condition, or to perform the procedure, that is the basis for the claim or action; or . . . 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 subspecialty.’136 The Buck Court then explained the process by which a court determines the qualification of a proposed expert: Under N.J.S.A. 2A:53A-41, the first inquiry must be whether a physician is a specialist or general practitioner. If the physician is a specialist, then the second inquiry must be whether the treatment that is the basis of the malpractice action ‘involves’ the physician’s specialty. When the treatment ‘involves’ the physician’s specialty the equivalency requirements apply, otherwise the specialist is subject to the same affidavit requirements as if he were a general practitioner.137 134. Buck v. Henry, 207 N.J. 377, 389 (2011) (citing N.J.S.A. 2A:53A-41(a), (b)). 135. Buck v. Henry, 207 N.J. 377, 389 (2011). 136. Buck v. Henry, 207 N.J. 377, 389 (2011) (emphasis added). 137. Buck v. Henry, 207 N.J. 377, 391 (2011). Significantly, the Court added: A physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that case, an affidavit of merit from a physician specializing in either area will suffice.138 This comment suggested that experts in one specialty could testify in cases involving other specialities. The issue was revisited less than a year later by the Supreme Court in Nicholas v. Mynster.139 The plaintiff in Nicholas was brought to the hospital suffering from carbon monoxide poisoning. The plaintiff came under the care of the defendants, Dr. Mynster, who
from a physician specializing in family medicine. Accordingly, at the summary-judgment stage, plaintiffs had no statutorily qualified expert who could render an opinion regarding the standard of care applicable to Drs. Mynster and Sehgal…. For these reasons, we reverse the trial court, enter summary judgment in favor of defendants, Drs. Mynster and Sehgal, and remand to the trial court for proceedings consistent with this opinion.154 Perhaps the result would have been different if the plaintiff ’s expert, who as noted above, was board certified in Internal Medicine, Pulmonary Diseases, Critical Care, and Undersea & Hyperbaric Medicine, had simply declared that Internal Medicine encompassed Family Medicine, and that Critical Care encompassed Emergency Medicine, and thus self-declared that he was also a specialist in both Family Medicine and Emergency Medicine, albeit not board certified in those specialties. In such a case, the fact that the plaintiff ’s expert was credentialed by a hospital to treat the condition at issue would have permitted this expert to testify against the defendants. Indeed, the Nicholas Court explained: The hospital-credentialing provision is not an alternative to the same-specialty requirement; it only comes into play if a physician is board certified in a specialty. Again, only a specialist can testify against a specialist about the treatment of a condition that falls within the specialty area. The hospital-credentialing provision is only a substitute for board certification.155 154. Nicholas v. Mynster, 213 N.J. 463, 487-88 (2013). 155. Nicholas v. Mynster, 213 N.J. 463, 481-83 (2013) (emphasis added). Of course, the prudent malpractice lawyer will strive to avoid such artificial manipulations, and rely upon experts whose credentials match those of the defendants. The Nicholas decision has raised many serious concerns amongst the medical malpractice bar. First, this decision appears to be a
specialists believed the defendant did not commit malpractice, and that the general surgeon was not qualified to render the affidavit of merit because he was not board certified in the same specialty as the defendant, and because he was not actively performing colonoscopies when the procedure was performed on the plaintiff. The trial judge granted plaintiff’s motion to waive the specialty requirements and denied the defendant’s motion to dismiss the complaint. The Appellate Division reversed, holding that the plaintiff had not demonstrated a good faith effort to obtain an expert, and dismissed the complaint. In reinstating the complaint, the Supreme Court held that an expert who does not possess the same board certification as the defendant may nevertheless provide a satisfactory affidavit of merit if the party seeking the waiver demonstrates a “good faith effort” to obtain an affidavit from a doctor with the same board certification and if the proffered expert possesses sufficient 268. Ryan v. Renny, 203 N.J. 37 (2010). training, experience and knowledge of the condition or procedure in issue as “a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.”269 The Supreme Court explained that a good-faith effort to obtain an affidavit from a similarly board certified expert required the judge to focus on whether the plaintiff attempted to secure such an expert, and not the reasons why the potential experts declined to participate in the case.270 A similar conclusion was reached by the Appellate Division in an engineering malpractice case, Berlin v. Remington & Vernick.271 In Berlin, the Borough of Berlin sued an engineer for negligence in designing a municipal water well. The plaintiff served the affidavit of a professional hydrogeologist. The defendant moved to dismiss, arguing that only an engineer could serve the affidavit of merit. The Appellate Division held that the plaintiff had complied with the statute, but warned: To protect against engineering malpractice
385. American Nurses Ass’n. v. Passaic Gen. Hosp., 192 N.J. Super. 486 (App. Div. 1984). 386. American Nurses Ass’n. v. Passaic Gen. Hosp., 192 N.J. Super. 486, 495 (App. Div. 1984). 387. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub. LEXIS 1868 (N.J. Super. App. Div. Aug. 4, 2010). 388. Klein v. Bristol Glen Inc., No. A-1382-08T3, 2010 N.J. Super. Unpub. LEXIS 1868, at *7-8 (N.J. Super. App. Div. Aug. 4, 2010). refused to produce this discovery, and the motion judge nevertheless granted defendant’s motion for summary judgment. The motion judge determined that defendant was a “charitable organization” pursuant to N.J.S.A. 2A:53A-7 and -9 and was “formed for non-profit purposes, organized as religious and charitable operations, and were promoting such activities at the time of the injury sustained.”389 The appeal raised the question: What is a charity? The discovery that had been provided revealed that residents paid up to $3,513 per month, an entrance fee between $199,700 to $319,000, or a nonrefundable entrance fee between $126,600 to $227,100. However, once a resident was accepted into the community they would not have to leave if they could no longer pay. The Klein Court deemed it significant that charitable donations made up only 0.8 percent of the operating budget of defendant. In reversing, the Appellate division first observed that where a defendant seeks the protection of the Act based on its status as an entity organized exclusively for charitable purposes, courts must undertake the fact-sensitive analysis.390 The Klein Court noted that in Abdallah v. Occupational Ctr. of Hudson County, Inc.,391 a non-profit entity relied on charitable donations equal to one-and-a-half percent of the institution’s total revenue and that was deemed “too insignificant” to accord it charitable status. In most significant language that will apply to the
to plaintiff. The court explained: the burden of coming forward to establish the probative value of such procedure rests with defendant; plaintiff then must produce evidence that the proposed procedure presents a risk to plaintiff’s health or is of such a nature that it will create substantial discomfort or distress; thereafter, 17. Smith v. Am. Home Prods. Corp., 372 N.J. Super. 105 (Law Div. 2003). 18. Stempler v. Speidell, 100 N.J. 368 (1985). 19. In re Diet Drug Litig., 384 N.J. Super. 546 (Law Div. 2005). 20. Pub. L. 104-191, 42 U.S.C. 300gg-12. 21. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005). 22. Stempler v. Speidell, 100 N.J. 368 (1985). 23. In re Diet Drug Litig., 384 N.J. Super. 546, 555 (Law Div. 2005) (citing Stempler v. Speidell, 100 N.J. 368, 382 (1985)). 24. Il Grande v. Dibenedetto, 366 N.J. Super. 597 (App. Div. 2004). the burden shifts back to defendant to establish the safety and reasonableness of the procedure.25 The Appellate Division also held: [A] defendant’s remedy, where defendant has failed to meet his burden to compel such an examination, is to challenge plaintiff’s expert on crossexamination. Where a plaintiff fails to submit to an invasive procedure that a judge has determined to be warranted, possible remedies include, but are not limited to, questioning both parties’ experts as to the nature of the proposed procedure and commenting to the jury as to plaintiff’s refusal to submit to the procedure. Only in the exceptional case may a judge impose the sanction of barring plaintiff’s claim.26 Use of a Subpoena to Obtain Medical Records The penalty for the misuse of subpoena power was discussed in Crescenzo v. Crane.27 In Crescenzo, the plaintiff was in the process of divorcing her husband when her husband’s attorney served