BYOUNG J. KIM, Administrator Ad Prosequendum for the Estate of GYE JA KIM, Deceased and BYOUNG J. KIM, Individually, Plaintiff-Appellant,
PAUL AHN, D.O. and JAMES ZU, M.D., Defendants-Respondents, and JONG Y. MOON, M.D., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AT RAHWAY and PRADIP SHAH, M.D, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8268-06.
Adam L. Rothenberg argued the cause for appellant (Levinson Axelrod, P.A., attorneys; Mr. Rothenberg, of counsel and on the brief; Matthew P. Pietrowski, on the briefs).
Charles E. Murray, III, argued the cause for respondent Paul Ahn, D.O. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Mr. Murray, on the brief).
Heather M. LaBombardi argued the cause for respondent James Zu, M.D. (Giblin & Combs, LLC, attorneys; Ms. LaBombardi, on the brief).
Before Judges Graves, Espinosa and Guadagno.
After five years of litigation in which no objection was made to the sole expert witness produced against him, defendant Paul Ahn, D.O., moved for the exclusion of the expert's testimony during trial on the ground that the witness lacked the enhanced credentials required by N.J.S.A. 2A:53A-41. Plaintiff appeals from an order that barred his expert's testimony and dismissed his complaint against Ahn. For the reasons that follow, we affirm the order barring the expert's testimony, reverse the order dismissing the complaint, and remand this matter to the trial court to permit plaintiff a reasonable amount of time to produce a report by an expert who meets the qualification requirements of N.J.S.A. 2A:53A-41.
Plaintiff, Byoung J. Kim, brought this medical malpractice, wrongful death, and survivorship action as administrator of his wife's estate and on his own behalf (collectively, plaintiff) against Ahn, Jong Y. Moon, M.D., Pradip Shah, M.D., James Zu, M.D., and Robert Wood Johnson University Hospital (RWJUH).
The New Jersey Medical Care Access and Responsibility and Patients First Act (the Patients First Act), N.J.S.A. 2A:53A-37 to -42, became effective in July 2004. N.J.S.A. 2A:53A-41 established qualification requirements, in addition to those contained in N.J.R.E. 702, for experts who provide testimony or execute affidavits of merit in medical malpractice cases. Among the requirements, the statute prohibits any person from giving expert testimony or executing an affidavit of merit against a board-certified specialist unless that person is board-certified in the same specialty. N.J.S.A. 2A:53A-41(a); see also, Ryan v. Renny, 203 N.J. 37, 43 (2010). In Khan v. Singh, 200 N.J. 82 (2009), the Supreme Court expressly noted that these additional requirements applied to causes of action arising after July 7, 2004. Id . at 100. The medical treatment complained of here was provided in October to December 2004.
In November 2006, two years after N.J.S.A. 2A:53A-41 became effective, plaintiff filed a complaint. In answers to interrogatories, plaintiff stated that Gye Ja Kim began having complaints of nausea, headache, and neck pain with vomiting in October 2004. She was seen at RWJUH on October 18, 2004 and then followed up with Moon. She was referred to Ahn at the end of November 2004. Her complaints of headaches, vomiting, vision loss, difficulty drinking, and dehydration persisted through the end of November into the beginning of December. Ms. Kim was admitted to RWJUH on December 2, 2004, where she was treated by Shah and Zu. She died in the hospital on December 21, 2004. The final diagnosis was death due to tuberculosis meningitis.
Along with the complaint, plaintiff served an affidavit of merit prepared by Alexander Ackley, Jr., M.D., dated October 12, 2006, on all defendants. In the affidavit of merit, Ackley stated he was a physician, licensed to practice medicine in the State of New Jersey since 1976. He stated further that he has been Board Certified in internal medicine since 1974 and maintained a practice in internal medicine in Princeton, New Jersey. He stated further that, based upon his review of the medical records, there existed "a reasonable probability that the care, skill or knowledge exercised or exhibited by" RWJUH, Ahn, Shah, and Zu "while plaintiff was a patient at [RWJUH] fell outside acceptable, professional or occupational standards for treatment practices." The affidavit also contained the following language:
If any defendant has any objection to the sufficiency of this Affidavit of Merit; demand is hereby made that the defendant immediately notify the plaintiff of any such alleged deficiencies so that same may be corrected if necessary and within the time constraint of N.J.S.A. 2A:53A-26 et seq.
Ahn filed an answer on January 12, 2007. As a result, pursuant to the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, plaintiff's deadline for filing an affidavit of merit as to Ahn's alleged negligence that complied with applicable legal requirements was 120 days following receipt of this answer, or approximately May 12, 2007.
Ahn did not pose any objection to the sufficiency of Ackley's affidavit of merit within that time, and so, plaintiff was not alerted to the deficiency in Ackley's credentials before the expiration of the 120-day period. Moreover, in February 2007, Ahn provided plaintiff with a signed Waiver of the Affidavit of Merit. As the other defendants provided similar waivers, there was no conference pursuant to Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
In Ahn's answer, he admitted he was "a physician licensed to provide medical care" but did not identify any specialty. This answer was filed three years before the Supreme Court decided Buck v. Henry, 207 N.J. 377 (2011), in which it stated,
From this point forward, a physician defending against a malpractice claim (who admits to treating the plaintiff) 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.
[Id. at 396.]
Ahn provided answers to interrogatories in March 2007, and a copy of his curriculum vitae in April 2007. Upon receipt, plaintiff's counsel wrote to Ahn's counsel, requesting more specific answers to several interrogatories:
Please state what issue you wish to raise regarding the Affidavit of Merit. A waiver was filed in this matter and it is believed that this is a non-issue with respect to your client.
In response to this request, defense counsel wrote,
You are correct. The waiver has been filed relative to the affidavit of merit and ...