A medical malpractice attorney hired by Mr. Richard Carr filed a lawsuit. The lawyer filed the case for Carr and the estate of Daphne Essington, who was dead. The medical malpractice attorney claimed that Our Lady of Lourdes Medical Center (OLOL), Dr. William Hasbun and Dr. Marshall Lauer committed medical malpractice against Ms. Essington.
The trial court dismissed the case. The reason being that Carr’ medical malpractice attorney failed to comply with the time requirements of New Jersey’s affidavit of merit (AOM) law.
Accordingly, the medical malpractice attorney appealed.
The appeals court did not agree with the trial court’s conclusion that dismissal was required for failure to comply with the AOM law’s time deadline. But the appellate court affirmed the dismissal. The reason being that Carr’s expert was not qualified to give an expert opinion.
An AOM is a statement under oath from a physician. An AOM asserts that the doctor being sued committed malpractice. In this case, the AOM was also subject to the New Jersey Patients First Act. That law established qualifications for experts who sign AOMs in medical malpractice cases.
Carr’s medical malpractice attorney did not provide an AOM by the deadline required. Instead, he asked for more time. The judge gave him another 120 days. But the medical malpractice attorney missed that deadline too, except as to Dr. Lauer. Only Dr. Lauer received an AOM on time.
After receiving an AOM, Dr. Lauer filed a motion to dismiss the case. He argued that the doctor who signed it was not qualified by law. Dr. Hasbun and OLOL received the AOM after the 120-day extension period. They argued the victim’s lawyer missed the deadline.
MEDICAL MALPRACTICE ATTORNEY MUST OBTAIN AFFIDAVIT OF MERIT
The appeals court ruled that the AOM eventually served upon all was obtained within the extended deadline period. The medical malpractice attorney just didn’t provide all the defendants with copies. Under the circumstances, the judges concluded that Carr’s claims against Dr. Hasbun and OLOL should not be doomed by lateness.
But Carr still lost. The issue was whether Carr’s expert witness, Dr. Levin, was equivalently credentialed in the same specialty or subspecialty as the defendant doctors. Otherwise, he was not permitted to author an AOM.
Dr. Levin, like the defendant doctors, was board certified in internal medicine. But he completed additional training. Dr. Levin also practiced in the subspecialties of hematology and oncology. The defendant doctors worked in the more generalized specialty of internal medicine.
The appellate court ruled that, for an expert to be equivalently credentialed, he must satisfy two requirements. The expert must have the same credentials as to specialty. He must also have the same type of practice as the defendant doctor.
Because Dr. Levin did not devote a majority of his professional time to internal medicine, the court ruled he wasn’t qualified. Accordingly, the judges dismissed Carr’s lawsuit.
I strongly disagree with this decision. The judges denied a victim his day in court because his expert had MORE qualifications than the doctors who allegedly messed up. Accordingly, the ruling defies logic.
That said, this case shows the importance of hiring an experienced medical malpractice lawyer. One who will obtain all the necessary expert affidavits on time.