The Bumpy Road: Tort Reform in New Jersey

New Complications

Part and parcel of the continued delays in reaching trial are litigations surrounding the tort reform measures concerning medical malpractice. The AOM Statute, although reducing the number of medical malpractice lawsuits filed overall, has created virtually as much litigation by way of motion practice and appellate practice; these make up for the reduced number of lawsuits.

To the chagrin of many of the practitioners in the medical malpractice bar, there have been so many judicial modifications and interpretations of the initial and subsequently enacted AOM Statutes that it is a virtual minefield that requires very specific expertise to navigate. This has led to a rapid consolidation of the plaintiff's medical malpractice bar, resulting in fewer but highly specialized boutique law firms that focus their litigation in this complex field. The old days of a small plaintiff's personal injury firm handling medical malpractice went by the wayside due to the stringent requirements of this new statutory scheme. The newer, larger boutique law firms carefully screen their cases and weed out those without merit and those without the damages to support this type of expensive and complex litigation. The result is that the vast majority of cases sounding in medical malpractice in New Jersey today have much greater legitimacy than the lawsuits seen two decades earlier.

The AOM Statute provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall within 60 days following the date of filing of the answer to complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed to 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

N.J.S.A. 2A:53A-27.

Virtually all types of health care providers are included within the definition of “licensed person” under N.J.S.A. 2A:53A-26. The laudable goal of the AOM Statute was to require a threshold showing that the claim had merit, so that meritless lawsuits could be easily identified, and presumably disposed with, at an early stage of the litigation. Most attorneys will have the AOM in hand prior to filing the lawsuit and will append it to the complaint when filed.

Initially, the individual who executed the affidavit had only to be licensed in New Jersey or any other state, and have a particular expertise in the general area or specialty involved, as evidenced by either board certification or devotion of the person's practice substantially to the general area or specialty involved, for a period of at least five years. N.J.S.A. 2A:53A-27. There was no requirement that the affiant have the same board certification as the defendant he was criticizing. However, there had to be an AOM as to each defendant in the litigation.

The original statute created a burgeoning cottage industry for those licensed providers who execute the AOM, as well as for those who participated in a comprehensive array of litigation to define and interpret every nuance of the statute. Initial litigation involved questions such as whether the courts could order pre-suit discovery in malpractice cases in order to give a plaintiff enough time to comply with the provisions of the statute. See In re Petition of Hall, 147 N.J. 379 (1997). This prompted in some circumstances pre-suit depositions and mandatory compliance with record requests long before suit was initiated. Pre-suit discovery, however, remains rare and is not often used, notwithstanding the AOM requirements.

The initial statutory period for provision of an AOM was 60 days from the date of the filing of the defendant's Answer. That could be extended for an addition period of 60 days, but not beyond, according to the statute. This deadline spurred its own line of cases concerning whether a request to extend had to be made during the initial 60-day period or could be made at any time within the first 120 days. Courts initially held that that 120-day period was jurisdictional, meaning that an AOM served after that date was non-compliant and could result in dismissal. The courts interpreted the dismissal to be with prejudice in all cases, except those where extraordinary circumstances were identified. See Cornblatt v. Barow, 153 N.J. 218 (1998).

Ultimately, however, the courts' strict interpretation evolved to permit equitable defenses such as laches to reduce the statute's harshness. Subsequent judicial decisions have concluded that if an AOM is provided beyond the 120-day time period legislatively authorized, but prior to the defendant filing a motion to dismiss, the dismissal motion must be denied. See Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003); See also Paragon Contractors Inc. v. Peachtree Condominium Association, 202 N.J. 415 (2010). These cases “suggested” that trial courts hold conferences in all medical malpractice matters within the first 90 days to determine whether an AOM was supplied or if there were any objections to the same. This prompted many county courts to institute so called Ferreira conferences within 90 days of the defendant's Answer. However, this “suggestion” has not been interpreted uniformly, with some county courts failing to offer these conferences at all. Other counties demand either strict compliance with a conference or a Consent Order executed by the defendant waiving the conference with an agreement that the affidavit supplied was sufficient. Ultimately, New Jersey courts have held that the failure to hold a conference does not obviate the need to timely secure an appropriate AOM. See Alpert, Goldberg, Butler, Norton & Weiss, PC v. Quinn, 410 N.J. Super 510 (App. Div. 2009). See also Paragon, supra.

Prior Exceptions Are Still Valid Exceptions

In an effort to ameliorate the sometimes harsh consequences of strict enforcement of the AOM Statute, case law also developed incorporating the prior exceptions to the requirement of having an expert: namely, res ipsa loquitur and the common-knowledge doctrine. These cases essentially hold that, in those matters where no expert would have been required prior to the statute because of the two doctrines, there is no requirement for an AOM. However, the courts have cautioned that, to be safe, a plaintiff should nevertheless secure an appropriate AOM to avoid the risk of dismissal of a potentially meritorious claim. See Palanque v. Lambert Woolley, 168 N.J. 398 (2000). See also Janelli v. Keeper, 317 N.J. Super (Law Div. 1998).

Gary L. Riveles, a member of this newsletter's Board of Editors, is a partner in Dughi, Hewitt, and Domalewski, PC, in Cranford, NJ. Cyndee L. Allert is a senior associate with the firm.

In the late 1990s, the New Jersey Legislature sought to curb what was viewed as excessive and often frivolous litigation in New Jersey. Over a series of several years, legislation was enacted to reduce the perceived prevalence of, first, medical malpractice and, then, automobile accident lawsuits.

In 1995, the legislature passed the Affidavit of Merit Statute (AOM), N.J.S.A. 2A:53A-26 et seq. The first real challenge to an interpretation of this new AOM Statute did not occur until 1998, the same year in which the legislature passed the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to 35. The latter legislation significantly enhanced the requirements for personal injury plaintiffs to breach the limitation-on-lawsuit threshold, or verbal threshold, in order to recover for personal injury/non-economic damages. This statute had the desired effect of substantially limiting the number of lawsuits filed. Therefore, while not necessarily decreasing the costs of insurance (those costs held steady), it increased competition and created greater choice in the marketplace by developing an atmosphere that permitted both new insurers to enter the marketplace and old insurers who had left to return to the marketplace.

Together, these statutes rather effectively reduced the sheer volume of lawsuits heard in the civil division. But although tort reform has dramatically reduced the frequency of frivolous litigation, it has not helped the rapidity with which a case gets to trial. That is because many judges sitting in the civil division were re-appropriated to the criminal and chancery divisions to reduce their respective backlogs. So, due to the shifting of these judges, the reduction in the number of cases did not lead to a demonstrably quicker glide through the court system to trial, as the smaller number of judges remaining in the civil division were required to hear a greater number of cases per judge than before. The same frustrations that existed with respect to the delays in reaching trial continue to exist notwithstanding the efficacy of the tort reform measures enacted.

New Complications

Part and parcel of the continued delays in reaching trial are litigations surrounding the tort reform measures concerning medical malpractice. The AOM Statute, although reducing the number of medical malpractice lawsuits filed overall, has created virtually as much litigation by way of motion practice and appellate practice; these make up for the reduced number of lawsuits.

To the chagrin of many of the practitioners in the medical malpractice bar, there have been so many judicial modifications and interpretations of the initial and subsequently enacted AOM Statutes that it is a virtual minefield that requires very specific expertise to navigate. This has led to a rapid consolidation of the plaintiff's medical malpractice bar, resulting in fewer but highly specialized boutique law firms that focus their litigation in this complex field. The old days of a small plaintiff's personal injury firm handling medical malpractice went by the wayside due to the stringent requirements of this new statutory scheme. The newer, larger boutique law firms carefully screen their cases and weed out those without merit and those without the damages to support this type of expensive and complex litigation. The result is that the vast majority of cases sounding in medical malpractice in New Jersey today have much greater legitimacy than the lawsuits seen two decades earlier.

The AOM Statute provides:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall within 60 days following the date of filing of the answer to complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed to 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

N.J.S.A. 2A:53A-27.

Virtually all types of health care providers are included within the definition of “licensed person” under N.J.S.A. 2A:53A-26. The laudable goal of the AOM Statute was to require a threshold showing that the claim had merit, so that meritless lawsuits could be easily identified, and presumably disposed with, at an early stage of the litigation. Most attorneys will have the AOM in hand prior to filing the lawsuit and will append it to the complaint when filed.

Initially, the individual who executed the affidavit had only to be licensed in New Jersey or any other state, and have a particular expertise in the general area or specialty involved, as evidenced by either board certification or devotion of the person's practice substantially to the general area or specialty involved, for a period of at least five years. N.J.S.A. 2A:53A-27. There was no requirement that the affiant have the same board certification as the defendant he was criticizing. However, there had to be an AOM as to each defendant in the litigation.

The original statute created a burgeoning cottage industry for those licensed providers who execute the AOM, as well as for those who participated in a comprehensive array of litigation to define and interpret every nuance of the statute. Initial litigation involved questions such as whether the courts could order pre-suit discovery in malpractice cases in order to give a plaintiff enough time to comply with the provisions of the statute. See In re Petition of Hall, 147 N.J. 379 (1997). This prompted in some circumstances pre-suit depositions and mandatory compliance with record requests long before suit was initiated. Pre-suit discovery, however, remains rare and is not often used, notwithstanding the AOM requirements.

The initial statutory period for provision of an AOM was 60 days from the date of the filing of the defendant's Answer. That could be extended for an addition period of 60 days, but not beyond, according to the statute. This deadline spurred its own line of cases concerning whether a request to extend had to be made during the initial 60-day period or could be made at any time within the first 120 days. Courts initially held that that 120-day period was jurisdictional, meaning that an AOM served after that date was non-compliant and could result in dismissal. The courts interpreted the dismissal to be with prejudice in all cases, except those where extraordinary circumstances were identified. See Cornblatt v. Barow , 153 N.J. 218 (1998).

Ultimately, however, the courts' strict interpretation evolved to permit equitable defenses such as laches to reduce the statute's harshness. Subsequent judicial decisions have concluded that if an AOM is provided beyond the 120-day time period legislatively authorized, but prior to the defendant filing a motion to dismiss, the dismissal motion must be denied. See Ferreira v. Rancocas Orthopedic Associates , 178 N.J. 144 (2003); See also Paragon Contractors Inc. v. Peachtree Condominium Association , 202 N.J. 415 (2010). These cases “suggested” that trial courts hold conferences in all medical malpractice matters within the first 90 days to determine whether an AOM was supplied or if there were any objections to the same. This prompted many county courts to institute so called Ferreira conferences within 90 days of the defendant's Answer. However, this “suggestion” has not been interpreted uniformly, with some county courts failing to offer these conferences at all. Other counties demand either strict compliance with a conference or a Consent Order executed by the defendant waiving the conference with an agreement that the affidavit supplied was sufficient. Ultimately, New Jersey courts have held that the failure to hold a conference does not obviate the need to timely secure an appropriate AOM. See Alpert, Goldberg, Butler, Norton & Weiss, PC v. Quinn, 410 N.J. Super 510 (App. Div. 2009). See also Paragon, supra.

Prior Exceptions Are Still Valid Exceptions

In an effort to ameliorate the sometimes harsh consequences of strict enforcement of the AOM Statute, case law also developed incorporating the prior exceptions to the requirement of having an expert: namely, res ipsa loquitur and the common-knowledge doctrine. These cases essentially hold that, in those matters where no expert would have been required prior to the statute because of the two doctrines, there is no requirement for an AOM. However, the courts have cautioned that, to be safe, a plaintiff should nevertheless secure an appropriate AOM to avoid the risk of dismissal of a potentially meritorious claim. See Palanque v. Lambert Woolley , 168 N.J. 398 (2000). See also Janelli v. Keeper, 317 N.J. Super (Law Div. 1998).

Gary L. Riveles, a member of this newsletter's Board of Editors, is a partner in Dughi, Hewitt, and Domalewski, PC, in Cranford, NJ. Cyndee L. Allert is a senior associate with the firm.