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Editor's Note: As the authors explained in Part One of this article, like many other states, New Jersey has instituted tort reform measures aimed at reducing the incidence of frivolous lawsuits and the costs of practicing medicine. These changes in the law have had unintended consequences, however, often making the prosecution of a medical malpractice claims so complicated that only specialist attorneys can handle them.
It used to be that if a proposed medical expert had the qualifications and was credentialed to do the same procedure or perform the interpretation that was being criticized and evaluated, that affiant was qualified to give expert testimony.
However, this common sense interpretation ' one that long pre-existed the Affidavit of Merit Statute (AOM) N.J.S.A. 2A:53A-26 et seq. ' was subsequently eviscerated by legislative fiat. In a daring and yet unresolved challenge to the Separation of Powers Doctrine, the legislature promulgated a new statute with respect to the qualification of experts that was made applicable to all testifying experts at trial and to those who submitted the requisite AOM. Article 6, ' 2, '3 of the New Jersey Constitution vested the New Jersey Court with rule-making power. That paragraph provides in relevant part: “The Supreme Court shall make rules governing the administration of all courts in the state and, subject to the law, that practice and procedure in all such courts.”
It has long been the rule in New Jersey that the courts, and not the legislature, determine the qualifications of testifying experts. Nevertheless, this statute has not yet faced a Separation of Powers constitutional challenge.
In 2004, the legislature enacted the “New Jersey Medical Care Access and Responsibility and Patients First Act,” N.J.S.A. 2A:53A-37, et seq. Its most relevant provision is Section 41, which essentially eradicates the overlap line of cases discussed in last month's Medical Malpractice Law & Strategy . Specifically, the statute provides:
In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L. 1995 c. 139 (C. 2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other healthcare professional in the United States and meets the following criteria:
(a) if the party against whom or on whose behalf the testimony is offered is a specialist or sub-specialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or sub-specialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or sub-specialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately proceeding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same healthcare profession in which the defendant is licensed, and, if the defendant is a specialist or sub-specialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active of clinical practice of that specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same healthcare profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(c) both.
N.J.S.A. 2A:53A-41.
All of that legislative jargon essentially means that even if two physicians are credentialed by a hospital to perform the identical procedure ' like a surgeon or an interventional radiologist performing a needle biopsy ' they cannot review the other's care in the absence of a judicial waiver of this requirement. This statute has been directly incorporated into the AOM statute by amendment. See N.J.S.A. 2A:53A-27. This has led to some very peculiar results, which completely abrogate the principals of stare decisis. As an example, it has long been a given that specialists in internal medicine and specialists in the field of family practice, when treating a similarly situated adult, have to comply with the same standard of care. Prior to the enactment of this statute, no medical malpractice lawyer would have challenged the competency of an internal medicine specialist to testify against a family practice physician. However, that has now changed.
State Supreme Court
For a court that has been recently and repeatedly accused of significant judicial activism, the New Jersey Supreme Court displayed a remarkable level of undeserved fidelity to the legislative enactment of section 41 of the Patients First Act. In Nicholas v. Mynster, 213 N.J. 463 (2013), the New Jersey Supreme Court chose to strictly apply the statutory language of N.J.S.A. 2A:53A-41, but to never address the Separation of Powers issue. In Nicholas, the two defendant physicians who treated the plaintiff for carbon monoxide poisoning were board certified in emergency medicine and family medicine, respectively. Plaintiff's expert affiant was board certified in internal and preventive medicine and specialized in hyperbaric medicine, including the use of hyperbaric oxygen in the treatment of carbon monoxide poisoning. Both the defendants and the plaintiff's expert were credentialed by a hospital to treat patients for carbon monoxide poisoning.
The trial court initially denied the motion to preclude the testimony of the plaintiff's expert. The Appellate Division then denied review, but the Supreme Court agreed to take the case on an interlocutory appeal, an extremely rare event. The Supreme Court held that the Patients First Act precluded the plaintiff's expert from testifying against the defendant physicians because they did not specialize in the same area of medicine, even though they all were credentialed to treat the exact same condition and did in fact have the necessary credentials to treat the same condition.
The Supreme Court framed the question presented in Nicholas as follows: “The issue is whether plaintiffs' expert Dr. Weaver, a board-certified physician in internal and preventative medicine, is authorized to testify to the standard of care applicable to the treatment of carbon monoxide poisoning in a medical-malpractice action involving defendant physicians who are board certified in emergency medicine and family medicine.” Id. at 478. The court readily acknowledged that it was undisputed that Dr. Weaver was qualified as an expert on the subject of carbon monoxide poisoning and the use of hyperbaric oxygen as a treatment modality. Nevertheless, employing the enhanced-qualification requirements of the Patients First Act, and following the goals of statutory interpretation to carry out the legislature's intent, the court determined that notwithstanding his qualifications, the plaintiff's expert was unable to offer an opinion against the defendants who had distinct specialty areas recognized by the American Board of Medical Specialties. Accordingly, the court dismissed the plaintiff's complaint for failure to have a proper expert.
Conclusion
Perhaps the requirements set forth within N.J.S.A. 2A:53A-41 are too strict. Experience showed that, in most cases, the expert testifying against the physician or on behalf of the physician was qualified by education, experience and credentials to treat equivalent conditions. If the standard of care is the same with respect to both specialties, why isn't the expert qualified? Under the current scheme, doctors who treat the same condition but are not equivalently certified can no longer serve as experts in favor of or against one another. In fields like maternal fetal medicine and radiology, which have jointly published guidelines on the interpretation of fetal ultrasounds, this holding makes absolutely no sense.
In one recent case that did not result in a reported decision, a full Harvard professor who contributed to writing the seminal book on the Interpretation of Fetal Ultrasounds ' and happened to be a radiologist ' was precluded from testifying in favor of a maternal fetal specialist who had interpreted a second-trimester ultrasound notwithstanding the fact that the plaintiff's attorney cross-examined the defendant utilizing the expert's name when discussing the standards employed in interpreting that second-trimester ultrasound. This has created a “gotcha” environment and has led to a whole new round of investigation into the credentialing of experts rather than focusing on the laudable goals of the AOM Statute or the merits of the case.
The Patients First Act was intended as a further measure of tort reform allegedly to guarantee that physicians testifying in medical malpractice actions have the requisite qualifications to offer the professed opinions. This was an unnecessary step, as in virtually all cases, the experts had the requisite qualifications. This change in existing law, particularly as interpreted by the New Jersey Supreme Court, alters the playing field in a way that is not only not beneficial but is in fact detrimental to the search for the truth ' the stated goal of litigation before a jury. Both sides have to follow a talismanic approach to securing an expert who not only practices in the same field but has the board certification as the defendant to offer an opinion either in favor of or against that physician. While some may argue, as the Medical Society of New Jersey did in Nicholas , that this is entirely appropriate, it is rather absurd in these overlap categories where the standard of care is the same as to differently certified physicians.
Nicholas v. Mynster has already been cited more than 26 times, with 22 of the opinions being unpublished. This decision has, unfortunately, created far more questions than it has answered, and in many ways has detracted from the enviable goals of the AOM Statute. The statute provides for virtually no judicial discretion with regard to an expert's qualifications. While the statute does have a waiver provision, that provision is only applicable if the party can show that a good faith effort has been made to identify an expert in the exact same board certification and has been unable to do so. This stringent and unjustified requirement just creates additional burdens and hurdles for both sides.
Tort reform is obviously a worthy pursuit. It has the inherent benefit of reducing sometimes frivolous litigation, leaving the courts more free to entertain those cases worthy of decision. While tort reform sometimes creates hurdles, its benefits are near universally and overwhelmingly positive. However with respect to the Patients First Act and expert qualifications, it seems to have gone awry. It has taken away judicial discretion and created stringent requirements that are unnecessary, considering the original AOM Statute and the manner in which it had been interpreted consistent with prior precedent. The bumpy road of tort reform has recently become much more dangerous in New Jersey medical malpractice cases.
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.
Editor's Note: As the authors explained in Part One of this article, like many other states, New Jersey has instituted tort reform measures aimed at reducing the incidence of frivolous lawsuits and the costs of practicing medicine. These changes in the law have had unintended consequences, however, often making the prosecution of a medical malpractice claims so complicated that only specialist attorneys can handle them.
It used to be that if a proposed medical expert had the qualifications and was credentialed to do the same procedure or perform the interpretation that was being criticized and evaluated, that affiant was qualified to give expert testimony.
However, this common sense interpretation ' one that long pre-existed the Affidavit of Merit Statute (AOM)
It has long been the rule in New Jersey that the courts, and not the legislature, determine the qualifications of testifying experts. Nevertheless, this statute has not yet faced a Separation of Powers constitutional challenge.
In 2004, the legislature enacted the “New Jersey Medical Care Access and Responsibility and Patients First Act,”
In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of
(a) if the party against whom or on whose behalf the testimony is offered is a specialist or sub-specialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or sub-specialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or sub-specialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and during the year immediately proceeding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) the active clinical practice of the same healthcare profession in which the defendant is licensed, and, if the defendant is a specialist or sub-specialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active of clinical practice of that specialty or sub-specialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same healthcare profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or
(c) both.
All of that legislative jargon essentially means that even if two physicians are credentialed by a hospital to perform the identical procedure ' like a surgeon or an interventional radiologist performing a needle biopsy ' they cannot review the other's care in the absence of a judicial waiver of this requirement. This statute has been directly incorporated into the AOM statute by amendment. See
State Supreme Court
For a court that has been recently and repeatedly accused of significant judicial activism, the New Jersey Supreme Court displayed a remarkable level of undeserved fidelity to the legislative enactment of section 41 of the
The trial court initially denied the motion to preclude the testimony of the plaintiff's expert. The Appellate Division then denied review, but the Supreme Court agreed to take the case on an interlocutory appeal, an extremely rare event. The Supreme Court held that the Patients First Act precluded the plaintiff's expert from testifying against the defendant physicians because they did not specialize in the same area of medicine, even though they all were credentialed to treat the exact same condition and did in fact have the necessary credentials to treat the same condition.
The Supreme Court framed the question presented in Nicholas as follows: “The issue is whether plaintiffs' expert Dr. Weaver, a board-certified physician in internal and preventative medicine, is authorized to testify to the standard of care applicable to the treatment of carbon monoxide poisoning in a medical-malpractice action involving defendant physicians who are board certified in emergency medicine and family medicine.” Id. at 478. The court readily acknowledged that it was undisputed that Dr. Weaver was qualified as an expert on the subject of carbon monoxide poisoning and the use of hyperbaric oxygen as a treatment modality. Nevertheless, employing the enhanced-qualification requirements of the Patients First Act, and following the goals of statutory interpretation to carry out the legislature's intent, the court determined that notwithstanding his qualifications, the plaintiff's expert was unable to offer an opinion against the defendants who had distinct specialty areas recognized by the American Board of Medical Specialties. Accordingly, the court dismissed the plaintiff's complaint for failure to have a proper expert.
Conclusion
Perhaps the requirements set forth within
In one recent case that did not result in a reported decision, a full Harvard professor who contributed to writing the seminal book on the Interpretation of Fetal Ultrasounds ' and happened to be a radiologist ' was precluded from testifying in favor of a maternal fetal specialist who had interpreted a second-trimester ultrasound notwithstanding the fact that the plaintiff's attorney cross-examined the defendant utilizing the expert's name when discussing the standards employed in interpreting that second-trimester ultrasound. This has created a “gotcha” environment and has led to a whole new round of investigation into the credentialing of experts rather than focusing on the laudable goals of the AOM Statute or the merits of the case.
The Patients First Act was intended as a further measure of tort reform allegedly to guarantee that physicians testifying in medical malpractice actions have the requisite qualifications to offer the professed opinions. This was an unnecessary step, as in virtually all cases, the experts had the requisite qualifications. This change in existing law, particularly as interpreted by the New Jersey Supreme Court, alters the playing field in a way that is not only not beneficial but is in fact detrimental to the search for the truth ' the stated goal of litigation before a jury. Both sides have to follow a talismanic approach to securing an expert who not only practices in the same field but has the board certification as the defendant to offer an opinion either in favor of or against that physician. While some may argue, as the Medical Society of New Jersey did in Nicholas , that this is entirely appropriate, it is rather absurd in these overlap categories where the standard of care is the same as to differently certified physicians.
Nicholas v. Mynster has already been cited more than 26 times, with 22 of the opinions being unpublished. This decision has, unfortunately, created far more questions than it has answered, and in many ways has detracted from the enviable goals of the AOM Statute. The statute provides for virtually no judicial discretion with regard to an expert's qualifications. While the statute does have a waiver provision, that provision is only applicable if the party can show that a good faith effort has been made to identify an expert in the exact same board certification and has been unable to do so. This stringent and unjustified requirement just creates additional burdens and hurdles for both sides.
Tort reform is obviously a worthy pursuit. It has the inherent benefit of reducing sometimes frivolous litigation, leaving the courts more free to entertain those cases worthy of decision. While tort reform sometimes creates hurdles, its benefits are near universally and overwhelmingly positive. However with respect to the Patients First Act and expert qualifications, it seems to have gone awry. It has taken away judicial discretion and created stringent requirements that are unnecessary, considering the original AOM Statute and the manner in which it had been interpreted consistent with prior precedent. The bumpy road of tort reform has recently become much more dangerous in New Jersey medical malpractice cases.
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.
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