Opinion
DOCKET NO. A-0143-13T2
06-19-2015
RICHARD A. CARR, Individually and as Administrator of the Estate of Daphne Essington, Deceased, and on behalf of Decedent's Heirs at Law, Plaintiff-Appellant, v. OUR LADY OF LOURDES MEDICAL CENTER, OUR LADY OF LOURDES HEALTH CARE SERVICES, INC., WILLIAM HASBUN, M.D., and MARSHALL LAUER, M.D., Defendants-Respondents.
Joseph Silvestro (Mutzel Wesner & Silvestro, LLP) argued the cause for appellant. John S. Rigden argued the cause for respondents Our Lady of Lourdes Medical Center and Our Lady of Lourdes Health Care Services, Inc. (Parker McCay, P.A., attorneys; Thomas M. Walsh, of counsel; Valerie N. Smaldone, on the brief). Mary Ann C. O'Brien argued the cause for respondent William Hasbun, M.D. (Crammer, Bishop & O'Brien, attorneys; Ms. O'Brien, on the brief). Sharon K. Galpern argued the cause for respondent Marshall Lauer, M.D. (Stahl & DeLaurentis, PC, attorneys; Ms. Galpern, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4545-12. Joseph Silvestro (Mutzel Wesner & Silvestro, LLP) argued the cause for appellant. John S. Rigden argued the cause for respondents Our Lady of Lourdes Medical Center and Our Lady of Lourdes Health Care Services, Inc. (Parker McCay, P.A., attorneys; Thomas M. Walsh, of counsel; Valerie N. Smaldone, on the brief). Mary Ann C. O'Brien argued the cause for respondent William Hasbun, M.D. (Crammer, Bishop & O'Brien, attorneys; Ms. O'Brien, on the brief). Sharon K. Galpern argued the cause for respondent Marshall Lauer, M.D. (Stahl & DeLaurentis, PC, attorneys; Ms. Galpern, on the brief). PER CURIAM
Plaintiff filed the underlying complaint on behalf of himself and the estate of Daphne Essington (decedent) in his capacity as administrator, alleging medical malpractice against defendants Our Lady of Lourdes Medical Center, Our Lady of Lourdes Health Care Services, Inc. (collectively OLOL), Dr. William Hasbun and Dr. Marshall Lauer. He appeals from an order that dismissed the complaint based upon plaintiff's failure to comply with procedural and substantive requirements of the Affidavit of Merit (AOM) Statute, N.J.S.A. 2A:53A-27. Although we do not agree with the trial court's conclusion that dismissal was required for failure to comply with the statute's procedural requirements under the facts of this case, we affirm the dismissal on the ground that plaintiff's expert did not meet the requirements of N.J.S.A. 2A:53A-41 to be qualified to render an expert opinion in this case.
The claims against additional defendants named in the complaint were dismissed with plaintiff's consent.
I.
The complaint alleged defendant doctors were negligent in the care provided to decedent during the time period from her treatment in the emergency room at OLOL on October 23, 2010 until her death on November 2, 2010, and that their negligence was attributable to OLOL under respondeat superior. Answers were filed by Dr. Lauer, Dr. Hasbun, and OLOL on November 16, 27, and December 6, 2012, respectively. In their answers, each of the doctors demanded an AOM. Dr. Hasbun and Dr. Lauer also complied with the requirement established by the Supreme Court in Buck v. Henry, 207 N.J. 377 (2011), to "include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty." Id. at 396. Defendants Hasbun and Lauer represented that, at all relevant times, they specialized in internal medicine and the treatment provided to decedent involved the specialty of internal medicine.
Based upon the allegations in the complaint and these answers, plaintiff was required to "provide each defendant" with an AOM "within 60 days following the date of the filing of the answer to the complaint by the defendant." N.J.S.A. 2A:53A-27. The statute permits the court to "grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good case." Ibid.
An AOM here was also subject to the New Jersey Medical Care Access and Responsibility and Patients First Act (the Patients First Act), N.J.S.A. 2A:53A-37 to -42, which established qualification requirements for experts who provide testimony or execute AOMs in medical malpractice cases. Because both defendant doctors are board certified in internal medicine, the following provisions of N.J.S.A. 2A:53A-41 establish the requirements for an expert in this case:
In Khan v. Singh, 200 N.J. 82 (2009), the Supreme Court expressly noted that these additional requirements applied to causes of action arising after July 7, 2004. Id. at 100.
a. If the party against whom or on whose behalf the testimony is offered is a specialist . . . and the care or treatment at issue involves that specialty . . . the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty . . . and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty . . . the expert witness shall be:
(1) a physician credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action; or
(2) a specialist . . . who is board certified in the same specialty . . . and during the year immediately preceding the date
of the occurrence that is the basis for the claim or action, shall have devoted a majority of his professional time to either:
(a) . . . the active clinical practice of that specialty . . . or
(b) the instruction of students in an . . . an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty . . . or
(c) both.
[N.J.S.A. 2A:53A-41(a) (emphasis added).]
All references to specialties and board certifications in the statute are to specialties and board certifications as recognized by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association. N.J.S.A. 2A:53A-41.
Plaintiff did not file an AOM within the sixty-day period. Instead, on January 24, 2013, plaintiff filed a motion for an additional sixty-day period in which to provide the AOM. The court entered an order that stated in part:
A Ferreira conference having been conducted on Jan[.] 28, 2013 [a]nd counsel having been advised of his responsibility to timely file [an AOM] as to each Defendant within 120 [d]ays of the filing of their Answer, the dates of each answer being set forth herein.
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003).
As a result, the deadline for serving Dr. Lauer with an AOM that satisfied all statutory requirements was March 16, 2013, with deadlines for Dr. Hasbun and OLOL concomitantly thereafter.
When plaintiff did not serve Dr. Lauer by the March 16 deadline, Dr. Lauer's counsel mailed a motion to dismiss the complaint for failure to serve an AOM. However, after receiving a faxed copy of an AOM written by Dr. Mark Levin on March 18, 2013, Dr. Lauer's counsel withdrew the motion before it was filed. A copy of the AOM was stamped "Received" by the court on March 18, 2013. However, it is undisputed that neither Dr. Hasbun nor OLOL received a copy of the AOM until after the 120-day period authorized by the January 28 order had expired. In the interim, Dr. Hasbun and OLOL filed motions to dismiss the complaint for failure to comply with the requirements of the AOM statute.
Plaintiff states that through an "administrative error" he did not provide Dr. Hasbun with an AOM until April 9, 2013 and served OLOL after that. Dr. Hasbun, however, states in his brief that he was not served with an AOM until April 15, 2013. OLOL states that plaintiff did not provide it with an AOM until April 16, 2013.
In the AOM, Dr. Levin stated, in pertinent part:
1. I am licensed to practice medicine in the State of New York and New Jersey.Although the AOM does not reflect this, Dr. Levin's curriculum vitae states he is board certified in internal medicine and medical oncology and board eligible in hematology.
2. I am now and was on or about October 23, 2010 credentialed by Holy Name Hospital in Teaneck NJ [sic] to provide the same treatment and procedures upon patients which form the basis of the allegations contained in the herein Complaint.
3. For the period between October 23, 2009 and October 23, 2010, I devoted my professional time to, inter alia, the active clinical practice of Internal Medicine and providing like care.
After receiving the AOM, Dr. Lauer filed a motion to dismiss the complaint, arguing that Dr. Levin did not meet the qualification requirements established by N.J.S.A. 2A:53A-41(a). Dr. Hasbun and OLOL received the AOM after filing their motions to dismiss based upon the failure to serve an AOM within the 120-day period.
Plaintiff's counsel did not file timely opposition to the motions. He appeared in court on the return day for the motions, he represented that he believed the motions were adjourned, and the court granted him additional time to file opposition.
As of May 16, 2013, the date of a case management conference, plaintiff had not responded to the uniform interrogatories. Interrogatory Forms, Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17-1(b) at 2604-06 (2015); R. 4:17-1(b). The trial judge agreed to postpone the discovery deadline because of the pending motions and also adjourned the motions of all defendants to permit plaintiff to file opposition. After receiving the AOM and plaintiff's opposition, Dr. Hasbun filed a reply brief and OLOL filed a reply letter brief in which they added the argument that Dr. Levin lacked the qualifications to issue an AOM. Plaintiff was granted the opportunity to further brief the issues raised by the motions.
Although plaintiff acknowledged the AOM had not been timely served upon Dr. Hasbun and OLOL, he argued the complaint should not be dismissed on that basis because there had been substantial compliance with the AOM statute. He also argued Dr. Levin was qualified to author an AOM. The trial court held plaintiff had not substantially complied with the procedural requirements of the AOM statute as to Dr. Hasbun and OLOL and that Dr. Levin lacked the qualifications to be an affiant in an AOM. The court denied plaintiff's request for an N.J.R.E. 104 hearing to prove that Dr. Levin was qualified and dismissed the complaint with prejudice.
In this appeal, plaintiff argues he substantially complied with the procedural requirements of the AOM statute by timely filing an AOM for all defendants and satisfying the fact-sensitive analysis required by Galik v. Clara Maas Medical Center, 167 N.J. 341 (2001). He also argues that Dr. Levin should be deemed qualified to render an opinion under the AOM statute, or, in the alternative, the matter should be remanded for an N.J.R.E. 104 hearing.
II.
The order entered following the Ferreira conference directed plaintiff "to timely file [an] Aff[i]d[avit] of Merit as to each Defendant within 120 days of the filing of their Answer." However, the statute itself clearly states a plaintiff must "provide each defendant" with an AOM within the time period. N.J.S.A. 2A:53A-27. Since the statute is designed to inform a defendant early in the proceeding that the procedural requirement has been met, the mere filing of a document without service upon a defendant would do little to serve that purpose. We note further that, in this case, the AOMs submitted to the court were stamped "received" and not "filed," a practical consequence of the fact that AOMs are meant to be served upon a defendant, rather than filed with the court. Therefore, it is clear that plaintiff timely served Dr. Lauer, but failed to serve OLOL and Dr. Hasbun within the time prescribed by the AOM statute.
A "plaintiff's failure to serve the affidavit within 120 days of the filing of the answer is considered tantamount to the failure to state a cause of action, subjecting the complaint to dismissal with prejudice." Ferreira supra, 178 N.J. at 150 (citing N.J.S.A. 2A:53A-29; Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001); Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998)).
If defense counsel files a motion to dismiss after the 120-day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed with prejudice provided the doctrines of substantial compliance and extraordinary circumstances do not apply.
[Ferreira, supra, 178 N.J. at 154.]
The Legislature did not intend "to create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims." Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 209 (App. Div. 2000). The exceptions of extraordinary circumstances and substantial compliance are intended to "temper the draconian results of an inflexible application of the statute." Ferreira, supra, 178 N.J. at 151. "[C]arelessness, lack of circumspection, or lack of diligence on the part of counsel are not extraordinary circumstances which will excuse missing a filing deadline." Burns v. Belafsky, 326 N.J. Super. 462, 470 (App. Div. 1999) (citation and quotation marks omitted), aff'd, 166 N.J. 466 (2001); accord Palanque, supra, 168 N.J. at 404-05. The factual assertions here regarding clerical distraction and administrative mishap do not present a case of extraordinary circumstances.
In light of the diligence of defense counsel here, laches and estoppel do not apply. See Knorr v. Smeal, 178 N.J. 169, 178-81 (2003).
The doctrine of substantial compliance may be invoked "so that technical defects will not defeat a valid claim." Ferreira, supra, 178 N.J. at 151.
To warrant application of this doctrine, a plaintiff must show: a series of steps were taken to comply with the statute; generalSee also Galik, supra, 167 N.J. at 353.
compliance with the purpose of the statute; the defendant had reasonable notice of the plaintiff's claim; a reasonable explanation for plaintiff's failure to strictly comply with the statute; and lack of prejudice to the defendant.
[Stoecker v. Echevarria, 408 N.J. Super. 597, 612 (App. Div.) (citing Ferreira, supra, 178 N.J. at 151), certif. denied, 200 N.J. 549 (2009).]
The AOM ultimately served upon all defendants was obtained by plaintiff within 120 days of the filing of the first answer. Although failing to satisfy plaintiff's obligation to all defendants in the case, this demonstrated both that steps were taken by plaintiff and that there was "general compliance with the purpose of the statute." See Ryan v. Renny, 203 N.J. 37, 69 (2010) (citation and quotation marks omitted) (emphasis added). Plaintiff attributed the failure to timely deliver the AOM to the other defendants to clerical error. While this was clearly insufficient to constitute extraordinary circumstances, this all too human error appears to be a "reasonable explanation" that should not doom plaintiff's claim.
"The core purpose underlying the statute is 'to require plaintiffs . . . to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.'" Ryan, supra, 203 N.J. at 51 (citation omitted). --------
As to prejudice, there was approximately a one-month delay from the end of the 120-day period applicable to Dr. Hasbun and OLOL and the time when each was served with the AOM. Counsel for defendants have been diligent throughout. However, because plaintiff had not answered the form interrogatories and no additional discovery had occurred the record fails to show any appreciable use of resources, aside from the filing of the motions, caused by plaintiff's delay. The prejudice lay in the delay itself.
In reviewing the reasonableness of notice provided to defendants, we note that, without any discovery, AOM, or expert report, the notice regarding the nature of the claim consisted exclusively of the allegations in the complaint. This stands in sharp contrast to cases in which substantial compliance was found based upon the service of unsworn expert reports prior to litigation, Galik, supra, 167 N.J. at 355, and where a defendant was served with an expert report against another defendant that discussed his role in the alleged malpractice, Fink v. Thompson, 167 N.J. 551, 558 (2001). Although the complaint did not identify specific acts of alleged negligence by individual defendants, it was far more detailed than a blanket allegation of negligence. The time period was discrete, from October 23 until November 2, 2010. Paragraphs 23 to 40 of the complaint provided a fairly detailed timeline in alleging the facts common to all counts.
Assuming the AOM had been timely served upon Dr. Hasbun and OLOL, it would add little to the notice provided defendants as to the nature of the claims against them. As would be the case with an AOM that was fully compliant with N.J.S.A. 2A:53A-27, the AOMs prepared for each defendant, which were identical except for the name of the defendant, said only the following regarding the claim against the defendant:
I have reviewed medical records and the Complaint relating to the herein matter and in my opinion, there exists a reasonable probability that the care, skill and/or knowledge exercised in the diagnosis and/or treatment or failure to treat that is the subject of this case and the complaint rendered by [defendants] deviated from acceptable standards of medical care.
The language of the AOM mirrors the language of N.J.S.A. 2A:53A-27. The sole fact relevant to an assessment of the claim disclosed by the AOM is that a physician was willing to opine there is a reasonable probability the claim has merit. Thus, the reasonableness of the notice regarding the claim would not have been appreciably enhanced by a timely service of the AOM.
Finally, we are mindful that the administrative error here affects two of the three remaining defendants and apparently does so quite by chance, rather than because there was any greater difficulty in obtaining an AOM against them. To dismiss claims against two of three defendants for a failure to strictly comply with the AOM's statute's requirements has a quality of arbitrariness and mischance that approximates a "minefield." See Mayfield, supra, 335 N.J. Super. at 209. Under the circumstances here, we conclude plaintiff's claims against Dr. Hasbun and OLOL should not be doomed by the late service of the AOMs.
III.
The dispositive issue here concerns whether Dr. Levin was "equivalently credentialed in the same specialty or subspecialty as the" defendant doctors and therefore, permitted to author an AOM and testify to the applicable standard of care. Nicholas v. Mynster, 213 N.J. 463, 467 (2013) (citing Buck, supra, 207 N.J. 377; Ryan, supra, 203 N.J. 37).
In Nicholas, supra, the plaintiff was treated for acute carbon monoxide poisoning by two doctors who were board certified in emergency medicine and family medicine. He alleged they were negligent because they failed to refer him to a facility with a hyperbaric chamber for treatment. To support his allegation, he submitted an AOM by an expert who was board certified in internal and preventive medicine and specialized in hyperbaric medicine, including the use of hyperbaric oxygen in the treatment of carbon monoxide poisoning. Id. at 467. Opposing the defendants' motion for summary judgment, the plaintiff argued his expert was qualified to render an opinion under N.J.S.A. 2A:53A-41(a)(1), because he was credentialed by a hospital to treat patients for the condition treated by the defendant doctors. Id. at 468. The Supreme Court rejected the plaintiff's argument that an expert who lacks board certification in the same specialty as the defendant doctor but who is "credentialed by a hospital to treat patients for the medical condition" may serve as an expert under the Patients First Act. Id. at 468, 81 (internal citation and quotation marks omitted).
This case differs from Nicholas somewhat because, like the defendant doctors, Dr. Levin is both board certified in internal medicine and credentialed by a hospital to treat patients for the decedent's medical condition. Defendants argued that Dr. Levin was not equivalently credentialed, however, because his credentials and practice are more specialized than the defendant doctors' credentials and practice.
Dr. Levin's curriculum vitae, which is titled, "Mark Levin, MD Hematology and Oncology," states he is board certified in internal medicine and medical oncology and board eligible in hematology. The ABMS provides the following definitions for physicians who are board certified in the specialty of internal medicine and in the pertinent subspecialties:
Internal Medicine
An Internist is a personal physician who provides long-term, comprehensive care in the office and in the hospital, managing both common and complex illnesses of adolescents, adults, and the elderly. Internists are trained in the diagnosis and treatment of cancer, infections, and diseases affecting the heart, blood, kidneys, joints and the digestive, respiratory, and vascular systems. They are also trained in the essentials of primary care internal medicine, which incorporates an understanding of disease prevention, wellness, substance abuse, mental health, and effective treatment of common problems of the eyes, ears, skin, nervous system, and reproductive organs.
. . . .
Subspecialties
To become certified in a particular subspecialty, a physician must be certified by the American Board of Internal Medicine and complete additional training as specified by the Board.
. . . .
Hematology
An Internist (Hematologist) with additional training who specializes in diseases of the blood, spleen, and lymph. This specialist treats conditions such as anemia, clotting disorders, sickle cell disease, hemophilia, leukemia, and lymphoma.
. . . .
Medical Oncology
An Internist (Medical Oncologist) who specializes in the diagnosis and treatment of
all types of cancer and other benign and malignant tumors. This specialist decides on and administers therapy for these malignancies, as well as consults with surgeons and radiotherapists on other treatments for cancer.
[ABMS Guide to Medical Specialties, 24-25 (2015), http://www.abms.org/media/84812/guide-to-medical specialties_05_2015-2.pdf, last visited June 4, 2015.]
Dr. Levin's board certification and board eligibility in these subspecialties therefore reflect that, like the defendant doctors, he is board certified in internal medicine, but also that he has completed additional training in the subspecialties beyond that of the defendant doctors.
In addition to these credentials, the evidence presented to the trial court supported the conclusion that Dr. Levin practiced in the subspecialties of hematology and oncology rather than the more generalized specialty of internal medicine. He was the director of the cancer center at Holy Name Hospital in Teaneck and Chief of Hematology and Oncology at Brookdale University and Co-Director of Oncology at Brookdale University Hospital and Medical Center in Brooklyn. Dr. Levin maintains an oncology-related website and a blog devoted to defining standards of care in oncology. Dr. Levin is listed as an oncology expert on www.almexperts.com and is also listed in the Independent Medical Examiner's Directory with "IME Specialties" in the areas of hematology and oncology. The record also includes a deposition of Dr. Levin taken in July 2010, a time within the one-year period before the decedent was treated. He testified he spent approximately one day a week at his private practice, a consultative hematology and oncology practice, and the rest of his time consulting in hematology and oncology.
Although plaintiff was given additional time to respond to defendants' motions based upon Dr. Levin's qualifications, he did not present any additional certification or affidavit from Dr. Levin to dispute defendants' characterization of his practice. On appeal, he contends that Dr. Levin's AOM disposed of this issue because it included the statement,
For a period between October 23, 2009 and October 23, 2010, I devoted my professional time to, inter alia, the active clinical practice of Internal Medicine and providing like care.
He argues the court erred in relying upon the submissions of defendants in light of this representation. In the alternative, he argues the court should have conducted a hearing pursuant to N.J.R.E. 104 because a factual dispute was created by Dr. Levin's statement. We disagree.
Our review of N.J.S.A. 2A:53A-41 and the applicable caselaw leads us to conclude that for an expert to be "equivalently credentialed," he or she must satisfy two essential components. The proffered expert must have the same credentials as to specialty and must also have the same type of practice as the defendant doctor.
"The basic principle behind N.J.S.A. 2A:53A-41 is that 'the challenging expert' who executes an affidavit of merit in a medical malpractice case, generally, should 'be equivalently-qualified to the defendant' physician." Buck, supra, 207 N.J. at 389 (quoting Ryan, supra, 203 N.J. at 52). The Court recognized "three distinct categories embodying this kind-for-kind rule" in N.J.S.A. 2A:53A-41(a) and (b): "(1) those who are specialists in a field recognized by the [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.'" Buck, supra, 207 at 389.
For defendants who fall into the first category, "the challenging expert must practice in the same specialty . . . [and] must be a specialist in the same field in which the defendant physician specializes." Nicholas, supra, 213 N.J. at 482. When, as here, the defendant doctor falls into the second category, "the challenging expert must have additional credentials." Ibid. (emphasis added). To challenge the defendant doctors in this case, an expert must practice in the specialty of internal medicine and "either be credentialed by a hospital to treat the condition at issue, N.J.S.A. 2A:53A-41(a)(1) . . . or be board certified in the same specialty in the year preceding 'the occurrence that is the basis for the claim or action,' N.J.S.A. 2A:53A-41(a)(2)." Ibid.
The fact that Dr. Levin is board certified in internal medicine and is credentialed by a hospital to treat the condition at issue does not establish him as equivalently credentialed to the defendant doctors. As the Court noted,
A board-certified expert must also satisfy one of two additional requirements. The physician must have devoted a majority of his professional time in the preceding year to either clinical practice in the specialty or to teaching at an accredited medical school in that specialty.See also Mazur v. Crane's Mill Nursing Home, ___ N.J. Super. ___ (App. Div. 2015) (slip op. at 14).
[Id. at 482 n. 14 (citing N.J.S.A. 2A:53A-41(a)(2)(a), (b)).]
The record here offered strong support for the conclusion that Dr. Levin did not devote a majority of his professional time in the relevant period to clinical practice or teaching in the specialty of internal medicine. We reject plaintiff's contention that this requirement may be satisfied by practice in a subspecialty falling within the penumbra of internal medicine. By definition, a physician who is board certified in hematology or oncology has received additional training in the subspecialty. It would undermine the policy underlying the kind-for-kind rule for a physician with such specialized training to opine regarding the standard of care applicable to a physician practicing in the more generalized specialty. See Nicholas, supra, 213 N.J. at 486 ("The apparent objective of N.J.S.A. 2A:53A-41 is to ensure that, when a defendant physician is subject to a medical-malpractice action for treating a patient's condition falling within his ABMS specialty, a challenging plaintiff's expert, who is expounding on the standard of care, must practice in the same specialty.") (emphasis added).
Dr. Levin's assertion that he "devoted [his] professional time to, inter alia, the active clinical practice of Internal Medicine and providing like care" during the relevant time period falls far short of the standard, which requires a challenging expert to spend "a majority of his professional time in the preceding year" to clinical practice or teaching in the relevant specialty. Since this statement in the AOM failed to present a genuine issue of fact, no evidentiary hearing or additional discovery was required. The trial court correctly concluded Dr. Levin was not qualified to render an expert opinion or author an AOM against the defendant doctors. Accordingly, the claims against the defendant doctors and OLOL were properly dismissed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION