Nicholas v. Mynster, 213 N.J. 463 (2013). Until the advent of the New Jersey Medical Care Access and Responsibility and Patients First Act, codified in part at N.J.S.A. 2A:53A-41, “in medical-malpractice cases, physician experts of different medical specialties, but who treated similar maladies, could offer [expert] testimony [for plaintiffs] even though not equivalently credentialed to defendant physicians.” The Patients First Act, enacted in response to a “dramatic escalation in medical malpractice liability insurance premiums,” which, in turn, the Legislature linked to the tort liabliity system, limited plaintiffs to experts embodying what Justice Albin’s opinion for a unanimous Court in this case called a “kind-for-kind” rule. That rule involves three categories, according to the opinion: “(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.'”
Plaintiffs in this case sought to use an expert who had expertise in the relevant subject matter, but who was not board certified in the same areas in which the defendant doctors were board certified. The Law Division denied defendants’ motion for summary judgment, finding that expertise in the same specialty was sufficient to allow plaintiffs’ expert to testify. The Appellate Division denied defendants’ motion for leave to appeal. But the Supreme Court granted leave to appeal and reversed the denial of summary judgment.
The Court found that the plain language of the Patients First Act forbade plaintiffs from using an expert who did not meet this “kind-for-kind” rule. The language itself is lengthy and is best viewed in the opinion itself. But Justice Albin recited some of the standard principles of statutory interpretation, cited supportive legislative history, observed that two prior decisions of the Court that had made reference to the “kind-for-kind” standard, and noted that a Third Circuit decision interpreting the Patients First Act also supported the Court’s conclusion.
In a footnote, Justice Albin observed that an amicus for plaintiffs had sought to inject into the case issues not raised below. The Court declined to consider those issues, citing the “general rule [that] an amicus curiae must accept the case before the court as presented by the parties and cannot raise issues not raised by the parties.” In fact, that general rule is not absolute, but is subject to the Court’s discretion, as the cited case makes clear. Nonetheless, that ruling is a reminder about the limitations on the role of an amicus.