Dismissal with prejudice. • You can no longer get away with using an expert with a different board certification as the defendant to sign the AOM. Buck v. Henry, 207 N.J. 377 (2011) • The defendant physician would have to indicate in the physician's answer to complaint if he acknowledged treating the plaintiff and whether the treatment rendered involved a particular specialty. • A defendant physician may practice in more than one specialty, and when this occurs and negligent treatment fell within one of those multiple specialties, the physician signing the affidavit of merit need only be a specialist in one of those areas specialized in by the defendant physician. Rule 4:5–3 • A physician defending against a malpractice claim who admits to treating the plaintiff must include in his or her answer the field of medicine in which he or she specialized at that time, if any, and whether his or her treatment of the plaintiff involved that specialty. What to do? • Review the Answer • Ask for a Ferreira conference immediately • Perhaps retain another expert THE END Francisco J. Rodriguez Goldsmith Ctorides & Rodriguez, LLP [email protected] Englewood Cliffs Cherry Hill New York Philadelphia
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