On leave granted, in this medical negligence matter, we consider whether N.J.S.A. 2A:53A-41(a) under the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, requires plaintiffs to serve an affidavit of merit (AOM) from a physician board certified in both specialties if defendant physician is board certified in two specialties, and the treatment claimed to be negligent involves both specialties.
Plaintiffs rely on Buck v. Henry, 207 N.J. 377 (2011), in asserting they need only provide an AOM from a physician who specializes in either of the defendant doctor's specialties. The trial court agreed and denied defendants' motions to dismiss for failure to provide the proper AOM and for reconsideration.
Defendant physician is board certified in internal medicine and gastroenterology. He certified that his care and treatment of plaintiffs' decedent involved both specialties. Plaintiffs only served an AOM from a physician board certified in internal medicine.
In considering defendants' dismissal motions, the trial court cited to two sentences from Buck: "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.
Because the facts presented here are distinguishable from Buck and the discrete ruling in Buck was not specific to this issue, and in considering the legislative purpose of the Act, and the principles of law espoused in the subsequent cases of Nicholas v. Mynster, 213 N.J. 463, 480-88 (2013), and Pfannenstein ex. rel. Estate of Pfannenstein v. Surrey, 475 N.J. Super. 83, 90-91 (App. Div.), certif. denied, 254 N.J. 517 (2023), we conclude plaintiffs must serve an AOM from a physician board certified in each of defendant doctor's specialties. We are also guided by the kind-for-kind, credential equivalency requirement articulated in N.J.S.A. 2A:53A-41(a). Therefore, we reverse the court's orders denying defendants' motions to dismiss for a deficient AOM and for reconsideration.
However, because plaintiffs raised the issue of a waiver from the AOM requirement, and the issue was fully briefed and discussed during oral argument before the trial court, we remand for the court to determine the waiver argument on its merits.