Professional Negligence Law Reporter

A New Jersey appellate court held that a plaintiff suing for medical negligence was required to file an affidavit of merit that complied with the same-specialty requirement of the state’s Patients First Act, N.J. Stat. Ann. §2A:53A-41.

Francisco Perez, individually and on behalf of the estate of Tanny Robles-Perez, filed suit against board-certified family medicine doctor Fred Revoredo, alleging improper prescription of pain medication. The plaintiffs served the timely affidavit of merit of Angelo Scotti, a board-certified doctor of internal medicine and infectious disease. The defendant moved to dismiss, alleging that the plaintiffs’ complaint failed to comply with the same-specialty requirement of the Patients First Act. The trial court denied the motion.

Reversing, the appellate court found that section 41 of the Patients First Act prohibits a plaintiff from establishing the standard of care by offering an affidavit of merit from a doctor practicing in a different specialty unless a defendant’s care and treatment did not involve the defendant’s practice of his or her board-certified medical specialty. Here, the court said, the defendant was practicing his board-certified family medicine specialty when he met with the plaintiff’s decedent and prescribed opioid medication for pain, actions falling into the broad array of services that are rendered by a doctor specializing in family medicine.

The court rejected the plaintiffs’ argument that any doctor qualified to prescribe opioids was able to author an affidavit of merit as to the standard of care applicable to family medicine physicians. Although before the passage of the Patients First Act, multi-specialty physician experts in medical negligence cases could author testimony even though not equivalently credentialed to a defendant, the passage of the act resulted in a more stringent affidavit-specialty requirement, the court found.

Consequently, the court remanded with an order that the court dismiss the complaint with prejudice.

Citation: Perez v. Revoredo, 2020 WL 4249923 (N.J. Super. Ct. App. Div. July 24, 2020).