SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Abby Ryan, et al. v. Andrew Renny, M.D. (A-50-09)
Argued March 9, 2010 -- Decided July 22, 2010
LONG, J., writing for a majority of the Court.
In this medical malpractice action, the Court considers whether the trial court was correct in waiving the Affidavit of Merit statute's requirement that a complaint for malpractice filed against a board-certified physician must be supported by an affidavit of a board-certified physician in the same specialty or subspecialty.
In January 2007, defendant Andrew Renny, who is board-certified in gastroenterology and internal medicine, performed a colonoscopy on plaintiff Abby Ryan. The procedure resulted in a perforated colon. Ryan sued Renny for malpractice, alleging that he was negligent and deviated from the accepted standard of care. Ryan's attorney contacted several potential experts, but was unable to locate a board-certified gastroenterologist willing to provide an affidavit of merit. However, Ryan's attorney provided a timely affidavit by Dr. David Befeler, a surgeon who was not board-certified in gastroenterology, but was a board-certified surgeon with experience performing over 100 colonoscopies, the last one prior to 2004. Dr. Befeler also had repaired tears relating to colonoscopies, treated, diagnosed and evaluated colon and bowel abnormalities and diseases, and published articles on the topic.
After the expiration of the statutory 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 board-certified gastroenterologist. Ryan filed a cross-motion for a waiver of the specialty requirement. Ryan's counsel submitted a certification describing his good faith efforts to provide an affidavit by a physician with the same board certification as Dr. Renny, including his contacts with three board-certified gastroenterologists who declined to provide an opinion about Dr. Renny's actions. At argument on the motion, Dr. Renny contended that Ryan's counsel had not demonstrated a good faith effort because he did not explain why the three specialists declined to give an opinion, therefore the court could infer that the specialists believed Dr. Renny did not deviate from the standard of care. Dr. Renny also argued that Dr. Befeler is not qualified to render an opinion on the applicable standard of care because he was not actively performing colonoscopies when the procedure was performed on Ryan. Ryan's counsel countered that specialists may refuse to render an opinion for many reasons, including general unwillingness to become embroiled in litigation, and claimed that Dr. Befeler met the requirements for providing an affidavit of merit.
The trial judge granted Ryan's motion to waive the specialty requirements and denied Dr. Renny's motion to dismiss the complaint. The judge held that a plaintiff does not have to explain why efforts to obtain a board-certified expert were unsuccessful and he concluded that Ryan's counsel made a good faith effort to identify an expert in the same specialty as Dr. Renny. The trial judge also explained that Dr. Befeler currently is actively involved in the applicable area of practice, even though he stopped performing colonoscopies before 2004.
The Appellate Division reversed on grounds that Ryan had not demonstrated a good faith effort to identify an expert and it granted Dr. Renny's motion to dismiss the complaint for failure to comply with the Affidavit of Merit statute. 408 N.J. Super. 590 (App. Div. 2009). The panel found that an explanation of why the three gastroenterologists declined to provide an opinion was crucial to Ryan's waiver application.
The Supreme Court granted Ryan's petition for certification. 200 N.J. 504 (2009). While the appeal was pending, the Court denied a motion by Dr. Renny that made additional challenges to Dr. Befeler's credentials.
HELD: Based on the plain language of the Affidavit of Merit statute, plaintiff Abby Ryan satisfied the good faith standard of the statute's waiver provision, which permits a non-board-certified physician to certify that the actions of a board-certified specialist did not meet the required standard of care.
1. Under New Jersey's evidence rules, a determination whether a witness is qualified to testify as an expert rests in the sound discretion of the trial court. That discretion, however, can be guided by statutes such as the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29, which applies to lawsuits alleging malpractice or negligence by a licensed professional. The purpose of the Affidavit of Merit statute is to require plaintiffs to make a threshold showing that their claim is meritorious. Originally, the statute permitted a physician in one field to render an opinion on the performance of a physician in another field if their practices overlapped. In 2004, the Legislature enacted the New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, which modified the Affidavit of Merit statute. In general, the Act requires that the challenging expert be equivalently-qualified to the defendant. For example, the Act states in part that if the defendant is a board-certified specialist and the care or treatment at issue in the litigation concerned that specialty, the expert offering the affidavit of merit must be board certified in the same specialty and have devoted a majority of his or her professional time to the active clinical practice or teaching of that specialty. However, the Act contains a waiver provision that permits a non-equivalently-qualified expert to provide an affidavit of merit if the party seeking the waiver made a "good faith effort" to obtain an opinion by an expert in the same specialty and if the non-equivalently-qualified professional possesses sufficient training, experience and knowledge as a result of "active involvement" in the area of practice. In this opinion, the Court interprets the meaning of "good faith effort" and "active involvement." (Pp. 11—18)
2. The best indicator of the Legislature's intent is the statutory language. A court begins with the words of the statute and ascribes to them their ordinary meaning. If the meaning is clear, the analysis is complete. Only if the statutory language is susceptible to more than one interpretation may the court turn to extrinsic aids such as legislative history. (Pp. 18—19)
3. With regard to the Act's requirement of a good-faith effort to identify an equivalently-qualified expert, the Court determines that the Act directs the judge to focus on the "effort" the moving party made, and not on the reasons why an expert declined to execute an affidavit. That focus reflects a legislative judgment that the moving party should make a legitimate attempt to obtain an equivalently-qualified expert and should not be relieved of that burden by desultory undertakings or half-hearted endeavors. To prove good faith, a moving party must show what steps he undertook to obtain a qualified expert. However, the expert's reasons for declining are not required. If the Legislature had intended a malpractice case to stand or fall solely on the presence or absence of a same-specialty expert, the Legislature would not have provided for waiver or would have declared that waiver was somehow limited by the substance of an expert's refusal to execute an affidavit. Instead, the Legislature gave the judge broad discretion to accept an expert with sufficient training, experience and knowledge to provide the testimony, but only if plaintiff made a good faith effort to satisfy the statute. Here, the trial judge was satisfied that Ryan's efforts demonstrated good faith. There is nothing in the statute that requires more, and the trial judge's acceptance of what was proffered was not an abuse of discretion. (Pp. 19—22)
4. The Court also rejects Dr. Renny's argument that the "active involvement" requirement of the Act was not met because Dr. Befeler was no longer performing colonoscopies at the time Dr. Renny performed Ryan's colonoscopy. The Court explains that the Legislature omitted from the plain language of the waiver provision a temporality requirement that was included in other provisions of the Act, and the likely purpose for that omission was the Legislature's recognition that waiver is the last chance for a plaintiff to meet the affidavit of merit requirement and avoid dismissal. The Court advises, however, that the trial court may take into account the passage of time and its relationship to the expert's qualifications. (Pp. 22—28)
5. The trial judge found that Dr. Befeler had performed colonoscopies in the past, present performance of colonoscopies is not a requirement of the Act, and Dr. Befeler was "actively involved" in the treatment, diagnosis and evaluation of bowel abnormalities and diseases. As such, the judge qualified Dr. Befeler as an expert under the waiver provision. However, the Court remands the matter to the trial judge for further consideration of the principles set forth in this opinion and advises that, during that proceeding, Dr. Renny may raise the additional challenges to Dr. Befeler's credentials that he advanced in the motion he filed in this Court. (P. 28)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
JUSTICE RIVERA-SOTO, DISSENTING, maintains that the statute clearly requires a plaintiff to either file a timely affidavit of merit from a board-certified specialist in the same specialty as the defendant or file a timely motion for a waiver of the requirement and present a viable substitute. He points out that Ryan's motion for a waiver was untimely and no explanation or justification was provided for that delay. He also asserts that the majority's interpretation of the statutory provisions renders them judicially neutered scarecrows, providing a warning heeded by the diligent but having no lingering effect on the scavengers. Justice Rivera-Soto contends that the majority's decision rewards the willful disregard of a legislative mandate, results in the needless nullification of the legislative scheme, and tramples the right to be free of malpractice claims lacking in merit, which the Legislature unequivocally granted to Dr. Renny.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.