EMAIL TO A FRIEND COMMENT

 

Expert in Same Specialty Required for Each Specialist Participating in Surgery


A woman injured her neck in a motor vehicle accident. About a year and a half later she underwent spinal surgery while she was under endotracheal anesthesia. The procedure was performed by two doctors, a neurosurgeon and an orthopedic surgeon.

 

The woman was discharged from the hospital on the same day as the surgery, but that afternoon she had difficulty breathing and her neck swelled. She returned to the hospital. The complications were determined to have been the result of a tear in her pharynx caused by insertion of the anesthesia tubes during the surgery. The tear was repaired by emergency surgery, and she remained hospitalized for several weeks. Later that year, she experienced further complications from the original spine surgery and additional surgery had to be performed to correct her condition.

 

The woman sued the neurosurgeon and the orthopedic surgeon for medical malpractice. In support of her claim, the woman filed an affidavit of merit by a board certified neurological surgeon specializing in spinal surgery. The orthopedic surgeon moved to dismiss the complaint on the ground that the woman’s expert affidavit did not comply with the requirements of N.J.S.A. 2A:53A–41 because the expert did not specialize and was not board certified in orthopedic surgery. Originally, the Atlantic County Superior Court of New Jersey, Law Division, denied the orthopedic surgeon’s motion to dismiss.

 

During discovery the New Jersey Supreme Court held in Nicholas v. Mynster, 213 N.J. 463 (2013) that N.J.S.A. 2A:53A–41 required that “[w]hen 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.” The plaintiff in Nicholas was required to produce an affidavit of merit by a specialist in each of the two defendant doctors' specialties despite the overlapping areas of their practice and their treatment of the same condition in the patient.

 

Within weeks of the Nicholas decision, immediately before this case’s trial date, the orthopedic surgeon filed a motion in limine that again challenged the woman’s expert's qualification to testify against him under N.J.S.A. 2A:53A–41. The trial court determined, in light of Nicholas, that the woman’s expert’s affidavit did not comply with N.J.S.A. 2A:53A–41 and that the woman’s expert would not be permitted to testify at trial in support of her claim that the orthopedic surgeon committed malpractice. Initially, the trial court allowed the woman two months to find another expert. However, the orthopedic surgeon filed a motion to reconsider.

 

The trial court issued an order vacating the portion of its order granting the woman the opportunity to file a new affidavit of merit and expert report. Because the result of the court's ruling was that the woman did not have a qualified expert for trial against the orthopedic surgeon, the court also granted summary judgment to the orthopedic surgeon and dismissed the woman's complaint against him with prejudice.

 

The Appellate Division of the Superior Court of New Jersey affirmed the trial court’s order finding the woman’s expert not qualified to testify, but reversed the order to dismiss, and remanded. The court held that the trial court correctly ruled that the woman’s expert neurosurgeon was not qualified to testify as an expert against the orthopedic surgeon, however, the trial court erred when it precluded the woman from producing a new expert to replace the neurosurgeon.

 

The trial court correctly ruled that the woman’s expert neurosurgeon was not qualified to testify as an expert against the orthopedic surgeon. A plaintiff’s expert must practice the same specialty as a defendant. The court reasoned that the woman's surgery involved both the orthopedic surgeon's specialty of orthopedic surgery and the neurosurgeon's specialty of neurological surgery. The court concluded that the woman was required to present an expert witness who specialized in orthopedic surgery to support her claim against the orthopedic surgeon. The court noted that the statutes pertaining to the qualifications of expert witnesses in medical malpractice actions did not recognize specialties or subspecialties that are not listed by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association (AOA), such as spine surgery.

 

The trial court erred when it precluded the woman from producing a new expert to replace the neurosurgeon. The woman should have had the opportunity to replace the neurosurgeon as an expert witness given the circumstances. Like those cases where an expert had to be replaced at the eleventh hour because of unforeseen developments in the case, the post-Nicholas ruling favorable to the orthopedic surgeon just before trial was unforeseen by the woman and should not have deprived her of a witness and undercut her case at the last minute. The court concluded that the woman should have the opportunity to seek a new expert.

 

The Appellate Division of the Superior Court of New Jersey affirmed the trial court’s order finding the woman’s expert not qualified to testify, but reversed the order to dismiss, and remanded.

 

See: Williams v. AtlantiCare Regional Medical Center, 2014 WL 4328205 (N.J.Super.A.D., September 3, 2014) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

 

REPRINTS & PERMISSIONS COMMENT