New Jersey doctors must disclose specialty in medical liability suits

The state's high court says the requirement will help prevent meritorious lawsuits from being dismissed.

By Tanya Albert Henry — Posted Sept. 19, 2011

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New Jersey physicians sued in medical liability cases will have to provide their specialty in court documents filed in response to such suits, the New Jersey Supreme Court ruled.

Justices said in August that the disclosure will help prevent valid cases from getting thrown out because a plaintiff didn't get an affidavit of merit from a physician in the same specialty as the doctor being sued. New Jersey law requires an affidavit of merit from a doctor in the same specialty before a medical liability lawsuit can go forward.

"The purpose of the affidavit of merit statute is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones," the majority of the court said in a 4-2 opinion.

The change stems from Robert Buck v. James R. Henry, MD, in which a patient sued his doctor after shooting himself. After the physician diagnosed the man with depression and insomnia, the physician prescribed an antidepressant and a sleeping aid, court documents show. The man fell asleep while inspecting his gun, was awakened by what he believed was a phone ringing and forgot that he was holding the gun. He reached for the phone and the gun entered his mouth and fired, causing permanent injuries, according to court records.

Buck alleges that Dr. Henry didn't properly treat him. Dr. Henry denies the allegations.

When he filed the lawsuit, Buck provided an affidavit of merit from a psychiatrist. Dr. Henry's lawyer said that physician wasn't qualified because Dr. Henry "was obviously engaged as a family practitioner," according to court documents.

Buck filed a second affidavit of merit signed by an emergency physician because the New Jersey Division of Consumer Affairs indicated that Dr. Henry was board certified in emergency medicine and "obtained a 'specialty' in 'family practice,' but did not indicate that he was currently practicing in family medicine," court documents show.

Dr. Henry asked the trial court to dismiss the case because the affidavits of merit were not from physicians in family medicine. The court agreed and dismissed the case. An appellate court upheld the decision.

The New Jersey Supreme Court, though, sent the case back to the lower court, saying, "Buck acted in good faith in filing affidavits of merit from two different medical specialists."

The court also said "to better ensure that a plaintiff obtains a timely and appropriate affidavit," a defendant physician must indicate the specialty he or she "was involved in when rendering treatment."

Buck attorney Dennis A. Drazin said the case "will safeguard those limited cases where physicians try to say they are practicing in a different field."

Dr. Henry's attorney did not return phone calls for comment.

The two justices who dissented said the change shifts a burden the Legislature put on plaintiffs to the defendant physician.

"The majority's distaste for the efforts of our Legislature to stem the tide of frivolous litigation through the affidavit of merit statute is clear, and its continuing preference for adding burdens on the trial courts and on the defendants in place of enforcement of the Legislature's plain language are neither views nor approaches that [we] share," they said.

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