On appeal from the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice Albin
(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).
Robert Buck v. James R. Henry, M.D.
Argued January 19, 2011 -- Decided August 22, 2011
ALBIN, J., writing for a majority of the Court.
Under the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, a plaintiff in a medical malpractice action must provide an affidavit from an equivalently credentialed physician attesting that there is a reasonable probability that the defendant physician's treatment fell outside acceptable professional standards. The case may be dismissed if an appropriate affidavit is not filed, at the latest, within 120 days of the defendant's answer. Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), requires a trial court to conduct a case management conference within 90 days of the answer to resolve any questions about the affidavit. In this appeal, the Court considers a case in which the trial court did not hold a Ferriera conference and, after the statutory time period expired, determined that the affidavits submitted by plaintiff did not satisfy the statute and entered summary judgment in favor of defendant.
Plaintiff Robert Buck sued defendant Dr. James R. Henry, who had diagnosed Buck as suffering from depression and insomnia and prescribed an anti-depressant and Ambien, a sleep aid. After taking Ambien one evening, Buck fell asleep while inspecting his gun. He was awakened by what he believed was a phone ringing, but had forgotten he was holding the gun. He reached for the phone, somehow causing the gun to enter his mouth and discharge, resulting in permanent injuries. Buck alleges that Dr. Henry failed to properly treat him. Dr. Henry denies the allegations. In March 2009, Buck provided an affidavit of merit signed by Dr. Larry Kirstein, a licensed psychiatrist, who concluded that Dr. Henry's treatment fell outside acceptable standards. Dr. Henry's counsel responded with a letter stating that Dr. Kirstein was "not qualified" to offer an affidavit because Dr. Henry "was obviously engaged as a family practitioner." In April 2009, due to a clerical error, the trial court mistakenly issued an order stating that "all issues involving the Affidavit of Merit statute have been addressed" and "there is no need" for a Ferreira conference; the court later vacated that order. Meanwhile, Buck obtained an extension of time and filed a second affidavit of merit, this one signed by a physician specializing in emergency medicine. The website of the N.J. Division of Consumer Affairs indicated that Dr. Henry was board certified in emergency medicine and obtained a "specialty" in "family practice," but it did not indicate that he was currently practicing in family medicine. He was never board certified in that field. The trial court did not conduct a Ferreira conference, nor did the parties waive it.
Soon after Buck filed his second affidavit, Dr. Henry moved for summary judgment, claiming that the affidavits were not from equivalent specialists. He certified that he practiced in the specialty of family practice; the care he provided to Buck involved that specialty; and because Buck did not submit a family practitioner's affidavit, the Affidavit of Merit statute required dismissal of the complaint. Buck responded that he filed an affidavit from a psychiatrist because treating a patient for insomnia fell within the general practice of medicine and a physician cannot be a family medicine "specialist" without board certification. He explained that he filed an affidavit from an emergency-medicine practitioner because Dr. Henry was board certified in that specialty. The court found that Dr. Henry was a family-medicine specialist based on his certification and, thus, Buck was required to obtain an affidavit from a specialist in family medicine. The court therefore granted Dr. Henry's motion and dismissed the case with prejudice. The court did not explain why these issues were not addressed earlier at a Ferreira conference.
The Appellate Division affirmed, finding that a family-medicine specialist does not need to be board certified; "family practitioner" is not the same as "general practitioner"; based on his certification, Dr. Henry is a family-medicine specialist; and, thus, the affidavits from the emergency-medicine specialist and the psychiatrist did not satisfy the statute. The Supreme Court granted leave to appeal. 203 N.J. 432 (2010).
HELD: The case is remanded for a Ferreira conference. Buck acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Buck would have had additional time to submit an affidavit that conforms to N.J.S.A. 2A:53A-41. In the future, a physician defending against a medical malpractice claim, who admits treating the plaintiff, must include in his answer the medical specialty, if any, in which he was involved when rendering treatment to the plaintiff.
1. N.J.S.A. 2A:53A-41, enacted in 2004, contains requirements for a person who gives an affidavit of merit in a medical malpractice action. It identifies three physician categories: (1) a specialist in a field recognized by the American Board of Medical Specialties (ABMS) but who is not board certified in that specialty; (2) a specialist who is board certified; and (3) a general practitioner. The beginning part of N.J.S.A. 2A:53A-41(a), which addresses the first two categories, clearly speaks about a non-board-certified specialist offering testimony when "the care or treatment at issue involves that specialty." Also, family medicine is a recognized specialty and does not require board certification. Thus, if Dr. Henry was a family-medicine practitioner and his treatment involved family medicine, then Buck must find a like-qualified expert to provide an affidavit. If Dr. Henry was not a specialist or his treatment did not "involve" his specialty, the statute's affidavit requirements for general practitioners apply. (pp. 11-16)
2. Buck filed an affidavit of merit from a psychiatrist, apparently presuming that when Dr. Henry prescribed Ambien, he was not acting as a specialist. If Dr. Henry was acting as a general practitioner, a psychiatrist's affidavit would satisfy N.J.S.A. 2A:53A-41(b). It also was not illogical to provide a backup affidavit from an emergency-medicine specialist because Dr. Henry was board certified in that field; and a doctor can practice emergency medicine outside an emergency room and can prescribe sleep medication. Buck did not have the benefit of Dr. Henry's certification that his treatment involved his family-medicine specialty until the summary-judgment motion. Although Dr. Henry's attorney wrote that he "was obviously engaged as a family practitioner," the letter does not state why it was obvious; the record does not suggest that Buck acted in bad faith; and any concerns about the affidavits should have been addressed at the never-held Ferreira conference, which likely would have led to Buck filing an acceptable affidavit. This case is a reminder that Ferreira conferences help to ensure that the Affidavit of Merit statute weeds out unmeritorious cases rather than worthy ones. (pp. 17-19)
3. In Ferreira, the Court crafted a practical remedy to prevent what occurred here: the court must hold a case management conference within 90 days of service of an answer in a malpractice action; a defendant must state then whether he has objections to the affidavit's adequacy; and if the court finds a deficiency, the plaintiff is given to the end of the 120-day time period to file an appropriate affidavit. The court may cancel the conference only if all defendants waive any objections to the affidavit. Due to the complexity of the statute on affidavits in medical malpractice cases -- which was enacted after Ferreira -- the need for the conference is more vital today. (pp. 19-21)
4. This is not a case of a plaintiff unable to find a physician willing to support his claim. Buck made good faith attempts to satisfy N.J.S.A. 2A:53A-41 by filing affidavits from two specialists, even if the trial court later found on a summary-judgment motion that they did not conform to the statute. Had the trial court held a Ferreira conference, Buck would have had time to file a conforming affidavit. This case is remanded for such a conference. (pp. 21-22)
5. In the future, a physician defending against a malpractice claim must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty. (pp. 22-23)
The judgment of the Appellate Division is REVERSED; plaintiff's complaint is REINSTATED; and the matter is REMANDED to the trial court for a Ferreira conference consistent with the Court's opinion.
JUSTICE HOENS, DISSENTING, joined by JUSTICE RIVERA-SOTO, is of the view that application of the Affidavit of Merit statute requires dismissal of the complaint, that the majority's ruling creates requirements that defy the Legislature's intent, and that the record demonstrates that plaintiff had all of the information that the majority suggests would have helped him comply with his statutory responsibility to demonstrate his claim's merit.
CHIEF JUSTICE RABNER and JUSTICES LONG and LaVECCHIA join in JUSTICE ALBIN's opinion. JUSTICE HOENS has filed a separate, dissenting opinion, in which JUSTICE RIVERA-SOTO joins.
JUSTICE ALBIN delivered the opinion of the Court.
In the early stages of a medical malpractice action, a plaintiff must provide an affidavit from an equivalently credentialed physician attesting "that there exists a reasonable probability that the" defendant physician's treatment "fell outside acceptable professional" standards. See N.J.S.A. 2A:53A-27. Under the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, the failure to file an appropriate affidavit within the statutory time limits may result in dismissal of even meritorious cases. See N.J.S.A. 2A:53A-29; Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003). To staunch the flow of dismissal motions based on claims of non-compliance with the statute, we implemented a simple remedy for all professional malpractice cases. See Ferreira, supra, 178 N.J. at 154-55. We required that "a case management conference be held within ninety days of the service of an answer" at which the professional defendant would raise "any objections to the adequacy of the affidavit" served by the plaintiff. Ibid. For example, if the court determined that an affidavit was deficient, then the plaintiff would "have to the end of the 120-day time period to conform the affidavit to the statutory requirements." Id. at 155. We adopted this course because "an ounce of prevention is worth a pound of cure." Id. at 147.
In this case, plaintiff Robert Buck filed suit against defendant Dr. James R. Henry, a physician board certified in emergency medicine. Plaintiff alleged that Dr. Henry negligently prescribed to him the sleep medication Ambien. Within the time set by the trial court, plaintiff filed two affidavits, one from a psychiatrist and another from a specialist in emergency medicine. Even though requested by defendant, the trial court did not conduct a conference in accordance with our holding in Ferreira.
The trial court dismissed plaintiff's complaint because defendant certified in his motion for summary judgment that he treated plaintiff in his role as a practitioner in family medicine and because plaintiff did not file an affidavit by an equivalent specialist. The Appellate Division affirmed.
We now reverse. The purpose of the Affidavit of Merit statute is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones. The Ferreira conference is intended to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit so that otherwise worthy causes of action are not needlessly dismissed. See id. at 154-55. In medical malpractice cases, a patient may not know whether the treatment involves a physician's particular specialty or the field of general practice. The confusion that led plaintiff's attorney to file two allegedly non-conforming medical affidavits should have been addressed and resolved at a Ferreira conference -- not on a summary-judgment motion. We remand to the trial court to conduct a Ferreira conference without prejudice to the parties. Going forward, to better ensure that a plaintiff obtains a timely and appropriate affidavit, a defendant physician must indicate in his answer, if he acknowledges treating the patient, the specialty, if any, in which he was involved when rendering treatment.
In November 2008, plaintiff filed a medical malpractice action against Dr. Henry and a product liability action against Sanofi-Aventis and Sanofi-Synthelabo, Inc. in the Superior Court, Law Division. The complaint alleges that on November 29, 2006, Dr. Henry treated plaintiff for a condition that plaintiff described as "bad sleep."*fn1 Dr. Henry diagnosed plaintiff as suffering from mild depression and insomnia and prescribed Zoloft, an anti-depressant, and Ambien, a sleep aid. Almost three weeks later, after taking Ambien one evening, plaintiff fell asleep while inspecting a gun that he had owned for decades. Plaintiff was awakened by what he believed was a telephone ringing, but had forgotten that the gun was in his right hand. He reached for the receiver with his left hand, somehow causing "the barrel of the gun to enter his mouth and discharge." As a result of the gunshot wound, plaintiff suffered permanent physical injuries, including "a loss of vision and other disabilities" that rendered him unable to work.
Plaintiff alleges that Dr. Henry failed to properly diagnose and treat him and, by prescribing Ambien, "failed to exercise reasonable skill and care as is usually exercised by . . . other medical practitioners in similar circumstances." Plaintiff claims that Sanofi-Aventis and Sanofi-Synthelabo, the manufacturer and distributor of Ambien, placed Ambien into the marketplace even though the sleep-aid drug "was not reasonably fit, suitable or safe for its intended purpose" and without providing "adequate warnings or instructions concerning [its] potential to cause a severe and life threatening reaction."*fn2
On January 21, 2009, Dr. Henry answered the complaint, denying that he deviated from the accepted standard of medical care or was the proximate cause of plaintiff's injuries, and asserting "all defenses available under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26, et seq."
On March 26, 2009, plaintiff forwarded an affidavit of merit signed by Dr. Larry Kirstein, a New York licensed psychiatrist, who concluded that Dr. Henry's treatment of plaintiff "fell outside acceptable professional" standards. On April 3, 2009, Dr. Henry's attorney wrote to plaintiff's counsel that Dr. Kirstein was "not qualified to offer an Affidavit of Merit against [Dr. Henry], who was obviously engaged as a family practitioner at the time of the events giving rise to this suit."*fn3 In his letter, the defense attorney added that he had made a request of the trial court that a Ferreira conference be held.
On April 7, 2009, the trial court inadvertently issued an order that "[a]ll counsel have confirmed that all issues involving the Affidavit of Merit statute have been addressed appropriately and there is no need for a [Ferreira] conference to be scheduled before the pre-trial judge."*fn4
On May 1, 2009, the trial court granted plaintiff's motion to extend the period for filing an affidavit of merit for an additional sixty days, from March 26 to May 25, 2009. Evidently, plaintiff's attorney became aware that Dr. Henry was board certified in emergency medicine.*fn5 According to the website of the New Jersey Division of Consumer Affairs, Dr. Henry was certified by the American Board of Emergency Medicine in 1988 and was recertified in 1998.*fn6 That Dr. Henry was board certified in emergency medicine at the time he treated plaintiff is not in dispute. The Consumer Affairs website also listed that Dr. Henry graduated from the University of Minnesota Medical School in 1978 and attended Fairview University Medical Center through June 30, 1980, where he obtained a "[s]pecialty" in "FAMILY PRACTICE." Dr. Henry was never board certified in family medicine, and the website did not indicate that he was currently practicing in the field of family medicine.
On May 22, plaintiff forwarded his second affidavit of merit, this one signed by Dr. Joshua Kosowsky, a Massachusetts physician specializing in emergency medicine. He too determined that Dr. Henry ...