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Ryan v. Renny

July 22, 2010

ABBY RYAN AND KIRK RYAN, PLAINTIFFS-APPELLANTS,
v.
ANDREW RENNY, M.D., DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 408 N.J. Super. 590 (2009).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this medical malpractice action, the Court considers whether the trial court was correct in waiving the Affidavit of Merit statute's requirement that a complaint for malpractice filed against a board-certified physician must be supported by an affidavit of a board-certified physician in the same specialty or subspecialty.

In January 2007, defendant Andrew Renny, who is board-certified in gastroenterology and internal medicine, performed a colonoscopy on plaintiff Abby Ryan. The procedure resulted in a perforated colon. Ryan sued Renny for malpractice, alleging that he was negligent and deviated from the accepted standard of care. Ryan's attorney contacted several potential experts, but was unable to locate a board-certified gastroenterologist willing to provide an affidavit of merit. However, Ryan's attorney provided a timely affidavit by Dr. David Befeler, a surgeon who was not board-certified in gastroenterology, but was a board-certified surgeon with experience performing over 100 colonoscopies, the last one prior to 2004. Dr. Befeler also had repaired tears relating to colonoscopies, treated, diagnosed and evaluated colon and bowel abnormalities and diseases, and published articles on the topic.

After the expiration of the statutory 120-day time period for providing an affidavit of merit, Dr. Renny moved to dismiss the complaint with prejudice for failure to submit an affidavit executed by a board-certified gastroenterologist. Ryan filed a cross-motion for a waiver of the specialty requirement. Ryan's counsel submitted a certification describing his good faith efforts to provide an affidavit by a physician with the same board certification as Dr. Renny, including his contacts with three board-certified gastroenterologists who declined to provide an opinion about Dr. Renny's actions. At argument on the motion, Dr. Renny contended that Ryan's counsel had not demonstrated a good faith effort because he did not explain why the three specialists declined to give an opinion, therefore the court could infer that the specialists believed Dr. Renny did not deviate from the standard of care. Dr. Renny also argued that Dr. Befeler is not qualified to render an opinion on the applicable standard of care because he was not actively performing colonoscopies when the procedure was performed on Ryan. Ryan's counsel countered that specialists may refuse to render an opinion for many reasons, including general unwillingness to become embroiled in litigation, and claimed that Dr. Befeler met the requirements for providing an affidavit of merit.

The trial judge granted Ryan's motion to waive the specialty requirements and denied Dr. Renny's motion to dismiss the complaint. The judge held that a plaintiff does not have to explain why efforts to obtain a board-certified expert were unsuccessful and he concluded that Ryan's counsel made a good faith effort to identify an expert in the same specialty as Dr. Renny. The trial judge also explained that Dr. Befeler currently is actively involved in the applicable area of practice, even though he stopped performing colonoscopies before 2004.

The Appellate Division reversed on grounds that Ryan had not demonstrated a good faith effort to identify an expert and it granted Dr. Renny's motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. 408 N.J. Super. 590 (App. Div. 2009). The panel found that an explanation of why the three gastroenterologists declined to provide an opinion was crucial to Ryan's waiver application.

The Supreme Court granted Ryan's petition for certification. 200 N.J. 504 (2009). While the appeal was pending, the Court denied a motion by Dr. Renny that made additional challenges to Dr. Befeler's credentials.

HELD: Based on the plain language of the Affidavit of Merit statute, plaintiff Abby Ryan satisfied the good faith standard of the statute's waiver provision, which permits a non-board-certified physician to certify that the actions of a board-certified specialist did not meet the required standard of care.

1. Under New Jersey's evidence rules, a determination whether a witness is qualified to testify as an expert rests in the sound discretion of the trial court. That discretion, however, can be guided by statutes such as the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, which applies to lawsuits alleging malpractice or negligence by a licensed professional. The purpose of the Affidavit of Merit statute is to require plaintiffs to make a threshold showing that their claim is meritorious. Originally, the statute permitted a physician in one field to render an opinion on the performance of a physician in another field if their practices overlapped. In 2004, the Legislature enacted the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, which modified the Affidavit of Merit statute. In general, the Act requires that the challenging expert be equivalently-qualified to the defendant. For example, the Act states in part that if the defendant is a board-certified specialist and the care or treatment at issue in the litigation concerned that specialty, the expert offering the affidavit of merit must be board certified in the same specialty and have devoted a majority of his or her professional time to the active clinical practice or teaching of that specialty. However, the Act contains a waiver provision that permits a non-equivalently-qualified expert to provide an affidavit of merit if the party seeking the waiver made a "good faith effort" to obtain an opinion by an expert in the same specialty and if the non-equivalently-qualified professional possesses sufficient training, experience and knowledge as a result of "active involvement" in the area of practice. In this opinion, the Court interprets the meaning of "good faith effort" and "active involvement." (Pp. 11-18)

2. The best indicator of the Legislature's intent is the statutory language. A court begins with the words of the statute and ascribes to them their ordinary meaning. If the meaning is clear, the analysis is complete. Only if the statutory language is susceptible to more than one interpretation may the court turn to extrinsic aids such as legislative history. (Pp. 18-19)

3. With regard to the Act's requirement of a good-faith effort to identify an equivalently-qualified expert, the Court determines that the Act directs the judge to focus on the "effort" the moving party made, and not on the reasons why an expert declined to execute an affidavit. That focus reflects a legislative judgment that the moving party should make a legitimate attempt to obtain an equivalently-qualified expert and should not be relieved of that burden by desultory undertakings or half-hearted endeavors. To prove good faith, a moving party must show what steps he undertook to obtain a qualified expert. However, the expert's reasons for declining are not required. If the Legislature had intended a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert, the Legislature would not have provided for waiver or would have declared that waiver was somehow limited by the substance of an expert's refusal to execute an affidavit. Instead, the Legislature gave the judge broad discretion to accept an expert with sufficient training, experience and knowledge to provide the testimony, but only if plaintiff made a good faith effort to satisfy the statute. Here, the trial judge was satisfied that Ryan's efforts demonstrated good faith. There is nothing in the statute that requires more, and the trial judge's acceptance of what was proffered was not an abuse of discretion. (Pp. 19-22)

4. The Court also rejects Dr. Renny's argument that the "active involvement" requirement of the Act was not met because Dr. Befeler was no longer performing colonoscopies at the time Dr. Renny performed Ryan's colonoscopy. The Court explains that the Legislature omitted from the plain language of the waiver provision a temporality requirement that was included in other provisions of the Act, and the likely purpose for that omission was the Legislature's recognition that waiver is the last chance for a plaintiff to meet the affidavit of merit requirement and avoid dismissal. The Court advises, however, that the trial court may take into account the passage of time and its relationship to the expert's qualifications. (Pp. 22-28)

5. The trial judge found that Dr. Befeler had performed colonoscopies in the past, present performance of colonoscopies is not a requirement of the Act, and Dr. Befeler was "actively involved" in the treatment, diagnosis and evaluation of bowel abnormalities and diseases. As such, the judge qualified Dr. Befeler as an expert under the waiver provision. However, the Court remands the matter to the trial judge for further consideration of the principles set forth in this opinion and advises that, during that proceeding, Dr. Renny may raise the additional challenges to Dr. Befeler's credentials that he advanced in the motion he filed in this Court. (P. 28)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO, DISSENTING, maintains that the statute clearly requires a plaintiff to either file a timely affidavit of merit from a board-certified specialist in the same specialty as the defendant or file a timely motion for a waiver of the requirement and present a viable substitute. He points out that Ryan's motion for a waiver was untimely and no explanation or justification was provided for that delay. He also asserts that the majority's interpretation of the statutory provisions renders them judicially neutered scarecrows, providing a warning heeded by the diligent but having no lingering effect on the scavengers. Justice Rivera-Soto contends that the majority's decision rewards the willful disregard of a legislative mandate, results in the needless nullification of the legislative scheme, and tramples the right to be free of malpractice claims lacking in merit, which the Legislature unequivocally granted to Dr. Renny.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Long

Argued March 9, 2010

Defendant, who is board-certified in gastroenterology and internal medicine, performed a routine colonoscopy on plaintiff as a result of which she suffered a perforated colon. Plaintiff sued defendant for medical malpractice. In these circumstances, the Affidavit of Merit statute*fn1 requires that the plaintiff's affiant be board-certified in the same specialty or subspecialty as the defendant. Despite contacting several potential experts, plaintiff's counsel was unable to locate a board-certified gastroenterologist willing to provide an affidavit of merit but proffered, within sixty days of the filing of defendant's answer, an affidavit by a surgeon who had experience performing colonoscopies, repairing tears relating to colonoscopies, and who had published multiple articles on the topic. Defendant moved to dismiss, and plaintiff filed a cross-motion for a waiver of the specialty requirement pursuant to N.J.S.A. 2A:53A-41(c). The trial judge found that plaintiff had made a good faith effort to comply with the statute and waived the specialty requirement, permitting plaintiff to rely on the previously filed affidavit.

The Appellate Division held that a waiver should not have been granted and dismissed the complaint. The panel explained that in seeking the waiver, plaintiff's counsel had identified three gastroenterologists who declined to provide an affidavit but failed to explain the reasons for the refusals. The panel found that omission "a crucial failure in plaintiff's application for a section 41c waiver."

This case presents us with an opportunity to interpret the waiver provision and to answer the question of whether the notion of a "good faith effort" contemplates a substantive explanation, to the court, why experts in defendant's field refused to supply plaintiff with an opinion. We hold that it does not and thus, the Appellate Division's superimposition of that requirement on the good faith analysis was unauthorized.

The waiver provision also prescribes that where plaintiff has made a good faith showing of inability to identify an expert in the same specialty or subspecialty as defendant, his proposed expert must possess "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." We interpret that language as a broad grant of discretion to the trial judge that does not bear with it, as defendant argues, a temporal requirement that the proposed expert be engaged in performing the medical procedure at issue on the date of the occurrence giving rise to the claim. Rather, the expert may have derived his training, experience, and knowledge "as a result of" prior practice in the field. That is not to suggest that a lapse of time may not bear on a judge's assessment of an expert's training, experience, and knowledge, only that it is not an automatic disqualifier. To the extent that the Appellate Division ruled otherwise, we reverse.

I.

The Facts are Brief

On January 29, 2007, defendant, Dr. Andrew Renny, performed a routine colonoscopy on plaintiff, Abby Ryan. The procedure resulted in a perforated colon, which Ryan alleges was caused by Dr. Renny's negligence. On October 17, 2007, Ryan filed a complaint against Dr. Renny alleging that he was negligent in his treatment of Ryan and that he deviated from accepted standards of care.*fn2

In support of the complaint, Ryan submitted an affidavit by Dr. David Befeler, a surgeon who is not board-certified in gastroenterology. In respect of his qualifications, the affidavit states: "I am currently engaged in the practice of general surgery and related procedures, including colonoscopies, and am board certified in same, and have been so for more than five years."

Dr. Renny objected to the affidavit on the ground that it did not issue from a board-certified gastroenterologist. A Ferreira*fn3 conference was held, during which Ryan conceded that she had not been able to procure an affidavit of merit from a board-certified specialist in gastroenterology. The dispute remained unresolved following the conference.

After the expiration of the 120-day time period for providing an affidavit of merit, Dr. Renny moved to dismiss the complaint with prejudice for failure to submit an affidavit executed by a person meeting the specialty criteria set by N.J.S.A. 2A:53A-41(a). Ryan filed a cross-motion for a waiver of the specialty requirements pursuant to N.J.S.A. 2A:53A-41(c).

In support of the cross-motion, Ryan provided Dr. Befeler's curriculum vitae and portions of his testimony at a 2004 deposition in an unrelated case. According to his curriculum vitae, Dr. Befeler has published in the area of gastroenterology since the 1960s. His deposition testimony indicates that he has performed more than 100 colonoscopies, the last one "several years" prior to 2004. Also, Dr. Befeler certified that he has been a board-certified general surgeon since 1966. The certification stated that, as a current attending surgeon at Overlook Hospital,

3. . . . I have continually been involved with treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases. Although I do not perform colonoscopies at the present time, I continually have involvement in injuries, conditions and diseases of the bowel and related areas.

4. In the current treatment of patients, I am often required to evaluate symptoms that require the need to have colonoscopies performed to determine a diagnosis of conditions that may require surgery and other types of treatment.

5. I periodically review findings of colonoscopies in the course of diagnoses and ruling out conditions that may require surgery and treatment.

Ryan's counsel certified to his good faith but unsuccessful efforts to provide an affidavit of merit by a physician with the same board certification as Dr. Renny. He contacted three attorneys experienced in medical malpractice, in three different geographical areas of the state, each of whom provided him with the name of an expert, board-certified in gastroenterology. He then contacted the three physicians, "and generally outlined the facts relating to the case in question," and each "declined to provide an opinion relating to the actions of the defendant[.]" Thereafter, counsel 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 opinions on these types of issues that we have in this case, a large tear in the colon.

At argument on the motion, Dr. Renny contended that Ryan's counsel had not demonstrated a good faith effort to obtain an expert board-certified in gastroenterology because counsel's certification did not explain why the three specialists contacted declined to give an opinion. Absent an explanation, the court may infer, Dr. Renny argued, that the specialists believed that he did not deviate from the applicable standard of care and accordingly that Ryan's claim lacked merit. In addition, Dr. Renny contended that Dr. Befeler is not qualified to render an opinion on the applicable standard of care because he was not actively performing colonoscopies at the time of the procedure giving rise to the claim.

Ryan's counsel countered that he satisfied the good faith standard of the waiver provision and that Dr. Befeler is qualified to opine on whether Dr. Renny deviated from the standard. He argued further that the fact that he could not obtain an opinion from a board-certified gastroenterologist did not necessarily reflect on the merits of the case. Rather, he contended that specialists may refuse to render an opinion for many reasons, including general unwillingness to become embroiled in litigation. In addition, Ryan's counsel argued that Dr. Befeler is qualified to render an opinion in this case because the "actively involved" element of the waiver provision should be read broadly to include presently engaging in "procedures relating to the colon," and because Dr. Befeler previously performed colonoscopies with respect to which there is no temporal limitation in the waiver provision.

At the close of oral argument, the trial judge granted Ryan's motion to waive the specialty requirements and denied Dr. Renny's motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. The judge held that a plaintiff does not have to explain why efforts to obtain a board-certified expert were unsuccessful. As he observed, those reasons "are probably privileged anyway." He further reasoned that the Legislature did not intend for the affidavit of merit procedure to become a discovery device and concluded that Ryan's counsel made a good faith effort to identify an expert in the same specialty as defendant.

With regard to the second part of the waiver provision, the judge concluded that Dr. Befeler is "currently actively involved" in the applicable area of practice, even though he no longer performs colonoscopies. He identified the area as gastroenterology, and defined it as the "treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases." The judge concluded that current performance of colonoscopies is not a requirement of the statute. The effect of the grant of the waiver was to approve Ryan's use of Dr. Befeler's timely filed affidavit of merit.*fn4

Dr. Renny moved for leave to appeal, which was granted. Before the Appellate Division, Dr. Renny contended that demonstration of a "good faith effort" requires an explanation as to why a specialist could not be obtained; the proffered expert must have "active involvement" at the time of the incident at issue; and that "active involvement" requires that the proffered expert must actually perform the procedure giving rise to the claim.

The appellate panel reversed on the ground that Ryan had not demonstrated a good faith effort to identify an expert who meets the requirements of N.J.S.A. 2A:53A-41(a). Ryan v. Renny, 408 N.J. Super. 590, 596-97 (App. Div. 2009). In ruling, the panel denominated the absence of an explanation of why the three gastroenterologists declined to provide an opinion as "a crucial failure in plaintiff's application for a section 41c waiver."

Id. at 596. The gist of the court's reasoning was its apparent belief that if a plaintiff could not obtain an affidavit from an equivalently-qualified*fn5 expert to defendant, it would follow that his claim was specious. The only exceptions recognized by the panel are cases where "appropriately qualified experts are either rare or for some reason unavailable to the plaintiff."

Id. at 596-97. By way of example, the court referenced situations in which the expert has "a conflict with the parties or counsel; does not testify in court or execute affidavits in connection with litigation; or has limited his activities to one geographical area." Id. at 596. According to the panel, only then may the court "proceed to step two[:] scrutiny of the proposed expert's training, knowledge and expertise." Ibid.

The court thus granted Dr. Renny's motion to dismiss the complaint with prejudice for failure to comply with the "good faith effort" prong of the Affidavit of Merit statute. That ruling made it unnecessary for the court to address the second prong of the statute.

We granted Ryan's petition for certification, 200 N.J. 504 (2009). While this appeal was pending, Dr. Renny moved to supplement the record to advance additional challenges to Dr. Befeler's credentials. Because of ...


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