Buck v. Henry

25 A.3d 240, 207 N.J. 377, 2011 N.J. LEXIS 924

Opinions

Justice ALBIN

delivered the opinion of the Court.

In the early stages of a medical malpractice action, a plaintiff must provide an affidavit from an equivalently credentialed physician attesting “that there exists a reasonable probability that the” defendant physician’s treatment “fell outside acceptable professional” standards. See N.J.S.A. 2A:53A-27. Under the Affidavit of Merit statute, N.J.S.A 2A:53A-26 to -29, the failure to file an appropriate affidavit within the statutory time limits may result in dismissal of even meritorious cases. See N.J.S.A 2A:53A-29; Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154, 836 A.2d 779 (2003). To staunch the flow of dismissal motions based on claims of non-compliance with the statute, we implemented a simple remedy for all professional malpractice cases. See Ferreira, supra, 178 N.J. at 154-55, 836 A.2d 779. We required that “a case management conference be held within ninety days of the service of an answer” at which the professional defendant would raise “any objections to the adequacy of the affidavit” served by the plaintiff. Ibid. For example, if the court determined that an affidavit was deficient, then the plaintiff would “have to the end of the 120-day time period to conform the affidavit to the statutory requirements.” Id. at 155, 836 A.2d 779. We adopted this course because “an ounce of prevention is worth a pound of cure.” Id. at 147, 836 A.2d 779.

In this ease, plaintiff Robert Buck filed suit against defendant Dr. James R. Henry, a physician board certified in emergency medicine. Plaintiff alleged that Dr. Henry negligently prescribed to him the sleep medication Ambien. Within the time set by the trial court, plaintiff filed two affidavits, one from a psychiatrist and another from a specialist in emergency medicine. Even though requested by defendant, the trial court did not conduct a conference in accordance with our holding in Ferreira.

The trial court dismissed plaintiffs complaint because defendant certified in his motion for summary judgment that he treated plaintiff in his role as a practitioner in family medicine and because plaintiff did not file an affidavit by an equivalent specialist. The Appellate Division affirmed.

We now reverse. The purpose of the Affidavit of Merit statute is to weed out frivolous complaints, not to create hidden pitfalls for meritorious ones. The Ferreira conference is intended to resolve questions concerning the propriety of an affidavit before the end of the statutory time limit so that otherwise worthy causes of action are not needlessly dismissed. See id. at 154-55, 836 A.2d 779. In medical malpractice cases, a patient may not know whether the treatment involves a physician’s particular specialty or the field of general practice. The confusion that led plaintiffs attorney to file two allegedly non-conforming medical affidavits should have been addressed and resolved at a Ferreira conference — not on a summary-judgment motion. We remand to the trial court to conduct a Ferreira conference without prejudice to the parties. Going forward, to better ensure that a plaintiff obtains a timely and appropriate affidavit, a defendant physician must indicate in his answer, if he acknowledges treating the patient, the specialty, if any, in which he was involved when rendering treatment.

I.

Complaint and Answer

In November 2008, plaintiff filed a medical malpractice action against Dr. Henry and a product liability action against Sanofi-Aventis and Sanofi-Synthelabo, Inc. in the Superior Court, Law Division. The complaint alleges that on November 29, 2006, Dr. Henry treated plaintiff for a condition that plaintiff described as “bad sleep.”¹ Dr. Henry diagnosed plaintiff as suffering from mild depression and insomnia and prescribed Zoloft, an antidepressant, and Ambien, a sleep aid. Almost three weeks later, after taking Ambien one evening, plaintiff fell asleep while inspecting a gun that he had owned for decades. Plaintiff was awakened by what he believed was a telephone ringing, but had forgotten that the gun was in his right hand. He reached for the receiver with his left hand, somehow causing “the barrel of the gun to enter his mouth and discharge.” As a result of the gunshot wound, plaintiff suffered permanent physical injuries, including “a loss of vision and other disabilities” that rendered him unable to work.

Plaintiff alleges that Dr. Henry failed to properly diagnose and treat him and, by prescribing Ambien, “failed to exercise reasonable skill and care as is usually exercised by ... other medical practitioners in similar circumstances.” Plaintiff claims that Sanofi-Aventis and Sanofi-Synthelabo, the manufacturer and distributor of Ambien, placed Ambien into the marketplace even though the sleep-aid drug “was not reasonably fit, suitable or safe for its intended purpose” and without providing “adequate warnings or instructions concerning [its] potential to cause a severe and life threatening reaction.” ²

On January 21, 2009, Dr. Henry answered the complaint, denying that he deviated from the accepted standard of medical care or was the proximate cause of plaintiff’s injuries, and asserting' “all defenses available under the Affidavit of Merit Statute, N.J.S.A. 2A:53A-26, et seq.”

Affidavits of Merit

On March 26, 2009, plaintiff forwarded an affidavit of merit signed by Dr. Larry Kirstein, a New York licensed psychiatrist, who concluded that Dr. Henry’s treatment of plaintiff “fell outside acceptable professional” standards. On April 3, 2009, Dr. Henry’s attorney wrote to plaintiffs counsel that Dr. Kirstein was “not qualified to offer an Affidavit of Merit against [Dr. Henry], who was obviously engaged as a family practitioner at the time of the events giving rise to this suit.”³ In his letter, the defense attorney added that he had made a request of the trial court that a Ferreira conference be held.

On April 7, 2009, the trial court inadvertently issued an order that “[a]ll counsel have confirmed that all issues involving the Affidavit of Merit statute have been addressed appropriately and there is no need for a [Ferreira ] conference to be scheduled before the pre-trial judge.”⁴

On May 1, 2009, the trial court granted plaintiffs motion to extend the period for filing an affidavit of merit for an additional sixty days, from March 26 to May 25, 2009. Evidently, plaintiffs attorney became aware that Dr. Henry was board certified in emergency medicine.⁵ According to the website of the New Jersey Division of Consumer Affairs, Dr. Henry was certified by the American Board of Emergency Medicine in 1988 and was recertified in 1998.⁶ That Dr. Henry was board certified in emergency medicine at the time he treated plaintiff is not in dispute. The Consumer Affairs website also listed that Dr. Henry graduated from the University of Minnesota Medical School in 1978 and attended Fairview University Medical Center through June 30, 1980, where he obtained a “[specialty” in “FAMILY PRACTICE.” Dr. Henry was never board certified in family medicine, and the website did not indicate that he was currently practicing in the field of family medicine.

On May 22, plaintiff forwarded his second affidavit of merit, this one signed by Dr. Joshua Kosowsky, a Massachusetts physician specializing in emergency medicine. He too determined that Dr. Henry breached acceptable professional standards of treatment.

The trial court never conducted a Ferreira conference, nor did the parties ever waive one.

Summary Judgment

Less than three weeks after plaintiff filed his second affidavit of merit, Dr. Henry moved for summary judgment, claiming that the affidavits from physicians specializing in psychiatry and emergen cy medicine were not from equivalent specialists. In a certification in support of his summary-judgment motion, Dr. Henry averred that he “practiced in the specialty of family practice recognized by the American Board of Medical Specialties,” and that the “care or treatment” that he rendered to plaintiff “involve[d] [his] specialty in family practice.” Dr. Henry maintained that because he was a specialist in family medicine and because plaintiff did not submit an affidavit of merit from someone practicing in that specialty, the Affidavit of Merit statute compelled that the complaint be dismissed.

Plaintiffs attorney explained that he filed an affidavit from a psychiatrist because treating a patient for insomnia fell within the general practice of medicine. He argued that one cannot be a “specialist” in family medicine absent board certification. He also stated that he filed an affidavit from an emergency-medicine practitioner because he relied on Dr. Henry’s board certification in emergency medicine.

At oral argument, the trial court concluded that plaintiff was required to obtain an affidavit of merit from a specialist practicing the same specialty as Dr. Henry. It found that family medicine is a recognized specialty and that Dr. Henry was a family-medicine specialist based on his “undisputed Certification.” Because the court determined that Dr. Henry was not a general practitioner, the affidavit from a specialist in psychiatry did not conform to the statute. It also found that the treatment of plaintiff did not involve emergency medicine. Therefore plaintiffs other expert affidavit did not meet the statutory requirement for a valid affidavit of merit. The court never explained why it did not sort these issues out weeks earlier at a Ferreira conference. By written order, the court granted summary judgment in favor of Dr. Henry and dismissed plaintiffs case with prejudice.⁷

Appellate Division

The Appellate Division granted plaintiffs motion for leave to appeal and affirmed in an unpublished opinion. The appellate panel noted that, in medical malpractice cases, the Affidavit of Merit statute clearly requires an affidavit “from a physician who ‘specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties^] ... as the party against whom ... the testimony is offered.’ ” (Quoting N.J.S.A 2A:53A-41(a)). The panel accepted that Dr. Henry is a family-medicine specialist, as evidenced by his certification, and found that “Dr. Henry need not be board-certified in family medicine to declare himself a [family-medicine] specialist.” It also concluded that it had no reason to believe “that the treatment at issue here did not concern the practice of family medicine.” Because plaintiffs treatment “was not related to emergency care,” the panel determined that “Dr. Henry’s board certification in emergency medicine [was] irrelevant.” For that reason, the panel found that the affidavit from plaintiffs emergency-medicine specialist did not satisfy the statute. In rejecting plaintiffs affidavit from a psychiatrist, the panel also dismissed the claim that Dr. Henry was a “general practitioner” when treating plaintiff or that “the title of family practitioner is synonymous with a ‘general practitioner.’ ” The Appellate Division never discussed the trial court’s failure to conduct a Ferreira conference.

We granted plaintiffs motion for leave to appeal. Buck v. Henry, 203 N.J. 432, 3 A.3d 1223 (2010).

II.

We first discuss the Affidavit of Merit statute, particularly as it applies to medical malpractice cases, and then address the role of the Ferreira conference in effectuating that statute.

A.

The Affidavit of Merit statute, N.J.S.A 2A:53A-26 to -29, requires that a plaintiff who files a “malpractice or negligence [action against] a licensed person in his profession or occupation” must submit “an affidavit of an appropriate licensed person 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.” N.J.S.A. 2A:53A-27. The affidavit is due within 60 days of the defendant’s answer, but may be filed within 120 days “upon a finding of good cause.” Ibid.; see Burns v. Belafsky, 166 N.J. 466, 475-77, 766 A.2d 1095 (2001) (stating that motion to extend deadline may be made at any point within 120-day period). In actions alleging medical malpractice, the person providing the affidavit must meet the requirements of N.J.SA 2A:53A-41, a provision of the New Jersey Medical Care Access and Responsibility and Patients First Act, which was enacted in 2004. See L. 2004, c. 17; N.J.S.A. 2A:53A-27.

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. Ryan v. Renny, 203 N.J. 37, 52, 999 A.2d 427 (2010). The statute sets forth three distinct categories embodying this kind-for-kind rule: (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.” See N.J.S.A 2A:53A-41(a), (b).

N.J.SA 2A:53A-41(a) addresses the first two categories:

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of [N.J.S.A. 2A:53A-26 to -29] 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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, recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association, the expert witness shall [meet additional qualifications].

[ (Emphasis added).]

Courts are granted authority to waive the specialty qualification requirements under specifically defined circumstances, but only “upon motion by the party seeking a waiver.” See N.J.S.A 2A:53A-41(c); accord Ryan, supra, 203 N.J. at 53, 999 A.2d 427.

Like the trial court and the Appellate Division, we reject plaintiffs argument that N.J.S.A. 2A:53A-41(a) only recognizes a specialist who is board certified. Although the statute is far from a model of clarity, such an interpretation would nullify the beginning portion of the statute. See In re Attorney Gen. ’s “Directive on Exit Polling: Media & Non-Partisan Pub. Interest Groups”, 200 N.J. 283, 297-98, 981 A.2d 64 (2009) (‘We must presume that every word in a statute has meaning and is not mere surplusage, and therefore we must give those words effect and not render them a nullity.” (citation omitted)). Part of the statute explicitly speaks about a non-board-certified specialist or subspecialist offering testimony when “the care or treatment at issue involves that specialty or subspecialty.” See N.J.SA 2A:53A-41(a). Family medicine is a specialty recognized by the ABMS. One can practice family medicine without board certification. Thus, if Dr. Henry was a family-medicine practitioner and his “care or treatment” of plaintiff involved family medicine, then in pursuing a medical malpractice action plaintiff must find a like-qualified expert to proffer an affidavit challenging his treatment. If Dr. Henry was not providing treatment as a practitioner of family medicine, or in some other specialty, Dr. Henry was acting as a general practitioner in prescribing Ambien to treat plaintiffs sleep difficulties.

N.J.S.A 2A:53A-41(b) addresses when the affidavit of a general practitioner will suffice:

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:

(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.

A “general practitioner” is defined by what he is not — he is not a “specialist or subspecialist.” See N.J.S.A 2A:53A-41.

Under N.J.S.A. 2A:53A-41, the first inquiry must be whether a physician is a specialist or general practitioner. If the physician is a specialist, then the second inquiry must be whether the treatment that is the basis of the malpractice action “involves” the physician’s specialty. When the treatment “involves” the physician’s specialty the equivalency requirements apply, otherwise the specialist is subject to the same affidavit requirements as if he were a general practitioner. See ibid,⁸ A physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that ease, an affidavit of merit from a physician specializing in either area will suffice. See ibid, (stating that singular “person” or “witness” must provide affidavit). In the case of a general practitioner, an affidavit from another general practitioner or from a physician experienced with the treatment performed will satisfy the statute. See ibid.

The 2004 amendments to the Affidavit of Merit statute added an extra level of complexity to the obligations placed on plaintiffs’ attorneys and therefore increased the potential for the “wrong” affidavit being filed within the 120-day period. This case presents a perfect example of the pitfalls facing a plaintiff’s attorney and of the need for timely Ferreira conferences.

B.

Within the time fixed by the statute, plaintiff in this case filed an affidavit of merit from a psychiatrist, apparently acting under the presumption that when Dr. Henry treated him and prescribed Ambien, Dr. Henry was not acting within the scope of a specialty, such as family medicine. Immediately following defendant’s answer, there was no discovery or easy means for plaintiff to determine otherwise. If Dr. Henry was a general practitioner when he prescribed Ambien, then an affidavit from a psychiatrist would meet the requirements of N.J.S.A. 2A:53A-41 (b).

Moreover, it was not illogical that plaintiff would proffer a backup affidavit from a specialist in emergency medicine. Dr. Henry was board certified in emergency medicine at the time he treated plaintiff. If Dr. Henry followed the practice of many other physicians, proof of his board certification would be on the wall of his medical office or on his stationery. The website of the New Jersey Division of Consumer Affairs listed Dr. Henry as certified by the American Board of Emergency Medicine. One can practice emergency medicine outside the confines of a hospital’s emergency room. Indeed, according to the ABMS, the practice of emergency medicine includes taking action to prevent a “disability” in a “pre-hospital setting.” See supra note 5. Nothing in this record suggests that a practitioner of emergency medicine is not qualified to prescribe sleep medication.

Not until the summary-judgment motion did plaintiff have the benefit of Dr. Henry’s certification, in which he averred that he was a family-medicine practitioner when he treated plaintiff and that the treatment (prescribing Ambien) involved that specialty. It was self-evident to the summary-judgment court and the Appellate Division that Dr. Henry practiced family medicine because they had his certification. That certification, however, was not in the hands of plaintiff while the Affidavit of Merit statute clock was ticking.

It is true that defense counsel forwarded to plaintiffs attorney a letter stating that Dr. Henry “was obviously engaged as a family practitioner at the time of the events giving rise to this suit.” But the letter does not explain why it was so obvious that Dr. Henry was a family practitioner. Caution should have prompted plaintiffs attorney at that point to obtain an affidavit from a specialist in family medicine. But nothing in this record intimates that plaintiff was not acting in good faith. Most importantly, the trial court’s discussion concerning the appropriateness of the affidavits proffered by plaintiff should have occurred weeks earlier at the never-held Ferreira conference. The Ferreira conference likely would have led to the filing of a judicially acceptable affidavit and obviated the need for the summary-judgment motion that led to the dismissal of plaintiffs cause of action.

This case is a reminder of the important role that Ferreira conferences play in ensuring that the Affidavit of Merit statute fulfills its objective of weeding out unmeritorious cases rather than worthy ones.

C.

“The core purpose underlying the [Affidavit of Merit] statute is ‘to require plaintiffs ... to make a threshold showing that their claim is meritorious,’” so that lawsuits lacking substance can be dismissed “ ‘at an early stage of litigation.’ ” Ryan, supra, 203 N.J. at 51, 999 A.2d 427 (quotation omitted); accord Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415, 421, 997 A.2d 982 (2010). “[T]here is no legislative interest in barring meritorious claims brought in good faith[.]” Ferreira, supra, 178 N.J. at 150-51, 836 A.2d 779 (quoting Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359, 771 A.2d 1141 (2001)). Indeed, the Legislature did not intend “to ‘create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.’ ” Ryan, supra, 203 N.J. at 51, 999 A.2d 427 (quotation omitted). “The Affidavit of Merit statute was intended to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system.” Ferreira, supra, 178 N.J. at 154, 836 A.2d 779.

To ensure that challenges to affidavits of merit do not become “sideshows” overwhelming our civil justice system, ibid., we crafted a practical remedy to prevent exactly what occurred in this case. In Ferreira, we required that a “case management conference be held within ninety days of the service of an answer in all malpractice actions.” Id. at 154, 836 A.2d 779. At that conference, a “defendant [is] required to advise the court whether he has any objections to the adequacy of the affidavit” that has been served on him. Id. at 155, 836 A.2d 779. If the court determines that an affidavit is deficient, a “plaintiff [has] to the end of the 120-day time period to conform the affidavit to the statutory requirements.” Ibid. The conference may be cancelled only “ ‘when the Affidavit of Merit has been provided by plaintiff and all defendants have waived any objections to its adequacy.’ ” Paragon Contractors, supra, 202 N.J. at 424, 997 A.2d 982 (quoting Waiver of Affidavit of Merit Conference, 176 N.J.L.J. 1006 (2004)).

When we decided Ferreira, we observed that “[t]he painful experience of our affidavit of merit jurisprudence reveals the compelling need for such conferences at an early stage before problems arise.” Ferreira, supra, 178 N.J. at 155, 836 A.2d 779. Given the complexity of the amended statute governing affidavits of merit in medical malpractice cases — a statute enacted since Ferreira — the need for the conference is even more vital today.

III.

In this ease, the trial court did not conduct a Ferreira conference, apparently due to inadvertence. We know that the court mistakenly issued an order stating that “all issues involving the Affidavit of Merit statute have been addressed appropriately.” It appears that plaintiff acted in good faith in filing two affidavits of merit from different specialists, even if the trial court later determined on a summary-judgment motion that they did not conform to the statute. Had the Ferreira conference been conducted, plaintiff would have had at least thirty days to correct the deficiency by filing a conforming affidavit.

There are no villains here, but we have a record that bespeaks confusion. This is not a case of a desperate plaintiff unable to find a physician willing to aver to a claim of malpractice. Cf. Ryan, supra, 203 N.J. at 46, 999 A.2d 427 (plaintiff contacted three physicians, each of whom refused to provide affidavit of merit). This is not a case of a plaintiff sleeping on his rights and ignoring statutorily imposed deadlines. See Paragon Contractors, supra, 202 N.J. at 423, 997 A.2d 982 (stating that “attorney’s inadvertence in failing to timely file an affidavit will generally result in dismissal with prejudice” (citation omitted)). Rather, this is a case of a plaintiff who has made good-faith attempts to satisfy the statute. In Ferreira, we believed that the early case management conference would “permit the Affidavit of Merit statute to fulfill its true purpose — to bring a swift demise to frivolous lawsuits while allowing meritorious ones to have their day in court.” Ferreira, supra, 178 N.J. at 155, 836 A.2d 779.

Plaintiff in this case has not forfeited his right to have his day in court. We therefore remand this case back to the trial court to hold the appropriate case management conference and decide anew the adequacy of plaintiffs affidavits of merit. If the affidavits submitted by plaintiff are deemed inadequate under N.J.S.A. 2A:53A-41, then plaintiff will have thirty days from the date of the conference to file a proper affidavit. Failure to file the affidavit within that time will result in the dismissal of plaintiffs case with prejudice.⁹

We add one important caveat that should make more likely the filing of a timely affidavit of merit that conforms to the statute. From this point forward, a physician defending against a malpractice claim (who admits to treating the plaintiff) must include in his answer the field of medicine in which he specialized, if any, and whether his treatment of the plaintiff involved that specialty. In accordance with this directive, we request that the New Jersey Supreme Court Civil Practice Committee propose for our review a change to Rule 4:5-3 or 4:5-4 — the rules governing answers and affirmative defenses in civil cases.¹⁰

TV.

For the reasons given, we reverse the judgment of the Appellate Division, reinstate plaintiffs complaint, and remand to the trial court for a Ferreira conference consistent with this opinion.

Footnotes

1

Because Dr. Henry moved for summary judgment, we view the facts in a light most favorable to plaintiff. See Kieffer v. Best Buy, 205 N.J. 213, 217 n. 1, 14 A.3d 737 (2011) (citation omitted); R. 4:46-2(c). The record is rather sparse, consisting primarily of the complaint and answer, affidavits of merit, and a certification by Dr. Henry.

2

Sanofi-Aventis and Sanofi-Synthelabo, Inc. are not involved in the appeal before us.

3

According to the American Board of Medical Specialties, a family practitioner "is concerned with the total health care of the individual and the family and is trained to diagnose and treat a wide variety of ailments in patients of all ages.” American Board of Medical Specialties, About Physician Specialties: Family Medicine, http://www.abms.org/Who_We_Help/Consumers/About_Physician_ Specialties/family.aspx (last visited July 15, 2011). Subject to additional training and examination, a family physician may further practice in one of five subspe-cialties, one of which is sleep medicine. Ibid.

4

Although plaintiff's attorney received this order, he apparently never forwarded it to Dr. Henry's attorney. This order came to light after oral argument before this Court. On February 7, 2011, the trial court vacated the April 7, 2009 order pursuant to Rule 1:13-1 on the basis that it was issued "prematurely and as a result of a clerical error." See R. 1:13-1 ("Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.”).

5

According to the American Board of Medical Specialties, emergency medicine focuses on the immediate decision making and action necessary to prevent death or any further disability both in the pre-hospital setting by directing emergency medical technicians and in the emergency department. The emergency physician provides immediate recognition, evaluation, care, stabilization and disposition of a generally diversified population of adult and pediatric patients in response to acute illness and injury.

[American Board of Medical Specialties, About Physician Specialties: Emergency Medicine, http://www.abms.org/Who_We_Help/Consumers/About_ Physician_Specialties/emergency.aspx (last visited July 15, 2011) (emphasis added).]

6

This professional profile of Dr. Henry was made public pursuant to the New Jersey Health Care Consumer Information Act. See L. 2003, c. 96. In accordance with the Act, the Division of Consumer Affairs within the Department of Law and Public Safety is required to collect and make public information on all physicians, podiatrists, and optometrists that are licensed to practice in the State. N.J.S.A. 45:9-22.22.

7

This grant of summary judgment did not apply to the pharmaceutical defendants.

8

A physician board certified in a specialty can offer an affidavit in a case involving a physician not board certified in that specialty. But under the equivalency doctrine, the reverse is not permitted. See NJ.S.A. 2A:53A-41.

9

Nothing in our opinion prevents plaintiff from submitting an affidavit of merit from a family practitioner before the conference, rendering the entire issue moot

10

A physician knows the specialty in which he practices; a patient should not be left guessing about it. Requiring a physician to disclose in his answer his medical specialty is hardly an imposition and does not — as the dissent suggests— shift the burden of compliance with the Affidavit of Merit statute from the plaintiff to the defendant.