Affidavit of Merit Failures: Chose Your Expert Wisely

In many states a litigant cannot proceed with a professional liability lawsuit without an appropriate affidavit of merit.  As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form.  Simply filing an AOM though is not always enough.  Ensuring that the AOM has been prepared by the appropriate professional and addresses the issues of the particular case is critical to surviving a potential motion to dismiss.  Take for example two recent cases out of New Jersey.

In Meehan v. Atonellis, plaintiff’s orthodontist provided him with an apparatus to treat sleep apnea.  From using the apparatus, plaintiff alleged his teeth shifted, worsening his sleep apnea and causing muscle pain and headaches.  After his orthodontist’s attempt to re-shift his teeth failed, plaintiff was required to see a dentist.

In his malpractice suit against his orthodontist, plaintiff filed an AOM by a licensed dentist with a specialty certificate in prosthodontics and 20 years of experience treating sleep apnea.  The orthodontist moved for dismissal, which was granted.  The court held the fact that the dentist was an expert in sleep apnea was “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.”  Therefore, an AOM from another orthodontist was required.  The dismissal was affirmed by the appeals court and only recently the state Supreme Court granted argument on the issue, but a decision has not yet been rendered.

A similar result occurred in Lang v. Morristown Memorial Hospital. The case involved a 17-year-old boy, with a history of hyperactive attention deficit disorder and autism.  The boy was admitted to the hospital for renal failure and septic shock.  He subsequently required emergency colon surgery and ultimately died a week later from a pulmonary embolism.

His family sued the medical professionals, which included his psychiatrist, the pediatric critical care physicians, the pediatric nephrologist and pediatric surgeon.  In support of their case, the family filed an AOM by a general surgeon.  The defendants filed motions to dismiss on the grounds that the blanket affidavit did not comport with state law that required plaintiff to provide each defendant with an AOM of an appropriate licensed person. The court granted the motions finding that “the qualifications of the proposed expert do not match up with the defendants in any particulars”.  The action was dismissed with prejudice and affirmed by the appellate court.

As demonstrated above, it is absolutely imperative that attorneys are aware of the AOM requirements for their jurisdiction.  While finding a professional that may possess the same qualifications as the defendant could prove tricky, taking the time to obtain the right expert at the outset can eliminate the possibility of a dismissal before even getting to the merits.  On the flip side, recognizing when the AOM is not up to par and raising the defense whenever possible could win the day for your client.

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