N.J. medical liability ruling gives patients flexibility in certification requirement

New Jersey residents suing physicians for medical malpractice have some leeway in who they have sign the affidavit of merit that must be filed with a lawsuit, the state's Supreme Court ruled.

A 2004 New Jersey law requires plaintiffs -- unless they meet waiver requirements -- to find a physician in the same specialty as the doctor they are suing to attest that the case has merit. In a 6-1 ruling July 22, justices said a woman who sought and failed to get an affidavit from several similarly board-certified physicians can go forward with her lawsuit. Her affidavit was from a physician in a different specialty.

The case, Ryan v Renny, was the first court interpretation of the waiver exception in the law.

Justices said the Legislature created a "safety valve" for cases where a same-specialty expert can't be found "by providing the judge with broad discretion to accept an expert with 'sufficient training, experience and knowledge to provide the testimony,' but only if plaintiff made a good-faith effort to satisfy the statute."

Abby Ryan, who underwent a colonoscopy in 2007 that resulted in a perforated colon, made that good-faith effort, the court said.

After being unable to find a board-certified gastroenterologist who would submit an affidavit, Ryan's attorney filed one from a board-certified surgeon who performed more than 100 colonoscopies, the last one three years before Ryan's procedure. The physician also had repaired tears relating to colonoscopies; treated, diagnosed and evaluated colon and bowel abnormalities and diseases; and published articles on the topic, according to court documents.

Physicians objected to the court ruling that allowed the surgeon to qualify as an expert witness under the circumstances.

"We thought the exception was for cases where the specialty was so rare it was an impossibility to meet the standards [of finding a board-certified physician in the same specialty]. Here they said if enough effort is made, the case can go forward," said Medical Society of New Jersey General Counsel Lawrence Downs.

MSNJ, joined by the Litigation Center of the American Medical Association and the State Medical Societies, filed a friend-of-the-court brief in the case.

"What we have now is a lot of discretion on the part of trial judges to decide whether a case can proceed," and that was done without the opinion establishing clear standards on what it takes to receive a waiver, Downs said.

An attorney for the physician being sued, board-certified gastroenterologist Andrew Renny, MD, said the lawsuit should have been dismissed. "He had a legislative right [to not face a meritless lawsuit] and he was deprived of that," said James M. Ronan Jr., Dr. Renny's attorney.

Ryan's attorney, Donald G. Targan, said the ruling was a positive one for plaintiffs with legitimate complaints. "It was a fair interpretation," he said.

Good faith?

Dr. Renny argued that if the experts turned Ryan down because they did not believe there was a deviation from the standard of care, she should not be allowed to substitute an expert because it would allow a meritless claim to go forward. That didn't meet the good-faith standard, he argued.

The court disagreed, saying the plain language in the law's waiver provision "directs the judge to focus on the 'effort' the moving party made to obtain a statutorily authorized expert, and not on the reasons why a particular expert or experts declined to execute an affidavit."

Dr. Renny also argued that even if Ryan made a good-faith effort, her expert doesn't meet the law's requirement that the expert performed colonoscopies at the time that the plaintiff's procedure occurred. That requirement helps ensure that an expert is familiar with the standard of care when the defendant physician treated the patient, he said. But the court said the waiver doesn't include specific language limiting the time when the expert practiced.

"Thus, it approached the qualifications issue expansively, opening the door for physicians and professors who had actively practiced in the relevant field or a related one, but who had retired or moved into a different area of specialization, to serve as experts under the waiver provision," justices wrote.

However, the court said judges can consider the passage of time when determining if an expert should be allowed to submit an affidavit. "For example, if a party establishes that a practice in a particular medical field has undergone a sea change over time due to developments that have occurred since the expert was trained and actively practiced in the field, the judge may well consider that factor in evaluating the expert's qualifications."

In a dissent, Justice Roberto A. Rivera-Soto said Ryan did not meet the law's good-faith effort because she didn't seek the waiver until "well past" the 120 days allowed to do so under the law. She also didn't ask for it until after Dr. Renny moved to dismiss the case because the expert filing the affidavit wasn't a board-certified gastroenterologist like himself.

"Clearly, phrased legislative requirements ... have become judicially neutered scarecrows," Rivera-Soto wrote. "It tramples the right to be free of malpractice claims lacking in merit -- a right the Legislature intentionally and unequivocally granted to defendant."