Improving the Merit-Affidavit System

Meehan v. Antonellis, 141 A.3d 1162 (N.J. 2016)

The Supreme Court of New Jersey has recently delivered an important decision on the state’s merit-affidavit procedures. Whether an affidavit of merit submitted by a plaintiff in an action alleging medical malpractice is, in the Court’s words, a vexing and recurring issue. In the case at bar, the Court held that a dentist with more than 20 years of experience in diagnosing and treating sleep apnea (repeated breathing interruption during sleep) was qualified to submit an affidavit of merit in support of a suit alleging that an orthodontist failed to inform the plaintiff that a dental appliance he was given to treat sleep apnea may dislocate his teeth.

In a number of jurisdictions outside New Jersey, courts insist upon strict compliance with the “same specialty” requirements and disqualify such affidavits: see here, here and here. In New Jersey, plaintiffs have more flexibility, and properly so.

As the Court explains, “The stated purpose of [the merit-affidavit system] is laudatory—to weed out frivolous claims against licensed professionals early in the litigation process.” (citing Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779 (N.J. 2003)). For that reason, “the submission of an appropriate affidavit of merit is considered an element of the claim.” (citing Alan J. Cornblatt, P.A. v. Barow, 708 A.2d 401 (N.J. 1998)) (failure to submit affidavit of merit “goes to the heart of the cause of action as defined by the Legislature [and] ordinarily requires dismissal of the complaint with prejudice.”)). At its launching, the merit-affidavit system “did not seem to impose “overly burdensome obligations,” but then it has unleashed a veritable avalanche of litigation” (by my lights, this effect is not surprising at all, given that the system effectively replaces the summary judgment mechanism routinely resorted to by defendants in medical malpractice and other tort actions).

To counter this socially costly dynamic and “temper the draconian results of an inflexible application of the statute,” the New Jersey Supreme Court had set up a special Ferreira hearing (Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779 (N.J. 2003)). The goal of this hearing is to secure the plaintiff’s compliance with the merit-affidavit requirement while preventing this requirement from being turned into “a procedural minefield.” To accomplish that goal, the Court laid down two basic rules: “substantial compliance” and “second chance.” According to the first rule, “a complaint will not be dismissed if the plaintiff substantially complied with the affidavit of merit obligations.” Under the second rule, “a complaint will be dismissed [but] without prejudice if the plaintiff can demonstrate extraordinary circumstances that prevented compliance.” (citations omitted).

As far as the “like-qualified” expert-credential requirement is concerned, according to the Court, “[it] requires no more than that the person submitting an affidavit of merit be licensed in this state or another and have particular expertise in the general area or specialty involved in the action.” The Court explained in this connection that “Such particular expertise is 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. … In most instances, we anticipate that the affiant and the professional-defendant will be similarly licensed. However, there may be circumstances when the alleged departure from the professional standard of care is within the particular expertise of two licensed professions. In such cases, in assessing the sufficiency of the affidavit of merit, a court must focus … on the specific allegations of professional negligence.” (citations omitted).

Based on these well-balanced criteria, the Court determined that the plaintiff’s expert—a dentist specializing in sleep apnea—was qualified to testify about the informed-consent requirements for sleep apnea treatments that both dentists and orthodontists should comply with. In reaching that determination, the Court noticed that “the treatment of sleep apnea is not exclusive to a single dental specialty or subspecialty. A variety of professionals can treat sleep apnea, including various types of dentists and physicians.”