Delany v. Atkinson

MICHAEL JOHN DELANY, Plaintiff-Appellant, v. DR. JAMES Q. ATKINSON, III, and ATLANTICARE PHYSICIANS GROUP, Defendants-Respondents, and WALGREENS EASTERN CO., INC., Defendant.

No. A-2713-20

Superior Court of New Jersey, Appellate Division

April 14, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2022

On appeal from the Superior Court of New Jersey, Law Division Atlantic County, Docket No. L-1713-20.

Jacobs & Barbone, PA, attorneys for appellant (David A Castaldi, on the briefs).

AtlantiCare Health System, attorneys for respondents (Jill R. O'Keeffe, of counsel and on the brief).

Before Judges Sumners and Vernoia.

PER CURIAM

In this medical malpractice case, plaintiff Michael J. Delany appeals from an April 19, 2021 order granting defendants Dr. James Q Atkinson, III, and AtlantiCare Physicians Group's (AtlantiCare) motion to dismiss the complaint for failure to state a cause of action under N.J.S.A. 2A:53A-29. Plaintiff argues the court erred by finding the physician providing the affidavit of merit supporting the malpractice claim did not satisfy the requirements under N.J.S.A. 2A:53A-41(a) to be qualified to render an expert's opinion on the standard of care at issue in this case. Unpersuaded by plaintiff's argument, we affirm.

Plaintiff filed a complaint alleging defendants committed medical malpractice by negligently and carelessly deviating from generally accepted standards of care. More particularly, plaintiff alleged Dr. Atkinson, who is board certified in internal medicine by the American Board of Medical Specialties (ABMS), negligently prescribed an incorrect and excessive dosage of Lisinopril to plaintiff for hypertension.^[1] Plaintiff alleged that after taking the incorrectly prescribed dosage of the medication, he suffered a syncopal event, fell, and suffered significant physical injuries.

Defendants filed an answer to the complaint and requested plaintiff provide an affidavit of merit in accordance with N.J.S.A. 2A:53A-27. Plaintiff provided an affidavit of merit from Dr. Jack Stroh. The affidavit states Dr. Stroh is a physician licensed in the State of New Jersey, credentialed to treat hypertension at two hospitals, and a "specialist recognized by" the ABMS. Dr. Stroh's affidavit also states he is board certified in internal medicine, and, during the year immediately preceding the malpractice alleged in the complaint, he "devoted the majority of [his] professional time to the active clinical practice of internal medicine" and also provided "clinical instruction of students regarding cardiovascular diseases and hypertension" at Robert Wood Johnson Medical School. In the affidavit, Dr. Stroh opined there is a reasonable probability Dr. Atkinson's treatment of plaintiff "fell outside acceptable professional or occupational standards or treatment practices."

Defendants moved for summary judgment dismissal, arguing Dr. Stroh did not meet the qualifications to submit an affidavit of merit under N.J.S.A. 2A:53A-41(a) because he did not specialize in the same specialty as Dr. Atkinson at the time of the alleged malpractice. It is not disputed that at the time of the alleged malpractice, Dr. Atkinson was board certified in internal medicine, specialized in the practice of internal medicine, and prescribed the Lisinopril to plaintiff while engaged in the practice of that specialty.

Defendants argued that although Dr. Stroh was also board certified in the ABMS specialty of internal medicine when the malpractice allegedly occurred, he did not specialize in the practice of internal medicine at the time. Defendants asserted that at the time of the alleged malpractice, Dr. Stroh actually specialized in two internal medicine subspecialities-interventional cardiology and cardiovascular disease. Defendants claimed Dr. Stroh therefore did not satisfy N.J.S.A. 2A:53A-41(a)'s requirement that a physician submitting an affidavit of merit "shall have specialized at the time of the occurrence that it is the basis for the action in the same specialty or subspecialty . . . as the party against whom . . . the testimony is offered." Plaintiff did not dispute Dr. Stroh practiced in the two subspecialties at the time of the alleged malpractice, but plaintiff contended Dr. Stroh satisfied N.J.S.A. 2A:53-41(a)'s "shall-have-specialized" requirement because he was board certified in internal medicine at that time.

The court heard argument on defendants' motion and determined Dr. Stroh did not possess the qualifications required under N.J.S.A. 2A:53A-41(a) to offer expert opinion on the standard of care applicable to plaintiff's medical malpractice claim against Dr. Atkinson. The court rejected plaintiff's claim Dr. Stroh "specialized" in the same specialty - internal medicine - as Dr. Atkinson simply because both shared board certifications in internal medicine. The court determined N.J.S.A. 2A:53A-41(a)'s requirement that a plaintiff's expert "specialize" in the same specialty as a defendant physician is not satisfied by board certification alone. The court found Dr. Stroh did not specialize in the same specialty - internal medicine - in which Dr. Atkinson was engaged at the time of the alleged malpractice because Dr. Stroh's practice was in two ABMS subspecialities, interventional cardiology and cardiovascular disease. The court granted defendants' motion and entered an order dismissing the complaint under N.J.S.A. 2A:53A-29 for failing to state a cause of action. This appeal followed.

"To prove medical malpractice, ordinarily, 'a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.'" Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)). "Generally, a plaintiff's expert testifying to the standard of care allegedly breached by a defendant physician must be equivalently credentialed in the same specialty or subspecialty as the defendant physician." Id. at 467; see also Ryan v. Renny, 203 N.J. 37, 52 (2010) (same).

The New Jersey Medical Care Access and Responsibility and Patients First Act (Act), N.J.S.A. 2A:53A-37 to -42, sets forth "certain qualifications that expert witnesses in medical malpractice actions must possess." Castello v. Wohler, 446 N.J.Super. 1, 14 (App. Div. 2016) (citation omitted). More particularly, N.J.S.A. 2A:53A-41 "'establishes [the] 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.'" Mynster, 213 N.J. at 479 (citation omitted).

The statute provides:

In an action alleging medical malpractice, a person shall not give expert testimony or execute an affidavit pursuant to the provisions of P.L.1995, c. 139 (C. 2A:53A-26 . . .) on the appropriate standard of practice or care unless the person is licensed as a physician or other health care professional in the United States and meets the following criteria:

a. If the party against whom or on whose behalf the testimony is offered is a specialist or subspecialist recognized by the [ABMS] or the American Osteopathic Association and the care or treatment at issue involves that specialty or subspecialty recognized by the [ABMS] or the American Osteopathic Association, the person providing the testimony shall have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the [ABMS] or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered, and if the person against whom or on whose behalf the testimony is being offered is board certified and the care or treatment at issue involves that board specialty or subspecialty recognized by the [ABMS] or the American Osteopathic Association, the expert witness shall be:

(1) a physician 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; or

(2) a specialist or subspecialist recognized by the [ABMS] or the American Osteopathic Association who is board certified in the same specialty or subspecialty, recognized by the [ABMS] or the American Osteopathic Association, and 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 professional time to either:

(a) the active clinical practice of the same health care profession in which the defendant is licensed, and, if the defendant is a specialist or subspecialist recognized by the [ABMS] or the American Osteopathic Association, the active clinical practice of that specialty or subspecialty recognized by the [ABMS] or the American Osteopathic Association; or

(b) the instruction of students in an accredited medical school, other accredited health professional school or accredited residency or clinical research program in the same health care profession in which the defendant is licensed, and, if that party is a specialist or subspecialist recognized by the [ABMS] or the American Osteopathic Association, an accredited medical school, health professional school or accredited residency or clinical research program in the same specialty or subspecialty recognized by the [ABMS] or the American Osteopathic Association; or

(c) both.

[N.J.S.A. 2A:53A-41 (emphasis added).]

Where as here, defendant is a physician with a specialty recognized by the ABMS and the care or treatment at issue involves the specialty, plaintiff's putative expert must...