"[T]he
party against whom or on whose behalf the testimony is offered"
N.J.S.A. 2A:53A-41(b) similarly provides that "[i]f the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness" shall either be practicing as a general practitioner or teaching "in the same health care profession in which the party against whom or on whose behalf the testimony [is offered] is licensed."
14 A-5439-15T1 also clearly refers to a party to the litigation. "[T]he person
against whom or on whose behalf the testimony is offered" likewise
appears to refer to a party, and the Legislature treated both
phrases as synonymous.
If a plaintiff sues only a health care facility and not the
specialist physician, the "defendant" is the health care facility,
not a specialist physician. Ibid. Similarly, it is the health
care facility "against whom or on whose behalf the testimony is
offered." Ibid. The health care facility is not "a specialist
or subspecialist," "board certified," or "licensed" in a health
care profession. Ibid. Thus, under the plain language of N.J.S.A.
2A:53A-41(a), suing only a health care facility does not trigger
the requirement of an AOM from a person with the "same" specialty
or subspecialty, board certification, or license. Ibid.
That conclusion is corroborated by considering the entire
Patients First Act of which N.J.S.A. 2A:53A-41(a) is a part.
Elsewhere in the Patients First Act, the Legislature used
"defendant" and "party" to refer to a party in the medical
malpractice litigation.3 The Legislature used "third party" to
N.J.S.A. 2A:53A-40(a) (referring to "a health care provider named as a defendant in the medical malpractice action"); N.J.S.A. 2A:53A-40(c) (addressing "a health care provider named as a defendant" and reinstatement of a dismissed "party" and sanctions paid to a "party"); N.J.S.A. 2A:53A-40(d) (discussing sanctions
15 A-5439-15T1 refer to other persons.4 The Legislature used "health care
facility" elsewhere, but not in N.J.S.A. 2A:53A-41(a).5
Even if N.J.S.A. 2A:53A-41's language was ambiguous, its
legislative history indicates "the party" and "the defendant" are
synonymous. The language including the phrases "the party against
whom or on whose behalf the testimony is offered," "the person
against whom or on whose behalf the testimony is being offered,"
"the defendant," and "that party" in N.J.S.A. 2A:53A-41(a) was in
a section of the original bill, and remained unchanged through
enactment. A. 50, 4-5 (Mar. 4, 2004).6 The bill's sponsor
paid to a "party") N.J.S.A. 2A:53A-41(c) (considering a "motion by the party"); N.J.S.A. 2A:53-41(f) (authorizing damages for "the party for whom the person was testifying as an expert"); N.J.S.A. 2A:53A-42 (discussing additur and remittitur "motions by any party" after "a verdict in favor of the complaining party"); N.J.S.A. 17:30D-7(a) (requiring notice of "any medical malpractice claim settlement, judgment or arbitration award to which the practitioner is a party"); N.J.S.A. 17:30D-27(a) (discussing "a defendant in an action brought for medical malpractice"); N.J.S.A. 17:30D-27(b) (discussing the form of judgment "[u]nless otherwise agreed to by the parties"). N.J.S.A. 17:30D-19(d)(4) (a purchasing alliance may "contract with third parties"); L. 2004, c.