In another in the seemingly endless series of decisions parsing the interpretation of the statutory requirements for an affidavit of merit in medical liability claims, on January 22, 2025 the New Jersey Supreme Court issued its unanimous opinion in Wiggins v. Hackensack Meridian Health. The court ruled that in a case against a physician who is board-certified in and practices two different specialties, a plaintiff can satisfy the statutory requirement with an affidavit of merit from a physician specializing in only one of those specialties.
The Wiggins case involved the death of a patient in September 2020. In December 2015, the patient received a prescription for the medication Tramadol for pain and then in January 2016 she received a prescription from a different physician for the medication Allopurinol. The patient had an allergic reaction from either one of the medications or a combination of the two that evolved into Stevens-Johnson Syndrome. This is a rare but serious and potentially life-threatening disorder of the skin and mucous membranes. A person develops a rash that spreads and blisters with the top layer of skin sloughing off.
The patient recovered from the attack of Stevens-Johnson Syndrome, but about four years later was admitted to Hackensack Meridian Health – JFK University Medical Center. Following the discharge, she saw defendant Dr. Goyal who prescribed Allopurinol which she took for four days. Then, on September 9, 2020, she was again admitted to the hospital with a diagnosis of Stevens-Johnson Syndrome. Despite treatment at a burn specialty hospital, she died on September 29 from a cardio-pulmonary arrest attributed to multiple organ failure, bacteremia, and Stevens-Johnson Syndrome.
In his answer to the complaint, in accordance with R.4:5-3, Dr. Goyal indicated that he was certified in the specialties of Internal Medicine and Gastroenterology and that his treatment of decedent “involved the medical specialties of Internal Medicine and Gastroenterology.” Plaintiff’s counsel provided an affidavit of merit (AOM) from a physician who was certified in the field of Internal Medicine but not Gastroenterology. At a case management conference held pursuant to the directives of Ferreira v. Rancocas Orthopedic Associates, defense counsel challenged the sufficiency of the AOM because of the double certification status of the defendant physician and the “like-for-like” requirement of the Patients First Act. Motions to dismiss were subsequently filed.
Arguing that Allopurinol was a medication prescribed by internal medicine physicians and was not limited to gastroenterology uses, Plaintiff opposed the motion to dismiss. Plaintiff contended that the AOM from an internal medicine physician was sufficient, especially in light of the comments of the Supreme Court in Buck v. Henry that “[a] physician may practice in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas. In that case, an [AOM] from a physician specializing in either area will suffice.” The trial court denied the motion to dismiss. The Appellate Division granted leave to appeal and reversed. It stressed the statutory requirement that an expert have equivalent qualifications to the defendant physician and concluded that the comments in Buck were dicta and not binding. The Supreme Court granted a motion for leave to appeal for further review.
In his opinion for the court, Justice Fasciale reviewed the history of the affidavit of merit requirement from the initial statute enacted in 1985 for liability claims against any professional through the 2004 adoption of the Patients First Act, which enhanced the requirements for liability claims against physicians. He rejected the notion that the quoted comments from Buck were non-binding dicta. In Buck the Court had underscored the importance of the Ferreira conference in identifying and addressing problems with an AOM and weeding out unmeritorious cases, but Justice Fasciale emphasized that in that case the Court “did not resolve whether the plaintiff’s AOMs were sufficient.” But the Court had proceeded to provide guidance for sorting out when a physician practiced in more than one specialty and the treatment fell into more than one specialty area. Justice Fasciale stated: “‘[M]atters in the opinion of a higher court which are not decisive of the primary issue presented but which are germane to that issue … are not dicta, but binding decisions of the court’ [and] ‘the legal findings and determinations of a high court’s considered analysis must be accorded conclusive weight by lower courts.’”
Turning to the text of the statute, he pointed out that its plain language did not require an AOM to be from an individual with the same numerous specialties as the defending physician; “instead, it requires only the same ‘specialty or subspecialty’ in the singular” with emphasis added to the use of the disjunctive conjunction. Similarly, he noted that the statute’s requirement concerning equivalence as to the care or treatment in dispute was also “‘specialty or subspecialty,’ not specialties or subspecialties.” He distinguished the circumstances where even though practitioners of emergency medicine, family medicine, internal medicine might all treat similar or related conditions in the course of their practice, but the AOM was from a physician who was not equivalently qualified in any of these specialties but rather other areas.
The critical fact in Wiggins was the defendant’s acknowledgement that in addition to being certified in both internal medicine and the subspecialty of gastroenterology, his treatment of this patient involved both internal medicine and gastroenterology. There was nothing about the prescription of Allopurinol that was unique to the subspecialty of gastroenterology. Thus, it would be appropriate for a physician practicing in either of these fields to provide an AOM.
The decision in Wiggins adheres to the New Jersey Supreme Court’s long-standing practice of not exalting form over substance. The coalescence of both specialty credentials and treatment matching up with the defendant physician’s training and practice avoids a retrenchment to the time before enactment of the Patients First Act when the Court had tolerated a very low threshold to qualify as an expert. For example, in its 1953 decision in Carbone v. Warburton, the Supreme Court had stated “[t]he fact that [the proffered expert witness] is not a specialist may disparage his qualifications and thereby the weight to be given his opinion, but it does not render him incompetent to state an opinion.” Other cases recognized expert witness status as to persons who did not even hold a license in the field in question. In Sanzari v. Rosenfeld, a physician anesthesiologist was allowed to testify as to dental standards of care. In Rosenberg by Rosenberg v. Cahill, a medical doctor was permitted to testify as to the standard of care for a chiropractor. In Nicholas v. Mynster, the Court reasoned that allowing physician experts of different medical specialties, but who treated similar maladies, to offer testimony even though not equivalently credentialed to the defendant physician would “read out of the statute the kind-for-kind specialty requirement” the Legislature intended to impose. Wiggins follows the same analysis.