New Jersey court upholds certificate-of-merit rule

Judges rejected the plaintiff's arguments that the statute interferes with the judiciary's right to determine experts' qualifications.

By Amy Lynn Sorrel — Posted Feb. 5, 2009

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New Jersey's certificate-of-merit statute remains intact after an appeals court upheld it as constitutional, reinforcing what physicians say has been an important tool in screening out frivolous malpractice cases.

New Jersey is among roughly 25 states that require plaintiffs, with the initial filing of a medical malpractice lawsuit, to include testimony from a qualified medical expert showing there is merit to the claim. In New Jersey experts must be in the same specialty as the defendant.

In the case before the court, Jeffrey S. Gardner sued two neurosurgeons after experiencing complications following spinal surgery. He attached with his filing an affidavit from an anesthesiologist who had never practiced neurosurgery, had not completed a residency in the field and was not credentialed by any hospital to perform the procedure at issue.

The defendants challenged the certificate, and a trial court dismissed the case.

Gardner appealed, arguing that the affidavit requirement violated the separation of powers under the state constitution because it allowed the Legislature to interfere with the judiciary's role in deciding experts' qualifications.

But the Appellate Division of the Superior Court of New Jersey disagreed in a Dec. 15, 2008, decision. Judges noted that the 2004 statute includes an "escape valve" by which plaintiffs may obtain a court waiver if they cannot, in good faith, find an expert who fits within the parameters of the law. The court relied on a 2006 precedent in which it rejected a similar constitutional challenge brought by the New Jersey State Bar Assn.

The recent case "is a good example of how the affidavit of merit was designed to work," said Lawrence Downs, general counsel to the Medical Society of New Jersey. The organization supported the statute but was not involved in the case.

Rather than hinder the courts, the affidavit requirements help them determine at the outset whether there is a reasonable basis for a lawsuit to proceed, Downs said. The mechanism has helped temper case filings. But it does not address the often excessive jury verdicts that continue to plague the medical liability system, he said.

Attorneys for plaintiff Gardner did not return calls seeking comment.

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