Stephen Meehan v. Peter Antonellis, Dmd(075265)

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
interest of brevity, portions of any opinion may not have been summarized.)
Stephen Meehan v. Peter Antonellis, DMD (075265) (A-45-14)
Argued March 15, 2016 – Decided August 9, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal involving the Affidavit of Merit statute (AOM statute), N.J.S.A. 2A:53A-26 to -29, the Court
determines whether an affiant submitting an affidavit of merit must have credentials equivalent to those of the
defendant, either pursuant to the like-qualified standard of the Patients First Act, N.J.S.A. 2A:53A-41 (section 41),
or under the credentials standards outlined in N.J.S.A. 2A:53A-27 (section 27) of the AOM statute. The Court also
determines the sufficiency of the affidavit of merit that plaintiff submitted in support of his action against defendant
for dental malpractice.
Plaintiff consulted defendant, an orthodontist, seeking treatment for sleep apnea. Defendant fitted plaintiff
with a dental appliance intended to reduce plaintiff’s symptoms. After wearing the device while sleeping, plaintiff
noticed that his teeth had shifted. A subsequent sleep study revealed that plaintiff’s symptoms worsened during the
time that he used the appliance. Defendant attempted to remedy plaintiff’s condition with a new appliance, without
success. Plaintiff filed an action for dental malpractice against defendant, alleging that defendant’s treatment
created large gaps between his teeth and worsened his sleep apnea condition. Defendant’s answer to the complaint
did not identify the field in which he specialized and whether his treatment of plaintiff involved that specialty, as
required by Rule 4:5-3.
Plaintiff filed a timely affidavit of merit from a dentist who specializes in prosthodontics and has over
twenty years of experience in the treatment of sleep apnea. He opined that defendant’s failure to inform plaintiff of
the risks associated with use of the dental device fell outside the standards of care for oral appliance therapy.
Defendant filed a motion to dismiss plaintiff’s complaint with prejudice, asserting that plaintiff was required to
submit an affidavit of merit from a like-qualified dentist, which, in this case, was an orthodontist. The trial court
granted defendant’s motion and dismissed plaintiff’s complaint with prejudice. The court held that section 27 of the
AOM statute required that the affidavit of merit be submitted by a like-qualified professional who practices in the
same specialty or subspecialty as the defendant, and therefore required plaintiff to submit an affidavit of merit from
an orthodontist. The court denied plaintiff’s motion for reconsideration, finding that the affiant and defendant were
not equivalently qualified because the affiant specialized in different areas of practice.
The Appellate Division affirmed the orders dismissing plaintiff’s complaint with prejudice and denying
reconsideration. The appellate panel recognized the distinction between medical malpractice and dental malpractice
actions, but found that the credentialing requirements for affiants who provide an affidavit in a medical malpractice
action under section 41 of the Patients First Act also apply to section 27 of the AOM statute. Applying that
standard, the panel concluded that plaintiff’s affiant lacked the requisite statutory qualifications to issue an affidavit
of merit against the defendant.
This Court granted plaintiff’s petition for certification. 221 N.J. 218 (2015).
HELD: The enhanced requirements of section 41 of the Patients First Act which govern the qualifications of
persons permitted to submit an affidavit of merit, or provide expert testimony, in a medical malpractice action, apply
only in medical malpractice actions. In all other actions against a licensed professional, section 27 of the AOM
statute prescribes the qualifications of the person who may submit an affidavit of merit against a licensed
professional. The affidavit of merit that plaintiff submitted in this action, from a licensed dentist with experience in
the treatment of sleep apnea, satisfies section 27. The trial court therefore improperly dismissed the complaint.
1. The AOM statute is intended to eliminate frivolous claims against licensed professionals early in the litigation
1
process, and to permit meritorious claims to proceed efficiently. Under section 27 of the statute, a plaintiff alleging
that certain designated professionals negligently performed professional services is required to provide an affidavit
from an expert attesting to the merits of the claim. The submission of an affidavit of merit is considered an element
of the claim, and the failure to submit an appropriate affidavit of merit ordinarily requires dismissal of the complaint
with prejudice. However, a complaint will not be dismissed if the plaintiff has substantially complied with the
affidavit of merit obligations. Additionally, if the plaintiff can demonstrate extraordinary circumstances that
prevented compliance, the complaint will be dismissed without prejudice. An accelerated case management
conference, as required by Ferreira v. Rancocas Orthopedic Assocs. 178 N.J. 144 (2003), is intended to identify and
address, early in the litigation, any issues concerning the affidavit of merit. (pp. 14-18)
2. Section 27 of the AOM statute was amended in 2004 to direct that medical malpractice actions comply with
section 41 of the Patients First Act. Section 41 precludes a person from providing expert testimony or executing an
affidavit of merit in a medical malpractice action unless the expert or affiant is a licensed physician or other health
care professional in the United States, and meets other standards, depending on the qualifications and area of
practice of the party against whom or on whose behalf the testimony is provided. In all negligence actions against
designated licensed professionals, other than medical malpractice actions, the affidavit of merit is governed by the
original provisions of section 27. (pp. 18-20)
3. In determining whether the enhanced credential standards stated in section 41 apply to an action for dental
malpractice, the Court examines the legislative intent of the statute. The plain language of section 41 states that the
like-qualified standards apply only to physicians who are defendants in medical malpractice actions. This
interpretation is also supported by and consistent with the stated purpose of the Patients First Act and its legislative
history. The issues regarding the delivery of health care that the Legislature identified and the measures that the
Legislature adopted to address them with the adoption of section 41 pertain only to physicians, without reference to
any other licensed professionals. Under the plain language of sections 27 and 41, the enhanced credential
requirements established by section 41 for those submitting affidavits of merit and expert testimony apply only to
physicians in medical malpractice actions. (pp. 21-25)
4. Section 27, which is applicable here, does not impose a like-qualified standard for an affiant who submits an
affidavit of merit in a negligence action against designated professionals. The language of section 27 under
consideration has remained unchanged since the AOM statute was adopted in 1995. Section 27 requires the affiant
to be licensed in this or another state, and have particular expertise in the general area or specialty involved in the
action, and addresses the manner in which that expertise may be demonstrated. There is no textual support for the
application of the like-qualified requirement of section 41 to affiants submitting an affidavit of merit against
designated professionals under section 27. (pp. 25-26)
5. Based on the statute’s plain language and the manner in which it has been applied since its adoption, the Court
concludes that section 27 requires no more than that the person submitting an affidavit of merit be licensed in this or
another state, and have particular expertise in the general area or specialty involved in the action. The enhanced
requirements of section 41 governing the qualifications of persons permitted to submit an affidavit of merit, or
provide expert testimony against or in support of a physician in a medical malpractice action, apply only in medical
malpractice actions. In this case, the affiant is a licensed dentist who has particular expertise in the diagnosis and
treatment of sleep apnea, the general area involved in the professional negligence action that plaintiff commenced.
Measured by these standards, the affidavit of merit that plaintiff submitted satisfied the requirements of section 27.
(pp. 28-34)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for further proceedings.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA and
SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE PATTERSON did not participate.
2
SUPREME COURT OF NEW JERSEY
A-45 September Term 2014
075265
STEPHEN MEEHAN,
Plaintiff-Appellant,
v.
PETER ANTONELLIS, DMD,
Defendant-Respondent.
Argued March 15, 2016 – Decided August 9, 2016
On certification to the Superior Court,
Appellate Division.
E. Drew Britcher argued the cause for
appellant (Britcher Leone, attorneys; Mr.
Britcher and Jessica E. Choper, on the
briefs).
Kenneth M. Brown argued the cause for
respondent (Wilson, Elser, Moskowitz,
Edelman & Dicker, attorneys; Robert T.
Gunning, of counsel and on the briefs).
Abbott S. Brown argued the cause for amicus
curiae New Jersey Association for Justice
(Lomurro, Munson, Comer, Brown and
Schottland, attorneys; Mr. Brown, Jonathan
H. Lomurro, and Christina Vassiliou Harvey,
on the brief).
John Zen Jackson argued the cause for amicus
curiae Medical Society of New Jersey
(McElroy, Deutsch, Mulvaney & Carpenter,
attorneys).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
1
In this appeal, we return to the vexing and recurring issue
of whether an affidavit of merit submitted by a plaintiff in an
action alleging negligence by a licensed professional satisfies
the requirements of the Affidavit of Merit statute (AOM
statute), N.J.S.A. 2A:53A-26 to -29. Plaintiff sought treatment
for sleep apnea from an orthodontist. Plaintiff used the
appliance given to him for treatment but complained that it
caused the dislocation of some teeth. Contending that the
orthodontist did not inform him that the appliance may dislocate
teeth, plaintiff filed a complaint alleging that the treating
orthodontist provided insufficient information to permit him to
make an informed decision to proceed with the recommended
treatment.
The trial court conducted a Ferreira1 conference and
determined that plaintiff submitted a timely affidavit of merit;
however, the court dismissed with prejudice plaintiff’s
complaint because plaintiff submitted the affidavit from a
dentist who specialized in prosthodontics and the treatment of
sleep apnea. The court stated that plaintiff knew that the
dentist who treated him was an orthodontist and that the statute
required submission of an affidavit of merit from a like-
qualified dentist. In other words, the court determined that
1 Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
2
plaintiff was required to submit an affidavit of merit from an
orthodontist rather than an affidavit from a board-certified
prosthodontist who had specialized in the treatment of sleep
apnea for twenty years.
Since the adoption in 2004 of the New Jersey Medical Care
Access and Responsibility and Patients First Act (Patients First
Act), N.J.S.A. 2A:53A-37 to -42, there has been a proliferation
of litigation yielding disparate results on whether the enhanced
qualification standards of the Patients First Act in medical
malpractice actions apply to negligence actions against all
licensed professionals. In addition, we have repeatedly
addressed the contours of the Ferreira conference due to
problems with the timing of the conference, the omission of the
conference in some instances, and the substance of such
conferences.
In this appeal, we hold that the like-qualified standard2
prescribed in the Patients First Act, N.J.S.A. 2A:53A-41
(section 41), applies only in actions for medical malpractice.
In all other negligence actions against a licensed professional,
the credential standards outlined in N.J.S.A. 2A:53A-27 (section
27) apply.
2 This standard is also referred to in case law and litigation as
“like-credentialed,” “equivalently credentialed,” “equivalently
qualified,” and “kind-for-kind.”
3
The Ferreira conference is designed to identify and
alleviate issues regarding the affidavit of merit. Here, the
Ferreira conference failed to accomplish one of its primary
functions, that is, determining whether the treatment provided
by the professional defendant involved the defendant’s
specialty. Normally, we would vacate the dismissal with
prejudice and remand to permit the plaintiff to obtain an
affidavit of merit from a qualified professional. That remedy
is unnecessary here. There is no need to prolong this already
protracted matter because we conclude that the affidavit of
merit submitted by plaintiff satisfies the credential
requirements of section 27. We therefore reverse the judgment
of the Appellate Division and remand the matter to the trial
court for further proceedings.
I.
We derive the facts from a record limited to the
transcripts of the Ferreira conference, the motion to dismiss,
and the motion for reconsideration, as well as the briefs and
exhibits submitted in support of and in opposition to those
motions.
Plaintiff consulted defendant for treatment for sleep
apnea. On May 4, 2010, defendant fitted plaintiff with a dental
appliance known as a positioner. The device was intended to
help reduce plaintiff’s sleep apnea symptoms. Plaintiff asserts
4
that he expressed a concern that the device would cause his
teeth to shift and that defendant “unequivocally assured” him
that his teeth would not move. After wearing the device while
sleeping, plaintiff noticed that his teeth had shifted.
Plaintiff decided to undergo a sleep study, which revealed that
plaintiff’s condition had progressed from moderate to severe
during the period of time that he used the appliance. Defendant
unsuccessfully attempted to remedy plaintiff’s condition with a
new appliance.
On August 29, 2012, plaintiff filed a complaint against
defendant alleging that defendant’s treatment caused chronic
muscle pain and headaches, created large gaps between his teeth,
and worsened his sleep apnea condition. Defendant filed an
answer on October 11, 2012. The answer did not identify the
field in which defendant specialized and whether his treatment
of plaintiff involved that specialty as required by Rule 4:5-3.
A Ferreira conference was conducted on January 18, 2013.
At the outset of the conference, the trial court did not realize
the nature of the conference. Defense counsel promptly informed
the court that plaintiff had not filed an affidavit of merit and
that the document was due in about three weeks. Addressing
plaintiff, who was self-represented, the trial court informed
plaintiff that he was required to submit an affidavit of merit.
Plaintiff stated that he was familiar with the affidavit of
5
merit requirement but requested the court “to explain [the
requirement], just to make sure there is no misunderstanding[.]”
The trial court proceeded to explain the purpose of the
affidavit of merit, mentioned that the affidavit was not a
substitute for expert testimony at trial about the standard of
care, and emphasized that the failure to submit an affidavit, or
the submission of a noncompliant affidavit, would trigger a
motion to dismiss the complaint. Plaintiff asked whether the
period for calculating the due date of the affidavit ran from
the date the answer was filed or when it was received by him.
The trial court did not directly answer that question. Rather,
the court stated, “You could make that argument.” The trial
court also informed plaintiff that a good faith effort to obtain
an affidavit may not satisfy the statutory requirement for
production of an affidavit of merit.
At the conclusion of the Ferreira conference, the trial
court realized that the matter was a dental malpractice claim.
The trial court informed plaintiff that the affidavit “would
have to come from a dentist or one who practices dentistry.”
When plaintiff advised the trial court that defendant had not
identified any area of specialty or whether his treatment
involved that specialty, the court initially advised plaintiff
that the information could be obtained through discovery. The
following exchange occurred:
6
THE COURT: I’m not sure what you mean by
that.
[PLAINTIFF]: He’s supposed to -- by the
rules of the court he’s supposed to respond
what field of medicine he’s practicing and
with this appliance (phonetic) -- apparently,
he’s an orthodontist, and I believe he is
practicing outside his field of expertise.
THE COURT: There’s -- there’s discovery,
which can take place. But I would just -- I
don’t want you to be distracted. There’s
certainly time to pronounce interrogatories
or, if you feel necessary, take depositions.
But if this affidavit of merit issue is
not resolved there won’t be any discovery in
this case. Because there won’t be any case
for discovery to take place.
[PLAINTIFF]: Uh hum.
THE COURT: All right?
[PLAINTIFF]: Okay.
THE COURT: Okay.
[PLAINTIFF]: Okay. Thank you --
THE COURT: Thank you.
[PLAINTIFF]: -- for letting me try to
voice my --
THE COURT: That’s okay. All right.
[DEFENSE COUNSEL]: Thank you, Judge.
At no time did the trial court address defendant’s failure to
provide the information required by Rule 4:5-3. Defense counsel
did not provide any information about whether defendant’s
treatment of plaintiff involved the specialty of orthodontics.
7
Plaintiff filed a timely affidavit of merit from Dr. Mark
Samani, a dentist who specializes in prosthodontics and has over
twenty years of experience in the treatment of sleep apnea. Dr.
Samani stated that
[j]aw movement, tooth movement and even
tempor[o]mandibular joint pain are all know[n]
complications associated with oral appliance
therapy for the treatment of obstructive sleep
apnea. These complications arising in and of
themselves are not breach[es] of the standards
of care. Based on my knowledge, education and
experience in the treatment of obstructive
sleep apnea with oral appliances, if the
patient was not informed about these very real
possibilities, as stated by Mr. Meehan, th[e]n
the patient was not given the opportunity to
make an educated decision on treatment and the
informed consent process fell outside the
standards of care for oral appliance therapy
for the treatment of obstructive sleep apnea.
Defendant filed a motion to dismiss plaintiff’s complaint
with prejudice, asserting that plaintiff was required to submit
an affidavit of merit from a like-qualified dentist, that is, an
orthodontist. During oral argument on the motion, plaintiff
advised the trial court that he was aware that defendant was an
orthodontist but was under the impression that defendant was not
treating him as an orthodontist. Plaintiff explained that he
sought and obtained an affidavit from a dentist who specializes
in the treatment of sleep apnea.
The trial court granted defendant’s motion and dismissed
plaintiff’s complaint with prejudice. In a written statement
8
accompanying the order, the trial court declared that section 27
required that the affidavit of merit be submitted by a like-
qualified professional. Addressing the affidavit submitted by
plaintiff, the trial court determined that “the fact that Dr.
Samani is an expert in sleep apnea is irrelevant in this
malpractice claim because the statute clearly requires the
affidavit of merit to be submitted by a person who practices in
the same specialty or subspecialty.” Thus, the court declared
that plaintiff was required to submit an affidavit of merit from
an orthodontist. The trial court determined that plaintiff had
not applied for a waiver pursuant to section 41, or shown
exceptional circumstances to permit a deviation from the
statutory requirement of a like-qualified professional, or
satisfied the good faith requirements of Ryan v. Renny, 203 N.J.
37 (2010).
In response to plaintiff’s motion for reconsideration,
which the trial court denied, the trial court elaborated on its
reasoning in a written opinion. Relying on Buck v. Henry, 207
N.J. 377, 389 (2011), the court declared that the expert
providing the affidavit of merit “should be equivalently-
qualified to the defendant” physician. The court also
determined that the affiant and defendant were not equivalently
qualified because the affiant specialized in prosthodontics and
defendant specialized, and rendered treatment to plaintiff, in
9
orthodontics. The trial court asserted that a dismissal with
prejudice of plaintiff’s complaint was consistent with the rule
announced in Nicholas v. Mynster, 213 N.J. 463 (2013), an
opinion issued following entry of the order granting a
defendant’s motion to dismiss. The court also reasoned that it
could not provide any relief from the strict requirements of the
Patients First Act because plaintiff had not applied for a
waiver.
The Appellate Division affirmed the orders dismissing
plaintiff’s complaint with prejudice and denying reconsideration
in an unpublished opinion. Relying on this Court’s
interpretation of section 41 in Nicholas, id. at 481-82, the
Appellate Division applied credentialing requirements for those
providing an affidavit of merit or expert testimony in a medical
malpractice action to a dental malpractice action, and declared
that “a plaintiff’s medical expert must possess the same
specialty or subspecialty as the defendant physician.” The
appellate panel recognized the distinction between medical
malpractice and dental malpractice actions but determined that
“the Patient[s] First Act’s detailed standards for experts
executing an [affidavit of merit] . . . are consistent with the
limitations found in [section 27,] which . . . mandates that
experts in other professional malpractice actions possess
particular expertise in the specialty involved in the action.”
10
Applying that standard, the panel concluded that plaintiff’s
affiant “lacked the requisite statutory qualifications to issue
an [affidavit of merit] against defendant.” The appellate panel
also determined that defendant’s failure to identify his
specialty was not fatal because the Ferreira conference record
demonstrated that plaintiff knew that defendant was an
orthodontist.
The Court granted plaintiff’s petition for certification to
address three questions: (1) whether the Appellate Division
erred in extending the Patients First Act to dental malpractice
actions; (2) whether the Appellate Division erred in determining
that plaintiff’s affidavit of merit from Dr. Samani was
insufficient because it was not from an orthodontist; and (3)
whether, due to the alleged Ferreira conference failures,
exceptional circumstances exist warranting reinstatement of
plaintiff’s complaint. Meehan v. Antonellis, 221 N.J. 218
(2015).
II.
A.
Plaintiff asserts that the plain language of section 41
dictates that the enhanced or like-qualified requirements of the
Patents First Act apply only to medical malpractice actions.
Plaintiff acknowledges that the Appellate Division noted that
section 41 applies only to medical malpractice actions, but
11
states that the panel nonetheless proceeded to apply the expert
credential requirements governing medical malpractice actions to
this dental malpractice action. Plaintiff further argues that
the affidavit of merit submitted by Dr. Samani satisfied the
qualification requirements of section 27 because plaintiff
received treatment for sleep apnea, Dr. Samani is a licensed
dentist who specialized in prosthodontics, a specialty that
treats sleep apnea, Dr. Samani has specialized in the treatment
of sleep apnea for over twenty years, and the treatment provided
by defendant to plaintiff did not fall solely within the field
of orthodontics.
In the alternative, if this Court determines that Dr.
Samani’s affidavit of merit does not satisfy the statutory
requirements for this dental negligence matter, plaintiff
requests that this Court permit him additional time to present a
conforming affidavit. Plaintiff maintains that the Ferreira
conference did not adequately address the issue of defendant’s
qualifications as required by Buck, supra, 207 N.J. at 394-95.
B.
Defendant argues that the Appellate Division correctly
affirmed the dismissal with prejudice of plaintiff’s complaint
because plaintiff failed to serve an appropriate affidavit of
merit. Defendant maintains that plaintiff knew defendant was an
orthodontist, and therefore, the affiant must be an
12
orthodontist, that plaintiff never asserted his claim was
limited to informed consent, and that the appellate panel did
not extend the Patients First Act to dentists. Defendant argues
that the trial court said nothing at the Ferreira conference
that would have led plaintiff to believe that he could submit an
affidavit of merit from any licensed dentist other than an
orthodontist. Addressing plaintiff’s contention that
defendant’s silence in his answer and at the conference about
his specialty contributed to the submission of an affidavit by a
dentist other than one specializing in orthodontics, defendant
argues that he also “never asserted that he treated [plaintiff]
outside of his dental practice specialty of orthodontics.” In
other words, defendant argues that plaintiff should have assumed
that the treatment provided by defendant fell within the
specialty of orthodontics unless and until he was informed to
the contrary.
Furthermore, defendant argues that section 27 requires
“particular expertise in the general area or specialty involved
in the action.” Asserting that he treated plaintiff from 2002
to 2012 exclusively as an orthodontist, defendant maintains that
the record does not support a conclusion that he treated
plaintiff as a general dentist or in any way outside his
established specialty. Defendant acknowledges that Dr. Samani
has devoted over twenty years to the treatment of sleep apnea
13
but maintains that plaintiff has not established that Dr.
Samani’s prosthodontics specialty overlaps with defendant’s
specialty in orthodontics.
C.
Amicus curiae New Jersey Association for Justice (NJAJ)
argues that the Patients First Act unconstitutionally interferes
with the judiciary’s power to regulate practice and procedure in
the courts. Amicus curiae Medical Society of New Jersey (MSNJ)
recognizes that the issue raised by NJAJ is not within the scope
of the order granting certification. Nevertheless, MSNJ
responds that the AOM statute and the Patients First Act do not
transgress the separation of powers doctrine because the
Patients First Act addresses substantive elements of a cause of
action rather than the admissibility of evidence. MSNJ also
argues that dismissals for noncompliance with either statute
should be without prejudice.
III.
The stated purpose of the AOM statute, N.J.S.A. 2A:53A-26
to -29, is laudatory -- to weed out frivolous claims against
licensed professionals early in the litigation process.
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146
(2003). The submission of an appropriate affidavit of merit is
considered an element of the claim. See Alan J. Cornblatt, P.A.
v. Barow, 153 N.J. 218, 244 (1998) (holding that failure to
14
submit affidavit of merit “goes to the heart of the cause of
action as defined by the Legislature”). Failure to submit an
appropriate affidavit ordinarily requires dismissal of the
complaint with prejudice. Id. at 243.
On its face, the AOM statute did not seem to impose “overly
burdensome obligations,” Ferreira, supra, 178 N.J. at 146, yet
this single piece of legislation has unleashed a veritable
avalanche of litigation. This Court addressed the initial
statute, originally enacted in 1995, nine times before the
Legislature adopted further obligations regarding medical
malpractice actions in 2004. Id. at 144; Palanque v. Lambert-
Woolley, 168 N.J. 398 (2001); Hubbard ex rel. Hubbard v. Reed,
168 N.J. 387 (2001); Fink v. Thompson, 167 N.J. 551 (2001);
Christie v. Jeney, 167 N.J. 509 (2001); Galik v. Clara Maass
Med. Ctr., 167 N.J. 341 (2001); Burns v. Belafsky, 166 N.J. 466
(2001); Cornblatt, supra, 153 N.J. 218; In re Petition of Hall,
147 N.J. 379 (1997).
Consistent with the dual purposes of the statute to
identify and eliminate unmeritorious claims against licensed
professionals and to permit meritorious claims to proceed
efficiently through the litigation process, Hubbard, supra, 168
N.J. at 395, the Court fashioned two equitable remedies “that
temper the draconian results of an inflexible application of the
statute,” Ferreira, supra, 178 N.J. at 151. Thus, a complaint
15
will not be dismissed if the plaintiff substantially complied
with the affidavit of merit obligations, Palanque, supra, 168
N.J. at 405-06; Fink, supra, 167 N.J. at 351-59, and a complaint
will be dismissed without prejudice if the plaintiff can
demonstrate extraordinary circumstances that prevented
compliance, Palanque, supra, 168 N.J. at 404-05.
Still, problems persisted, turning the seemingly
straightforward obligations of the statute into a procedural
minefield and spawning a new subset of motion practice in
professional liability litigation. It was in this context that
the Court declared in Ferreira that an accelerated case
management conference should be conducted within ninety days of
the filing of an answer to identify and address any and all
issues concerning the affidavit of merit served or not served by
the plaintiff. The Court directed that,
[a]t the conference, the court will address
all discovery issues, including whether an
affidavit of merit has been served on
defendant. If an affidavit has been served,
defendant will be required to advise the court
whether he has any objections to the adequacy
of the affidavit. If there is any deficiency
in the affidavit, plaintiff will have to the
end of the 120-day time period to conform the
affidavit to the statutory requirements. If
no affidavit has been served, the court will
remind the parties of their obligations under
the statute and case law.
[Ferreira, supra, 178 N.J. at 155.]
16
Soon thereafter, the Legislature enacted the Patients First
Act, adding further obligations to the affidavit of merit
requirement. This appeal presents the fourth occasion for this
Court to consider the issues that have arisen from the 2004
amendments. See Nicholas, supra, 213 N.J. 463; Buck, supra, 207
N.J. 377; Ryan, supra, 203 N.J. 37.
In this appeal, we address two issues. First, we address
whether the like-credential requirements of section 41 apply in
professional negligence actions other than medical malpractice
actions. Second, we address whether the Ferreira conference
conducted in this matter adequately addressed the sufficiency of
the affidavit of merit required for plaintiff’s dental
malpractice action to proceed. We review these legal issues de
novo. See Mortgage Grader, Inc. v. Ward & Olivio, L.L.P., ___
N.J. ___, ___ (2016) (slip op. at 10) (“An appellate court
interprets both statutes and court rules de novo.”). We
commence our discussion with the interpretive issue presented by
the affidavit of merit submitted by plaintiff in this action.
A.
The starting point for our inquiry is the text of two
statutes -- N.J.S.A. 2A:53A-27 and -41. Section 27 is the
central element of legislation adopted in 1995 and commonly
referred to as the AOM statute. L. 1995, c. 139. In general
terms, the Legislature established a procedure that required a
17
person alleging that certain designated professionals
negligently performed professional services to produce an
affidavit from an expert attesting to the merits of the claim.
Dentists were and continue to be among the licensed persons
covered by the AOM statute. N.J.S.A. 2A:53A-26(d).
Section 27, in its original form, provided as follows:
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 shall
. . . 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 . . . standards or
treatment practices. . . . The person
executing the affidavit shall be licensed in
this or any other state; have particular
expertise in the general area or specialty
involved in the action, as evidenced by board
certification or by devotion of the person’s
practice substantially to the general area or
specialty involved in the action for a period
of five years[.]
[L. 1995, c. 139, § 2 (codified at N.J.S.A.
2A:53A-27).]
The section also requires that the affiant have no financial
interest in the outcome of the matter. Ibid.
As part of certain 2004 tort reform measures regarding
medical malpractice actions, language was added to section 27,
L. 2004, c. 17, § 8, expressly directing that medical
18
malpractice actions be treated in accordance with the
requirements of section 41 of the Patients First Act. As
amended, the relevant portion of section 27 now states:
In the case of an action for medical
malpractice, the person executing the
affidavit shall meet the requirements of a
person who provides expert testimony or
executes an affidavit as set forth in [section
41].
[N.J.S.A. 2A:53A-27.]
The standards in the original statute continue to apply “[i]n
all other cases.” Ibid. In other words, in all negligence
actions against designated licensed professionals, other than
medical malpractice actions, the affidavit of merit is governed
by the original provisions of section 27.
Section 41 “establishes qualifications for expert witnesses
in medical malpractice actions” and “provides that an expert
must have the same type of practice and possess the same
credentials, as applicable, as the defendant health care
provider, unless waived by the court.” Assembly Appropriations
Comm., Statement to Assembly No. 50, at 2 (2004).
Section 41 precludes a person from providing expert
testimony or executing an affidavit of merit in a medical
malpractice action unless the expert or affiant is a licensed
physician or other health care professional in the United States
and meets other standards, depending on the qualifications and
19
area of practice of the party against whom or on whose behalf
the testimony is provided. See N.J.S.A. 2A:53A-41a. The
equivalency or kind-for-kind credential requirement may be
waived if the moving party demonstrates that a good faith effort
failed to yield a qualifying expert in the specialty or
subspecialty, and the trial court determines that the proposed
expert or affiant has sufficient training, experience, and
knowledge to provide an opinion. N.J.S.A. 2A:53A-41c. The
training, education, and experience must be derived from “active
involvement in, or full-time teaching of, medicine in the
appropriate area of practice or a related field of medicine.”
Ibid.
In Buck, supra, we characterized sections 41a and b of the
Patients First Act “as setting forth three distinct categories
embodying this “kind-for-kind” rule:
(1) those who are specialists in a field
recognized by the American Board of Medical
Specialties (ABMS) but who are not board
certified in that specialty;
(2) those who are specialists in a field
recognized by the ABMS and who are board
certified in that specialty; and
(3) those who are “general practitioners.”
[207 N.J. at 389.]
See also Nicholas, supra, 213 N.J. 483.
B.
20
To resolve the interpretive issue before the Court, that
is, whether a person submitting an affidavit of merit in a
dental malpractice action must comply with the enhanced
credential standards set forth in section 41, we must examine
the canons of statutory interpretation that apply to this case.
When the interpretation of a statute is at issue, “[t]he
objective of that task ‘is to discern and effectuate the intent
of the Legislature.’” Shelton v. Restaurant.com, Inc., 214 N.J.
419, 428-29 (2013) (quoting Murray v. Plainfield Rescue Squad,
210 N.J. 581, 592 (2012)).
We commence our examination of the text of the AOM statute
and the Patients First Act with section 27. See DiProspero v.
Penn, 183 N.J. 477, 492 (2005) (stating that best indicator of
Legislature’s intent is statutory language (citing Frugis v.
Bracigliano, 177 N.J. 250, 280 (2003)). In 2004, the AOM
statute was amended to add a sentence to section 27. That
sentence provides that “[i]n the case of an action for medical
malpractice, the person executing the affidavit shall meet the
requirements of a person who provides expert testimony or
executes an affidavit as set forth in [section 41].” L. 2004,
c. 17, § 8. The 2004 amendment then adds the phrase “in all
other cases” to the existing sentence that describes the
credentials for those submitting an affidavit of merit in
professional negligence actions. Ibid.
21
Section 41 addresses the qualifications for those providing
expert testimony or an affidavit of merit “in an action alleging
medical malpractice.” N.J.S.A. 2A:53A-41. The expert or
affiant must be a licensed physician, ibid., and must meet
additional criteria depending on the qualifications and area of
practice of the physician against whom or on whose behalf an
opinion is offered, N.J.S.A. 2A:53A-41a and b.
The plain language of section 41 states that the like-
qualified standards apply only to physicians. And it does so
repeatedly. For example, N.J.S.A. 2A:53A-41a governs parties to
a medical malpractice action who are specialists or
subspecialists recognized by the American Board of Medical
Specialties or the American Osteopathic Association. Those
organizations recognize and establish the criteria for board
certification only for physicians. The proposed expert or
affiant must have specialized in the same specialty or
subspecialty recognized by those organizations. Only a
physician may satisfy that standard. Further, if the physician
party is board certified in a specialty or subspecialty and the
care and treatment provided by the physician involved that
specialty or subspecialty, the expert or affiant must be a
physician with credentials from a hospital to treat patients for
the medical condition or perform the procedure that is the
subject of the claim, or a physician who possesses board
22
certification in the same specialty or subspecialty as the
physician and has devoted a majority of his or her professional
practice to that specialty or subspecialty through active
clinical practice or the instruction of students or both.
N.J.S.A. 2A:53A-41a.
Similarly, only a physician falls within the bounds of
N.J.S.A. 2A:53A-41b. That subsection addresses general
practitioners and limits the expert or affiant to a physician
(1) actively engaged in “clinical practice as a general
practitioner” or active in clinical practice involving the
medical condition or procedure that is the basis of the claim,
or (2) who instructs students at an accredited medical school,
health professional school, or residency or research program or
both. Ibid.
Interpreting section 41’s like-qualified credential
requirements as applying only to physicians who are defendants
in medical malpractice actions is also supported by and
consistent with the stated purpose of the Patients First Act and
its legislative history. See Wilson ex rel. Manzano v. City of
Jersey City, 209 N.J. 558, 572 (2012) (“When the statutory
language is sufficiently ambiguous that it may be susceptible to
more than one plausible interpretation, we may turn to such
extrinsic guides as legislative history, including sponsor
statements and committee reports.” (citing Burns, supra, 166
23
N.J. at 473)). In enacting the Patients First Act, the
Legislature made several findings and declarations regarding the
state of health care in this State and identified the retirement
or relocation of physicians as a problem hampering the delivery
of high-quality health care in New Jersey. See N.J.S.A. 2A:53A-
38. Furthermore, the Legislature determined that a confluence
of factors, including a dramatic escalation of medical
malpractice liability insurance premiums, was related to the
State’s tort liability system and contributing to the State’s
shortage of qualified physicians. Ibid. The Legislature
concluded that certain reforms were necessary to counteract the
identified problems. Ibid. One of those reforms is embodied in
the enhanced standards contained in section 41 governing a
person who submits an affidavit of merit or an expert opinion in
favor of or against a physician in a medical malpractice action.
The problems identified by the Legislature and the measures
adopted to address those problems pertain only to physicians.
There is no mention made of any other licensed professional in
section 41.
In sum, we conclude that the plain language of sections 27
and 41 lead to the inexorable conclusion that the enhanced
credential requirements established under section 41 for those
submitting affidavits of merit and expert testimony apply only
to physicians in medical malpractice actions. See Lozano v.
24
Frank DeLuca Constr., 178 N.J. 513, 522 (2004) (instructing that
court applies statute as written when legislative intent is
clear (citing In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299
(2000))). This determination does not conclude our inquiry,
however, for we must determine whether section 27 itself imposes
a similar like-qualified standard for affiants and experts in
all other negligence actions against designated professionals,
including dentists.
C.
Plaintiff argues that section 27 does not impose a like-
qualified standard for the person selected to submit an
affidavit of merit in this dental malpractice action. Rather,
plaintiff contends that the affiant must be licensed to practice
dentistry in this state and have particular expertise in the
general area or specialty involved, which may be evidenced by
the affiant substantially devoting his practice to the area or
specialty involved.
Defendant disagrees. Defendant argues that only an
affidavit from a similarly credentialed dentist will satisfy the
AOM statute because he is a board-certified orthodontist and has
substantially devoted his practice to orthodontics.
The language under consideration from section 27 is not
new. Indeed, it has remained unchanged since the AOM statute
25
was adopted in 1995. The only addition to section 27 is a third
sentence directing that the standards governing the person
submitting an affidavit of merit or expert testimony against or
in support of a physician in a medical malpractice action shall
be governed by section 41.
On its face, section 27 requires a plaintiff to “provide
each defendant with an affidavit of an appropriate licensed
person.” Section 27 requires the affiant to be licensed in this
or another state and have “particular expertise in the general
area or specialty involved in the action.” Section 27 then
addresses the manner in which that expertise may be
demonstrated. There is simply no textual support for the
application of the like-qualified requirements of section 41 to
those submitting an affidavit of merit in negligence actions
against designated professionals, such as dentists.
D.
Relatively few opinions have directly addressed the
sufficiency of credentials of the person submitting the
affidavit of merit and, specifically, whether the person
submitting an affidavit of merit must be licensed in the same
profession or specialize in the same field as the defendant.
Those cases that have addressed the issue have held that in
certain circumstances the affiant should be a similarly licensed
professional but have not addressed whether the affiant must
26
share the defendant’s specialty. Hill Int’l v. Bd. of Educ.,
438 N.J. Super. 562, 570 (App. Div. 2014) (holding licensed
engineer not appropriately licensed person to provide affidavit
of merit against architect), appeal dismissed, 224 N.J. 523
(2016); Medeiros v. O’Donnell & Naccarato, Inc., 347 N.J. Super.
536, 542 (App. Div. 2002) (holding affidavit of merit submitted
by licensed engineer and architect against defendant engineering
firm sufficient); Borough of Berlin v. Remington & Vernick
Eng’rs, 337 N.J. Super. 590, 597-98 (App. Div.) (holding
licensed professional hydrogeologist appropriately licensed
person to submit affidavit of merit against defendant
engineering firm which allegedly negligently sited and
constructed two wells), certif. denied, 168 N.J. 294 (2001).
Hill International and Berlin emphasize that the like-
licensed requirement for the professional submitting the
affidavit of merit rests on the assumption that the negligent
services provided by the defendant professional were within his
or her profession or occupation. Hill Int’l, supra, 438 N.J.
Super. at 589; Berlin, supra, 337 N.J. Super. at 596-98; see
also Murphy v. New Road Constr., 378 N.J. Super. 238, 242-43
(App. Div.) (holding that affidavit of merit not required if
defendant’s conduct does not implicate standards of defendant’s
profession), certif. denied, 185 N.J. 391 (2005). In Berlin,
supra, the hydrogeologist affiant was considered an
27
appropriately licensed person because the complaint focused
solely on the alleged negligence of the engineering firm in
failing to adhere to recognized hydrogeologic guidelines, and
the negligent siting of two wells by its hydrogeologist
employee. 337 N.J. Super. at 596. In Hill International,
supra, the appellate panel held that, if the plaintiff’s claim
implicated the standards of care governing an architect, the
plaintiff’s affidavit of merit was required to be from an
architect. 438 N.J. Super. at 594.3
E.
Based on the plain language of section 27 and the manner in
which it has been applied since its adoption, we conclude that
section 27 requires no more than that the person submitting an
affidavit of merit be licensed in this state or another and have
“particular expertise in the general area or specialty involved
3 A pre-Patients First Act case, Wacht v. Farooqui, 312 N.J.
Super. 184 (App. Div. 1998), addressed whether the affiant must
share the same specialty as the defendant. The Appellate
Division permitted an orthopedic surgeon specializing in
shoulders and elbows to submit an affidavit of merit against a
board-certified radiologist. Citing the statutory requirement
that the affiant must have devoted at least five years to the
specialty involved in the action, the Appellate Division
determined that an orthopedic surgeon specializing in shoulders
possessed the particular expertise required to execute an
affidavit of merit. Id. at 187-88. The panel also referenced
the “overlap” of orthopedics and diagnostic radiology to support
its conclusion that the orthopedic surgeon possessed the
appropriate expertise to submit an affidavit of merit. Id. at
188.
28
in the action.” N.J.S.A. 2A:53A-27. Such particular expertise
is “evidenced by board certification or by devotion of the
person’s practice substantially to the general area or specialty
involved in the action for a period of at least five years.”
Ibid. (emphasis supplied). Notably, section 27 is bereft of the
rigid categories established in section 41 for those who are
general practitioners, board-certified specialists, or non-
board-certified specialists. See N.J.S.A. 2A:53A-41a and b.
Section 27 also employs the term “or” throughout its
recitation of the expertise required for an affiant. In
interpreting a statute, we must give meaning to every word.
Shelton, supra, 214 N.J. at 441. The word “or” is a disjunctive
term that permits a person to satisfy statutory conditions by
meeting one, rather than all, of the identified conditions. In
re Adoption of Children by G.P.B., 161 N.J. 396, 406 (1999). In
other words, a person may submit an affidavit of merit if the
affiant has particular expertise in the general area involved in
the action or in the specialty involved in the action. N.J.S.A.
2A:53A-27. Such particular expertise may be evidenced by board
certification or by devotion of his practice substantially to
the general area or specialty involved in the action for at
least five years. Ibid.
In most instances, we anticipate that the affiant and the
professional-defendant will be similarly licensed. However,
29
there may be circumstances when the alleged departure from the
professional standard of care is within the particular expertise
of two licensed professions. In such cases, in assessing the
sufficiency of the affidavit of merit, a court must focus, as in
Berlin, on the specific allegations of professional negligence.
Berlin, supra, 337 N.J. Super. at 597-98; cf. Garden Howe Urban
Renewal Assocs. v. HACBM Architects Eng’rs Planners, L.L.C., 439
N.J. Super. 446, 458-59 (App. Div. 2015) (holding that licensed
engineer could be qualified to render expert opinion against
architect regarding compliance with construction codes because
both types of professionals are responsible for knowledge of and
compliance with appropriate codes).4
F.
Measured by those standards, the affidavit of merit
submitted by plaintiff satisfied the requirements of section 27.
Dr. Samani is a licensed dentist. He also has particular
expertise in the diagnosis and treatment of sleep apnea -- the
general area that is the subject of this action -- having
devoted a significant portion of his practice to the diagnosis
and treatment of sleep apnea for over twenty years.
4 We therefore hesitate to endorse the broad statement expressed
in Hill International, supra, 438 N.J. Super. at 587, that
“[t]he professional has a right to expect that those standards
of care by which his or her conduct will be measured will be
defined by the same profession in which he or she holds a
license, and not by some other profession.”
30
In reaching that determination, we must acknowledge that
the treatment of sleep apnea is not exclusive to a single dental
specialty or subspecialty. A variety of professionals can treat
sleep apnea, including various types of dentists and physicians.
See Mayo Clinic Staff: Sleep Apnea Treatments and Drugs, Mayo
Clinic, http://www.mayoclinic.org/diseases-conditions/sleep-
apnea/basics/treatment/con-20020286 (last visited July 15,
2016). In particular, sleep apnea can be treated by both
orthodontists and prosthodontists, cf. ibid., which are two of
the nine dental specialties recognized by the American Dental
Association, see American Dental Association, Specialty
Definitions, http://www.ada.org/en/education-careers/careers-in-
dentistry/dental-specialties/specialty-definitions (last visited
July 15, 2016). An orthodontist is a “uniquely qualified
specialist[] who diagnose[s], prevent[s] and treat[s] dental and
facial irregularities to correctly align teeth and jaws.”
American Association of Orthodontists, Who We Are, https://
www.aaoinfo.org/about/what-we-do (last visited July 15, 2016).
“A prosthodontist is a dentist who specializes in the esthetic
restoration and replacement of teeth” and is a “master[] of
complete oral rehabilitation” whose expertise may be employed to
treat wide-ranging conditions including jaw joint disorders,
traumatic injuries to the mouth’s structures, snoring, and sleep
disorders. Pacific Coast Society for Prosthodontics, What is
31
Prosthodontics?, http://www.pcsp.org/whatisprostho.html (last
visited July 15, 2016). A prosthodontist, therefore, is capable
of having the “particular expertise” necessary to prepare an
affidavit of merit in support of a claim regarding negligent
dental treatment for sleep apnea. Plaintiff’s affiant has
demonstrated the requisite particular expertise to further the
purpose of identifying meritorious professional negligence
claims.
Having concluded that the affidavit of merit submitted by
plaintiff is sufficient, we need not resort to the equitable
remedies of substantial compliance and good faith effort that
permit relaxation of the affidavit of merit requirements. The
statute imposes no more than a licensure requirement and
particular expertise in the general area or specialty involved
in the action. Dr. Samani satisfies those requirements. He
does not have to share the same specialty or subspecialty as
defendant. Section 27 imposes only licensure and particular
expertise standards for affiants; it does not -- either on its
face or as applied since its enactment -- impose a like-
credential standard akin to that of section 41.
We also have no need to remand this matter to the trial
court for an appropriate case management conference and review
of the sufficiency of Dr. Samani’s affidavit because the
affidavit is sufficient. Cf. Buck, supra, 207 N.J. at 395.
32
This appeal, however, illustrates that a timely and effective
Ferreira conference continues to be a critical component of
fulfilling the purpose of the AOM statute.
An effective Ferreira conference would probably have
prevented this appeal. The trial court pointedly declined to
resolve the issues presented by plaintiff. The court stated
that it could not give advice to plaintiff and failed to elicit
any statement or representation from defense counsel as to
whether defendant’s treatment of plaintiff was within his
specialty of orthodontics, but informed plaintiff that he was
required to submit an affidavit of merit from a dentist. In
sum, the Ferreira conference failed to achieve its purpose of
identifying and resolving any affidavit of merit problems before
imposing the ultimate sanction of a dismissal with prejudice.
IV.
In conclusion, we hold that the enhanced requirements of
section 41 governing the qualifications of persons permitted to
submit an affidavit of merit, or to provide expert testimony
against or in support of a physician, in a medical malpractice
action apply only in medical malpractice actions. In all other
actions against a licensed professional, including a dentist,
section 27 prescribes the qualifications of the person who may
submit an affidavit of merit against a licensed professional who
is alleged to have acted negligently. The affiant must hold an
33
appropriate license and must demonstrate particular expertise in
the general area or specialty involved in the action, but he or
she is not required to possess credentials equivalent to those
of the licensed professional defendant. Neither the plain
language nor the purpose and history of the AOM statute or
Patients First Act support importation of the like-credential
standard governing physicians in medical malpractice actions to
professional negligence actions governed by section 27.
We also hold that the affidavit of merit submitted by
plaintiff satisfies section 27. The affiant is a licensed
dentist who has particular expertise in the diagnosis and
treatment of sleep apnea -- the general area involved in the
professional negligence action filed by plaintiff.
This appeal also illustrates the need for a timely and
effective Ferreira conference in all professional negligence
actions. The conference is designed to identify and resolve
issues regarding the affidavit of merit that has been served or
is to be served. To that end, all participants must be prepared
to identify at the conference the general area or specialty
involved in the action and whether the defendant was providing
professional services within that profession or specialty. We
request that the Civil Practice Committee consider whether Rule
4:5-3 should be amended to embrace all professional negligence
actions subject to the AOM statute.
34
V.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE
PATTERSON did not participate.
35