Philadelphia Top Injury Lawyer Blog

Recently I wrote here as a Philadelphia medical malpractice lawyer about a Maryland case that turned on the sufficiency of an affidavit of merit. This requirement, a version of which also exists in Pennsylvania, asks the plaintiff in a medical malpractice case to file a written document from a medical expert attesting that the defendant did violate or could have violated the community's standard of care. Such a requirement also exists in our neighboring state of New Jersey, and that requirement was the issue in the New Jersey Supreme Court ruling in Buck v. Henry. In this case, defendant Dr. James Henry moved to dismiss a case because the affidavit of merit filed was written by a doctor who specialized in a different area of medicine from Henry's. The lower courts allowed the case to be dismissed, but the New Jersey Supreme Court remanded it for a status conference it said the plaintiff should have had.

James is a family medicine specialist whose patients used to include plaintiff Robert Buck. He diagnosed insomnia and depression in Buck and prescribed an antidepressant and the sleep aid Ambien. Ambien is known to cause people to behave oddly in their sleep. One evening, Buck alleges he fell asleep while inspecting his gun, then was awakened by what he thought was the phone ringing. Still holding his gun, he reached for the phone and somehow put the gun in his mouth, discharged it and sustained permanent injuries not described in the opinion. Buck later sued for medical malpractice, and retained a licensed psychiatrist, Dr. Larry Kirstein, to write an affidavit of merit saying Henry's treatment fell outside acceptable standards. Henry's counsel objected because Kirstein came from a different specialty. Due to a clerical error, the trial court told the litigants that all affidavit issues were addressed and there was no need for a conference to decide the issue, called a Ferreira conference. Buck was granted a deadline extension and got another affidavit, this time from an emergency medicine specialist. Nonetheless, Henry moved for summary judgment because neither affidavit was from a family medicine specialist and the case had passed a deadline for Buck to submit any further paperwork. The judge dismissed the case with prejudice and the Appellate Division affirmed.

Buck appealed to the New Jersey Supreme Court. That court's opinion not only reversed the lower courts, but set new standards for medical malpractice affidavits in New Jersey. A Ferreira conference is a conference to determine whether there are flaws in an affidavit of merit, created by a 2003 medical malpractice case that the Supreme Court said addressed the very same issue. The high court found that the trial court should have held a Ferreira conference and indeed, noted that it is required. If the trial court in this case had done so, the court said, Buck would have had time to file an affidavit of merit that me the standards of New Jersey state law. The affidavits he did file were not technically correct, the court said, but were filed in good faith. If Henry was a general practitioner, a psychiatrist's affidavit should have been sufficient; the emergency medicine affidavit grew out of Henry's board certification in emergency medicine. Furthermore, the court said, doctors answering future medical malpractice complaints should now indicate which specialty, if any, was involved in the disputed treatment. It sent the case back to trial court for a Ferreira conference. Two dissenting justices argued that this decision defies the intent of the Legislature.

I'm pleased with this decision. The affidavit of merit requirement is an attempt by the state legislature to weed out cases that are not meritorious. As a Philadelphia medical negligence lawyer, I can assure you that few frivolous medical malpractice cases exist, because they are too long and expensive to bring without any realistic chance of success. As a result, the affidavit of merit really serves to erect another roadblock for plaintiffs attempting to win financial compensation for their injuries. This case does not eliminate the roadblock, but it does require future cases to have both a Ferreira conference and a clear answer as to which specialty the affidavit should reflect. As a Philadelphia birth injury lawyer, I think requiring defendants to provide clear information is reasonable and not at all burdensome, unless they believe dealing with the consequences of their mistakes is an unreasonable burden.