Ryan v. Renny

999 A.2d 427, 203 N.J. 37, 2010 N.J. LEXIS 693

• Court: Supreme Court of New Jersey
• Decided: July 22, 2010
• Status: Published

Opinions

Justice LONG

delivered the opinion of the Court.

Defendant, who is board-certified in gastroenterology and internal medicine, performed a routine colonoscopy on plaintiff as a result of which she suffered a perforated colon. Plaintiff sued defendant for medical malpractice. In these circumstances, the Affidavit of Merit statute¹ requires that the plaintiffs affiant be board-certified in the same specialty or subspecialty as the defendant. Despite contacting several potential experts, plaintiffs counsel was unable to locate a board-certified gastroenterologist willing to provide an affidavit of merit but proffered, within sixty days of the filing of defendant’s answer, an affidavit by a surgeon who had experience performing colonoscopies, repairing tears relating to colonoscopies, and who had published multiple articles on the topic. Defendant moved to dismiss, and plaintiff filed a cross-motion for a waiver of the specialty requirement pursuant to N.J.S.A. 2A:53A-41(c). The trial judge found that plaintiff had made a good faith effort to comply with the statute and waived the specialty requirement, permitting plaintiff to rely on the previously filed affidavit.

The Appellate Division held that a waiver should not have been granted and dismissed the complaint. The panel explained that in seeking the waiver, plaintiffs counsel had identified three gastroenterologists who declined to provide an affidavit but failed to explain the reasons for the refusals. The panel found that omission “a crucial failure in plaintiffs application for a section 41e waiver.”

This case presents us with an opportunity to interpret the waiver provision and to answer the question of whether the notion of a “good faith effort” contemplates a substantive explanation, to the court, why experts in defendant’s field refused to supply plaintiff with an opinion. We hold that it does not and thus, the Appellate Division’s superimposition of that requirement on the good faith analysis was unauthorized.

The waiver provision also prescribes that where plaintiff has made a good faith showing of inability to identify an expert in the same specialty or subspecialty as defendant, his proposed expert must possess “sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” We interpret that language as a broad grant of discretion to the trial judge that does not bear with it, as defendant argues, a temporal requirement that the proposed expert be engaged in performing the medical procedure at issue on the date of the occurrence giving rise to the claim. Rather, the expert may have derived his training, experience, and knowledge “as a result of’ prior practice in the field. That is not to suggest that a lapse of time may not bear on a judge’s assessment of an expert’s training, experience, and knowledge, only that it is not an automatic disqualifier. To the extent that the Appellate Division ruled otherwise, we reverse.

I.

The facts are brief. On January 29, 2007, defendant, Dr. Andrew Renny, performed a routine colonoscopy on plaintiff, Abby Ryan. The procedure resulted in a perforated colon, which Ryan alleges was caused by Dr. Renny’s negligence. On October 17, 2007, Ryan filed a complaint against Dr. Renny alleging that he was negligent in his treatment of Ryan and that he deviated from accepted standards of care.²

In support of the complaint, Ryan submitted an affidavit by Dr. David Befeler, a surgeon who is not board-certified in gastroenterology. In respect of his qualifications, the affidavit states: “I am currently engaged in the practice of general surgery and related procedures, including colonoscopies, and am board certified in same, and have been so for more than five years.”

Dr. Renny objected to the affidavit on the ground that it did not issue from a board-certified gastroenterologist. A Ferreira3 conference was held, during which Ryan conceded that she had not been able to procure an affidavit of merit from a board-certified specialist in gastroenterology. The dispute remained unresolved following the conference.

After the expiration of the 120-day time period for providing an affidavit of merit, Dr. Renny moved to dismiss the complaint with prejudice for failure to submit an affidavit executed by a person meeting the specialty criteria set by N.J.S.A. 2A:53A-41(a). Ryan filed a cross-motion for a waiver of the specialty requirements pursuant to N.J.S.A 2A:53A-41(c).

In support of the cross-motion, Ryan provided Dr. Befeler’s curriculum vitae and portions of his testimony at a 2004 deposition in an unrelated ease. According to his curriculum vitae, Dr. Befeler has published in the area of gastroenterology since the 1960s. His deposition testimony indicates that he has performed more than 100 colonoscopies, the last one “several years” prior to 2004. Also, Dr. Befeler certified that he has been a board-certified general surgeon since 1966. The certification stated that, as a current attending surgeon at Overlook Hospital,

3. ... I have continually been involved with treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases. Although I do not perform colonoscopies at the present time, I continually have involvement in injuries, conditions and diseases of the bowel and related areas.

4. In the current treatment of patients, I am often required to evaluate symptoms that require the need to have colonoscopies performed to determine a diagnosis of conditions that may require surgery and other types of treatment.

5. I periodically review findings of colonoscopies in the course of diagnoses and ruling out conditions that may require surgery and treatment.

Ryan’s counsel certified to his good faith but unsuccessful efforts to provide an affidavit of merit by a physician with the same board certification as Dr. Renny. He contacted three attorneys experienced in medical malpractice, in three different geographical areas of the state, each of whom provided him with the name of an expert, board-certified in gastroenterology. He then contacted the three physicians, “and generally outlined the facts relating to the case in question,” and each “declined to provide an opinion relating to the actions of the defendant[.]” Thereafter, counsel

contacted Dr. David Befeler, who, although not certified in each of the sub-specialties of gastroenterology and internal medicine, has an enormous amount of experience, knowledge and skill relating to the issues involved in this case, and has been qualified by the Court of New Jersey to give opinions on these types of issues that we have in this case, a large tear in the colon.

At argument on the motion, Dr. Renny contended that Ryan’s counsel had not demonstrated a good faith effort to obtain an expert board-certified in gastroenterology because counsel’s certification did not explain why the three specialists contacted declined to give an opinion. Absent an explanation, the court may infer, Dr. Renny argued, that the specialists believed that he did not deviate from the applicable standard of care and accordingly that Ryan’s claim lacked merit. In addition,' Dr. Renny contended that Dr. Befeler is not qualified to render an opinion on the applicable standard of care because he was not actively performing colonoscopies at the time of the procedure giving rise to the claim.

Ryan’s counsel countered that he satisfied the good faith standard of the waiver provision and that Dr. Befeler is qualified to opine on whether Dr. Renny deviated from the standard. He argued further that the fact that he could not obtain an opinion from a board-certified gastroenterologist did not necessarily reflect on the merits of the case. Rather, he contended that specialists may refuse to render an opinion for many reasons, including general unwillingness to become embroiled in litigation. In addition, Ryan’s counsel argued that Dr. Befeler is qualified to render an opinion in this case because the “actively involved” element of the waiver provision should be read broadly to include presently engaging in “procedures relating to the colon,” and because Dr. Befeler previously performed colonoscopies with respect to which there is no temporal limitation in the waiver provision.

At the close of oral argument, the trial judge granted Ryan’s motion to waive the specialty requirements and denied Dr. Renny’s motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. The judge held that a plaintiff does not have to explain why efforts to obtain a board-certified expert were unsuccessful. As he observed, those reasons “are probably privileged anyway.” He further reasoned that the Legislature did not intend for the affidavit of merit procedure to become a discovery device and concluded that Ryan’s counsel made a good faith effort to identify an expert in the same specialty as defendant.

With regard to the second part of the waiver provision, the judge concluded that Dr. Befeler is “currently actively involved” in the applicable area of practice, even though he no longer performs colonoscopies. He identified the area as gastroenterology, and defined it as the “treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases.” The judge concluded that current performance of colonoscopies is not a requirement of the statute. The effect of the grant of the waiver was to approve Ryan’s use of Dr. Befeler’s timely filed affidavit of merit.⁴

Dr. Renny moved for leave to appeal, which was granted. Before the Appellate Division, Dr. Renny contended that demonstration of a “good faith effort” requires an explanation as to why a specialist could not be obtained; the proffered expert must have “active involvement” at the time of the incident at issue; and that “active involvement” requires that the proffered expert must actually perform the procedure giving rise to the claim.

The appellate panel reversed on the ground that Ryan had not demonstrated a good faith effort to identify an expert who meets the requirements of N.J.S.A. 2A:53A-41(a). Ryan v. Renny, 408 N.J.Super. 590, 596-97, 975 A.2d 971 (App.Div.2009). In ruling, the panel denominated the absence of an explanation of why the three gastroenterologists declined to provide an opinion as “a crucial failure in plaintiff’s application for a section 41c waiver.” Id. at 596, 975 A.2d 971. The gist of the court’s reasoning was its apparent belief that if a plaintiff could not obtain an affidavit from an equivalently-qualified⁵ expert to defendant, it would follow that his claim was specious. The only exceptions recognized by the panel are cases where “appropriately qualified experts are either rare or for some reason unavailable to the plaintiff.” Id. at 596-97, 975 A.2d 971. By way of example, the court referenced situations in which the expert has “a conflict with the parties or counsel; does not testify in court or execute affidavits in connection with litigation; or has limited his activities to one geographical area.” Id. at 596, 975 A.2d 971. According to the panel, only then may the court “proceed to step two[:] scrutiny of the proposed expert’s training, knowledge and expertise.” Ibid. The court thus granted Dr. Renny’s motion to dismiss the complaint with prejudice for failure to comply with the “good faith effort” prong of the Affidavit of Merit statute. That ruling made it unnecessary for the court to address the second prong of the statute.

We granted Ryan’s petition for certification, 200 N.J. 504, 983 A.2d 1111 (2009). While this appeal was pending, Dr. Renny moved to supplement the record to advance additional challenges to Dr. Befeler’s credentials. Because of the appellate posture of the case, we denied the motion.

II.

On the petition, Ryan argues that the plain language of the waiver provision does not impose on the moving party the burden of explaining why an expert in the relevant specialty could not be procured; that “active involvement” should be read broadly to encompass procedures related to the colon other than colonoscopies; and, that the waiver provision does not impose a temporal limitation on when the expert amassed his expertise. Amicus New Jersey Association for Justice (“NJAJ”) is in fundamental agreement with Ryan. Additionally, NJAJ challenges the soundness of the Affidavit of Merit statute.

In response, Dr. Renny contends that “good faith effort” requires an explanation why a specialist could not be obtained; and, that the term “active involvement” requires proof that Dr. Befeler was actually performing colonoscopies “at the time of the occurrence giving rise to the claim.” Amicus Medical Society of New Jersey, joined by the American Medical Association, is in fundamental agreement with Dr. Renny.

III.

Under Rules 601 and 702 of the New Jersey Rules of Evidence, the determination of whether a witness is qualified to testify as an expert generally rests in the sound discretion of the trial judge. That discretion can, of course, be guided by statute. See, e.g., State v. One Marlin Rifle, 319 N.J.Super. 359, 369, 725 A.2d 144 (App.Div.1999) (finding error in trial court’s acceptance of nurse’s opinion testimony regarding specific identity and cause of condition “clearly ... constituted a medical diagnosis,” prohibited by N.J.S.A 45:11—23(b)); Mizrahi v. Allstate Ins. Co., 276 N.J.Super. 112, 118-20, 647 A.2d 486 (Law Div.1994) (precluding testimony by insurance consultants who were not licensed as required by statute). Indeed, there is nothing in our jurisprudence “to suggest that the broad view of expert qualification embodied in the rules of evidence is sufficient to permit the testimony when the Legislature expresses a contrary view.” Mizrahi, supra, 276 N.J.Super. at 117, 647 A.2d 486.

The Affidavit of Merit statute is such an expression. It prescribes in relevant part:

In 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 60 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 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. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

[N.J.S.A. 2A:53A-27.]

The statute applies to all actions for damages based on professional malpractice. Charles A Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J.Super. 343, 347, 781 A.2d 1116 (App.Div.2001) (holding Affidavit of Merit statute applied to defendant’s malpractice counterclaim).

The core purpose underlying the statute is “to require plaintiffs ... to make a threshold showing that their claim is meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation.” In re Petition of Hall, 147 N.J. 379, 391, 688 A.2d 81 (1997) (quoted in Alan J. Comblatt, P.A. v. Barow, 153 N.J. 218, 242, 708 A.2d 401 (1998), modified in part by, Ferreira, supra, 178 N.J. at 154, 836 A.2d 779). Importantly, “there is no legislative interest in barring meritorious claims brought in good faith.” Ferreira, supra, 178 N.J. at 150-51, 836 A.2d 779 (citing Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 359, 771 A.2d 1141 (2001)). Indeed, “[t]he legislative purpose was not to ‘create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims.’” Id. at 151, 836 A.2d 779 (quoting Mayfield v. Cmty. Med. Assocs., 335 N.J.Super. 198, 209, 762 A.2d 237 (App.Div.2000)).

In its original iteration, the statute broadly required that the affidavit be executed by an affiant who was “licensed” and had “expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person’s practice substantially to the general area or specialty involved in the action for a period of at least five years[.]” L. 1995, c. 139, § 2. Under that standard, a physician in one field was qualified to render an opinion with respect to the performance of a physician in another if their practices overlapped. Burns v. Belafsky, 166 N.J. 466, 480, 766 A.2d 1095 (2001).

In 2004, the Legislature enacted the New Jersey Medical Care Access and Responsibility and Patients First Act (“Act”), L. 2004, c. 17; N.J.S.A. 2A:53A-37 to -42, which modifies the Affidavit of Merit statute and applies to causes of action arising after July 7, 2004, L. 2004, c. 17, § 33. The 2004 amendments were part of a comprehensive package of tort reforms enacted to address the “dramatic escalation in medical malpractice liability insurance premiums[.]” N.J. State Bar Ass’n v. State, 387 N.J.Super. 24, 36, 902 A.2d 944 (App.Div.), certif. denied, 188 N.J. 491, 909 A.2d 726 (2006).

The 2004 version 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:

In 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 (C. 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspeeialty 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 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; 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 recognized by the American Board of Medical Specialties or the American Osteopathic Association, 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 Specialties or the American Osteopathic Association; 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:

(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.

[N.J.S.A. 2A:53A-41 (emphasis added).!

The 2004 amendments also provide for waiver of the newly-tightened requirements in certain circumstances:

A court may waive the same specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association and board certification requirements of this section, upon motion by the party seeking a waiver, if, after the moving party has demonstrated to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty, the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.

[N.J.S.A. 2A:53A-41(c)J

In general, upon appropriate findings by the trial judge, the waiver provision opens the door for a non-equivalently-qualified expert in the same field as defendant to testify, and permits an expert in one field to opine on the performance of an expert in another related field. It is the meaning of “good faith effort” and “active involvement” in the waiver provision that is at the heart of this case, which involves a question of statutory interpretation.

IV.

A court’s role in statutory interpretation “is to determine and effectuate the Legislature’s intent.” Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553, 964 A.2d 741 (2009) (citation omitted). Generally, the best indicator of that intent is the statutory language itself. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Thus, a court begins with the words of the statute and ascribes to them their ordinary meaning. Mason v. City of Hoboken, 196 N.J. 51, 68, 951 A.2d 1017 (2008). A court should read the disputed language “in context with related provisions so as to give sense to the legislation as a whole[.]” DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039.

If the meaning of the statutory words is clear, the analysis is complete and the court need look no further. Mason, supra, 196 N.J. at 68, 951 A.2d 1017. It is not the court’s function to “‘rewrite a plainly-written enactment of the Legislature [or] presume that the Legislature intended something other than that expressed by way of the plain language.’ ” Marino v. Marino, 200 N.J. 315, 329, 981 A.2d 855 (2009) (alteration in original) (quoting O’Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002)). Nor may it “ ‘engage in conjecture or surmise which will circumvent the plain meaning of the act[.]’ ” DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039 (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548, 416 A.2d 896 (1980)). Only if the statutory language is susceptible to “more than one plausible interpretation” may the court turn to extrinsic aids such as legislative history. DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039. That is the backdrop for our inquiry.

V.

We turn first to the requirement of the waiver provision that the moving party must demonstrate to the satisfaction of the court that he has made a good faith effort to identify an expert in the same specialty as defendant. Dr. Renny says, and the Appellate Division agreed, that the reasons experts declined plaintiffs request that they execute an affidavit of merit are crucial to the judge’s determination of whether plaintiff made a good faith effort. In particular, Dr. Renny argues that if the experts turned plaintiff down because they did not find that a deviation from the standard of care had occurred, plaintiff should not be permitted a substitute expert because that would allow a non-meritorious claim to survive. We disagree.

The problem with Dr. Renny’s position is that it does not accord with the plain language of the waiver provision, which directs the judge to focus on the “effort” the moving party made to obtain a statutorily-authorized expert, and not on the reasons why a particular expert or experts declined to execute an affidavit. That focus reflects a legislative judgment that the moving party should make a legitimate attempt to obtain an equivalently-qualified expert and should not be relieved of that burden by desultory undertakings or half-hearted endeavors. It follows that, to prove a good faith effort, a moving party must show what steps he undertook to obtain an expert qualified according to N.J.S.A. 2A:53A-41(a) or (b). By way of example, that would include: the number of experts in the field; the number of experts the moving party contacted; whether and where he expanded his search geographically when his efforts were stymied; the persons or organizations to whom he resorted for help in obtaining an appropriate expert; and any case-specific roadblocks (such as the absence of local sub-specialty experts) he encountered. However, the experts’ reasons for declining simply do not bear on the robustness of movant’s “efforts[.]”

Indeed, the very existence of the waiver provision makes it obvious to us that the Legislature did not intend a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert. If that were the case, the Legislature would not have provided for waiver or, at the very least, would have declared that waiver was somehow limited by the substance of an expert’s refusal to execute an affidavit. It did not do so.

By the broad waiver provision, the Legislature explicitly recognized that there would be legitimate malpractice claims for which a plaintiff would not be able to obtain an affidavit of merit from an equivalently-qualified expert or even from an expert in the same field. It thus created a safety valve for those cases by providing the judge with broad discretion to accept an expert with “sufficient training, experience and knowledge to provide the testimony[,]” but only if plaintiff made a good faith effort to satisfy the statute. The Legislature left it to the “satisfaction of the court” to determine whether an honest “effort” was made to identify an expert in the same specialty or subspeeialty. It is the “effort” of the movant that is the focal point of the waiver provision.⁶

Here, Ryan’s counsel attested to his attempts to secure the affidavit of a board-certified gastroenterologist. He contacted three attorneys experienced in medical malpractice in three different areas of the state; each of them provided him with the name of a board-certified gastroenterologist; in turn, he contacted each of them and outlined the facts of the ease; those experts declined to offer an opinion regarding deviation. The trial judge was satisfied that, under the statute, the efforts that Ryan undertook were sufficient to establish good faith. We agree. In so doing, we reiterate that there is nothing in the statute that requires more and that the trial judge’s acceptance of what was proffered was plainly not an abuse of discretion.

By this ruling, we reaffirm that it is the duty of litigants to make a good faith effort to obtain an equivalently-qualified expert in a malpractice case, yet honor the Legislature’s desire to permit meritorious cases, for which no equivalently-qualified expert can be obtained, to be aired in a courtroom. That is, in the final analysis, the goal of the Affidavit of Merit statute.

VI.

We next address Dr. Renny’s argument that even if Ryan made a good faith effort, Dr. Befeler cannot satisfy the second prong of the waiver provision because he was not actually performing colonoscopies “at the time of the occurrence giving rise to the claim.”⁷ According to Dr. Renny, that is the meaning of “active involvementf.]” We return to the language of the statute, which permits the court to waive the same specialty or sub-specialty requirement if it determines “that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine,” N.J.S.A. 2A:53A-41(e).

In arguing that Dr. Befeler cannot satisfy the statute because he was no longer performing colonoscopies when Ryan sustained her injury, Dr. Renny seeks to add an element to the waiver provision that is not there and to superimpose the strict time limits in other sections of the Act onto that provision. For example, where the defendant is a specialist or subspecialist, the person providing the testimony against him “shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty[.]” N.J.S.A. 2A:53A-41(a) (emphasis added). Further, where the defendant is board certified, the witness against him must also be board certified in the same specialty or subspecialty⁸ 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” active clinical practice or teaching of the specialty or subspecialty. N.J.S.A 2A:53A-41(a)(2) (emphasis added). Likewise, where the defendant 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” teaching or to active clinical practice as a general practitioner or in a practice that encompasses the medical condition or includes performance of the procedure at issue. N.J.S.A 2A:53A-41(b) (emphasis added).

Under those provisions, which will govern the vast majority of cases, whether the defendant is a specialist, board-certified, or a general practitioner, the Legislature has demanded a degree of contemporaneity in the qualifications of the expert witness. There is no similar requirement of temporality in the plain language of the waiver provision. Given the specific directives by the Legislature in connection with equivalently-qualified experts in subsections (a) and (b) of the Act, we have no reservation in concluding that when it omitted such a requirement from the waiver provision, which it enacted simultaneously, it did so purposely.

Indeed, it is elementary that when the Legislature includes limiting language in one part of a statute, but leaves it out of another section in which the limit could have been included, we infer that the omission was intentional. See In re Estate of Santolino, 384 N.J.Super. 567, 581, 895 A.2d 506 (Ch.Div.2005) (applying canon of statutory construction inclusio unius est exclusio alterius). See also Fiore v. Consol. Freightways, 140 N.J. 452, 466, 659 A.2d 436 (1995) (holding we must read all parts of a statute together and not consider separate sections in a vacuum) (citing Norman T. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1992)).

Dr. Renny’s suggestion that the use of the term “active” involvement is a doppelganger for a temporality requirement is likewise belied by the other provisions of the Act. As is clear from subsections (a) and (b), the word “active” describes the nature of the expert’s practice and is entirely distinct from the separate time limitations in the Act.

We think that the likely purpose underlying the omission of any temporal limitation from the waiver provision was a recognition by the Legislature that waiver is the last chance for a plaintiff to meet the affidavit of merit requirement and avoid dismissal. Thus it approached the qualifications issue expansively, opening the door for physicians and professors who had actively practiced in the relevant field or a related one, but who had retired or moved into a different area of specialization, to serve as experts under the waiver provision. That expansive approach also permits a practitioner qualified to perform the medical procedure at issue who has opted no longer to do so to appear as a witness.⁹ Indeed, that notion gels with the Legislature’s use of the words “as a result of.” Unlike the other sections of the statute which declare exactly when the expert must have developed his knowledge and experience, the waiver provision permits the judge to accept evidence from an expert he deems to have sufficient training, experience, and knowledge derived “as a result of’—that is, as a consequence of or flowing from prior “active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field[.]” N.J.S.A. 2A:53A-41(c). The “as a result of’ language is the critical path to interpreting the waiver provision because it introduces into the analysis an expert who no longer practices or teaches in a particular field or who no longer performs the medical procedure at issue, but whose past education, practice, and experience fully warrant permitting him to serve as an expert.

We thus reject Renny’s argument that because Dr. Befeler was no longer performing colonoscopies at the time of the incident at issue, despite the fact that he had performed them earlier in his career, he could not qualify, as a matter of law, as an expert witness in this case.

That is not to suggest that the implications of the passage of time are an improper consideration for the trial judge who is assessing an expert’s qualifications under the waiver provision. Although no bright-line disqualifier exists, it is clear to us that in the exercise of discretion in a waiver case, the trial court may take into account the passage of time and its relationship to the expert’s qualifications. Thus, for example, if a party establishes that practice in a particular medical field has undergone a sea-change over time due to developments that have occurred since the expert was trained and actively practiced in the field, the judge may well consider that factor in evaluating the expert’s qualifications. In the final analysis, it is within the broad discretion of the trial judge to determine whether a particular witness’s knowledge, experience, and training warrant his service as an expert under the waiver provision.

Here, the trial judge found that Dr. Befeler had performed colonoscopies in the past, that present performance of colonoscopies is not a requirement of the statute, and, based on his present practice, that Dr. Befeler was “actively involved” in the “treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases.” As such, the trial judge qualified the doctor as an expert under the waiver provision.

Although from this record it seems to us that in reaching his conclusions the trial judge took into account the principles to which we have here adverted, in an abundance of caution, and because we have here broken new ground, we remand the matter to him for further consideration in light of this opinion. During that proceeding, Dr. Renny may raise the additional challenges to Dr. Befeler’s credentials that he advanced before us on motion.

VII.

Based upon the plain language of the Affidavit of Merit statute, the judgment of the Appellate Division declaring that Ryan failed to satisfy the good faith standard of the waiver provision of N.J.S.A. 2A:53A-41(c) is reversed. The matter is remanded to the trial judge for further proceedings consistent with this opinion.

1 The Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, encompasses the New Jersey Medical Care Access and Responsibility and Patients First Act, NJ.S.A. 2A:53A-37 to -42.

2 Ryan's husband sued per quod.

3 Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 154, 836 A.2d 779 (2003), provides that "an accelerated case management conference [will] be held within ninety days of the service of an answer in all malpractice actions” in order to avoid inadvertent failures to file an affidavit of merit and thus "shepherd legitimate claims expeditiously to trial[J”

4 We note that our dissenting colleague's contention that Ryan’s submission of Dr. Befeler’s report was untimely was neither raised, briefed, nor argued by Dr. Renny here or in the courts below. In that connection, it is well settled that we will decline to consider such an issue for the first time on appeal. N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 990 A.2d 1097 (2010). On the merits, Dr. Befeler's report was filed prior to Dr. Renny’s answer—well within the time frames provided in the Affidavit of Merit statute—and was declared by the trial judge to satisfy the substantive requirements of the statute. Put another way, a proper affidavit of merit was, in fact, timely filed.

5 We use the phrase "equivalently-qualified” throughout this opinion to mean one who specializes in the same field as defendant.

6 An additional problem with the Appellate Division’s paradigm is that it does not take into account the rules governing expert discovery in civil cases. See generally R. 4:10-2, R. 4:17-1, and R. 4:17-4. For example, under Rule 4:10-2(d)(3), the opinion of an expert consulted in anticipation of litigation who is not expected to be called as a witness at trial can only be discovered "upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts or opinions” by other means. By making the reasons an expert declined to provide an affidavit of merit a required element of a waiver motion, the Appellate Division has written the exceptional circumstances standard out of the rule and permitted the adversary discovery to which he is not otherwise entitled.

7 The Appellate Division did not reach that purely legal issue because of its dismissal of Ryan's complaint for failure to satisfy the good faith effort prong of the Act.

8 Alternatively, the witness shall be "a physician credentialed by a hospital” to treat the condition or perform the procedure that is the basis for the claim. NJ.S.A. 2A:53A-41(a)(l).

9 For example, studies show that a significant percentage of obstetricians and gynecologists have stopped delivering babies because "liability insurance for obstetrician-gynecologists (ob-gyns) has become prohibitively expensive and is forcing ob-gyns to restrict or abandon their obstetrical practices." Pamela Robinson, et al., The Impact of Medical Legal Risk on Obstetrician-Gynecologist Supply, 105(6) Obstetrics & Gynecology 1281, 1296-1302 (2005). We think that the Legislature intended to permit physicians who ceased delivering babies because of malpractice premiums to testify on the standard of care applicable to those who continue to do so.