Physician Who Was Retired at the Time of “the Occurrence That is the Basis for the Action” is Not “Statutorily Authorized to Testify” as an Expert in a Medical Malpractice Case

Medina v. Pitta, 442 N.J. Super. 1 (App. Div. 2015).  The New Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42 (“PFA”), “established enhanced qualification requirements for experts who provide testimony or execute [affidavits of merit] in medical malpractice cases.”  Even a witness who satisfies the qualifications prescribed by the Affidavit of Merit statute, N.J.S.A. 2A:53-26 to -29, is not “statutorily authorized to testify” unless the witness also has the credentials mandated by the PFA.

Where a physician defendant is a specialist but not board certified in that specialty, the PFA requires that a proposed expert “shall have specialized at the time of the occurrence that is the basis for the action in the same specialty.”  Additional requirements, which also relate to the need for the putative expert to have been practicing at the time of the occurrence sued upon, apply if a defendant doctor is board certified, as the defendant doctors here were..

Here, although it was not entirely clear from the record when the deviation from proper practice occurred, according to Judge Espinosa, who wrote for the panel in this  case, even on the facts viewed most favorably to plaintiff, his proposed expert had already retired when the alleged malpractice occurred.  Defendants won summary judgment, with the Law Division concluding that there was no “contemporaneity” of practice by the expert vis-a-vis when the malpractice occurred.  The Appellate Division affirmed.

Judge Espinosa observed that “[t]he qualification and competency of a witness to provide expert testimony are matters that lie within the sound discretion of the trial court.”  Absent a “clear abuse of discretion,” the Law Division’s grant of summary judgment could not be overturned.  There was no such clear abuse of discretion here.

The PFA required that “the proposed expert must actively practice in the specialty at the time of the alleged deviation.”  Having already retired by that date, plaintiff’s proposed expert did not satisfy that mandate.

There was also argument as to whether the additional requirements applicable when a defendant doctor is board certified were met, or whether defendants were estopped from arguing those additional requirements.  But Judge Espinosa ultimately found it unnecessary to reach that issue.  The expert’s retirement meant that “[n]o matter what category of physician is applied, [the proposed expert’s] qualifications come up short.”  Judge Espinosa did indicate in dicta, however, that it was unlikely that “the Legislature’s scheme of enhanced qualification requirements for a testifying expert” could be overridden by circumstances.

Plaintiff also contended that the doctrines of substantial compliance or extraordinary circumstances should have been applied to rescue him.  Judge Espinosa disagreed.  Those arguments were presented for the first time only on plaintiff’s motion for reconsideration, which was improper in itself.  But those doctrines, especially substantial compliance, are limited to cases where “technical  defects” would defeat a valid claim.  Applying them here, where plaintiff’s proposed expert was substantively ineligible under the PFA, “would subvert rather than promote the remedial purpose of the PFA.”

Finally, Judge Espinosa found unworthy of extended discussion a number of other arguments made by plaintiff.  Among those contentions were attacks on the constitutionality and the procedural validity of the PFA and the Affidavit of Merit statute.  Judge Espinosa pointed out that those arguments had not been raised below, and that “both statutes have withstood prior constitutional challenges.”