Ryan v. Renny

Citation203 N.J. 37,999 A.2d 427
PartiesAbby RYAN and Kirk Ryan, Plaintiffs-Appellants,v.Andrew RENNY, M.D., Defendant-Respondent.
Decision Date22 July 2010
CourtNew Jersey Supreme Court

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Donald G. Targan argued the cause for appellants (Targan & Pender, attorneys; Mr. Targan and Michael J. Pender, Atlantic City, on the brief).

James M. Ronan, Jr., Tinton Falls, argued the cause for respondent (Ronan, Tuzzio & Giannone, attorneys; Mr. Ronan and Lauren H. Zalepka, of counsel and on the briefs).

Abbott S. Brown, West Orange, submitted a brief on behalf of amicus curiae The New Jersey Association For Justice (Bendit Weinstock, attorneys).

John Zen Jackson, Warren, submitted a brief on behalf of amicus curiae Medical Society of New Jersey (Kalison, McBride, Jackson & Robertson, attorneys).

Justice LONG delivered the opinion of the Court.

Defendant, who is board-certified in gastroenterology and internal medicine, performed a routine colonoscopy on plaintiff as a result of which she suffered a perforated colon. Plaintiff sued defendant for medical malpractice. In these circumstances, the Affidavit of Merit statute 1 requires that the plaintiff's affiant be board-certified in the same specialty or subspecialty as the defendant. Despite contacting several potential experts, plaintiff's counsel was unable to locate a board-certified gastroenterologist willing to provide an affidavit of merit but proffered, within sixty days of the filing of defendant's answer, an affidavit by a surgeon who had experience performing colonoscopies, repairing tears relating to colonoscopies, and who had published multiple articles on the topic. Defendant moved to dismiss, and plaintiff filed a cross-motion for a waiver of the specialty requirement pursuant to N.J.S.A. 2A:53A-41(c). The trial judge found that plaintiff had made a good faith effort to comply with the statute and waived the specialty requirement, permitting plaintiff to rely on the previously filed affidavit.

The Appellate Division held that a waiver should not have been granted and dismissed the complaint. The panel explained that in seeking the waiver, plaintiff's counsel had identified three gastroenterologists who declined to provide an affidavit but failed to explain the reasons for the refusals. The panel found that omission “a crucial failure in plaintiff's application for a section 41c waiver.”

This case presents us with an opportunity to interpret the waiver provision and to answer the question of whether the notion of a “good faith effort” contemplates a substantive explanation, to the court, why experts in defendant's field refused to supply plaintiff with an opinion. We hold that it does not and thus, the Appellate Division's superimposition of that requirement on the good faith analysis was unauthorized.

The waiver provision also prescribes that where plaintiff has made a good faith showing of inability to identify an expert in the same specialty or subspecialty as defendant, his proposed expert must possess “sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” We interpret that language as a broad grant of discretion to the trial judge that does not bear with it, as defendant argues, a temporal requirement that the proposed expert be engaged in performing the medical procedure at issue on the date of the occurrence giving rise to the claim. Rather, the expert may have derived his training, experience, and knowledge “as a result of” prior practice in the field. That is not to suggest that a lapse of time may not bear on a judge's assessment of an expert's training, experience, and knowledge, only that it is not an automatic disqualifier. To the extent that the Appellate Division ruled otherwise, we reverse.

I.

The facts are brief. On January 29, 2007, defendant, Dr. Andrew Renny, performed a routine colonoscopy on plaintiff, Abby Ryan. The procedure resulted in a perforated colon, which Ryan alleges was caused by Dr. Renny's negligence. On October 17, 2007, Ryan filed a complaint against Dr. Renny alleging that he was negligent in his treatment of Ryan and that he deviated from accepted standards of care.2

In support of the complaint, Ryan submitted an affidavit by Dr. David Befeler, a surgeon who is not board-certified in gastroenterology. In respect of his qualifications, the affidavit states: “I am currently engaged in the practice of general surgery and related procedures, including colonoscopies, and am board certified in same, and have been so for more than five years.”

Dr. Renny objected to the affidavit on the ground that it did not issue from a board-certified gastroenterologist. A Ferreira 3 conference was held, during which Ryan conceded that she had not been able to procure an affidavit of merit from a board-certified specialist in gastroenterology. The dispute remained unresolved following the conference.

After the expiration of the 120-day time period for providing an affidavit of merit, Dr. Renny moved to dismiss the complaint with prejudice for failure to submit an affidavit executed by a person meeting the specialty criteria set by N.J.S.A. 2A:53A-41(a). Ryan filed a cross-motion for a waiver of the specialty requirements pursuant to N.J.S.A. 2A:53A-41(c).

In support of the cross-motion, Ryan provided Dr. Befeler's curriculum vitae and portions of his testimony at a 2004 deposition in an unrelated case. According to his curriculum vitae, Dr. Befeler has published in the area of gastroenterology since the 1960s. His deposition testimony indicates that he has performed more than 100 colonoscopies, the last one “several years” prior to 2004. Also, Dr. Befeler certified that he has been a board-certified general surgeon since 1966. The certification stated that, as a current attending surgeon at Overlook Hospital,

3. ... I have continually been involved with treatment, diagnosis and evaluation of colon and bowel abnormalities and diseases. Although I do not perform colonoscopies at the present time, I continually have involvement in injuries, conditions and diseases of the bowel and related areas.
4. In the current treatment of patients, I am often required to evaluate symptoms that require the need to have colonoscopies performed to determine a diagnosis of conditions that may require surgery and other types of treatment.
5. I periodically review findings of colonoscopies in the course of diagnoses and ruling out conditions that may require surgery and treatment.

Ryan's counsel certified to his good faith but unsuccessful efforts to provide an affidavit of merit by a physician with the same board certification as Dr. Renny. He contacted three attorneys experienced in medical malpractice, in three different geographical areas of the state, each of whom provided him with the name of an expert, board-certified in gastroenterology. He then contacted the three physicians, “and generally outlined the facts relating to the case in question,” and each “declined to provide an opinion relating to the actions of the defendant[.] Thereafter, counsel

contacted Dr. David Befeler, who, although not certified in each of the sub-specialties of gastroenterology and internal medicine, has an enormous amount of experience, knowledge and skill relating to the issues involved in this case, and has been qualified by the Court of New Jersey to give opinions on these types of issues that we have in this case, a large tear in the colon.

At argument on the motion, Dr. Renny contended that Ryan's counsel had not demonstrated a good faith effort to obtain an expert board-certified in gastroenterology because counsel's certification did not explain why the three specialists contacted declined to give an opinion. Absent an explanation, the court may infer, Dr. Renny argued, that the specialists believed that he did not deviate from the applicable standard of care and accordingly that Ryan's claim lacked merit. In addition, Dr. Renny contended that Dr. Befeler is not qualified to render an opinion on the applicable standard of care because he was not actively performing colonoscopies at the time of the procedure giving rise to the claim.

Ryan's counsel countered that he satisfied the good faith standard of the waiver provision and that Dr. Befeler is qualified to opine on whether Dr. Renny deviated from the standard. He argued further that the fact that he could not obtain an opinion from a board-certified gastroenterologist did not necessarily reflect on the merits of the case. Rather, he contended that specialists may refuse to render an opinion for many reasons, including general unwillingness to become embroiled in litigation. In addition, Ryan's counsel argued that Dr. Befeler is qualified to render an opinion in this case because the “actively involved” element of the waiver provision should be read broadly to include presently engaging in “procedures relating to the colon,” and because Dr. Befeler previously performed colonoscopies with respect to which there is no temporal limitation in the waiver provision.

At the close of oral argument, the trial judge granted Ryan's motion to waive the specialty requirements and denied Dr. Renny's motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. The judge held that a plaintiff does not have to explain why efforts to obtain a board-certified expert were unsuccessful. As he observed, those reasons “are probably privileged anyway.” He further reasoned that the Legislature did not intend for the affidavit of merit procedure to become a discovery device and concluded that Ryan's counsel made a good faith effort to identify an expert in the same specialty as defendant.

With regard to the second part of the waiver provision, the judge concluded that Dr. Befeler is “currently actively...

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