On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3454-07.
The opinion of the court was delivered by: RODRÍGUEZ, A. A., P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Rodríguez and Waugh.
In this appeal, we construe N.J.S.A. 2A:53A-41c, which permits, under appropriate circumstances, a waiver of the specialty criteria required of a person either testifying as an expert witness or executing an Affidavit of Merit in a medical malpractice action. The statute provides that such person must be a specialist in the same area or subspecialty of the medical malpractice defendant. N.J.S.A. 2A:53A-41a. However, the court may waive the specialty requirement if: (1) the plaintiff can show "to the satisfaction of the court that a good faith [but unsuccessful] effort has been made to identify an expert in the same specialty or subspecialty;" and (2) another physician, who is not a specialist in the area of practice, "possesses sufficient training, experience and knowledge to provide the testimony." N.J.S.A. 2A:53A-41c. Here, three experts in the specialty were identified, but all declined to author an Affidavit of Merit in favor of plaintiff. We hold a waiver should not have been granted.
These are the salient facts. Andrew Renny, M.D., appeals from the July 30, 2008 order in favor of plaintiffs Abby Ryan and Kirk Ryan, which: (1) granted plaintiffs' motion to waive the specialty requirements set by N.J.S.A. 2A:53A-41; and (2) denied Dr. Renny's motion to dismiss the complaint for failure to comply with the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26 to -29 (AMS). We granted leave to appeal*fn1 and now reverse.
It is undisputed that on January 29, 2007, Dr. Renny, a board certified gastroenterologist, performed a colonoscopy on Abby Ryan. Plaintiffs allege that Dr. Renny negligently performed the colonoscopy resulting in perforation of the bowel. Plaintiffs sued Dr. Renny. In support of their complaint, plaintiffs submitted an Affidavit of Merit by David Befeler, M.D., a surgeon who is not board certified in gastroenterology and who has not performed a colonoscopy in several years.
Dr. Renny objected to the affidavit. Dr. Renny's counsel sought a telephone conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003), to resolve the dispute. However, the dispute remained unresolved following the conference.
After the expiration of the 120-day deadline for providing an Affidavit of Merit, Dr. Renny moved to dismiss plaintiffs' complaint with prejudice for failure to submit an Affidavit of Merit by a person meeting the specialty criteria set by N.J.S.A. 2A:53A-41. Plaintiffs cross-moved for a waiver of the specialty requirements pursuant to section -41c of the same statute. In support of the cross-motion, plaintiffs provided Dr. Befeler's curriculum vitae and portions of his testimony at a 2004 deposition. According to the curriculum vitae, Dr. Befeler last published in the area of gastroenterology in the 1960s and the deposition testimony indicated he had last performed a colonoscopy "several years" prior to 2004. Plaintiffs' counsel also certified as follows:
5. Prior to filing the Complaint, I have fully complied with provisions of N.J.S.A. 2A:53A-41c.
6. I have contacted an attorney in Atlantic County specializing in a field of medical malpractice who provided me with the name of a specialist in this specialty. I contacted an attorney in Cherry Hill with a high level of expertise in medical malpractice who provided me a second individual Board Certified in that specialty. I also contacted an extremely well-known attorney in North Jersey who provided me with the name of a third physician with certifications in the field of gastroenterology.
7. Following the receipt of the names of the above individuals, I contacted each of the physicians, and generally outlined the facts relating to the case in question, and each of them declined to provide an opinion relating to the actions of the defendant Andrew Renny, M.D.
8. Following the above, I contacted Dr. David Befeler, who, although not certified in each of the sub-specialties of gastroenterology and internal medicine, has an enormous amount of experience, knowledge and skill relating to the issues involved in this case, and has been qualified by the Court of New Jersey to give ...