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Buck v. Henry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 affidavit of merit to support the suit. Specifically,

[i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.

[N.J.S.A. 2A:53A-27.]

Moreover, when the cause of action is for medical malpractice, "the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in [N.J.S.A. 2A:53A-41]." Ibid.

N.J.S.A. 2A:53A-41 establishes the criteria that the party offering the affidavit of merit must meet to allow the action to proceed. These criteria vary depending upon whether or not the defendant is a general practitioner. Under this statute, the particular medical professional "shall not give expert testimony or execute an affidavit... on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets [certain] criteria[.]" N.J.S.A. 2A:53A-41. Under subsection (a) of this statute,

[i]f the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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 or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall be:

(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or

(2) 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, recognized by the American Board of Medical Specialties or the American Osteopathic Association, and 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 either:

(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; or

(c) both.

[N.J.S.A. 2A:53A-41(a) (emphasis added).]

The Legislature also authorized the trial court to waive the specific requirements for the affidavit of merit upon motion by the party seeking the waiver, if certain conditions are met.

Specifically,

[a] court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony 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.

[N.J.S.A. 2A:53A-41(c).]

If a party fails to provide an affidavit of merit that complies with the above statutory requirements, or fails to submit a sworn statement in place of such an affidavit as permitted by N.J.S.A. 2A:53A-28, "it shall be deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29. See also Burt v. West Jersey Health Sys., 339 N.J. Super. 296, 304 (App. Div. 2001) ("Absent extraordinary circumstances, a failure to comply with the statute requires the complaint to be dismissed, with prejudice.").

It is now well-settled that, in adopting the Affidavit of Merit Statute, the Legislature intended to decrease and discourage frivolous litigation against a distinct class of defendants holding professional licenses. In re Hall By and Through Hall, 147 N.J. 379, 391 (1997). Consistent with this goal, the statute was modified in 2004 as part of a "comprehensive package of tort reform legislation." Ryan v. Renny, 408 N.J. Super. 590, 595 (App. Div.), certif. granted, 200 N.J. 504 (2009). One specific amendment "increased the requirements of a person testifying as an expert or executing an Affidavit of Merit in a medical malpractice action." Ibid.

Under its current form, N.J.S.A. 2A:53A-41(a) creates two classes of physicians: (1) specialists practicing a specialty recognized by the ABMS or AOA; and (2) board certified specialists recognized by the ABMS or AOA. In New Jersey State Bar Ass'n v. State, a case in which we addressed the constitutionality of these new amendments, we described subsection (a) in the following manner:

If the party against whom or on whose behalf the proposed expert is testifying is a specialist or subspecialist recognized by the American Board of Medical Specialties or the American Osteopathic Association and if the care or treatment at issue in the action involves that specialty or subspecialty, then the proposed expert must have specialized at the time of the occurrence in that same specialty or subspecialty. Further, if the party against whom or on whose behalf the proposed expert is testifying is board certified and the care or treatment at issue involves that board specialty or subspecialty, the proposed expert witness must either be credentialed by a hospital to handle the treatment or procedure in question or be board certified in the same specialty and during the year immediately prior to the occurrence in question, have devoted a majority of his or her professional time to either active clinical practice in that area or teaching in that area in an accredited medical school.

[New Jersey State Bar Ass'n v. State, 387 N.J. Super. 24, 39 (App. Div.), certif. denied, 188 N.J. 491 (2006) (citation omitted) (emphasis added).]

In using the word "further," we definitively clarified that the subsection created two categories of statutorily recognized specialists: those who are specialists by virtue of their dedicated area of practice and those who are board certified specialists. In so doing, we emphasized that the two classes are not synonymous. In Ryan v. Renny, we recognized that subsection (a) describes two distinct categories of individuals.

[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[.] If the defendant is board certified, the expert must be similarly board-qualified.

[Ryan v. Renny, supra, 408 N.J. Super. at 595 (citations omitted).]

Once again, by making a distinction between the two groups, this Court acknowledged the existence of two separate categories of physicians.

Plaintiff argues, without the benefit of authoritative support, that subsection (a) requires that the person, not the specialty practiced, be either recognized as a specialist by the ABMS or AOA or be board certified. We reject this argument. As Dr. Henry's appellate counsel correctly points out, plaintiff's argument would render the two classes of subsection (a) redundant and legally meaningless.

The ABMS defines the specialty of family medicine as follows:

A Family Physician is concerned with the total healthcare of the individual and the family and is trained to diagnose and treat a wide variety of ailments in patients of all ages. The Family Physician receives a broad range of training that includes adult medicine and care of the aged, the care of children, women's health, maternity care, preventive medicine and behavioral science. Special emphasis is placed on the primary care of families, utilizing consultants and community resources when appropriate.

[American Board of Medical Specialties, About Physician Specialties, Family Medicine, http://www.abms.org/Who_We_Help/Consumers/Ab out_Physician_Specialties/family.aspx (last visited Mar. 9, 2010.)]

Here, we accept Dr. Henry's certification that he is a family medicine specialist because he has devoted his medical practice to that recognized specialty area.*fn3 For purposes of the Affidavit of Merit Statute, Dr. Henry need not be board- certified in family medicine to declare himself a specialist in this area of medicine. Furthermore, absent competent evidence indicating otherwise, we have no reason to conclude that the treatment at issue here did not concern the practice of family medicine.

Dr. Henry falls squarely under the first class of physicians described in subsection (a). Under the statute's clear requirements, plaintiff had to provide an affidavit of merit from a physician who "specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered[.]" N.J.S.A. 2A:53A-41(a).

Because plaintiff was required to submit an affidavit of merit from a physician who specialized in family medicine, and he failed to do so, the motion judge correctly granted Dr. Henry's motion to dismiss his complaint. The affidavit of merit submitted by Dr. Kirstein, a physician board certified in the field of psychiatry, does not meet the statutory requirement.

Although Dr. Henry diagnosed plaintiff as suffering from depression and insomnia, two maladies with clear psychiatric overtones, Dr. Henry's conduct cannot be evaluated through the standard of care applicable to a psychiatrist. Only a board- certified family medicine physician or a physician otherwise dedicated as a practitioner to that recognized specialty is statutorily qualified to submit an affidavit of merit here.

Alternately, plaintiff argues that Dr. Henry should be considered a general practitioner who would therefore fall under the provisions of subsection (b), which provides:

[i]f 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 whom or on whose behalf the testimony is licensed; or

(3) both.

[N.J.S.A. 2A:53A-41(b).]

We reject this argument because plaintiff has not come forward with any evidence to support his claim that Dr. Henry is a general practitioner within the meaning of the statutory definition cited above. Given the clear and comprehensive criteria adopted by the American Board of Medical Specialties defining the various medical specialties, and the specialty of family medicine in particular, we have no basis to conclude that the title of family practitioner is synonymous with a "general practitioner."

Affirmed.


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