New Ruling on AOM Requirements for Dual-Specialty Physicians in Medical Malpractice Cases

Clarification by N.J. Supreme Court on affidavit of merit will affect prosecution of medical malpractice cases

When an individual claims medical malpractice due to negligence, the plaintiff (the party who is suing the medical provider or facility) is often required to provide a document called an affidavit of merit (AOM) from a specialist in the medical area in which the defendant practices. The AOM is a signed document from an appropriately licensed medical professional that states the expert has reviewed the plaintiff’s records and finds merit to the plaintiffs claim that the defendant (the medical provider) did not meet the applicable standard of care.
This affidavit is essentially an expert witness’s sworn statement on the merits of the malpractice claim. Its purpose is to eliminate frivolous lawsuits and ensure that claims with merit can proceed to into the discovery phase, since it requires patients to show some level of proof that medical malpractice occurred.

An example is when a plaintiff sues a radiologist for malpractice and provides an AOM from another board-certified radiologist.
However, questions have arisen about how to handle the AOM issue if the defending physician practices dual specialties, such as cardiology and internal medicine, or surgery and neurology. Recent cases in New Jersey have questioned whether an AOM should be required from experts in the same two specialties as the defendant.

NJ Supreme Court Clarification

On January 22, the NJ Supreme Court clarified this matter, holding that in a medical malpractice case against a physician with two specialties, it is sufficient for the plaintiff to provide an affidavit of merit from a specialist in only one of them. In the past, defense could have argued that this was insufficient, with attorneys filing a motion to dismiss.

In Wiggins v. Hackensack Meridian, the physician being sued is both an internist and gastroenterologist and the AOM was from a board-certified internist (but none was provided by a gastroenterologist).
The case had been heard in Union County Superior Court, which agreed with the plaintiffs that an AOM from a physician specializing in just one of a defendant doctor’s two specialties is sufficient. The Appellate Division disagreed and held that an AOM was required for both specialties. The NJ Supreme Court reversed the appellate decision, denied the defendant’s motion to dismiss, and reinstated the trial court order.

Writing the unanimous opinion for the court in the case Wiggins v. Hackensack Meridian, Associate Justice Douglas M. Fasciale stated that, “The plain language of N.J.S.A. 2A:53A-41 does not require an AOM to be from an individual with the same numerous specialties as the defending physician; instead, it requires only the same ‘specialty or subspecialty’ in the singular.”

“We’ve been seeing an increase in the number of questionable challenges to affidavits of merit,” said E. Drew Britcher. “In this case, the expert that signed one was board certified in one of the defendant’s alleged specialties and not the other. The court has now said an affidavit of merit from someone in either of those specialties is sufficient and restored the case. This will make it easier to identify a single expert and it will be less costly to prosecute a case.”

Medical malpractice attorneys with medical expertise

Britcher, Leone & Sergio is a leading NJ medical malpractice and personal injury law firm that sets high ethical standards for the matters our attorneys handle, based solely on the merit of a case. If you believe you or a loved one has suffered injury due to medical malpractice, contact us for a consultation in our Glen Rock or Morristown office.