Professional Negligence Law Reporter

A New Jersey appellate court held that an affidavit of merit from a physician who was board-certified in the same medical specialty as the defendant at the time of the alleged negligence does not meet the specialization requirement of N.J. Stat. Ann. §2A:53A-41(a). Under that section, a physician submitting an affidavit of merit must have specialized, at the time of the alleged occurrence that forms the basis for the lawsuit, in the same specialty or subspecialty as the party against whom the testimony is offered.

Here, Michael Delany sued internist James Atkinson, alleging that he had negligently prescribed an incorrect and excessive dosage of lisinopril. The plaintiff provided an affidavit of merit from Jack Stroh, a physician board-certified in internal medicine, who specialized in interventional cardiology and cardiovascular disease. The defense moved for summary judgment on the basis that Stroh did not meet the qualifications to submit an affidavit under §2A:53A-41(a). The court granted the motion, finding that Stroh did not specialize in the same specialty as Atkinson at the time of the alleged negligence.

Affirming, the appellate court found that under the statute’s plain language, a putative expert must have specialized in the same specialty as the defendant physician at the time of the alleged negligence. The ordinary meaning of the word specialize requires that Stroh have been actively practicing internal medicine, the court said. Citing case law, the court added that it is the expert’s actions, not his or her status as board-certified in a medical specialty, that renders the expert qualified to offer an opinion on the defendant physician’s care.

The court also noted that the state high court has said that §2A:53A-41(a) must be viewed in its “constituent parts” as part of an overall scheme. Had the legislature wanted board certification to be used as a potential benchmark for expert physicians, the court said, the statute would have outlined this as a threshold requirement.

Consequently, the court determined that the trial court had properly concluded that at the time of the alleged negligence here, Stroh did not specialize in the same medical specialty as the defendant internist as required by §2A:53A-41(a).

Citation: Delany v. Atkinson, 2022 WL 1111731 (N.J. Super. Ct. App. Div. Apr. 14, 2022).