Opinion
DOCKET NO. A-4436-11T4
06-25-2013
MICHAEL PARKER, Administrator and Administrator ad Prosequendum for the Estate of MILDRED PARKER, and MICHAEL PARKER, Individually, Plaintiffs-Appellants, v. BASEL BATARSEH, M.D., WARREN MARESCA, M.D., CARDIOLOGY ASSOCIATES, MICHAEL BIEHL, M.D., CARDIOLOGY CONSULTANTS OF NORTH JERSEY, ADVANCED CARDIOLOGY PRACTICE, LORRAINE CORNWELL, M.D., MOHAMED RABBAT, M.D., ALI ZAHRAN, M.D., ST. JOSEPH MEDICAL CENTER, and LABCORP, INC., Defendants-Respondents.
Barbara K. Lewinson argued the cause for appellants (Ms. Lewinson, attorney; Jeffrey Zajac, on the brief). Pamela C. Castillo argued the cause for respondent Basel Batarseh, M.D. (Reiseman, Rosenberg, Jacobs & Heller, PC, attorneys; Ms. Castillo, on the brief). Mary Grace Callahan argued the cause for respondent Michael Biehl, M.D., and Cardiology Consultants of North Jersey, P.A. (Callan, Koster, Brady & Brennan, LLP, attorneys; Ms. Callahan, on the brief). Eric L. Grogan argued the cause for respondents Warren Maresca, M.D. and Cardiology Associates, LLC (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Rogan, Walter F. Kawalec, III, and Justin F. Johnson, on the brief). Rowena M. Duran argued the cause for respondent Lorraine Cornwell, M.D. (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Duran, of counsel; Linda Fulop-Slaughter, on the brief). Charles E. Murray argued the cause for respondents Mohamed Rabbat, M.D., Ali Zahran, M.D. and St. Joseph's Regional Medical Center (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Jennifer S. Gianetti, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2082-11.
Barbara K. Lewinson argued the cause for appellants (Ms. Lewinson, attorney; Jeffrey Zajac, on the brief).
Pamela C. Castillo argued the cause for respondent Basel Batarseh, M.D. (Reiseman, Rosenberg, Jacobs & Heller, PC, attorneys; Ms. Castillo, on the brief).
Mary Grace Callahan argued the cause for respondent Michael Biehl, M.D., and Cardiology Consultants of North Jersey, P.A. (Callan, Koster, Brady & Brennan, LLP, attorneys; Ms. Callahan, on the brief).
Eric L. Grogan argued the cause for respondents Warren Maresca, M.D. and Cardiology Associates, LLC (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Rogan, Walter F. Kawalec, III, and Justin F. Johnson, on the brief).
Rowena M. Duran argued the cause for respondent Lorraine Cornwell, M.D. (Vasios, Kelly & Strollo, P.A., attorneys; Ms. Duran, of counsel; Linda Fulop-Slaughter, on the brief).
Charles E. Murray argued the cause for respondents Mohamed Rabbat, M.D., Ali Zahran, M.D. and St. Joseph's Regional Medical Center (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Jennifer S. Gianetti, on the brief). PER CURIAM
In this medical malpractice case, plaintiffs appeal from three orders dismissing the complaint against defendants for failure to comply with the Affidavit of Merit statute (AMS), N.J.S.A. 2A:53A-26 to -29. Our opinion particularly focuses on the following individual doctors, excluding Zahran: Batarseh (an internist and infectious disease doctor), Rabbat (an infectious disease physician), Maresca (a cardiologist), Biehl (a cardiologist), and Cornwell (a thoracic and cardiovascular surgeon) (collectively referred to as "the doctor defendants").
On November 30, 2011, the judge dismissed the complaint as to defendants Basel Batarseh, M.D., St. Joseph's Regional Medical Center (St. Joseph's), Mohamed Rabbat, M.D., and Ali Zahran, M.D. On January 27, 2012, he dismissed the complaint as to defendants Warran Maresca, M.D., Cardiology Associates, LLC. (CA), Michael Biehl, M.D., and Cardiology Consultants of North Jersey (CCNJ), P.A. And on April 18, 2012, the judge dismissed the complaint as to defendant Lorraine Cornwell, M.D. We affirm the dismissals as to St. Joseph's, CA, CCNJ, and Zahran because they are not named in any affidavit of merit (AOM).
Because of the multiplicity of physicians involved in this matter as parties and affiants we omit the title "Dr." before each of their last names in the interests of brevity. We intend no disrespect in doing so.
It is undisputed that plaintiffs failed to serve a timely affidavit of merit (AOM) on the doctor defendants, except for Cornwell. Plaintiffs' counsel, who presents herself as a solo practitoner, certified that she did not serve timely AOMs due to her own injuries which required two hospitalizations and interrupted her ability to work for eight weeks.
The additional attorney identified on plaintiffs' main appellate brief is apparently not from the same law office.
The appeal presents questions regarding estoppel and laches, substantial compliance, extraordinary circumstances, and whether plaintiffs served AOMs from individuals who possess the requisite statutory qualifications. Although we reject the application of estoppel and laches as to the doctor defendants except Cornwell, we conclude that plaintiffs have demonstrated substantial compliance with the AMS by serving AOMs from qualified experts and therefore reverse the orders as to the individual doctors.
I.
On April 29, 2011, plaintiffs filed the complaint. Plaintiffs allege that an infected cardiac pacemaker device caused decedent Mildred Parker's continued chills and fever and ultimate demise, and that the doctor defendants failed to diagnose that infection timely. We discern the alleged facts from the pleadings, briefs, and record on appeal, subject to the proofs that may be adduced at a trial.
In 1998, Biehl implanted a pacemaker in decedent as a result of her history of rheumatic heart disease and congenital complete heart block. In February 2009, decedent complained of dizziness and tiredness, fullness in her throat and chest, and recurrent night sweats. That month, her pacemaker was evaluated at St. Joseph's and Biehl prescribed Augmentin.
In March 2009, decedent complained to Biehl that she was experiencing palpitations and continued dizziness. Biehl recommended an ear, nose, and throat consult and testing to assess her cardiac rhythm. On March 16, 2009, Biehl diagnosed decedent with a junctional rhythm, pacemaker syndrome. At that time, decedent complained of increasingly worse and recurrent palpitations as well as an uncomfortable choking sensation. Biehl requested that decedent follow up with him in four weeks.
On March 27, 2009, decedent was admitted to St. Joseph's as a result of fever and chills. Biehl recommended a transesophageal echocardiogram and an infectious disease consult for her fever. On April 13, 2009, decedent continued to complain to Biehl that she had a fever and chills. Biehl then recommended a blood culture and a consult with Rabbat. Decedent was discharged but her symptoms of fever and chills returned, which were then suppressed with Tylenol. Decedent also complained of leg numbness, low tolerance for exercise, and blue nails and lips.
In April 2009, decedent was re-admitted to St. Joseph's because her fever and chills persisted. Her blood culture was positive for staphylococcus auricularis. Batarseh referred decedent to Biehl, who then recommended an infectious disease consultation. The record does not reflect the upshot of that consultation. On or about April 29, 2009, decedent underwent surgery and died within hours.
It is unclear from the record what procedure was performed; however, plaintiffs' counsel states in her brief that an infected mass about "the size of a grapefruit" was removed from decedent's chest.
On appeal, plaintiffs argue that defendants are estopped and barred by the doctrine of laches from moving to dismiss the complaint, and that the judge erred by failing to find that plaintiffs demonstrated substantial compliance and extraordinary circumstances. Before we analyze these contentions, we summarize some well-settled general principles regarding the AMS.
II.
In Ferreira v. Rancocas Orthopedic, 178 N.J. 144, 150 (2003), the Court stated that the dual purpose of the AMS statute is "to weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court." (Internal quotation marks omitted); see also Buck v. Henry, 207 N.J. 377, 383 (2011) (indicating that "[t]he purpose of the [AMS] is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones").
N.J.S.A. 2A:53A-27 provides that
[i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within [sixty] days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed personThe Supreme Court recognized three procedural requirements under the AMS:
that there exists a reasonable probability that the care, skill[,] or knowledge exercised or exhibited in the treatment, practice[,] or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. The court may grant no more than one additional period, not to exceed [sixty] days, to file the affidavit pursuant to this section, upon a finding of good cause.
First, the plaintiff must show that the complaint is meritorious by obtaining an affidavit from an appropriate, licensed expert attesting to the reasonable probability of professional negligence. Second, the affidavit must be provided to the defendant within sixty days of the filing of the answer or, for good cause shown, within an additional sixty-day period. Third, the 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.Two equitable remedies temper an inflexible application of the AMS. "A complaint will not be dismissed if the plaintiff can show that he has substantially complied with the statute." Id. at 151. And, even in the absence of substantial compliance, "a complaint will be dismissed without prejudice if there are extraordinary circumstances to explain noncompliance." Ibid.
[Ferreira, supra, 178 N.J. at 149-50 (citations omitted) (internal quotation marks omitted).]
"Attorney inadvertence is considered 'good cause' within that sixty-one to 120-day period." Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010).
III.
We first reject, with one exception, plaintiffs' estoppel argument and related contention that defendants are barred from filing motions to dismiss based on the doctrine of laches. Plaintiffs' and defense counsel in malpractice cases have "strong incentives" to act diligently. The Ferreira Court explained that
[i]n a case where the plaintiff has in hand an affidavit within the 120-day statutory period and serves the affidavit on defense counsel outside that time frame but before defense counsel files a motion to dismiss, the defendant shall not be permitted to file such a motion based on the late arrival of the affidavit. 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.The preliminary questions, therefore, are, first, whether plaintiffs' counsel had in hand a respective AOM for each defendant within the 120-day statutory period tied to the filing date of each answer; and, second, whether she served the AOM beyond that deadline but before each defendant filed a motion to dismiss.
[Ferriera, supra, 178 N.J. at 154 (emphasis added).]
Batarseh filed his answer on June 9, 2011. Plaintiffs had 120 days, or until October 6, 2011, to file an AOM. On October 17, 2011, Batarseh filed a motion to dismiss for failure to serve the AOM. On November 16, 2011, plaintiffs' counsel served a November 14, 2011 report by Lincoln P. Miller, M.D. (Miller report), who is board-certified in infectious diseases. The Miller report is entitled "affidavit of merit." On November 26, 2011, plaintiffs' counsel then served Miller's AOM (Miller AOM) on Batarseh. Thus, Batarseh's motion to dismiss was filed timely.
The Miller report names Batarseh, Maresca, Biehl, and Rabbat.
The Miller AOM names only Maresca.
Biehl (a cardiologist) filed his answer on July 23, 2011. Plaintiffs had 120 days, or until November 21, 2011, to file an AOM against Biehl. Plaintiffs served two AOMs on Biehl. On November 16, 2011, plaintiffs' counsel served the Miller report, and Biehl's counsel called plaintiffs' counsel and issued a written objection that day. On December 9, 2011, plaintiffs' counsel served an AOM by John F. Setaro, M.D. (Setaro AOM) on Biehl. On December 15, 2011, Biehl's counsel filed a motion to dismiss. Plaintiffs' counsel did not have the Setaro AOM in hand within 120 days of July 23, 2011. Thus, Biehl filed his motion to dismiss timely.
Setaro is board-certified in internal medicine and cardiovascular disease. His qualification to issue an AOM against the cardiology defendants is undisputed.
It is unclear whether plaintiffs also served on Biehl the Miller AOM; however, we conclude, infra section VI, that Miller (a specialist in infectious diseases) is statutorily unqualified to render opinions against Biehl (a cardiologist).
Maresca (a cardiologist) filed his answer on June 27, 2011. The 120 days expired on October 24, 2011. On November 16, 2011, plaintiffs served the Miller report, and on November 26, 2011, plaintiffs served the Miller AOM. On December 9, 2011, plaintiffs' counsel served the Setaro AOM. On December 13, 2011, Maresca filed his motion to dismiss. Plaintiffs' counsel did not have in hand the Setaro AOM before the expiration of the 120-day deadline. Thus, Maresca filed his motion to dismiss timely.
As in the case of Biehl, see infra section VI, Miller is statutorily unqualified to render opinions against Maresca, a cardiologist.
Rabbat, St. Joseph's, and Zahran (collectively "the Rabbat defendants") filed their answer on June 15, 2011, and the 120- day deadline expired on October 12, 2011. On October 19, 2011, the Rabbat defendants filed their motion to dismiss. On November 16, 2011, plaintiffs' counsel served the Miller report naming Rabbat (although not St. Joseph's or Zahran). Therefore, the Rabbat defendants filed their motion to dismiss timely.
Cornwell (a surgeon) and plaintiffs disagree on the filing date of Cornwell's answer. Cornwell contends that she filed her answer on October 6, 2011. Plaintiffs' counsel asserts that Cornwell's counsel copied her on a letter to the court dated October 19, 2011 attempting to file an answer, which was also dated October 19, 2011, apparently because the court had not actually filed the original answer. Giving plaintiffs' counsel the fair benefit of the doubt, we conclude that the 120-day deadline expired on February 15, 2012, and not the earlier date advocated by Cornwell's attorney. On February 6, 2012, plaintiffs served an AOM from Irvin B. Krukenkamp, M.D. (a cardiothoracic surgeon) (the Krukenkamp AOM). On February 15, 2012, Cornwell filed her motion to dismiss the complaint. Thus, her motion was untimely.
Aside from Cornwell, we conclude from the circumstances presented that plaintiffs have failed to additionally show that Batarseh, Biehl, Maresca, and Rabbat are equitably estopped from moving to dismiss. See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (stating that equitable estoppel requires a showing that a party "engaged in conduct, either intentionally or under circumstances that induced reliance, and that [the other party] acted or changed [its] position to their detriment"). Batarseh, Biehl, Maresca, and Rabbat acted diligently by filing their motions to dismiss timely and did not engage in conduct causing plaintiffs to change their position to their detriment.
Furthermore, plaintiffs have not shown that Batarseh, Biehl, Maresca, and Rabbat should be barred by the doctrine of laches from moving to dismiss. "Laches is an equitable doctrine that applies when a party sleeps on [his or] her rights to the harm or detriment of others." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 445 (2012) (citing Fox v. Millman, 210 N.J. 401, 417 (2012)). The doctrine may be "'invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party.'" Fox, supra, 210 N.J. at 418 (quoting Knorr, supra, 178 N.J. at 180-81). "Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Knorr, supra, 178 N.J. at 181 (citation omitted). Consequently, laches is inapplicable where the defense would lead to an inequitable result. See Linek v. Korbeil, 333 N.J. Super. 464, 475 (App. Div.) (holding the "tools of equity jurisprudence cannot validly be used to sponsor an inequitable result"), certif. denied, 165 N.J. 676 (2000)).
IV.
We agree, however, that plaintiffs have demonstrated substantial compliance with the AMS. The doctrine of substantial compliance requires a party to show
(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of [a plaintiff's] claim; and (5) a reasonable explanation why there was not strict compliance with the statute."The doctrine of substantial compliance is an equitable one which is utilized 'to avoid the harsh consequences that flow from technically inadequate actions that nonetheless meet a statute's underlying purpose.'" Cnty. of Hudson v. State, Dep't of Corrections, 208 N.J. 1, 21 (2011) (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 352 (2001)). Here, proper application of the doctrine justifiably avoids the harsh consequence of dismissal.
[Ferriera, supra, 178 N.J. at 151 (internal quotation marks omitted).]
The first consideration is whether defendants have been prejudiced. On this record, we are unable to conclude that the doctor defendants have been prejudiced by the service of the Miller report and the AOMs from Miller, Setaro, or Krukenkamp. See Mayfield v. Cmty. Med. Accocs., P.A., 335 N.J. Super. 198, 207 (App. Div. 2000) (holding that "no prejudice [whatsoever] . . . would result to defendants, other than that they would have to defend against a potentially meritorious claim, which is not legal prejudice, and noting that a procedural disposition "would warrant visiting on the innocent clients an error of their attorney").
The second consideration requires plaintiffs to demonstrate a series of steps to comply with the AMS. Plaintiffs' counsel contacted Miller before filing the complaint and timely obtained medical records for him to review. On October 20, 2011, while still recovering from surgery and before the 120-day deadline expired as to the majority of defendants, plaintiffs' counsel wrote to the court notifying the judge about her medical condition and requesting a case management conference. Shortly thereafter, albeit outside of the 120 days for several of defendants, she served the Miller report, the Miller AOM, the Setaro AOM, and the Krukenkamp AOM.
On November 28, 2011, after the expiration of the 120-day deadline, the court conducted a Ferriera conference.
The third factor requires plaintiffs to show general compliance with the purpose of the AMS. Plaintiffs' counsel consulted three experts to determine the strength of plaintiffs' case and to ensure that her clients with potentially meritorious claims would have their day in court. The fact that the Miller AOM neglects to track the Miller report and include the other defendants that he criticized apart from Maresca, becomes inconsequential under this analysis. Therefore, plaintiffs' counsel demonstrated that she attempted to comply with the purpose of the AMS. See Ferreira, supra, 178 N.J. at 150-51.
The fourth factor requires plaintiffs to show reasonable notice of the claim. The judge concluded that defendants were on notice of plaintiffs' claims as a result of Miller's report and AOM. We agree. Miller opined in his report that Batarseh, as the primary physician, failed to diagnose decedent's infection pertaining to complications related to an infected pacemaker device. Miller concluded that had Batarseh diagnosed the condition sooner, decedent would have likely survived. Regarding the two cardiologists, Miller stated in his report that in March 2009, decedent was admitted into St. Joseph's due to experiencing fever and chills for months. Miller explained that the decedent was "found to have a pulmonary embolus and an occluded superior vena cava." Decedent was then released, medicated, and, three weeks later, readmitted and diagnosed with a "pacemaker-associated infection." Miller opined that had the cardiologists made timely diagnoses, decedent would likely have survived. Miller maintains that Rabbat, the "infectious disease physician," failed to order "another diagnostic test (Gallium or Indium WBC scan) or consult a cardiac surgeon." Thus, Miller's report, which was later amplified by the Setaro AOM, provides sufficient notice of the basis for plaintiffs' malpractice claims against Batarseh, Maresca, Biehl, and Rabbat. See Fink v. Thompson, 167 N.J. 551, 561 (2001) (finding substantial compliance when the defendant was served with an affidavit that did not name him, but he was nonetheless on notice of the claim against him as the result of service of an expert's report that discussed defendant's role in the alleged malpractice); see also Mayfield, supra, 335 N.J. Super. at 208 (indicating that the complaint, among other documents, provided notice to the defendants).
Although Miller is not a cardiologist, he provided adequate notice of plaintiffs' claims against Biehl and Maresca, claims that plaintiffs fortified through the service promptly thereafter of the Setaro AOM.
The fifth factor requires plaintiffs to provide a reasonable explanation for why there was not strict compliance with the AMS. Plaintiffs' counsel certified that she intended to file the AOMs by the end of the summer of 2011 but suffered from two unexpected serious medical problems. She was hospitalized for five days in late August 2011 due to complications regarding kidney stones. She returned from the hospital and then in or around mid-September 2011, plaintiffs' counsel fell and fractured her hip, requiring surgery. Plaintiffs' counsel certified that she was "out of [her] office and mentally out of touch with [her] practice due in part to the pain and nausea medications for approximately eight weeks." Defendants have provided no competing factual certification.
We therefore conclude that plaintiffs have shown that they substantially complied with the AMS by sufficiently demonstrating lack of prejudice, a series of steps taken to comply with the AMS, a general compliance with the purpose of the AMS, reasonable notice of the claims, and a reasonable explanation regarding why there was not strict compliance with the AMS.
V.
Plaintiffs' counsel separately argues that her medical condition constituted extraordinary circumstances. We note that "[w]here extraordinary circumstances are present, a late affidavit will result in dismissal without prejudice." Paragon Contrs., Inc., supra, 202 N.J. at 422-23. Even if we were to agree with plaintiffs' proposition that two hospitalizations involving a fractured hip and complications pertaining to kidney stones, together with counsel's representation that she was "mentally out of touch with [her] practice in part [due] to the pain and nausea medications for approximately eight weeks," constituted extraordinary circumstances, the statute of limitations had expired. Nevertheless, because we conclude that plaintiffs demonstrated substantial compliance with the AMS, we need not reach plaintiffs' extraordinary circumstances argument and her claim that the trial court unfairly required her, as a solo practitioner, to obtain back-up coverage from another attorney while she was recovering from her injury.
We do note, however, that this is not a situation where inadvertence by plaintiffs' counsel led to the inability to comply strictly with the AMS. See Tischler v. Watts, 177 N.J. 243, 246-47 (2003) (indicating that attorney inadvertence does not constitute "extraordinary circumstances"); Palanque v. Lambert-Woolley, 168 N.J. 398, 405 (2001) (same). Rather, plaintiffs' counsel has attested that she was physically and mentally incapacitated for approximately eight weeks due to limitations attendant to her surgery, as well as the pain and nausea medications. Whether an attorney who is so debilitated has a duty to obtain temporary substitute counsel is a difficult question that we need resolve.
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VI.
We now address the question of the requisite qualifications of Miller, Setaro, and Krupenkamp. We conclude that because they collectively meet the necessary statutory criteria, Miller may opine regarding Batarseh and Rabbat, Setaro may opine pertaining to Biehl and Maresca, and Krukenkamp may opine as to Cornwell. We reach this conclusion by applying existing principles pertinent to the AMS in the context of medical malpractice cases.
In Nicholas v. Mynster, 213 N.J. 463, 481-82 (2013), the Court held that pursuant to the New Jersey Medical Care Access and Responsibility and Patients First Act (Patients First Act, or Act), L. 2004, c. 17, codified in part at N.J.S.A. 2A:53A-41, a plaintiff's medical expert must possess the same specialty or subspecialty as the defendant physician. N.J.S.A. 2A:53A-41 provides in part that
[i]n an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L. 1995, c. 139 ([N.J.S.A.] 2A:53A-26 et seq.) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:
a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist . . . and the
care or treatment at issue involves that specialty or subspecialty . . . , 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 or subspecialty, . . . , as the party against whom or on whose behalf the testimony is offered, 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 or subspecialty . . . , 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 or subspecialist . . . who is board certified in the same specialty or subspecialty, . . . , 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 the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist . . . , the active clinical practice of that specialty or subspecialty . . . ; or
(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care
profession in which the defendant is licensed, and, if that party is a specialist or subspecialist . . . , an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the American Board of Medical . . . ; or
(c) both.
b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, 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:In Buck, supra, 207 N.J. at 396, decided on August 22, 2011, the Court "[f]rom this point forward" required a physician defending a malpractice claim to designate in his answer "the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty." This requirement ensures the likelihood of providing an affidavit that conforms with the AMS. Ibid. Defendants did not satisfy this requirement, although we recognize that most of them filed their answers before Buck was decided.
(1) active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or
(2) the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or
(3) both.
[(Emphasis added).]
"When a physician is a specialist and the basis of the malpractice action 'involves' the physician's specialty, the challenging expert must practice in the same specialty." Nicholas, supra, 213 N.J. at 481-82 (quoting Buck, supra, 207 N.J. at 391); see also Ryan v. Renny, 203 N.J. 37, 52 (2010) (stating that Patients First Act provides "more detailed standards for a testifying expert and for one who executes an affidavit of merit, generally requiring the challenging expert to be equivalently qualified to the defendant"). Thus, "the first inquiry must be whether a physician is a specialist or general practitioner." Nicholas, supra, 213 N.J. at 486 (quoting Buck, supra, 207 N.J. at 391). Plaintiffs' AOM affiants are all specialists and so are the doctor defendants.
Miller is board-certified in internal medicine and infectious diseases, and in his AOM he identified himself as a specialist in infectious diseases. Applying the statutory criteria of the Patients First Act, Miller has the requisite statutory qualifications to issue an AOM against Batarseh and Rabbat, but not against Biehl and Maresca.
Batarseh's counsel identifies Batarseh as "a board-certified internal medicine specialist who was treating the decedent for a condition within his specialty of internal medicine (an infection)." Batarseh argues that Miller -- an infectious disease practitioner -- practiced a different specialty than he because Batarseh is an internist. An infectious disease specialist does not practice a different specialty than an internist, but rather is an internist that has further specialized in infectious disease, a field within the umbrella of internal medicine. See Infectious Disease Policies, Am. Bd. of Internal Med., https://www.abim.org/certification/ policies/imss/id.aspx (last visited June 13, 2013) (stating that to receive a board certification in infectious disease, one must already be a practicing internist with a board certification in internal medicine). Likewise, Rabbat is board-certified in internal medicine and infectious diseases, the same medical specialty as Miller.
Biehl and Maresca are board-certified cardiologists who rendered treatment in that specialty. Setaro is board-certified in internal medicine and cardiovascular disease, and he identified himself as a specialist in these two areas. He targets Biehl and Maresca in his AOM. We therefore conclude, as defense counsel concedes, that Setaro is qualified to issue an AOM against Biehl and Maresca within the meaning of the Patients First Act.
Finally, it is undisputed that Krukenkamp and Cornwell share the same board certification and specialties. Krukenkamp is board-certified in thoracic surgery, and he identified himself as a specialist in thoracic and cardiovascular surgery. Cornwell is board-certified in general surgery with a subspecialty certification in thoracic and cardiac surgery. Cornwell contends that Krukenkamp is statutorily unqualified to offer an AOM because he is neither credentialed by a hospital to practice the specialty of thoracic surgery nor does he devote a majority of his professional time to either active clinical practice of the specialty or instruction of students in the specialty.
The question is whether Krukenkamp is appropriately qualified as an instructor of medical students under N.J.S.A. 2A:53A-41(a)(2)(b). We agree with the judge that Krukenkamp is so qualified. Krukenkamp certified "that the majority of [his] professional activity was devoted to the teaching of medical students, surgical residents, doctoral and postdoctoral candidates in clinical thoracic surgery . . . ." Cornwell contends that because Krukenkamp no longer teaches "in the classical sense of a didactic classroom setting," he is not qualified to offer an opinion. Krukenkamp educates students, however, in both a clinical setting as well as a research environment. This is sufficient pursuant to N.J.S.A. 2A:53A-41(a)(2)(b).
VII.
In conclusion, we affirm the dismissal as to Zahran, St. Joseph's, CA, and CCNJ, because plaintiffs did not serve an AOM against them. We conclude that plaintiffs substantially complied with the AMS and reverse as to the remaining doctor defendants.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION