Contact: AnnMarie McDonald | July 23, 2010

TRENTON, N.J. – The New Jersey Supreme Court ruled yesterday that plaintiffs don’t need to explain why they can’t find an appropriately qualified expert to testify in malpractice cases before seeking a good-faith waiver under the Affidavit of Merit Statute, only that they gave it a “college try.” 

 

In the case of Ryan v. Renny, the plaintiff’s attorney filed suit against a board-certified gastroenterologist, saying that the doctor deviated from accepted standards of care when he perforated a bowel during a colonoscopy.  The justices ruled in a 6 – 1 decision that even though the plaintiff’s attorney tried and failed to secure affidavits of merit from at least three different doctors certified in the same field, they would accept an affidavit of merit from a surgeon who was not board certified and had himself not performed the procedure  in many years.

 

“For many years the Affidavit of Merit Statute served its purpose – weeding out meritless lawsuits.  The Court’s decision guts the Affidavit of Merit and opens the door to litigation abuse against New Jersey’s doctors,” said Marcus Rayner, executive director of the New Jersey Lawsuit Reform Alliance. 

 

“Loosening the Affidavit of Merit Statute to the point of irrelevance is one more disincentive for doctors to practice in New Jersey, said Rayner, citing a study by the Council of Teaching Hospitals, which projects that New Jersey will be short an estimated 3,000 doctors by the end of the decade.

 

Justice Roberto Rivera-Soto dissented, saying that the defendant has a legislative right “to be free of malpractice claims of questionable merit.” 

 

A copy of the Court’s decision can be found on the web at

http://www.judiciary.state.nj.us/opinions/supreme/A-50-09.pdf