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Jorden v. Glass

March 5, 2010

BRENDA JORDEN ET. AL., PLAINTIFF,
v.
STEVEN J. GLASS M.D., ET. AL.,: DEFENDANTS.



The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. No. 36]

OPINION AND ORDER

This matter is before the Court on the "Motion to Dismiss" filed by defendant Steven J. Glass M.D. (hereinafter "Dr. Glass"). [Doc. No. 36]. The Court has received plaintiff's opposition [Doc. No. 37] and Dr. Glass's reply [Doc. No. 38], and held oral argument. For the reasons discussed herein Dr. Glass's motion is DENIED.

BACKGROUND

Plaintiff filed her complaint on April 10, 2009, on behalf of decedent, Walter Jorden (hereinafter "decedent"). [Doc. No. 1]. This litigation arises from the defendants' allegedly negligent medical treatment of decedent's medical condition. Dr. Glass is a board certified psychiatrist who at the time of the decedent's death was conducting a "Phase I Clinical Trial concerning the dosage and food effects of a new medicine for schizophrenic patients." See Dr. Glass Brief at 4. Decedent was part of the clinical trial. Plaintiff alleges she was told the decedent had "some kind of 'panic attack,' 'seizure,' or 'stroke'" at co-defendant Lourdes Medical Center. See Complaint at ¶19. Plaintiff further alleges the decedent died, according to the death certificate, of acute myocardial infarction. Plaintiff is seeking to recover damages for the decedent's allegedly negligent medical treatment and lack of informed consent.

On July 22, 2009, plaintiff served an affidavit of merit prepared by Joyce R. Rubin, M.D.*fn1 See Affidavit of Dr. Rubin [Doc. No. 16]. Dr. Rubin's specialty is in general internal medicine. Id. at ¶1. Dr. Glass objected to the affidavit on August 4, 2009.*fn2 See Certification of Robert G. Yosua ("Yosua Cert.") at ¶6 [Doc. No. 36-1]. On October 5, 2009, plaintiff served an affidavit of merit prepared by Jeffrey Fierstein, M.D. See Affidavit of Dr. Fierstein [Doc. No. 30]. Dr. Fierstein is board certified in internal medicine and cardiology. Id. On October 9, 2009, Dr. Glass raised the same objection to the affidavit of merit of Dr. Fierstein as he did to Dr. Rubin's affidavit. See Yosua Cert. at ¶9.

Dr. Glass seeks to dismiss plaintiff's claims because plaintiff's affidavits of merit were not prepared by a doctor who specializes in psychiatry. Dr. Glass argues that the complaint against him should be dismissed for failure to comply with N.J.S.A. 2A:53A-41. Dr. Glass contends the statute requires plaintiff to obtain an affidavit of merit from a psychiatrist, specifically a psychiatrist who deals with phase I clinical trials, and because plaintiff obtained affidavits from an internist and cardiologist, the claims against Dr. Glass should be dismissed. Dr. Glass further argues, "this case is not just a complaint of chest pain. It's a complaint of chest pain within that environment, which is a Phase I clinical trial for the treatment of a schizophrenic patient, with an anxiety disorder." See Transcript of December 4, 2009 Oral Argument ("Tr.") at 18:12-20.*fn3 In addition, Dr. Glass argues that plaintiff failed to demonstrate that he made a good faith effort to identify an expert in his specialty, and therefore, the waiver exception set forth in N.J.S.A 2A:53A-41c is not applicable.*fn4

Plaintiff opposes Dr. Glass's motion arguing his cause of action is not directed to Dr. Glass's specialty in psychiatry but rather to the general treatment of chest pains. See Letter Brief at 2. Plaintiff argues that the only claim of medical malpractice that is brought against Dr. Glass relates to the treatment of the decedent's chest pains.*fn5 Specifically, plaintiff alleges the only claim against Dr. Glass is "regarding... his failure to treat the decedent for chest pains." Id. Plaintiff further alleges, "Dr. Glass... failed to act appropriately in the face of Plaintiff's complaints and pain, which led to his heart attack and death." Id.*fn6 Thus, plaintiff alleges because his medical malpractice claim is directed to the decedent's chest pains and not to how Dr. Glass conducted his psychiatric clinical trial, affidavits of merit authored by an internist and cardiologist are sufficient Id. Plaintiff argues he is not required to serve an affidavit from a board certified psychiatrist specializing in clinical drug trials. The Court agrees with plaintiff.

DISCUSSION

The affidavit of merit statute requires that in any medical malpractice action the plaintiff must provide each defendant with an expert's affidavit within sixty days after the filing of the defendant's answer. N.J.S.A 2A:53A-27.*fn7 An affidavit of merit must be signed by an appropriate licensed person. Id. In 2004 the statute was amended requiring that, "[i]f the party against whom or on whose behalf the testimony is offered is a specialist... and the care or treatment at issue involves that specialty... 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.... " N.J.S.A. 2A:53A-41a (emphasis added). If the defendant is board certified the expert must be similarly board-qualified. Id. Under the statute the affiant must have the same specialty or subspecialty recognized by the American Board of Medical Specialties ("ABMS") or the American Osteopathic Association ("AOA"), but only if the care or treatment at issue involves the defendant's ABMS or AOA specialty or subspeciality. N.J.S.A 2A:53A-41a.

Here, Dr. Glass is a psychiatrist. Psychiatry is recognized by the ABMS.*fn8 Because Dr. Glass is board certified in psychiatry, the Court is required to determine whether the care or treatment at issue "involves" the specialty of psychiatry. N.J.S.A. 2A:53A-41b states in pertinent part:

b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to:

(1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or

(2) the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against ...


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