In New Jersey, the Patients First Act establishes certain qualifications that expert witnesses in medical malpractice cases must possess. The expert generally must practice in the same specialty. The physicianmust be credentialed by a hospital to treat patients for the medical condition or perform the procedure that is the basis for the claim or action; or board-certified in the same specialty or subspecialty, having devoted a majority of their professional time to either the active clinical practice of the same health care profession in which the defendant is a specialist or subspecialty, or in the instruction in an accredited program in the same specialty or subspecialty, or both (active clinical practice or instruction).
Sandra Nichols and Cory Leo sued Hackensack University Medical Center after their son, Santino Michael Leo, who had been suffering seizures, was admitted to the hospital on April 30, 2011.Santino was diagnosed with an airborne infection, methicillin-resistant staphylococcus aureus (MRSA) and pneumonia. He developed acute respiratory distress, multiple organ failure , and sepsis, and died on May 13, 2011.
The trial court granted summary judgment, finding that Plaintiffs’ expert was board-certified, but did not did have the required devotion or teaching requirement mandated for a board-certified expert.According to the trial court, this was because the expert only devoted a small percentage of his practice time to pediatric critical care in the year prior to the date of the alleged malpractice.
The Appellate Court noted that the Patients First Act does not require that a proposed expert devote a majority of their time to the practice of the particular specialty or subspecialty, but that it only requires a showing that the proposed expert’s practice is in the same specialty as a defendant physician. Even though Plaintiffs’ medical expert’s administrative duties consumed a substantial amount of his professional time, his clinical practice was devoted almost exclusively to the practice of pediatrics and pediatric care. Therefore, the proposed expert satisfied the requirement that he practice and specialize in the specialty and subspecialty of the defendant physicians. As such, the Appellate Court concluded that Plaintiffs’ medical expert should not have been barred.
While the matter was pending, Plaintiffs’ medical expert retired and was no longer able to provide testimony. On remand, the Appellate Court permitted Plaintiffs to serve a new expert report and permit such other discovery as the trial court deems necessary under the circumstances.Sandra Nicholas, et al v. Hackensack University Medical Center, Superior Court of New Jersey, Appellate Division, Docket NO. A-5165-15T2. (Approved for Publication—September 24, 2018).
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