Another “Kind for Kind” Affidavit of Merit Decision

Pfannenstein v. Surrey, 475 N.J. Super. 83 (App. Div. 2023). At least since Buck v. Henry, 207 N.J. 377 (2011), and Nicholas v. Mynster, 216 N.J. 463 (2013), New Jersey’s Patients First Act, N.J.S.A. 2A:53A-37 et seq, (“PFA”), has been held to require that an affidavit of merit (“AOM”) in medical negligence cases normally may be offered only by practitioners with certain credentials laid out in the PFA. In general, the statute embodies a “kind for kind” rule that has three sub-components, as stated in Buck: “(1) those who are specialists in a field recognized by the American Board of Medical Specialties [“ABMS”] but who are not board certified in that specialty; (2) those who are specialists in a field recognized by the ABMS and who are board certified in that specialty; and (3) those who are ‘general practitioners.'”

Today’s opinion by Judge Rose involved these circumstances. Plaintiffs, a decedent’s estate and the decedent’s spouse, sued two defendant practitioners for negligence in providing medical care that allegedly resulted in the death of the decedent. Plaintiffs provided an AOM from a doctor who certified that she was certified by the ABMS as a specialist in hematology. But when the two defendants filed their answers, they stated that they specialized in internal medicine, and one of them was certified in that specialty. Plaintiffs’ AOM affiant “did not indicate that she specialized in internal medicine or was board certified in that specialty.”

Defendants moved to dismiss for failure to provide a proper AOM. The Law Division denied that motion, ruling that because “the alleged malpractice involved the improper use of heparin, a medication for the treatment of blood disorders,” and because hematology was a recognized sub-specialty of internal medicine, the AOM was sufficient. Defendants sought leave to appeal, and today the Appellate Division reversed, employing de novo review.

After discussing the PFA and cases such as Buck and Nicholas, Judge Rose rebuffed several arguments made by plaintiffs. First, plaintiffs had contended that because their decedent was treated and died at a subacute center, not a doctor’s office or hospital, and that defendants were not the decedent’s personal physicians. That argument had not been raised below. Judge Rose noted that the panel need not have considered it that contention, but stated that plaintiffs had not offered any legal authority to support it in any event.

Second, plaintiffs had cited below a LinkedIn profile of one of the defendants that said she had an alternative therapy practice at a different facility. Based on that, plaintiffs argued that she was not in fact an internal medicine practitioner. But Judge Rose pointed to Buck and Rule 4:5-3, observing that that defendant had said unequivocally in her answer that she practiced internal medicine. The Law Division had erroneously “not only ignored Dr. Surrey’s answer but failed to consider plaintiff’s allegation that the deviation from the accepted standards of care involved ‘the continued administration of heparin’ at [the subacute center] and not [that doctor’s] practice of alternative therapy elsewhere.”

Ultimately, Judge Rose held that Nicholas largely controlled. The fact that there was overlap between internal medicine and hematology did not win the day for plaintiffs, as Nicholas had held, in the different context there, that “kind for kind” as specified in the PFA was required even where specialists in two different areas were each qualified to perform the type of services at issue. “Because plaintiff’s proffered expert did not specialize in internal medicine at the time of the alleged occurrence, she necessarily failed to meet the additional statutory criteria.”

Finally, plaintiffs had argued in opposition to the motion to dismiss that the waiver provision of the PFA allowed them to use an expert who did not match defendants kind for kind. That waiver provision stated:

“A court may waive the same specialty or subspecialty recognized by the [ABMS] or [a different certifying organization] and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.”

Here, plaintiffs did not file a motion or provide a certification as to their efforts to find a kind for kind expert. Judge Rose found those failures fatal to plaintiffs’ effort to invoke the waiver provision. “As a preliminary matter, the plain terms of the PFA require the party seeking waiver to move for such relief. Plaintiff neither moved nor cross-moved for such relief.”

Apart from that, plaintiffs did not satisfy any of the criteria for a waiver set out in Ryan v. Renny, 203 N.J. 37 (2010). In an uncertified submission, plaintiffs said that in seeking a specialist in internal medicine, they had contacted a service that provides experts (and had provided the expert whom plaintiffs had proffered here), as well as directly contacting one expert in internal medicine. Plaintiffs “generally claimed no such specialist would execute an AOM.” But Ryan requested a “good faith effort,” and plaintiffs’ limited attempt to get a qualified internal medicine practitioner, of whom there are many, “came far short” of that. The panel thus reversed and remanded the case for dismissal with prejudice.

Two ideas emerge from this case. First, Judge Rose observed that plaintiffs here designated their AOM affiant before seeing defendants’ answers, which revealed their specialty in internal medicine. “To ensure a plaintiff has sufficient information to obtain an appropriate AOM, the Court in Buck declared that defendant physicians must indicate in their answer to the plaintiff’s complaint ‘the field of medicine in which [they] specialized, if any, and whether [their] treatment of the plaintiff involved that specialty.'” Unless there are countervailing considerations, it seems best for plaintiffs to await an answer, so as to maximize their ability to offer a kind for kind AOM affiant.

Second, the panel’s ruling today that contacting a single expert provider service and one potential AOM affiant was insufficient to invoke the PFA waiver provision counsels in favor of a more extensive search. And, relatedly, a plaintiff seeking such a waiver needs to file a motion or cross-motion for that relied, rather than just an opposition to a dispositive motion.