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Buck v. Henry

March 25, 2010

ROBERT BUCK, PLAINTIFF-APPELLANT,
v.
JAMES R. HENRY, M.D., DEFENDANT-RESPONDENT, AND SANOFI-AVENTIS AND SANOFI-SYNTHELABO, INC., DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4008-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 12, 2010

Before Judges Fuentes and Simonelli.

This is a medical malpractice case. By leave granted, plaintiff Robert Buck appeals from the order of the Law Division granting defendant Dr. James R. Henry's motion for summary judgment.*fn1 The motion judge found that the two physicians who authored the affidavits of merit submitted by plaintiff to meet his burden under N.J.S.A. 2A:53A-41 were not qualified to evaluate and opine upon the propriety of the treatment defendant provided to plaintiff.

We agree and affirm. Because this case comes before us from the trial court's grant of defendant's motion for summary judgment, we will recite the salient facts as viewed in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

In November 2006, plaintiff visited Dr. Henry complaining of sleeping problems. Dr. Henry diagnosed plaintiff as suffering from mild depression and insomnia; he prescribed Zoloft to improve his mood and Ambien to treat his sleep difficulties.

On December 18, 2006, plaintiff took his prescribed dose of Ambien, began inspecting his.38 caliber Colt revolver, and fell asleep. Thereafter, plaintiff was awakened by what he thought was the sound of a telephoning ringing. Forgetting that the handgun was still in his right hand, he reached for the telephone with his left hand. According to plaintiff, this action caused the barrel of the handgun to enter his mouth and discharge. In his pleading, plaintiff averred that "[t]he gunshot fractured his skull and multiple facial bones, including the orbital floor, and ruptured the left globe, causing blindness in that eye."

Plaintiff filed suit based on product liability against the manufacturer of Ambien and a medical malpractice action against Dr. Henny, alleging that he deviated from accepted medical standards when he prescribed the sleep medication. Plaintiff submitted two affidavits of merit regarding the medical malpractice suit. One affidavit was authored by Larry Kirstein, M.D., a psychiatrist. The other was supplied by Joshua M. Kosowsky, M.D., a physician who is board certified in emergency medicine.

Dr. Henry, who specializes in a family practice, moved for summary judgment arguing that because the two physicians who submitted affidavits in support of plaintiff's claims were not family medicine practitioners, they were not statutorily qualified to opine on the merits of the treatment Dr. Henry provided to plaintiff.

In rebuttal, plaintiff brought to the court's attention that pursuant to N.J.S.A. 45:9-22.22,*fn2 Dr. Henry had identified himself as board certified in emergency medicine and having a specialty in family practice. Plaintiff thus argued that as a board certified physician in emergency medicine, Dr. Kosowsky was competent to evaluate Dr. Henry's treatment in this capacity. Alternately, plaintiff argued that because Dr. Henry was not board certified in family medicine, he was truly a general practitioner who was treating plaintiff for mild depression, a psychiatric illness. As a psychiatrist, Dr. Kirstein was thus qualified to opine on the merits of this course of treatment.

In rejecting these arguments, the motion judge emphasized that neither of the physicians who had submitted affidavits on behalf of plaintiff were board certified in family medicine or otherwise identified themselves as family practitioners. The motion judge also rejected the notion that a general practitioner is synonymous with a doctor who practices in the recognized specialty of family medicine.

After reviewing the relevant statutory language, we agree with the trial court that Dr. Henry was acting as a family medicine specialist when he treated plaintiff for mild depression and insomnia. Because neither of the physicians who had submitted affidavits were board certified in family medicine or identified themselves as family medicine practitioners, they were not statutorily qualified to opine on the merits of the treatment plaintiff received from Dr. Henry.

We will start our analysis by reaffirming certain basic principles of statutory construction and appellate review. Statutory interpretation is "a purely legal issue." Maietta v. New Jersey Racing Comm'n, 183 N.J. Super. 397, 401 (App. Div. 1982), aff'd, 93 N.J. 1 (1983). Thus, because the court's grant of summary judgment here concerns a question of law, we will review the motion judge's decision de novo. Posso v. Acceleration Nat'l Ins. Co., 402 N.J. Super. 381, 385 (App. Div.), certif. denied, 197 N.J. 14 (2008).

Our Supreme Court has offered the following guidance with regard to statutory construction:

The Legislature's intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. We ascribe to the statutory words their ordinary meaning and significance... and read them in context with related provisions so as to give sense to the legislation as a whole... It is not the function of this Court to rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language. We cannot write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment... or engage in conjecture or surmise which will circumvent the plain meaning of the act... Our duty is to construe and apply the statute as enacted.

[DiProspero v. Penn, 183 N.J. 477, 492 (2005)(citations and quotations omitted).] Under N.J.S.A. 2A:53A-27, a party bringing an action for malpractice must submit an ...


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