SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Earneka Wiggins v. Hackensack Meridian Health (A-43-23) (089441)
Argued November 4, 2024 -- Decided January 22, 2025
FASCIALE, J., writing for a unanimous Court.
In this medical malpractice appeal, the legal question is whether plaintiffs’ service of an affidavit of merit (AOM) from a board-certified internal medicine doctor is sufficient to overcome a motion to dismiss when defendants’ Rule 4:5-3 Specialty Statement states that “[a]t all relevant times, these defendants practiced the medical specialties of Internal Medicine and Gastroenterology and their treatment of [the patient] involved the medical specialties of Internal Medicine and Gastroenterology.”
Plaintiffs, the administrators of the Estate of April Carden, filed a medical malpractice complaint against defendants Hackensack Meridian Health d/b/a JFK University Medical Center (JFK), Alok Goyal, M.D., and South Plainfield Primary Care (SPPC) (collectively, defendants). As relevant here, plaintiffs allege that Carden’s death was directly attributable to Allopurinol prescribed by Dr. Goyal, that Dr. Goyal’s negligence caused Carden’s death, and that JFK and SPPC were vicariously liable because Dr. Goyal was an “agent, servant, or employee” of both.
Dr. Goyal and SPPC filed their answer and included the following Rule 4:5-3 Specialty Statement: “At all relevant times, these defendants practiced the medical specialties of Internal Medicine and Gastroenterology and their treatment of [Carden] involved the medical specialties of Internal Medicine and Gastroenterology.” Plaintiffs provided each defendant with an AOM from Dr. Stella Jones Fitzgibbons, who is board certified by the American Board of Internal Medicine. Defendants stated that Dr. Fitzgibbons was unqualified to execute an AOM as to them. Dr. Goyal amplified his Specialty Statement, noting that “[a]ll treatment that I rendered to [Carden] was provided as both an internist and as a gastroenterologist.” Defendants then moved to dismiss the complaint for failure to comply with the AOM statute. Plaintiffs argued that internists prescribe Allopurinol, not gastroenterologists. Alternatively, plaintiffs argued that, given defendants’ Specialty Statement, an AOM from an internist is sufficient.
1 The trial judge denied the motions to dismiss the complaint. He found “that the ‘care and treatment at issue’ was the prescribing of Allopurinol, and the ‘care or treatment at issue involves internal [medicine].’” (citing N.J.S.A. 2A:53A-41). Relying on Buck v. Henry, 207 N.J. 377 (2011), the trial judge concluded alternatively that plaintiffs complied with the AOM statute by submitting the AOM from Dr. Fitzgibbons, who is board certified in internal medicine. The judge later denied defendants’ motion for reconsideration.
The Appellate Division granted defendants’ motion for leave to appeal from the orders denying their motions to dismiss and for reconsideration and reversed those orders, concluding that plaintiffs were required to “serve an AOM from a physician board certified in each of [Dr. Goyal’s] specialties” and that the language from Buck on which the trial court relied was dicta. 478 N.J. Super. 355, 358, 373 (App. Div. 2024). The Court granted leave to appeal. 258 N.J. 164 (2024).
HELD: When a defending physician practices in more than one specialty and the treatment involved falls within any of that physician’s specialty areas, then an AOM from a physician specializing in one of those specialties is sufficient.
1. Under N.J.S.A. 2A:53A-27, a medical malpractice plaintiff must show that the complaint is meritorious by obtaining an affidavit from “an appropriate licensed person” attesting to the “reasonable probability” of professional negligence. The dual purposes of the AOM statute are 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. The Legislature enacted the Patients First Act in 2004, which supplemented the AOM statute by including additional requirements for a plaintiff’s AOM in a medical malpractice case. The basic idea behind N.J.S.A. 2A:53A-41 is that the individual who executes the AOM in a medical malpractice case “be equivalently-qualified to the defendant physician.” Buck, 207 N.J. at 389. Thus, N.J.S.A. 2A:53A-41 adds to the AOM statute the “equivalently qualified” requirement -- known as the “kind-for-kind” rule -- for an AOM in a medical malpractice case, and it recognizes three categories of credentialed physicians for purposes of that requirement. As relevant here, for those physicians who are specialists in a field recognized by the American Board of Medical Specialties and who are board certified in that specialty, the challenging expert must either be credentialed by a hospital to treat the condition at issue 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)(1) to (2). (pp. 14-18)
2. In Buck, the defending physician, alleged by the plaintiff to have negligently prescribed a sleep medication, was board certified in emergency medicine and was practicing as a family-medicine specialist at the time he treated the plaintiff. 207 N.J. at 382-83. The plaintiff provided an AOM from a specialist in emergency 2 medicine and an AOM from a psychiatrist, but nothing from a family medicine practitioner. Id. at 382. The trial judge found that the treatment did not involve emergency medicine and that the psychiatrist’s AOM was insufficient. Id. at 387. The Appellate Division affirmed. Id. at 383. The Court remanded the matter to the trial judge to conduct a Ferreira “conference and decide anew the adequacy of [the] plaintiff’s [AOMs].” Id. at 393, 395. The Court provided guidance -- which was not dicta -- germane to when a defending physician practices in more than one specialty and when the treatment involved may fall within those specialty areas. Id. at 387, 391, 393-96. First, the Court stated that “[a] physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that case, an [AOM] from a physician specializing in either area will suffice.” Id. at 391. Second, the Court directed that a defending physician “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. In light of that direction, now mandated by Rule 4:5-3, there is generally no need for a Ferreira judge or motion judge to make findings of fact about a physician’s specialty and whether treatment of the plaintiff involved that specialty because the defending physician’s Specialty Statement generally resolves those questions. (pp. 18-21)
3. Here, it is undisputed that Dr. Goyal is board certified in the specialty of internal medicine and in the subspecialty of gastroenterology. The plain language of N.J.S.A. 2A:53A-41 does not require an AOM to be from an individual with the same numerous specialties as the defending physician; instead, it requires only the same “specialty or subspecialty” in the singular. And Dr. Goyal’s “care or treatment at issue” involves his “specialty or subspecialty” of internal medicine and gastroenterology, as stated in his Specialty Statement. Thus, as to the threshold issue of whether plaintiffs’ AOM is sufficient to survive a motion to dismiss, Dr. Goyal’s Specialty Statement and his later certification verify that his treatment of Carden involved his medical specialties of internal medicine and gastroenterology. Under Buck, when “the treatment involved may fall within [a] physician’s multiple specialty areas” -- as is the case here -- “an [AOM] from a physician specializing in either area will suffice.” 207 N.J. at 391. Dr. Fitzgibbons’ AOM complies with the AOM statute, N.J.S.A. 2A:53A-41(a)(2)(a), and Buck, neither of which require an AOM from an individual matching all areas of practice if a defending physician practices in multiple specialty areas. Accordingly, the trial judge correctly denied defendants’ motions. Plaintiffs must still demonstrate Dr. Goyal’s professional negligence at trial. The Court reviews relevant standards. (pp. 21-28)
REVERSED and REMANDED for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER, NORIEGA, and HOFFMAN join in JUSTICE FASCIALE’s opinion. 3 SUPREME COURT OF NEW JERSEY A-43 September Term 2023 089441
Earneka Wiggins and Lynda Myers, as administratrixes of the estate of April Carden, deceased,
Plaintiffs-Appellants,
v.
Hackensack Meridian Health, d/b/a JFK University Medical Center,
Defendant-Respondent,
and
Alok Goyal, M.D., and South Plainfield Primary Care,
Defendants-Respondents.
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 478 N.J. Super. 355 (App. Div. 2024).
Argued Decided November 4, 2024 January 22, 2025
Roshan D. Shah argued the cause for appellants Earneka Wiggins and Lynda Myers (Shah Law Group, and Lopez McHugh, attorneys; Roshan D. Shah and Michael S. Katz, on the brief).
1 Richard J. Tamn argued the cause for respondents Alok Goyal, M.D., and South Plainfield Primary Care (Krompier & Tamn, attorneys; Richard J. Tamn, of counsel and on the brief, and Jason M. Altschul, on the brief).
Katelyn E. Cutinello argued the cause for respondent Hackensack Meridian Health d/b/a JFK University Medical Center (Cocca & Cutinello, attorneys; Katelyn E. Cutinello and Anthony Cocca, of counsel and on the briefs).
Christina Vassiliou Harvey argued the cause for amicus curiae New Jersey Association for Justice (Lomurro Munson, attorneys; Christina Vassiliou Harvey and Jonathan H. Lomurro, of counsel and on the brief).
JUSTICE FASCIALE delivered the opinion of the Court.
In this medical malpractice appeal, the legal question is whether
plaintiffs’ service of an affidavit of merit (AOM) from a board-certified
internal medicine doctor is sufficient to overcome a motion to dismiss when
defendants’ Rule 4:5-3 Specialty Statement states that “[a]t all relevant times,
these defendants practiced the medical specialties of Internal Medicine and
Gastroenterology and their treatment of [the patient] involved the medical
specialties of Internal Medicine and Gastroenterology.”
Applying N.J.S.A. 2A:53A-26 to -29 (AOM statute), the New Jersey
Medical Care Access and Responsibility and Patients First Act (Patients First Act),
N.J.S.A. 2A:53A-37 to -42, and Buck v. Henry, 207 N.J. 377 (2011), we hold that
2 when a defending physician practices in more than one specialty and the treatment
involved falls within any of that physician’s specialty areas, then an AOM
from a physician specializing in one of those specialties is sufficient under the
statutes.
Plaintiffs submitted an AOM from a board-certified internist. The
defending physician is also a board-certified internist whose treatment
“involved the medical specialties of Internal Medicine and Gastroenterology,”
according to the Specialty Statement. Service of the AOM from the board-
certified internist should have defeated defendants’ dismissal motions.
Consistent with the purposes of the AOM statute, defeating such motions
ensures that plaintiffs with meritorious claims will have their day in court.
Although plaintiffs here have overcome dismissal at this early stage, they are
still left to their trial proofs.
We therefore reverse the Appellate Division’s judgment and uphold the
orders denying defendants’ motions to dismiss the complaint and motions for
reconsideration.
I.
Earneka Wiggins and Lynda Myers (plaintiffs), in their capacity as
administrators of the Estate of April Carden, filed a medical malpractice
complaint in Essex County and named as defendants Hackensack Meridian
3 Health d/b/a JFK University Medical Center (JFK), Alok Goyal, M.D., and
South Plainfield Primary Care (SPPC) (collectively, defendants).
Specifically, plaintiffs alleged that in 2016, Carden experienced a severe
allergic reaction to “Tramadol and/or Allopurinol” and received a subsequent
diagnosis of Stevens-Johnson Syndrome (SJS). 1 Dr. Goyal prescribed the
Tramadol, and another doctor prescribed the Allopurinol. Carden then
received medical treatment at JFK for her reaction to those drugs.
In 2020, Carden fell and was taken to JFK. Although JFK records noted
an allergy to Tramadol, the “Emergency Department notes and subsequent
consult reports indicated that Carden had no known allergies.” Doctors
diagnosed Carden with a blood clot and then discharged her from JFK. The
next day, Dr. Goyal prescribed Allopurinol for Carden, which plaintiffs
alleged again caused SJS and required readmission to JFK. She remained at
JFK for about ten days. After being transferred to a burn center, Carden
passed away from “cardiopulmonary arrest due to multiple organ failure,
bacteremia, and [SJS].”
1 Stevens-Johnson Syndrome is a disorder most often caused by an adverse drug reaction; it “causes painful blisters and lesions on the skin and mucous membranes and can cause severe eye problems.” Esen Karamursel Akpek, M.D., Stevens-Johnson Syndrome, Johns Hopkins Med., https://www.hopkinsmedicine.org/health/conditions-and-diseases/stevens- johnson-syndrome (last visited Jan. 13, 2025). 4 Plaintiffs alleged that defendants deviated from “generally accepted
standards” by prescribing Allopurinol, which was contraindicated; failing to
take Carden’s proper medical history; failing to diagnose, treat, prevent, and
limit Carden’s injuries; and failing to prescribe prophylactic medications,
obtain necessary consults, and maintain and render medical care. Plaintiffs
further alleged that Carden’s death was “directly attributable to the
Allopurinol,” that Dr. Goyal’s negligence caused Carden’s death, and that JFK
and SPPC were vicariously liable because Dr. Goyal was an “agent, servant, or
employee” of both.
On September 21, 2022, Dr. Goyal and SPPC filed their answer and
included the following Rule 4:5-3 Specialty Statement: “At all relevant times,
these defendants practiced the medical specialties of Internal Medicine and
Gastroenterology and their treatment of [Carden] involved the medical
specialties of Internal Medicine and Gastroenterology.” Dr. Goyal and SPPC’s
answer stated they were without knowledge or information sufficient to form a
belief as to the truth of plaintiffs’ factual allegations. On October 4, 2022,
JFK filed its answer, likewise indicating that it lacked information sufficient to
admit or deny the factual allegations. The sixty-day deadline for service of
AOMs was November 20, 2022.
5 On November 10, 2022, plaintiffs provided each defendant with an
AOM from Dr. Stella Jones Fitzgibbons, who is board certified by the
American Board of Internal Medicine. In the AOM, Dr. Fitzgibbons certified
that she was a “licensed physician . . . for a period in excess of five years
specializing in the field of internal medicine”; that “[a]t the time of the
occurrence that is the basis for the action in this case” she “specialized in the
field of internal medicine”; that “during the year immediately preceding the
date of the occurrence [she] devoted a majority of [her] professional time to
the active clinical practice of internal medicine”; that she had “no financial
interest in the outcome of [this] case”; and that “there is a reasonable
probability that the care, skill or knowledge exercised or exhibited in the
treatment, practice or work of [defendants] fell outside professional treatment
standards.” Five days later, counsel for Dr. Goyal and SPPC objected to the
AOM, stated that Dr. Fitzgibbons was unqualified to execute an AOM as to
them, and requested a timely AOM “by a qualified physician.” About a week
later, JFK’s counsel agreed with that position and noted that plaintiffs’ claims
against JFK were “premised on vicarious liability and/or apparent authority for
Dr. Goyal.”
6 Counsel appeared at a Ferreira conference 2 on November 28, 2022.
Defendants’ counsel explained that Dr. Fitzgibbons was unqualified because
unlike Dr. Goyal, she was board certified in only internal medicine rather than
in both internal medicine and gastroenterology, and because Dr. Fitzgibbons’
medical practice had been limited to internal medicine. Amplifying his
Specialty Statement, Dr. Goyal certified on December 12, 2022, that “[a]ll
treatment that I rendered to [Carden] was provided as both an internist and as a
gastroenterologist.” He added, “[f]or example, my care and treatment of
[Carden] included discussing, recommending and performing colonoscopies
and esophagogastroduodenoscopy, as well as evaluating [Carden] for concerns
such as rectal bleeding and black stool.” 3 Dr. Goyal’s certification is silent as
to prescribing Allopurinol. The Ferreira judge directed defendants to file
motions. 4
2 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154-55 (2003) (requiring a case management conference to “be held within ninety days of the service of an answer in all malpractice actions” to address discovery issues and compliance with the AOM statute and case law). 3 The complaint does not specifically allege that Carden passed away from treatment related to colonoscopies, an esophagogastroduodenoscopy, rectal bleeding, or black stool. Instead, it alleges that her death was “directly attributable to the Allopurinol.” 4 Plaintiffs’ counsel asserted that the Ferreira judge directed Dr. Goyal to certify whether he prescribed Allopurinol in his capacity as a
7 On December 21, 2022, Dr. Goyal and SPPC filed their motion to
dismiss the complaint for failure to comply with the AOM statute. 5
Responding to plaintiffs’ counsel’s inquiry about whether Dr. Goyal
prescribed Allopurinol in his “capacity as a gastroenterologist,” counsel for
Dr. Goyal stated:
Dr. Goyal’s [December 12, 2022] [c]ertification remains sufficient . . . as it remains unclear at this juncture whether Dr. Goyal even prescribed [A]llopurinol to [Carden]. We have not received the records from the hospital yet. It would be wholly improper for Dr. Goyal to execute any affidavit or certification asserting that he prescribed [A]llopurinol to [Carden] in any context without having any record that he in fact prescribed the medication. Nevertheless, as indicated by his [December 12, 2022] [c]ertification, Dr. Goyal remain[s] able to certify as to the scope of his practice in treating [Carden].
[(emphases added).]
JFK filed a cross-motion seeking the same relief. Plaintiffs opposed those
motions.
gastroenterologist. Counsel for Dr. Goyal and SPPC contends that the Ferreira judge directed Dr. Goyal to certify that his “treatment involved gastroenterology.” There is no transcript of the Ferreira conference. 5 The next day, a judge granted JFK’s motion to transfer the matter to Union County. 8 Plaintiffs argued that internists prescribe Allopurinol, not
gastroenterologists. Dr. Fitzgibbons submitted a certification dated December
22, 2022, emphasizing that she was “aware of no known gastrointestinal
condition that is treated by [A]llopurinol.” Dr. Fitzgibbons certified that
Carden’s medical records reflect she “was prescribed [A]llopurinol to treat
high uric acid levels,” which according to Dr. Fitzgibbons “is not related to the
gastrointestinal system.” Dr. Fitzgibbons also certified that “[h]igh uric acid
levels can cause gout or kidney stones, neither of which are gastrointestinal
conditions.” Plaintiffs’ counsel had three other gastroenterologists review the
action, and they concurred that this was not a case for a gastroenterology
expert. 6
Alternatively, plaintiffs argued that Dr. Fitzgibbons was qualified to
execute the AOM and that, given defendants’ Specialty Statement, an AOM
from an internist is sufficient. (relying on Buck, 207 N.J. at 391 (“A physician
may practice in more than one specialty, and the treatment involved may fall
6 Todd Eisner, M.D. (“I am familiar with the prescribing of [A]llopurinol and am aware of no known gastrointestinal condition that is treated by [A]llopurinol.”); Stuart Finkel, M.D. (“[T]here [does] not appear to be any [g]astrointestinal issues for me to consider.”); and Bruce Salzburg, M.D. (“[T]here does not appear to be any [gastroenterology] issues.”). Plaintiffs’ counsel certified that Dr. Salzburg made that statement to him after reviewing the action because Dr. Salzburg was unable to provide a certification of his own. Dr. Eisner provided a certification, and Dr. Finkel provided an affidavit. 9 within that physician’s multiple specialty areas. In that case, an [AOM] from a
physician specializing in either area will suffice.”)).
The trial judge denied the motions to dismiss the complaint. He found
“that the ‘care and treatment at issue’ was the prescribing of Allopurinol, and
the ‘care or treatment at issue involves internal [medicine].’” (citing N.J.S.A.
2A:53A-41). But without the need to make that factual finding and relying on
Buck, the trial judge concluded alternatively that plaintiffs complied with the
AOM statute by submitting the AOM from Dr. Fitzgibbons, who is board
certified in internal medicine.
Defendants moved for reconsideration. Dr. Goyal and SPPC submitted a
certification by Meyer N. Solny, M.D., who is board certified in internal
medicine and gastroenterology. Although the motion record remained unclear
about whether Dr. Goyal prescribed Allopurinol, Dr. Solny certified “that there
certainly is a use for Allopurinol in gastroenterology,” that gastroenterologists
“regularly prescribe Allopurinol,” and that “it is not possible to bifurcate and
segregate my knowledge as a gastroenterologist from that as an internist.”
Defendants also asserted that the trial judge misplaced reliance on Buck. The
judge denied reconsideration.
The Appellate Division granted defendants’ motion for leave to appeal
from the orders denying their motions to dismiss and for reconsideration.
10 Reversing those orders, the appellate court disagreed with the trial judge and
stated that the law instead required plaintiffs to “serve an AOM from a
physician board certified in each of [Dr. Goyal’s] specialties.” Wiggins v.
Hackensack Meridian Health, 478 N.J. Super. 355, 358 (App. Div. 2024). The
Appellate Division concluded that the trial judge erred in resolving factual
disputes about the treatment rendered. Id. at 371. And it determined that the
language in Buck on which plaintiffs and the trial judge relied “was dicta and
not controlling in the circumstances presented here.” 7 Id. at 373.
We granted plaintiffs’ motion for leave to appeal. 258 N.J. 164 (2024).
We also granted the New Jersey Association for Justice (NJAJ) leave to appear
as amicus curiae.
II.
Plaintiffs argue that the Appellate Division misapplied our instruction in
Buck that when a physician practices “in more than one specialty, and the
treatment involved may fall within that physician’s multiple specialty areas . . .
an [AOM] from a physician specializing in either area will suffice.” (quoting
7 The appellate court remanded to address whether plaintiffs were entitled to a waiver under N.J.S.A. 2A:53A-41(c), which permits waiver from the Patients First Act under certain circumstances. Wiggins, 478 N.J. Super. at 376. We need not address whether those circumstances are present because Dr. Fitzgibbons’ AOM complied with plaintiffs’ obligations under the law.
11 207 N.J. at 391). Plaintiffs contend the appellate court incorrectly reasoned
that this Court’s decision in Nicholas v. Mynster, 213 N.J. 463 (2013), and the
Appellate Division’s recent holding in Pfannenstein v. Surrey, 475 N.J. Super.
83 (App. Div. 2023), supported its judgment. And finally, they assert that
requiring plaintiffs to serve an AOM from a physician who is board certified in
each of Dr. Goyal’s specialties is inconsistent with the AOM statute’s dual
purposes.
Defendants contend that the Appellate Division thoroughly analyzed
Buck, which they argue is distinguishable, and further assert that the language
in Buck on which plaintiffs rely is dicta and not controlling. Defendants
maintain that Nicholas and Pfannenstein provide guidance on the application
of the Patients First Act’s kind-for-kind requirement, requiring an AOM from
an “equivalently qualified physician,” and Buck. Finally, they argue that
dismissal of plaintiffs’ complaint is consistent with the purposes of the AOM
statute and that the appellate court’s judgment is consistent with long-standing
tort principles. 8
8 We need not discuss defendants’ additional contention that we should address the Appellate Division’s remand. Here, Dr. Fitzgibbons’ AOM was sufficient to defeat the motions to dismiss. Therefore, the waiver principles of N.J.S.A. 2A:53A-41(c) are moot. 12 The NJAJ emphasizes that under the AOM statute, N.J.S.A. 2A:53A-41,
and Buck, the trial judge correctly denied defendants’ motions to dismiss and
for reconsideration. Alternatively, NJAJ argues that the standard announced in
Brill v. Guardian Life Insurance Co., 142 N.J. 520, 540 (1995), 9 should apply
to the disputed question of whether Dr. Goyal prescribed Allopurinol and if so,
whether he did so as an internist, gastroenterologist, or both. NJAJ argues that
plaintiffs are entitled to reasonable inferences that the alleged malpractice
“falls within internal medicine.”
III.
We review a trial court’s construction of a statute de novo. Libertarians
for Transparent Gov’t v. Cumberland County, 250 N.J. 46, 55 (2022). In that
inquiry, we look to the Legislature’s intent as expressed in the statute’s plain
terms. Id. at 54 (citing DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)). We
9 In Brill, this Court held,
[u]nder this new standard, a determination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute in favor of the non-moving party.
[142 N.J. at 540.] 13 also review de novo a trial court’s interpretation of a court rule, using
“ordinary principles of statutory construction to interpret the court rule[].”
DiFiore v. Pezic, 254 N.J. 212, 228 (2023) (quoting State v. Robinson, 229
N.J. 44, 67 (2017)).
IV.
In 1995, the AOM statute was one of several bills passed as part of a tort
reform package that balanced “a person’s right to sue and controlling nuisance
suits.” Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 149 (2003)
(quoting Palanque v. Lambert-Woolley, 168 N.J. 398, 404 (2001)). Under
N.J.S.A. 2A:53A-27, a medical malpractice plaintiff must show that the
complaint is meritorious by obtaining an affidavit from “an appropriate
licensed person” attesting to the “reasonable probability” of professional
negligence. 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. N.J.S.A. 2A:53A-27. 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, 178 N.J. at 150 (citing N.J.S.A. 2A:53A-29). The
dual purposes of the AOM statute are “to weed out frivolous lawsuits early in
the litigation while, at the same time, ensuring that plaintiffs with meritorious
14 claims will have their day in court.” Id. at 150 (quoting Hubbard v. Reed, 168
N.J. 387, 395 (2001)).
The Legislature enacted the Patients First Act in 2004, which
supplemented the AOM statute by including additional requirements for a
plaintiff’s AOM in a medical malpractice case. See L. 2004, c. 17, § 7
(codified at N.J.S.A. 2A:53A-41). The basic idea behind N.J.S.A. 2A:53A-41
is that the individual who executes the AOM in a medical malpractice case
“‘be equivalently-qualified to the defendant’ physician.” Buck, 207 N.J. at
389 (quoting Ryan v. Renny, 203 N.J. 37, 52 (2010)); see also N.J.S.A.
2A:53A-27 (amended concurrently with the enactment of the Patients First
Act, see L. 2004, c. 17, § 8, to specify that, “[i]n the case of an action for
medical malpractice, the person executing the affidavit shall meet the
requirements of a person who provides expert testimony or executes an
affidavit as set forth in [N.J.S.A. 2A:53A-41].”). Thus, N.J.S.A. 2A:53A-41
adds to the AOM statute the “equivalently qualified” requirement for an AOM
in a medical malpractice case. See Buck, 207 N.J. at 392 (“The 2004
amendments to the [AOM] statute added an extra level of complexity to the
obligations placed on plaintiffs’ attorneys . . . .”). The “equivalently
qualified” requirement is known as the “kind-for-kind” rule. See id. at 389.
15 N.J.S.A. 2A:53A-41 recognizes three categories of credentialed
physicians embodying the 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.”
[Ibid.; see also N.J.S.A. 2A:53A-41(a), (b).]
As to the first two categories and pertinent to the issues on appeal, N.J.S.A.
2A:53A-41(a) provides in part that,
[i]n an action alleging medical malpractice, a person shall not . . . execute an affidavit pursuant to the provisions of [the AOM statute] on the appropriate standard of practice or care unless the person is licensed as a physician . . . 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:
16 (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 the same health care profession in which the defendant is licensed . . . and, if that party is a specialist or subspecialist . . . , in the same specialty or subspecialty . . . ; or
(c) both.
[N.J.S.A. 2A:53A-41 (emphases added).]
Thus, when a defending physician is a “specialist or subspecialist”
recognized by the ABMS, and the “care or treatment at issue involves that
specialty or subspecialty,” the challenging expert shall have specialized in the
same “specialty or subspecialty.” N.J.S.A. 2A:53A-41(a).
17 Similarly, when a defending physician “practices in an ABMS specialty”
and “is board certified in that specialty” (like here), “the challenging expert
must have additional credentials.” Nicholas, 213 N.J. at 482. For those
physicians who are specialists in a field recognized by the ABMS and who are
board certified in that specialty, the challenging expert “must 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.
In Buck, the defending physician, alleged by the plaintiff to have
negligently prescribed a sleep medication, was board certified in emergency
medicine and was practicing as a family-medicine specialist at the time he
treated the plaintiff. 207 N.J. at 382-83. There was no Ferreira conference.
Id. at 382. The plaintiff provided an AOM from a specialist in emergency
medicine and an AOM from a psychiatrist, but nothing from a family medicine
practitioner. Ibid. Granting summary judgment to the defendant, the trial
judge found that the treatment did not involve emergency medicine and that
the psychiatrist’s AOM was insufficient. Id. at 387. The Appellate Division
affirmed. Id. at 383.
18 On leave to appeal in Buck, this Court stated, as a preliminary matter,
that “[t]his case is a reminder of the important role that Ferreira conferences
play in ensuring that the [AOM] statute fulfills its objective of weeding out
unmeritorious cases rather than worthy ones.” Id. at 393. Additionally, this
Court did not resolve whether the plaintiff’s AOMs were sufficient. Id. at 395.
Instead, this Court remanded and directed the trial judge to conduct a Ferreira
“conference and decide anew the adequacy of [the] plaintiff’s [AOMs].” Ibid.
Recognizing that the trial judge in Buck had sorted out the field of
medicine and the treatment at the summary judgment stage rather than the
Ferreira conference, this Court provided carefully considered guidance,
binding on the lower courts, germane to when a defending physician practices
in more than one specialty and when treatment involved may fall within those
specialty areas. Id. at 387, 391, 393-96. “[M]atters in the opinion of a higher
court which are not decisive of the primary issue presented but which are
germane to that issue . . . are not dicta, but binding decisions of the court.” 5
Am. Jur. 2d Appellate Review § 520 (2024); see also State v. Dabas, 215 N.J.
114, 136-37 (2013) (“Appellate and trial courts consider themselves bound by
this Court’s pronouncements, whether classified as dicta or not.”); State v.
Rose, 206 N.J. 141, 183 (2011) (“[T]he legal findings and determinations of a
19 high court’s considered analysis must be accorded conclusive weight by lower
courts. Our courts have consistently followed this rule.” (footnote omitted)).
First, applying N.J.S.A. 2A:53A-41, the Buck Court explained that the
initial inquiry must be whether the defending physician is a specialist or a
general practitioner. 207 N.J. at 391. If the defending physician is a
specialist, the next inquiry is whether the basis of the malpractice action
“involves” the physician’s specialty. Ibid. In the context of those inquiries,
and particularly as to compliance with the AOM statute and kind-for-kind
requirement contemplated by N.J.S.A. 2A:53A-41, this Court stated, “[a]
physician may practice in more than one specialty, and the treatment involved
may fall within that physician’s multiple specialty areas. In that case, an
[AOM] from a physician specializing in either area will suffice.” Ibid.
Second, to ensure future compliance with the AOM statute and N.J.S.A.
2A:53A-41, the Court directed that a defending physician “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. Responding to
the Buck Court’s directive, the Civil Practice Committee proposed amending
Rule 4:5-3, which this Court adopted. The amended rule, effective September
2012, states in part that “[a] physician defending against a malpractice claim
who admits to treating the plaintiff must include in his or her answer the field
20 of medicine in which he or she specialized at that time, if any, and whether his
or her treatment of the plaintiff involved that specialty.” R. 4:5-3.
Thus, there is generally no need for a Ferreira judge or motion judge to
conduct a miniature hearing, take testimony, and make findings of fact about a
physician’s specialty and whether his treatment of the plaintiff involved that
specialty. And judges need not apply Brill on motions to dismiss for failure to
comply with the AOM statute regarding “the field of medicine in which the
[physician is] specialized, if any, and whether his treatment of the plaintiff
involved that specialty” because the defending physician’s Rule 4:5-3
Specialty Statement generally resolves those factual questions.
Application of those legal principles to the facts of this case is
straightforward.
The text of N.J.S.A. 2A:53A-41 is clear. In an action alleging medical
malpractice against a board-certified physician who is a “specialist or
subspecialist” recognized by the ABMS, and when the “care or treatment at
issue involves that specialty or subspecialty,” the person executing the AOM
must likewise be a board-certified “specialist or subspecialist” in the same
“specialty or subspecialty” recognized by the ABMS as the defending
physician. N.J.S.A. 2A:53A-41(a). A majority of the affiant’s professional
21 time “during the year immediately preceding the date of the occurrence that is
the basis for the claim or action” must be devoted to the “active clinical
practice” of the defending physician’s “specialty or subspecialty.” Id. at
(a)(2)(a).
It is undisputed that Dr. Goyal is board certified in the specialty of
internal medicine and in the subspecialty of gastroenterology. N.J.S.A.
2A:53A-41(a) requires the affiant of the AOM to be board certified in the same
“specialty or subspecialty” of the defending physician, not specialties or
subspecialties. N.J.S.A. 2A:53A-41(a)(2)(a) requires the affiant of the AOM
to devote a majority of that person’s “active clinical practice” to the defending
physician’s “specialty or subspecialty,” not specialties or subspecialties. Dr.
Fitzgibbons meets those requirements. The plain language of N.J.S.A.
2A:53A-41 does not require an AOM to be from an individual with the same
numerous specialties as the defending physician; instead, it requires only the
same “specialty or subspecialty” in the singular (emphasis added). 10
N.J.S.A. 2A:53A-41(a) also requires that the “care or treatment at issue
involve[] [the defending physician’s] specialty or subspecialty,” not specialties
10 At oral argument, when counsel for Dr. Goyal and SPPC was asked if the statute required an affiant to have the same multiple specialties as the defending physician, counsel conceded that there was no language in the statute imposing that requirement. 22 or subspecialties. Dr. Goyal’s Specialty Statement verified that his treatment
of Carden involved his medical specialties of internal medicine and
gastroenterology. And his December 2022 certification, which amplified the
Specialty Statement, stated, “[a]ll treatment that I rendered to [Carden] was
provided as both an internist and gastroenterologist.”
Dr. Goyal provided those statements in response to plaintiffs’ detailed
allegations. The complaint expressly alleged that “[Carden]’s death was
directly attributable to the Allopurinol.” The “care or treatment at issue”
involves prescribing Allopurinol. Therefore, under N.J.S.A. 2A:53A-41(a), for
purposes of the sufficiency of the AOM, Dr. Goyal’s “care or treatment at
issue” involves his “specialty or subspecialty” of internal medicine and
gastroenterology, as stated in his Specialty Statement.
At the Ferreira conference and during the motions, the parties debated
whether Dr. Goyal treated Carden as an internist, a gastroenterologist, or both.
Plaintiffs argued that he prescribed Allopurinol as an internist. After the
Ferreira conference, Dr. Goyal’s counsel stated, “it remains unclear at this
juncture whether Dr. Goyal even prescribed [A]llopurinol to [Carden],” since
23 he had not seen JFK’s records. 11 Instead, his counsel relied generally on Dr.
Goyal’s certification, in which he admitted to having treated Carden as an
internist and as a gastroenterologist. Indeed, on reconsideration, Dr. Goyal
submitted Dr. Solny’s certification, who opined “that there certainly is a use
for Allopurinol in gastroenterology,” that gastroenterologists “regularly
prescribe Allopurinol,” and that, as someone “Board Certified in both internal
medicine and gastroenterology, it [was] not possible to bifurcate and segregate
[Dr. Solny’s own] knowledge as a gastroenterologist from that as an
internist.” 12
Regardless, as to the threshold issue of whether plaintiffs’ AOM is
sufficient to survive a motion to dismiss, Dr. Goyal’s Specialty Statement and
his later certification verify that his treatment of Carden involved his medical
specialties of internal medicine and gastroenterology. Under Buck, when “the
treatment involved may fall within [a] physician’s multiple specialty areas” --
11 Presumably Dr. Goyal’s own medical records would answer whether he prescribed Allopurinol from September 4 to September 8, 2020, which according to the complaint was after JFK discharged Carden. 12 Defendants submitted Dr. Solny’s certification for the first time on reconsideration and argued generally that gastroenterologists also prescribe Allopurinol. Dr. Goyal had certified only that “[a]ll treatment that I rendered to [Carden] was provided as both an internist and as a gastroenterologist.” As stated earlier, Dr. Goyal’s December 2022 certification was silent about whether he himself prescribed Allopurinol as an internist, gastroenterologist, or both, and indeed it did not mention Allopurinol at all. 24 as is the case here -- “an [AOM] from a physician specializing in either area
will suffice.” 207 N.J. at 391 (emphasis added). Therefore, Dr. Fitzgibbons’
AOM complies with the AOM statute, N.J.S.A. 2A:53A-41(a)(2)(a), and Buck,
neither of which require an AOM from an individual matching all areas of
practice if a defending physician practices in multiple specialty areas.
Accordingly, the trial judge correctly denied defendants’ motions.
Our holding that an AOM that falls within any of a defending
physician’s specialties is sufficient comports with the purposes underlying the
AOM statute as previously explained by this Court in Buck. “[T]here is no
legislative interest in barring meritorious claims brought in good faith[.]”
Buck, 207 N.J. at 393 (alterations in original) (quoting Ferreira, 178 N.J. at 50-
51). It is well known that “the Legislature did not intend ‘to create a minefield
of hyper-technicalities in order to doom innocent litigants possessing
meritorious claims.’” Id. at 393-94 (internal quotation marks omitted)
(quoting Ryan, 203 N.J. at 51). At this stage in the case, a plaintiff need only
be guided by a defending physician’s Specialty Statement and provide an
AOM from an individual in one of the specialty areas involved in the
defending physician’s treatment of the plaintiff, not jump through hoops to
25 find an exact match of all specialty practice areas to survive a motion to
dismiss. 13
We disagree with the notion that this Court’s opinion in Nicholas and the
Appellate Division’s decision in Pfannenstein altered Buck. In Nicholas, the
AOMs were executed by physicians who did not meet the kind-for-kind
requirement of N.J.S.A. 2A:53A-41. 213 N.J. at 468. The defending
physicians were board certified in emergency medicine and family medicine.
Id. at 467. The plaintiff submitted AOMs from a physician “Board Certified in
the medical specialty of Internal Medicine, Pulmonary Diseases, Critical Care,
and Undersea & Hyperbaric Medicine,” and from another physician who was
board certified in internal medicine. Id. at 471. And in Pfannenstein, the
defending physicians specialized in internal medicine, but the plaintiff
submitted an AOM from a hematologist. 475 N.J. Super. at 90. Those cases
left untouched our guidance in Buck, which was germane to situations in
which a plaintiff submits an AOM against a defending physician who practices
in multiple specialty areas and the treatment at issue may fall within those
specialty areas. 207 N.J. at 391.
13 Indeed, plaintiffs demonstrated good faith by providing, in further support of their argument that the AOM from Dr. Fitzgibbons was sufficient, multiple certifications from physicians to show that Dr. Goyal’s alleged prescription of Allopurinol was not a gastroenterology issue. 26 VI.
Finally, we once again emphasize that our reversal furthers the
fundamental purposes of the AOM statute, which are “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.” Ferreira, 178 N.J. at 150
(quoting Hubbard, 168 N.J. at 395). Although application of N.J.S.A.
2A:53A-41 and Buck have ensured that this matter will proceed on the merits,
plaintiffs are still left to their proofs. Our holding in no way relieves plaintiffs
from demonstrating Dr. Goyal’s professional negligence at trial; we resolve
only the threshold issue of the sufficiency of plaintiffs’ AOM.
At trial, to prove medical malpractice took place, “a plaintiff must
present expert testimony establishing (1) the applicable standard of care; (2) a
deviation from that standard of care; and (3) that the deviation proximately
caused the injury.” Haviland v. Lourdes Med. Ctr. of Burlington Cnty., Inc.,
250 N.J. 368, 384 (2022) (internal quotation marks omitted) (quoting Nicholas,
213 N.J. at 478). “With rare exception, expert testimony is needed to establish
the standard of care.” Morlino v. Med. Ctr. of Ocean Cnty., 152 N.J. 563, 578
(1998). Jurors cannot guess about the applicable standard of care by which to
judge the alleged negligence of a defending physician. See Model Jury
Charges (Civil), 5.50A, “Duty and Negligence” (approved Mar. 2002). Jurors
27 determine the applicable medical standard from the testimony of experts, and it
is for the jury to resolve any conflict that arises in that testimony. Ibid.
VII.
We therefore reverse the Appellate Division’s judgment, reinstate the
trial court orders denying defendants’ motions to dismiss and motions for
reconsideration, and remand for further proceedings.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE- LOUIS, WAINER APTER, NORIEGA, and HOFFMAN join in JUSTICE FASCIALE’s opinion.