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VOL. CLXXI NO. 7 INDEX 516 FEBRUARY 10, 2003 ESTABLISHED 1878

HEALTH CARE LAWBy ALMAL. SARAVIA

IN PRACTICE

This article is reprinted with permission from the FEBRUARY 10, 2003 issue of the New Jersey Law Journal. 2003 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.

The conflict between physicians andattorneys concerning the cost ofmedical malpractice insurance has

continued to escalate, culminating in arecent work stoppage by New Jerseysphysicians. On the heels of that work

stoppage, a bipartisan group of legisla-tors has stated that a compromise billwill be introduced into the Legislaturethat would shield physicians and theirmalpractice insurers from paying morethan $300,000 for pain and suffering tovictims of a medical mistake.

If a patient wins a jury award formore than that amount, a second insur-ance policy, bought by the state, wouldcover the excess award. While this isthe latest proposal in the ongoing debateover which legislation should be enact-

ed, one legislative proposal alreadymade could garner support from both

sides.The Legislature has heard extensive

testimony and received conflictinginformation about whether there is amedical malpractice crisis. The stateshealth care providers have stated that

they cannot purchase affordable med-ical malpractice insurance, placing theLegislature in a quandary as to how toaddress this crisis. Many physicians,arguing that excessive damages awardsare the cause of the increases, have ral-lied throughout the state to urge theenactment of tort reforms to place capson lawsuit awards.

Other groups have predictably stat-ed that tort reform will not result in thelowering of any medical malpracticepremiums and are maintaining that the

premium increases are due to other,unrelated factors. What does seem clearis that New Jersey has relatively fewmedical malpractice carriers offeringpolicies and that some specialties arefinding it more expensive and difficultto find a carrier that will provide themwith coverage.

The New Jersey State Board ofMedical Examiners mandates that aphysician may not practice medicine

without medical malpractice insuranceor a letter of credit. N.J.A.C. 13:35-6.18. Most physicians carry the mandated minimum $1 million/$3 million coverage. The effect of the increases, cou

pled with the fact that revenues havedecreased for physicians under NewJerseys predominately managed caremarketplace, are catching physicians ina tight squeeze.

This vise is particularly harsh forphysicians in certain specialties, including obstetrics and radiology, that areprone to be named in litigationSpecialists who have had a past claimare facing especially steep increases intheir premiums.

In light of the undeniable effect thalitigation has on the price of malpracticeinsurance premiums, an issue exists asto whether there are measures that theLegislature could enact that would foster the filing of fewer complaintsWithout taking a position on whethermalpractice awards are pushing insurance premiums higher, we can examinemeasures that focus on the expert testimony requirement as a means odecreasing the number of medical mal-practice complaints patients make

against physicians.At the outset, it is important to

understand that there is a significant difference between committing medicanegligence and possible risks from amedical procedure. In general, negli-gence may be viewed as a breach of thephysicians duty to exercise reasonableskill and care in the treatment of apatient. For a patient to prevail in anaction, he or she must prove all of the

Espousing earlier physician review of cases and tougherstandards for physicians testifying as experts

New Legislation Could Foster the Filing of

Fewer Medical Malpractice Complaints

Saravia is a partner at

Flaster/Greenberg of Cherry Hill and is a

former member of the New Jersey State

Board of Medical Examiners. She wishes

to acknowledge Kristine Marietti Byrnes

and Pasquale Guglietta, associates at the

firm, who provided valuable assistance in

the preparation of this article.


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following: physician had a duty to the

patient; there was a breach of that duty; there is a reasonable causal con-

nection between the act of the physicianand the injury; and

the patient or the patients estatesuffered damages.

The establishment of negligence isbased on the patients proof that thephysician deviated from the standard ofcare.

Paradigm Shift

Dr. Lucian Leape, adjunctProfessor of Health Policy at theHarvard School of Public Health andmember of the Institute of Medicine

Quality of Care in America Committee,has pioneered the patient safety move-ment through his research in medicalerrors. Leape has noted very few errorsare due to misconduct. Most errors arecaused by systems failures, not peoplefailures.

Were all taught just exactlythe opposite of that. Probablythe single biggest barrier is get-ting over that conceptual hur-dle. Once you do, the worldopens up because you begin tosee how systems fail. Once youtake a systems view, then awhole lot of things becomepretty obvious to you.

See A Conversation with LucianLeape, M.D., Forum, Summer 2001,Vol. 21, No. 2.

In view of this information it seemsreasonable to investigate methods forhaving earlier physician review of casesand tougher standards for physicianstestifying as experts to ensure that

charges of physician negligence areproperly supported.

The number of medical malpracticecases filed in New Jersey has decreasedsince the enactment of the Affidavit ofMerit statute, codified at N.J.S.A.2A:53A-27, in June of 1995. Statisticsmaintained by the AdministrativeOffice of the Courts show that, duringthe five-year period from 1997 through2001, the number of medical malprac-tice complaints filed in the LawDivision declined by 18 percent.

Comparing the filing rates in the singleyears ending June 30, 1997, and June30, 2001, these same statistics showmalpractice complaints decreasing from1,971 to 1,613. The Association of TrialLawyers of America is using similarfigures to counter allegations that

increased medical malpractice insur-

ance premiums are the result of frivo-lous lawsuits being filed by the plain-tiffs bar. See Arguing That LawyersAre to Blame, 168 N.J.L.J. 1107, June17, 2002.

Furthermore, Sen. Joseph F. Vitale,D-Middlesex, announced on Feb. 4,2002 that New Jersey court recordsshowed that of the cases against healthcare providers that went to trial lastyear, plaintiffs came out as losers incourt almost 75 percent of the time.

Although lawyers thereby rely onand cite a decline in the number of fil-

ings, health care professionals, as wellas insurers, have argued that premiumincreases are already related to the mag-nitude of amounts and the greater totalnumber of million dollar cases. In lightof the statistics indicating a decrease inthe number of filings since this statutewas enacted, the following query natu-rally arises: Would strengthening theAffidavit of Merit procedures furtherdecrease the number of cases filed?

New Jerseys Affidavit of Meritstatute states:

In any action for damages forpersonal injuries, wrongfuldeath or property damageresulting from an alleged act ofmalpractice or negligence by alicensed person in his profes-sion or occupation, the plaintiff

shall, within 60 days followingthe date of filing of the answerto the complaint by the defen-dant, provide each defendantwith an affidavit of an appro-priate licensed person thatthere exists a reasonable proba-bility that the care, skill orknowledge exercised or exhib-ited in the treatment, practiceor work that is the subject ofthe complaint, fell outsideacceptable professional or

occupational standards or treat-ment practices. The personexecuting the affidavit shall belicensed in this or any otherstate; have particular expertisein the general area or specialtyinvolved in the action for aperiod of at least five years.

The statute was enacted as a tort reformmeasure. Its underlying purpose is tocompel a plaintiff in a medical malprac-tice case to make a threshold showingthat the claims asserted are meritoriousGalik v. Clara Maass Medical Center

167 N.J. 341 (2001). The Legislaturedesigned the statute to weed out frivo-lous medical malpractice lawsuits at anearly stage while simultaneously allow-ing those cases with merit to go for-ward.

However, the statute is not con-cerned with the ability of medical mal-practice plaintiffs to prove the allega-tion contained in the complaint butrather, to demonstrate whether the alle-

gations have some objective thresholdmerit.Hubbard v. Reed, 331 N.J. Super283 (App. Div. 2000).

To achieve these purposes, thestatute requires a malpractice plaintiffto file an affidavit from another profes-sional certifying that the defendantstreatment or skill fell outside acceptedprofessional standards. The mandates ofthe statute serve a gatekeeping functionwhereby frivolous lawsuits may beremoved from the courts early in the lit-igation while, at the same time, ensur-

2 NEW JERSEY LAW JOURNAL, FEBRUARY 10, 2003 171 N.J.L.J. 516

One weakness in the

application of the

Affidavit of Merit statute

arises from the low

standards sometimes

applied to the qualifica-

tions of an expert.


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ing that plaintiffs with meritoriousclaims will have their day in court.Cornblatt v. Barow, 153 N.J. 218(1998).

Because the expert affidavit statesthat there is reasonable probability thatthe defendants care fell below accept-

able standards, and the plaintiff mustmake a threshold showing that theclaim is meritorious, it permits merit-less lawsuits to be identified at an earlystage. Kindig v. Gooberman, 149 F.Supp. 2d 159 (D.N.J. 2001).

Despite the clear mandates of theAffidavit of Merit statute, there arenonetheless situations where strict com-pliance is not required, most notably inconjunction with application of thesubstantial compliance test.

This test is satisfied when the plain-

tiff is able to show five factors: (1) alack of prejudice to the defendant party;(2) a series of steps were taken to com-ply with the statute; (3) there is generalcompliance with the purpose of thestatute; (4) the defendant received rea-sonable notice of petitioners claim; and(5) a reasonable explanation why therewas not strict compliance with statute.See Kindig and Fink v. Thompson, 167N.J. 551(2001). This broad interpreta-tion of the law might allow certain casesto proceed too far without the requisitemedical scrutiny, in contravention ofthe purposes of the statute.

An additional weakness in theapplication of the statute arises from thelow standards sometimes applied to thequalifications of the expert giving theopinion. Under the law, an expert pro-viding an opinion that a physician hascommitted malpractice does not need tohave the same qualifications as thedefendant physician. It is sufficient thatthe expert is qualified to supply the

required basis for medical malpractice.Even though the experts qualificationsdo not need to be included in the affi-davit, a description of the qualificationsmust be presented in conjunction withthe affidavit.

The statute recognizes that there areoverlaps in practice between and amongthe various medical professions andspecialties. Thus, the statute allows aphysician in one field to render an opin-ion as to the performance of a physicianin another with respect to their common

areas of practice. New Jersey courtshave also stated that the expert whofiles an affidavit may practice in a dif-ferent state than the physician who ischarged with malpractice.

Because of these weaknesses inexpert qualifications, several bills have

been introduced in the Legislature thatwould impose stricter standards uponthe experts. Specifically, two of the billsare sponsored by Assemblymen HerbertConaway, D-Burlington, and EricMunoz, R-Union, the Legislatures onlytwo physician members. Their bills pro-pose to amend the Affidavit of Meritstatute by setting standards for expertwitnesses.

Assembly Bill 3080, sponsored byConaway, provides that, to qualify as anexpert witness, a physician must: (i)

have been in practice for at least fiveyears; (ii) have a current registrationfrom the BME; and (iii) be in the samegeneral practice or specialty as thedefendant.

Every affidavit of a physician andcourt transcript containing expert testi-mony of a physician must be deliveredto the BME for review of their accuracyand consistency with other testimonygiven or affidavits executed in the past.If the BME determines after a hearingthat the testimony or the affidavit doesnot conform to appropriate standards ofpractice or care, the physician will bedeemed to have engaged in gross mal-practice or incompetence.

Munozs bill, A-3198, and S-2226,sponsored by Senators Robert Singer,R-Ocean, and Diane Allen, R-Burlington, requires that the plaintiff ina medical malpractice case file anAffidavit of Merit within 30 days of fil-ing the complaint, contrary to the cur-rent statutory requirements. The defen-

dant also has the right to receive a copyof the affidavit and to file his own affi-davit in response. To qualify as anexpert to file an affidavit, the billrequires that the individual be in thesame type of practice and possess thesame certifications as the defendant.

Other legislation governing experttestimony has been introduced byAssemblyman Neil Cohen, D-Union,(A-2880), and Senators Joseph Kyrillos,R-Monmouth, and William Gormley,R-Atlantic (S-1902). These bills would

require the plaintiff in a medical mal-practice action to file an Affidavit ofMerit that complies with the statuterequirements at the same time as the fil-ing of the complaint, and not 60 dayslater as currently allowed.

Then, the defendant would file an

answer to the complaint within 21 daysof the filing of the complaint and theaffidavit of merit and, within 90 daysfrom that filing date, file an affidavit ofmeritorious defense by a person whothe defense believes meets the qualifi-cations for an expert witness as estab-lished by the legislation. Essentially, toqualify as an expert or execute an affi-davit, the individual would have to be inthe same type of practice and possessthe same certifications, as applicable, asthe defendant. Other requirements for

expert and scientific opinions are alsospelled out.

Assembly Bill 3294, sponsored byAssemblyman Sam Thompson, R-Monmouth, and S-2298, sponsored byKyrillos and Gormley, contain similarprovisions. This legislation alsorequires that the affidavit of merit befiled at the same time as the complaintThe defendant also has the right to filehis own affidavit when he answers thecomplaint. In addition, the expert mustbe in the same type of practice and pos-sess the same certifications as thedefendant.

Holding Experts Accountable

Another significant bill states that aphysician who either gives experttestimony in a malpractice case that isinconsistent or not in accordance withthe accepted standard of care or whoprovides testimony that varies with thatsame physicians prior testimony is

subject to discipline and a finding ofmalpractice. Senate Bill 1850 is pend-ing in committee and is sponsored bySenator Martha Bark, R-Burlingtonwhile a related bill, A-2762, is spon-sored by Assemblymen Francis BodineR-Burlington, and Larry ChatzidakisR-Burlington.

Both bills include provisions thatset standards for expert testimony andprovide penalties for violating thosestandards. Barks legislation states thaany health care provider who: (1) gives

171 N.J.L.J. 516 NEW JERSEY LAW JOURNAL, FEBRUARY 10, 2003 3


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testimony as an expert witness in anaction concerning the professional neg-ligence of a defendant or executes anaffidavit that does not conform to cur-rently recognized protocols or currentlyaccepted medical standards for theapplicable profession; or (2) gives testi-

mony as an expert witness in actionsconcerning the professional negligenceof defendants or executes affidavits thatvary with testimony of that same indi-vidual in other cases of professionalnegligence, shall have engaged in grossmalpractice or incompetence.

In determining whether a healthcare provider giving testimony or exe-cuting an affidavit is an expert witness,standards shall apply including whetherthe testimony is from a specialist andwhether the person providing the testi-

mony was a specialist at the time of theoccurrence. During the year immediate-ly preceding the date of the occurrencethat is the basis for the claim or action,the expert witness or the person execut-ing the affidavit shall have devoted amajority of his professional time toeither the active clinical practice of thesame health care profession in whichthe defendant is licensed or the instruc-tion of students in an accredited medicalschool.

A similar bill pending on expert tes-timony, S-1977, sponsored by SenatorGerald Cardinale, R-Bergen, also pro-poses that an expert rendering conflict-ing testimony shall have committedgross malpractice or incompetence,although it does not contain the detailedstandards of S-1850. According toCardinale:

[t]here have been circum-stances in which certain med-ical professionals have testi-fied, given depositions or filed

affidavits in medical malprac-tice cases, which testimony isat variance with recognizedprotocols of their professional

boards. In some circumstancesthe testimony of certain pro-fessional witnesses is atmarked variance with testimo-ny those same persons havegiven in other cases. This cre-ates a difficult circumstance for

those seeking justice beforeour courts. It is confusing to

juries and judges alike. Whilesome fact circumstances mayalter testimony, the standardsof the appropriate professionare best known and most uni-formly kept by the professionalboards of the licensed medicalprofessionals.

While the legislation grants the BMEthe authority to discipline physicians,there is no current appropriation for the

BME to hire additional staff to evaluatethese potential cases. The establishmentof standards for physicians who renderexpert testimony could only be work-able by providing the BME with suffi-cient resources to investigate and takethe appropriate disciplinary actionagainst a physician.

Legislation is needed since the caselaw concerning what is consideredmedical malpractice or gross negli-gence currently does not encompassthis type of infraction. Therefore, it isnot surprising that, to date, the BME hasnever filed a complaint against a physi-cian for rendering conflicting opinionsin a legal matter.

The BMEs procedure is to investi-gate a physician through the use ofstatements under oath (at a hearing or inwriting) and then, in many cases, adeputy attorney general negotiates aconsent order with the physicianscounsel on behalf of the BME to avoidthe filing of a formal complaint. If a for-

mal complaint is filed, the matter istransmitted to the BME for a hearing.

Very few matters are transmitted tothe Office of Administrative Law for a

hearing on the BMEs complaintLegislation would need to clearlyinform the BME and its staff as to whatthe Legislature considers to be unlawfulprofessional conduct.

Emerging national evidence sup-ports enacting a law disciplining a

physician for providing expert testimo-ny that is in conflict with his prior testi-mony as to the standard of care. TheAmerican Medical Association hasissued Resolution 221, which states thatexpert witness testimony [should] beconsidered the practice of medicinesubject to peer review. The Resolutionalso contains a section on the imposi-tion of meaningful sanctions.

Furthermore, a federal appellatecourt ruled in 2001 that a medical soci-ety was allowed to discipline a physi-

cian concerning his expert testimonyThe U.S. Supreme Court did not grantcertiorari in the case, thereby allowingthe decision below to stand. Mostimportant, in what may be the first casein the nation, the North CarolinaMedical Board decided to revoke aphysicians license over expert witnesstestimony. See Physician LosesLicense over Expert Testimony,

American Medical News, Aug. 192002. The board found that the neuro-surgeon engaged in unprofessional con-duct by misstating facts and the appro-priate standard of care in NorthCarolina when giving expert testimony

These cases point to a growingtrend toward holding physicians moreaccountable for the testimony they giveas expert witnesses. As demonstrated bycurrently pending legislation, NewJersey is also looking into this possibility as a means of controlling its medicalmalpractice insurance crisis. Althoughthe legislation represents a step in the

right direction, New Jersey needs to domore to tighten its expert testimonyrequirements and strengthen itsAffidavit of Merit statute.

4 NEW JERSEY LAW JOURNAL, FEBRUARY 10, 2003 171 N.J.L.J. 516

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