Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. A recent decision focuses on the application of this rule in the med-mal context.
In Stephen Meehan v. Peter Antonellis, DMD (075265) (A-45-14), the defendant dentist moved to dismiss the plaintiff’s complaint, on the grounds that the plaintiff’s affidavit of merit did not come from a “similar healthcare provider.” The plaintiff’s claims arose out of treatment he received from the defendant, an orthodontist, pertaining to the plaintiff’s sleep apnea. Defendant provided the plaintiff with a dental prosthetic intended to alleviate the plaintiff’s troubles, but which plaintiff alleged caused damage, including “shifting,” to his teeth.
Plaintiff provided an affidavit of merit from a dentist with experience in prosthodontics who also had extensive experience in the treatment of sleep apnea. In response, the defendant moved to dismiss the plaintiff’s claims, on the grounds that plaintiff’s expert was not an orthodontist. As orthodontics are a dental specialty practice requiring an additional program of study after receiving a DDS, DMD, or BDS, defendant contended that in order to comply with New Jersey’s requirement that such an affidavit come from a “similar healthcare provider,” plaintiff should have retained an orthodontist, and not a dentist.
In New Jersey, actions against licensed professionals are governed by section 27 of New Jersey’s “Affidavit of Merit Statute,” while those that sound in medical malpractice are governed by section 41. Section 27 has less-stringent requirements for affidavits of merit than does section 41, which requires that the affidavit come from a “like-qualified” provider. In overturning the trial court’s decision which granted the motion to dismiss (as well as the Appellate Court’s upholding of the trial decision), the New Jersey Supreme Court ultimately held that, under New Jersey law, an action against a dentist is not considered medical malpractice, and instead qualifies as an action against a “licensed professional.” Therefore, the court held that the affidavit by a dentist with training in the treatment of sleep apnea, who was licensed by the same state as the defendant, was sufficient to satisfy the statutory requirements, and that the plaintiff did not require an opinion from an orthodontist.
The potential impact of this ruling, and of any court which follows a similar line of reasoning, could be significant. First, the potential that a claim for dental malpractice would actually be classified as more general professional negligence as opposed to medical malpractice would necessarily create a challenge for defense attorneys everywhere, who may be used to handling dental malpractice claims under the broad umbrella of medical malpractice.
Second, other attorneys – and courts – may look to this ruling and seek to find loopholes in other states’ affidavit guidelines, and could potentially provide for renewed challenges to these guidelines. For example, if a claim against a dentist doesn’t count as medical malpractice, what about a claim against a nurse? Or a hospital? Or a radiologist, or anesthesiologist? Potential plaintiffs may look to this ruling in hopes that their claims against anyone other than a physician might not require the sometimes-strict regulations that come with a medical malpractice claim, and thus muddy the waters for future debates over the meaning of “similar healthcare provider.”