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  • NJ A3620
  • Revises affidavit of merit requirement in professional malpractice cases.
Introduced
(4/14/2016)
In Committee
(4/14/2016)
Crossed OverPassedSignedDead/Failed/Vetoed
2016-2017 Regular Session
Current law requires, in any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff to provide each defendant, with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. This is commonly referred to as the "affidavit of merit." This bill revises the affidavit of merit requirement to provide that the affidavit must be filed at the time the plaintiff files the complaint, instead of within 60 days following the date of the filing of the answer to the complaint by the defendant. The bill also requires that the affidavit include a specific articulation of the duty of care allegedly breached and the conduct that constituted that breach, and shall provide the basis for identifying that duty. The bill also, in medical malpractice cases, revises the circumstances under which a court may waive the same specialty or subspecialty requirements of Section 7 of P.L.2004, c.17 (C.2A:53A-41). That section of law currently provides that, in an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit of merit on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets certain criteria. One of those criteria is that, if the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist and the care or treatment at issue involves that specialty or subspecialty, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty as the party against whom or on whose behalf the testimony is offered. This requirement can be waived if the moving party demonstrates to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty and the court determines that the expert possesses 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. This bill provides that the specialty or subspecialty requirement can be waived upon motion by the party seeking a waiver, if the moving party has demonstrated extraordinary circumstances, the court has determined that an appropriate expert otherwise would not be available, and the court determines that the proposed expert possesses 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. The bill removes the requirement that the moving party demonstrate to the satisfaction of the court that a good faith effort has been made to identify an expert in the same specialty or subspecialty. The bill also clarifies that, in lawsuits for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the affidavit required pursuant to section 2 of P.L.1995, c.139 (C.2A:53A-27), in addition to being provided to a defendant that is a "licensed person," must also be provided to a defendant that is a business entity that is also a named defendant in the case. Current law requires that, in professional malpractice cases, an affidavit be filed by an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. Various courts have pointed out that the statute is unclear with respect to whether business entities that employ licensed persons also must be provided such an affidavit. These business entities would typically be vicariously liable for the actions of their employees that are licensed persons, but the statute does not explicitly afford these business entities with the protection of the affidavit requirement. While certain courts have decided that the affidavit requirement extends to business entities, this bill would explicitly codify that requirement.
Financial Institutions and Insurance
Assembly Financial Institutions and Insurance Hearing (10:00 12/5/2016 Committee Room 16, Fourth Floor)  (on 12/5/2016)
 
 
Date Chamber Action Description
12/5/2016 Assembly Financial Institutions and Insurance Hearing (10:00 12/5/2016 Committee Room 16, Fourth Floor)
4/14/2016 A Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Date Motion Yea Nay Other
None specified