Legal

MSNJ Asks NJ Supreme Court to Apply Expert Testimony Statute as Written
On December 2, 2011, MSNJ filed an amicus curiae brief with the New Jersey Supreme Court to support an appeal from a lower court ruling that allowed a medical liability case to go forward even though the plaintiff did not have experts from the “same specialty” available to testify to the appropriate standard of care. At issue was whether the plaintiff must have matched the defendants’ Emergency Medicine and Family Practice board certifications or sought a waiver from the “same specialty” requirement. MSNJ advocated aggressively for the tort reform legislation which resulted in 2004 amendments to the statutory requirements for affidavits of merit and expert testimony. We believe that the New Jersey Legislature meant what it said when it required same specialty expert testimony and the exceptions to the rule should be narrowly construed.

The AMA, through its Litigation Center, also joined in filing the amicus curiae brief. MSNJ appreciates the AMA’s support on this important issue.

Read the brief in its entirety.

Court Decision on Physician Fact Witness Fees in Federal Court

The amount of witness fees that should be paid to a non-testimonial treating physician was recently considered by a United State Magistrate Judge for the District of New Jersey. At issue were the fees of a treating physician who was compelled to a deposition. There is a split in the country over whether the federal court rules and statutes require a treating physician who is not an expert be paid the $40 per day plus mileage court fee or be paid a fee more equivalent to an hourly fee or a customary expert fee. In Jorden v. Glass, the court followed the federal case law that treating physicians who are not testifying as experts are only entitled to the $40 fee plus mileage.

The federal magistrate relied on the language of the federal court rule which provides that expert witnesses—independent of their profession-- be paid a reasonable fee and fact witnesses—independent of their profession-- be paid the statutory fee. The court specifically refused to single out certain professions for higher compensation stating that was up to Congress. It found that “a treating physician who testifies as a fact witness is not required to be paid his or her customary expert fee. [This] decision is based on the plain language of [the statute] which does not create a special exception for treating physicians.”

On a brighter note, the magistrate found that if the treating physician is asked for his opinion, then he will be testifying as an expert and be entitled to his fee. The magistrate was also respectful of the time burden and admonished that reasonable steps be taken to avoid an undue burden or expense, including being mindful of the treating physician’s schedule and appointments. The court noted that the plaintiff had agreed to pay $300 per hour for a two-hour deposition and to conduct the deposition at the physician’s office and allowed the voluntary payment in excess of the statutory fee.

This decision will cause treating physicians to forgo their ordinary compensation and testify more or less at their own expense when called as fact witnesses. It also shifts the burden of determining when “fact” versus “opinion” is being elicited. We are concerned that physicians will be placed in the unenviable position of making those determinations, independently, during testimony unless they engage counsel to appear. Whether counsel is retained or the treating physicians attempts to challenge opinion eliciting testimony there are two clear problems: challenging questions that elicit opinion may draw out the testimony and take longer than necessary, further burdening treating physicians; not challenging questions that elicit opinions may result in expert testimony for which the treating physician is not fairly compensated.

Malpractice Affidavit of Merit Decision by NJ Supreme Court, Ryan v. Renny

The New Jersey Supreme Court recently considered the question of whether the statutory requirement for a board-certified same-specialty physician’s affidavit of merit had been met in a malpractice case against a board-certified gastroenterologist. The court deferred to the broad discretion of the trial court to consider applications for a waiver of the same-specialty requirement and found that the “good faith effort” standard had been satisfied.

At issue was whether an affidavit of merit by a board-certified surgeon sufficed in a malpractice case over a colonoscopy. Plaintiff’s counsel made attempts to provide affidavits from three board-certified gastroenterologists who declined to provide opinions. The trial court waived the same-specialty requirement finding that plaintiff’s counsel had met the burden of making a good faith effort to identify a same-specialty physician. The appellate division reversed finding that the good faith effort had not been met. The New Jersey Supreme Court granted plaintiff’s petition for certification, signaling the importance of the issue to the high court. MSNJ and the AMA filed amicus briefs.

By way of background, MSNJ actively lobbied for changes in the Affidavit of Merit statute which controls access to the courts in malpractice actions. The New Jersey Legislature strengthened the statute in 2004 to require equivalent qualification. However, the statute also included a waiver provision when “good faith” efforts to obtain an opinion from the same-specialty failed if the non-equivalently qualified physician has sufficient expertise as a result of “active involvement” in the area of practice.

The defendant and organized medicine believed that the plantiff’s inability to provide the opinion of a board-certified gastroenterologist inferred that the defendant had not deviated from the appropriate standard of care. Instead, the court relied on the specific language of the statute and focused on the efforts, not the reasons, for the failure to obtain an equivalent expert opinion.

While, the New Jersey Supreme Court upheld the general requirement that there be a same-specialty expert, this requirement is now clearly within the purview of the trial court and its discretion on the issue of the effort expended:

By this ruling, we reaffirm that it is the duty of litigants to make a good faith effort to obtain an equivalently qualified expert in a malpractice case, yet honor the Legislature’s desire to permit meritorious cases, for which no equivalently-qualified expert can be obtained, to be aired in a courtroom. That is, in the final analysis, the goal of the Affidavit of Merit statute.

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