In an effort to reduce the number of medical malpractice claims without merit, the New Jersey Legislature enacted the Medical Care and Access and Responsibility and Patients First Act in 2004. Now more commonly referred to as the Patients First Act (PFA), this legislation included provisions specifically for “an action alleging medical malpractice” that amended the Affidavit of Merit Statute passed in 1995 concerning professional liability claims generally. The PFA established enhanced requirements for a person executing an affidavit of merit to preliminarily demonstrate the validity of the claim or for a person seeking to provide expert testimony on the standard of care issues that are central to any medical malpractice claim.

A component of the enhanced requirements was that the majority of the proposed expert’s professional time in the year before the occurrence giving to the claim was to have been in active clinical practice. This requirement is present in the statutes of many states, whether phrased as active practice for a recent period of time – one, three or five years – in relationship to the incident or at least not retired within some similar timeframe. The purpose of this tort reform legislation is to block participation of “professional witnesses” or “hired guns.”

This issue has arisen in New Jersey in several cases. In its opinion in Hurley v. Govindani filed by the Appellate Division on August 2, 2022 but not approved for publication, the court looked once more at the qualifications required of a proposed expert for plaintiff whether in the context of the preliminary affidavit of merit or the presentation of trial testimony. The specific focus was on the portions of N.J.S.A. 2A:53A-41(a)(2) stating that the witness “during the year immediately preceding the date of the occurrence that is the basis for the claim or action, shall have devoted a majority of [his/her] professional time” to designated activities including active clinical practice in the field or specialty of the defendant, or the instruction of students in an accredited medical school or other accredited program, or both. On a motion for leave to appeal from the denial of defendant’s motion to dismiss for lack of an appropriate affidavit of merit, the Appellate Division affirmed the trial court’s determination that the proposed expert met the statutory requirements. He had been an actively practicing obstetrician-gynecologist in New York for forty years before retiring from his medical practice two years before the plaintiff’s cause of action had accrued. Since retiring to Florida, this physician had volunteered at an OB/GYN clinic three times a month for a total of 15 hours.

The defendant did not dispute that the statutory requirements of a like specialty and board certification were satisfied but argued that 15 hours a month of volunteer work did not constitute “devot[ing] a majority of his professional time … to the active clinical practice” of the same health professional as the defendant. In rejecting this argument, the Appellate Division noted that the statute did not define or set forth parameters for what constitutes “the active clinical practice” of a medical specialty. The statute did not require that the proposed witness be paid for the medical services or specify a minimum number of hours. This physician continued to practice the same specialty as the defendant, although at a fraction of his prior work schedule, and maintained his board-certification credentials. The physician was qualified to provide the affidavit of merit with any contrast between his current activity and the defendant’s practice being matters to be “fully explored at trial.”

Prior case law concerning the PFA in both reported and unpublished decisions had examined other aspects of this “active clinical practice” requirement.

In the 2015 decision in Medina v. Pitta, the Appellate Division upheld dismissal of the complaint where the plaintiff furnished an affidavit of merit from an ophthalmologist who was “fully retired” as of January 1, 2007, before defendant allegedly failed to obtain testing in October 2010 that would have revealed the development of a retinal detachment with delayed treatment that left her with no vision in the right eye. The Appellate Division stated that the PFA requires “‘contemporaneity,’ meaning that the proposed expert must actively practice in the specialty at the time of the alleged deviation.” It noted that plaintiff had not requested a waiver pursuant to a provision of the PFA which had been construed in 2010 by the Supreme Court in Ryan v. Renny as not having any “‘strict time limit[]’ element common to all the sections of the PFA that define qualification requirements.” The Appellate Division adhered to the strict time limit approach in Castello v. Wohler and upheld the trial court’s barring of the proposed expert because he had been retired for several years and did not meet the statutory requirements. However, it tempered the disposition of dismissal with prejudice based on the proposed expert having submitted an affidavit of merit reciting that he had been in surgical practice for more than 35 years and provided an outdated curriculum vitae. At the deposition of the surgical expert, it was discovered that he had been retired for nearly five years before the plaintiff’s surgical procedure was performed. The Appellate Division concluded that while this expert would be barred, the misrepresentation with regard to his curriculum vitae together with the defense’s tactical delay in seeking to bar the expert provided equitable reasons to reverse and remand the matter for further proceedings in the trial court.

A variation of the issue was presented in Nicholas v. Hackensack University Medical Center. The defendants were specialists in pediatrics and pediatric intensive care who treated plaintiffs’ decedent in 2011 in the setting of a Pediatric Intensive Care Unit (PICU). Plaintiffs’ proffered expert was board-certified in pediatrics and pediatric intensive care. In his deposition, the expert testified that between 2006 and 2011 he devoted 25% of his time to direct in the PICU, 50% to administrative duties, and 25% to seeing patients and teaching residents in outpatient clinics. The trial court concluded that the expert did not satisfy the statute because only “a small percentage” of his professional time was devoted to pediatric critical care. The Appellate Division, however, determined that while the substantial amount of time spent with administrative duty would not necessarily disqualify the witness given that his clinical practice was devoted exclusively to pediatrics and pediatric intensive care, the expert did not satisfy the requirements of “a majority” of his professional time required by Section (a)(2) of the PFA. But it found that the trial court erred in not considering the other standard in Section (a)(1) of the PFA to testify against a specialist. This was where the physician was “credentialed by a hospital to treat patients for the medical condition, or to perform the procedure, that is the basis for the claim or action.”

Consistent with the New Jersey Supreme Court’s ruling in Nicholas v. Mynster, the requirements of “majority of professional time” for “active clinical practice” within a substantially contemporaneous timeframe are safeguards against a return “to the days before passage of the Patients First Act when, in medical-malpractice cases, physician experts of different medical specialties, but who treated similar maladies, could offer testimony even though not equivalently credentialed to defendant physicians.” The threshold to qualify as an expert was so low that a pathologist could testify against an emergency room physician based on discussions with other physicians or attending meetings, or that a physician who was not an obstetrician or a pediatrician could testify regarding a birth injury based on his general experience and anatomical knowledge.