Medical Negligence: Best Practices for Working with Experts

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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