The Evil Hydra & the N.J. Affidavit of Merit Statute

What do the two have in common? 

medical malpractice Affidavit of Merit

The heads keep growing back

The Hydra, in Greek mythology, is a serpent-like water beast with many heads. Every time a head is cut off, two new heads grow in its place. The Hydra’s breath is poisonous. The N.J. Affidavit of Merit Statute is poison to victims of medical malpractice.  The Hydra of Lerna was slain by Hercules. Fortunately for the citizens of New Jersey injured by the professional negligence of physicians , six (6) out of seven (7) Justices of the N.J. Supreme Court continue to cut off the heads of the Hydra.

Ryan v. Renny, A-50-09

In Ryan v. Renny, A-50-09, the N.J. Supreme Court interpreted the waiver provision contained in the N.J. Medical Care Access & Responsibility and Patients First Act, N.J.S.A. 2A:5A-37 to 42, which modified the Affidavit of Merit Statute, N.J.S.A. 2A:5A-26 to 29, as it pertained to the unsuccessful, good faith effort of Plaintiff’s lawyer to secure an Affidavit of Merit from a physician board certified in the same specialty as the defendant gastroenterologist. Here’s a link to my blog post summarizing the decision, and providing a copy of the complete opinion.

The Court voted 6-1 in favor of allowing Plaintiff’s lawyer to submit an Affidavit of Merit from a non-board-certified physician to certify that the actions of a board-certified specialist did not meet the required standard of care. Inherent in the opinion authored by Justice Long, the Court recognized the difficulty in securing an  Affidavit of Merit from a physician in the same specialty as Defendant. I am wondering who, except dissenting Justice Rivera-Soto, doesn’t know most physicians practicing in the same specialty,  would rather have their toes cut off than to help a victim of medical negligence in a medical malpractice case against a colleague?

Passion meets unrestrained hyperbole

I love passion. It makes men and women reach for the stars, and accomplish wonderful things that otherwise may be left undone . However, passion and unrestrained hyperbole is a lethal mix when it comes to writing Supreme Court decisions. Here are some excerpts from Justice Rivera-Soto’s hyperbolic dissent:

Giving bare passing reference to the core principles of
statutory construction intended to govern the interpretation of
statutes, ante at ___ (slip op. at 18-19), the majority contort
the plain language of the Affidavit of Merit statute (AMS),
N.J.S.A. 2A:53A-26 to -29, as modified by the New Jersey Medical
Care Access and Responsibility and Patients First Act (Medical
Care Access Act), N.J.S.A. 2A:53A-37 to -42. It does so to
achieve a result: to preserve plaintiff’s claim and to rescue
plaintiff’s counsel from the consequences of his own,
unexplained inaction. Because that result comes at the expense
of untold violence to a clear and unambiguous legislative
direction and, more to the point, unconscionably denies a
defendant a right specifically granted to him by the Legislature
— the right to be free of malpractice claims of questionable
merit — I dissent. (emphasis added).

Everyday common sense tells us that, until a waiver is
granted, a non-conforming affidavit of merit — that is, one
from someone other than a board-certified physician who is
certified in the same specialty or subspecialty as the defendant
— is simply no affidavit of merit at all. At the very core of this Court’s inherent worth as a
necessary and relevant institution of government is a
straightforward proposition: that it say what it means, and
mean what it says. Observance of that simple tenet requires
that this Court reaffirm the principles of diligence to and
compliance with unambiguous statutory requirements designed to
keep judicial decision-making from free-falling into chaos. The
contradictory message delivered by the majority today, however,
stands in stark opposition to those principles.

Instead the majority announces that those who are not diligent and choose to
ignore their obligations need not fear for they will be rescued,regardless of the cost to other litigants, to the judicial system, or to the basic respect owed to a co-equal branch of
government. In doing so, clearly phrased legislative requirements — the AMS and the Medical Care Access Act — now are relegated to a subsidiary role; those statutes have  become judicially neutered scarecrows, providing a warning heeded by
the diligent but having no lingering effect on the scavengers.
That process rewards the willful disregard of a legislative
mandate; it results in the needless nullification of a
thoughtful and reasoned legislative scheme; and it tramples the
right to be free of malpractice claims lacking in merit — a
right the Legislature intentionally and unequivocally granted to
defendant.9 For each of those reasons, I dissent.

NJ medical malpractice lawyer

Ssssh....I'm thinking

Commentary

Defendant Renny performed a routine colonoscopy on Abby Ryan. The result was a large perforation of her colon. A highly qualified doctor, board certified in general surgery, who performed over one hundred (100) colonoscopies in his career, among other notable qualifications, authored an Affidavit of Merit. Good facts make good law. If the author of Plaintiff’s Affidavit of Merit had been a chiropractor, the Plaintiff was toast.

Justice Rivera-Soto’s dissent seems to overlook the fact there is a victim behind his unrestrained hyperbole.  Was it really the intent of the legislature to shield Defendant Renny from this malpractice claim; or was it the intent of the legislature to give Abby Ryan her day in court? Was the hole in her colon within the scope of the risk of a routine colonoscopy? If yes, than case dismissed. On the other hand, if the jury finds it was a deviation on Defendant Renny’s part that caused the hole, than Ms. Ryan is entitled to her just compensation.

Do we really need to read about…Chaos, judicially neutered scarecrows, contort, untold violence, rescue? I think one of the Justice’s footnotes explaining his interpretation of Plaintiff’s silence about the reasons three (3) board certified  gastroenterologist refused to participate in the case against a colleague is very enlightening:

That concern has poignantly added weight here, where
plaintiff disclosed that she sought supporting opinions from
three geographically disparate experts obviously aligned with
and recommended by medical malpractice plaintiff’s counsel.
Despite such auspicious beginnings, each of those experts
refused to provide the affidavit of merit plaintiff needed to
proceed and, not surprisingly, plaintiff fails to tell us why.
Although some may conjure up sundry neutral reasons those
experts refused to support plaintiff’s claim, the self-evident
reason glaringly remains: those experts refused to swear that
plaintiff’s claim had merit because it patently did not. That
fact, standing alone, underscores the reasoning and need for
competent and meaningful affidavits of merit as required by both
the AMS and the Medical Care Access Act.”

Who amongst the plaintiff’s medical malpractice bar hasn’t had the phone slammed down, curt replies, and minimal conversations with their OWN medical expert witness;  let alone a physician who is loath to participate in a case against a fellow board certified physician? I am proud to disclose my bias.  I am a dyed in the polyester, life long, passionate attorney, who represents accident victims.

What do you think? A well-reasoned dissent? Please read the entire dissent before forming your opinion.


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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information, tips and tricks to help drivers beat NYC parking tickets.

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