Medical Society of New Jersey Spring 2013 Physician Advocate

Physician AdvocateVolume 9, Issue 2

Inside: MSNJ President Ruth J. Schulze, MD, Address, Photos from the MSNJ Annual Meeting, MSNJ Board of Trustees 2013-2016 Strategic Plan, NICHOLAS V. MYNSTER: The Same Specialty Witness

Requirement for Malpractice Cases is Enforced

Medical Society of New Jersey’s Physician Advocate Magazine

A New Jersey native, Dr. Ruth Schulze was born in Jersey City and raised in Bergen

County. She was a Phi Beta Kappa scholar at Union College in Schenectady, New York where she met her husband, Timothy Cross.

After graduating summa cum laude with a B.S. in Biology in 1979, she attended medical school at SUNY Stony Brook. In 1987, after her residency at Baystate Medical Center in Springfield, MA, Dr. Schulze returned home to Bergen County to join Ob/Gyn Associates of Ridgewood and to eventually become the full time working mother of Nicole, Laura, and Courtney.

Dr. Schulze’s commitment to organized medicine began with the Bergen County Medical Society where she eventually became an officer and in 2002-2003, President. That position and the concurrent medical malpractice crisis introduced her to New Jersey politics and MSNJ.

She was elected to the Board of Trustees in 2003, served a six year term as Secretary, and moved onto become Vice President and President-Elect.

Dr. Schulze became the fi rst female president of The Valley Hospital medical staff in 2010, after serving

on the medical executive committee for seven years. From 2008 to 2010, she served as Associate Director of Valley’s Ob/Gyn Department and assumed the positionof Department Director in 2010, which she will continuethroughout her MSNJ presidency.

More than 2,700 deliveries were performed by Dr.Schulze before she stopped practicing obstetrics in2005. She is extremely proud of all her years in Labor and Delivery.

Her current practice with Dr. Gail Sobel,Women’s Total Health of Woodcliff Lake, is exclusivelygynecology.

Their focus is on adolescent, perimenopausaland senior women’s health and surgical needs. Of particular interest to Dr. Schulze is a condition knownas vestibulitis or Vulvodynia.

Today, Dr. Schulze resides in Upper Saddle River with her husband of 30 years, 2 of their 3 daughters, and their 2 dogs.

During her “free time,” Dr. Schulze sings with her church choir and serves on the church worshipand building committees.

Her other leisure activitiesinclude playing piano, gardening, needlework and as much LBI beach time as possible.

MSNJ Inaugurates 221st President, Ruth J. Schulze, MD


Medicine is undergoing rapid change.

Physicians, not bureaucrats, must lead that change by directing how quality medicine should and will be practiced. We need to represent all physicians - young, old, solos & groups, employed & private practitioners, academicians and entire medical staffs as well as all the subspecialty organizations. We need them all and they need us!

This afternoon, we will be voting on several important resolutions which will help MSNJ begin our essential transformation process. While change can be scary, it can also be invigorating, and without it, any organization runs the risk of becoming irrelevant and obsolete. We cannot let that happen.

We can no longer say that’s the way we’ve always done it, but instead we must ask the question, does it make sense to do it that way any longer?

I am convinced that together we can create a new and revitalized

MSNJ, but to achieve that goal, we will need a collective effort.

We need all physicians and all friends of medicine united together. MSNJ was established in 1766 for the purpose of promoting the profession of medicine and safeguarding the health of the public. 300+ years later, that is still our mission.

MSNJ works for the benefit of all physicians and the entire patient community of NJ.

So this morning I am suggesting the creation of “MSNJ Community Advocates” – a program whereby civic groups and organizations could host a medical presentation or health related town hall style meeting and subsequently encourage non-physician friends to become members at the

community affiliate level.

Other initiatives for this coming year will include:• Creating a Past Presidents

Outreach Panel to visit and engage every large group and hospital’s medical executive committee throughout the state to join us as MSNJ Advocates.

• Utilizing a “New Physician in Medical Practice” Discussion panel to foster a better dialogue between the society and medical students, residents and newly practicing

physicians.• Introducing a medmal

insurance-quality practice initiative called, INFORMED CARE

• Forming a Subspecialty Advisory Council which will be represented by the president of every specialty organization, or their designee, to discuss our mutual needs and concerns in the medical arena.

Of course all of this change is going to take a huge collective effort and plenty of hard work, but one of my favorite Vince Lombardi quotes sums up the challenge nicely, “the only place that success comes before work is in the dictionary.”

For all who know me well, I’m sure you can validate that I thrive on challenges and that my preferential speed is fast forward.

I look forward to the coming year with much excitement, a bit of healthy trepidation and an enormous amount of hope for our society’s future.

I am humbled and honored to become the 221st President of the oldest Medical society in the country, and I would like to end my comments by paraphrasing from Ralph Waldo Emerson who simply stated “Nothing worthwhile in life is accomplished without passion”.

I am passionate about medicine and I am passionate about MSNJ. With all of us working together, I firmly believe that we are ready to embrace the future as the New MSNJ- the new Voice of Medicine.

MSNJ PresidentRuth J. Schulze, MD

@msnj1766

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PRESIDENT’S ADDRESS

“ The only place that success comes before work is inthe dictionary.”- Vince Lombardi


MSNJ’s 2013 Annual Business Meeting and Inaugural Gala

Honoring 221st President, Ruth J. Schulze, MD

May 17-18, 2013Woodcliff Lakes, NJ

Medical Society of New Jersey’s Physician Advocate Magazine Page 7


MSNJ BOARD OF TRUSTEES

STRATEGIC PLAN 2013 – 2016


MSNJ BOARD OF TRUSTEES

STRATEGIC PLAN 2013 – 2016OVERVIEW

The Medical Society of New Jersey is the largestorganization of physicians in New Jersey. Over the past several years the organization and the

practice of medicine have undergone tremendous change.

The MSNJ Board of Trustees began a strategicplanning process in late 2011 under the directionof then President Niranjan Rao, MD. The planningprocess continued during the subsequent yearunder President Mary Campagnolo, MD. This report is culmination of that work.

This process was necessary to renew interest inorganized medicine and to revive the morale ofpracticing physicians. Significant realignmentsto the healthcare system brought about by theadoption of the Patient Protection and AffordableCare Act have changed the ways in which physiciansorganize their practices. In addition, demographicchanges to the physician workforce and changes indesired practice arrangements have rendered manyof MSNJ’s long held structures irrelevant.

The Board of Trustees met in a planning retreat onDecember 2, 2012 and again on March 3, 2013. Toprepare for these planning session the Board wasintroduced to the principles of Race for Relevance,by Harrison Coerver and Mary Byers. This strategicplanning guide examined associations and theirpractices in an increasingly changing world. Manyof the specific examples in the Race for Relevancebook applied to practices of MSNJ.

The Board of Trustees also invited Rick Alampi,former Executive Director of the NJ VeterinaryMedical Society to discuss his organization’s workwith the Race for Relevance principles. Mr. Alampi’s organization was featured in the book and he guided the veterinarians through the process ofadopting many of the principles.

The Board adopted five strategic and missionsupported directions to guide the work of theSociety. These directions are: advocacy;communications; finance; governance & organizational relationships; and, patient safety &quality.

PROCESS

The Board decided not to hire an outside consultantto lead them through the strategic planning process.Mary Campagnolo, MD, and Larry Downs, MSNJ CEO, were well versed in conducting strategic planning and both co-led the sessions.

In December 2013 the Board conducted an analysisof the environment (both in New Jersey andthe United States) in which both present and futurephysicians will practice. The board spent muchof the time generating a series of assumptions onwhich to base the strategic plan. The Trusteesnext conducted a “SWOT” analysis to assess theorganization’ s Strengths, Weaknesses, Opportunitiesand Threats.

In the afternoon session the Board broke intofive groups to review the SWOT analysis and theassumption list. Each group generated at leastthree strategic

Continued on page 10


directions to guide MSNJ through2016.

At the March session the board continued itswork directing its focus on organizational changesthat reflect the Race for Relevance principles and adopting a set of strategies to advance the strategicdirections of the organization.

INTERNAL CHALLENGES

MSNJ faces many internal and external challenges.The current structure of MSNJ requires a physicianto join both the county and the state medicalsocieties in a unified membership. The activity,staffing and resources of the county medicalsocieties vary greatly from county to county. Inaddition, the corresponding dues rates charged by county medical societies vary from $0 to $400.

Service level and dues rate are independently determined by both the county and state medical societies. This phenomenon has been well documented in reports and studies over several years.

In 2011/2012 the Board worked through an extensive review of the organization’s finances and

operations. The Board also reviewed membershiptrends, membership survey results and strategicplans from other state medical societies and theAMA. The need for change was clear from both themembership and financial projections presented tothe Board at that time. The Board initially adopteda plan to delink the unified dues structure andlower the state dues to a flat rate.

The plan did not garner enough support among county medical societies and eventually the Board flattened all categories of state membership dues to a single rate, but continued unified membership. The Board ended discount rates for individual members and moved to group discounts where all physicians in a practice are members.

The Board also adopted several cost cuttingstrategies, including ending subsidies to countymedical societies that collected MSNJ dues andcollecting merchant services charges for the countyportion of the dues paid by credit card.

To meet these internal challenges MSNJ will testcooperative agreements where multiple countysocieties join together and adopt a single duesrate and propose taking accountability for a corefunction of MSNJ operations. The Board will alsoextend discounts to groups.

EXTERNAL CHALLENGES

Increasingly physicians are shifting into W-2employment or creating practice alliances with

centralized administration. As they do, theirtraditional needs for their association change. Manyprograms and services of MSNJ are designed toassist the small and solo practitioner.

To meet these challenges, MSNJ needs to become an important partner to group practices and alliances in the future. The practice support services going forward will focus on insurance,

“ MSNJ needs to become an important partner to group practices and alliances in the future. ”


practice consulting, group or team based CME and extending the reach of groups into our advocacy programs.

ASSUMPTIONS

The following set of assumptions underpins thisstrategic plan:

By 2016: ■ Practice consolidation increases ■ Numbers of female physicians increase ■ Physicians employment increases/Physician

equity in practices decreases ■ Non-MD health professionals work in teams with

physicians. ■ New payment models are tested ■ Technology use increases in practices ■ There is more & different alignment among

physicians, payers and hospitals ■ Increased measures and demand for efficiency

and quality in healthcare delivery ■ Next generation physicians demand work-life

balance ■ Interest in joining traditional membership

organizations decreases ■ Groups and medical staffs become a

membership target ■ Advocacy needs change as a more employed

physician workforce emerges

MSNJ SWOT ANALYSIS

A ‘SWOT’ analysis is an assessment of anorganization’s current strengths, weaknesses,opportunities and threats. It is an important partof strategic thinking as it allows a planner to build on strengths, work on weaknesses, take advantage of opportunities and protect against threats.

STRENGTHS

■ Consensus policy statements are powerful

■ Brand – Tradition. A recognized representative of medicine

■ Access to patients ■ Big Tent = Convener of multiple segments of

physicians ■ Staff expertise at the national, state and county

level ■ Access to Opinion Leaders / Policy Makers ■ Political Action to shape health policy – PAC ■ Advocacy Program (Legal)

WEAKNESSES

■ Dated Structure ■ Decreasing membership ■ Multiple and competing physician organizations ■ Lack of young physicians in the membership ■ Effective communications to all segments ■ Not effective at collaborating with non MD/DO’s

OPPORTUNITIES

■ Increasing groups of physicians joining as



entities ■ Hospital employed physicians as members ■ Partnering with patients ■ Coalescing physician organizations on quality

measures ■ Advancing technology and patient safety ■ Non-MD/DO providers in medical teams

THREATS

■ Lack of time for physicians to participate ■ Scope battles for independent practice ■ Failure to change governance and structure ■ Lack of harmony with county medical societies ■ Diminishing financial reserves ■ Information overload

STRATEGIC DIRECTIONS

The Board of Trustees established the followingstrategic direction to guide MSNJ activities through2016.

STRATEGIC DIRECTION 1

By 2016 MSNJ will be a pro-active, anticipatory, responsive, transparent and strategic advocacy organization effectively advancing medicine.

1.1 Embrace staff-directed Policy & Strategy

Panel agendas and programming beginning in 20131.2 Replace traditional annual meeting with astatewide advocacy meeting beginning in 2014 thatis open to all physicians.1.3 Reorganize PAC fundraising efforts byincluding diverse opportunities for all physicians toparticipate.1.4 Establish MSNJ as primary stakeholder for physician and healthcare delivery; become the “go-to” entity for healthcare delivery issues.1.5 Maintain leadership status on issues affecting all physicians; support specialty groups when in the best interest of medicine overall.1.6 Maintain leadership status on scope of practice issues.


By 2016 MSNJ will become an organizational model for effective member and partner communications.

2.1 Increase investment and activity in publicrelations and communications.2.2 Conduct regular and consistent organizationwide training and orientation.2.3 Incentivize use of msnj.org by membersthrough dues discounts, contests and valueprogramming to members.2.4 Maximize partnerships with County Societiesto reduce repetitive work and streamline messaging2.5 Continue investment in and utilize electroniccommunications technology for meetings and education2.6 Move membership to digital communications; create targeted audiences for topical opt-in communications.



By 2016 MSNJ will achieve financial andmembership sustainability.

3.1 Establish the core competency and priorities of MSNJ by narrowing programs to advocacy, CME and practice support.

• Bring medical staff data into MSNJ to increase our footprint

3.2 Tailor group membership programs by 20133.3 Narrow MSNJ programs to practice support,advocacy and CME3.4 Expand CME accreditation to include largemedical groups and ACOs3.5 Encourage multi-county models with a single combined dues rate and governance structure3.6 Expand e-commerce and e-donationcapability; explore advocacy fund donations and create issue-driven campaigns.3.7 Provide increased value for students and residents.


MSNJ will embrace and strive for organizationalpartnership and harmony.

4.1 Quarterly Board meetings beginning 2013-20144.2 Empowered Executive Committee beginning2013-20144.3 Develop Expert Advisory Councils by 2014-2015

• Large Group• Employed – Young – Female• Hospital based• Specialty Societies• Past Presidents

4.4 MSNJ RFP to County Societies by 2014Multi-County staff take on state wide priorities(e.g. member recruitment, education programs) in

exchange for higher dues percentage4.5 Continued promotion of MSNJ’s Revolving Reference Committee process, used to bring timely resolutions up for decision at times other than the House of Delegates meeting.4.6 Consider a resident advisory council.


MSNJ will be a recognized authority on qualitymedical care and patient safety in medicalpractices.

5.1 Development of a risk purchasing groupwith quality improvement and patient safetyprogramming for all MSNJ members by 2014.5.2 Continue development of ReThink Healthpartnership for physician leadership in the reform ofhealthcare delivery, payment and quality of care inNJ.5.3 Urge IOMPH (Institute of Medicine and Public Health of New Jersey) to work on all patient safety initiatives.

Article by: John Zen Jackson*

In an opinion issued on April 25, 2013, the New Jersey Supreme Court clarified the standards

for expert witnesses in medical malpractice cases with full-throated acceptance of a frequently misunderstood if not ignored statutory provision.

The Court ruled that expert witnesses testifying about the standard of care in a medical malpractice case must practice in the same specialty and have comparable credentials to the defendant physician or physicians. The decision of Nicholas v. Mynster was reached unanimously based on a “plain textual reading” of N.J.S.A. 2A:53A-41.

This statute had been part of the tort reform package enacted by the Legislature and signed by the Governor in 2004 and for which MSNJ along with other organizations had worked for many years. The 2004 amendments enhanced the preliminary showing to be made in the affidavit of merit that had to be submitted in medical malpractice claims that had originally been established in 1995.

SOME HISTORICAL PERSPECTIVEIt is long-standing legal doctrine that except in the unusual circumstance of an event that was within the “common knowledge” of lay jurors, a plaintiff presenting a medical malpractice claim needed to have expert opinion identifying the applicable standard of care and the alleged breach that caused the injury at issue. However, the legal requirements to qualify as a medical expert witness were rather marginal. Not much more than having a medical degree and a medical license was required.

The proposed expert would essentially just recite having knowledge of the standard of care with such familiarity being derived from training, association with other physicians, and general reading of medical literature. As a consequence, general practitioners could testify against specialists and sub-specialists. Even where a witness had not seen let alone performed a procedure since a rotating internship decades before, cases were submitted to the juries for decision.

Defense counsel might thoroughly

and vigorously cross-examine the lack of expertise and substance of the opinion but all of this went to the “weight” of believability to be given by the jury in its consideration of the testimony and not to its threshold adequacy to support the case. While jurors often rejected such gossamer proofs, some juries in emotion-laden cases with profoundly bad outcomes after being told by the trial judge in accordance with the prevailing law that the witness was “qualified” to be an expert returned substantial damage awards.

The burgeoning litigation in the professional liability area led to legislative initiatives found in the so-called Affidavit of Merit Statute in 1995. That statute encompassed a variety of professions and was not limited to medical defendants.As originally enacted in 1995, the statute only addressed early screening by requiring that the affidavit be submitted by “an appropriate licensed person” who has “particular expertise in the general area or specialty involved.” N.J.S.A. 2A:53A-27.

In contrast, the purpose of the 2004 amendments to the Affidavit

NICHOLAS V. MYNSTER: The Same Specialty Witness Requirement for Malpractice Cases is Enforced


of Merit Statute concerning medical liability actions found in N.J.S.A. 2A:53A-41 was to tighten up the requirements for expert witness testimony in medical malpractice cases. There had been earlier cases that suggested a looser standard in areas of overlapping practice between different specialties. The new 2004 statutory provisions required that experts practice the “same specialty” and be Board-certified in the same specialty as the defendant if the defendant had such certification.

The effect of the statute in the context of the screening affidavit was diluted by a series of cases that identified various rationales for lax enforcement.1 In the Nicholas case, counsel for the defendants acted in a manner that protected against procedural deficiencies that might be said to have “lulled” the plaintiff into inaction or reliance on a defective or inadequate affidavit of merit.

But the facts of the case squarely presented the Court with the application of the statute to a trial witness rather than simply the preliminary screening affidavit. In addition, it presented the question not of an under-qualified expert but rather what might seem to be an over-qualified expert.

THE FACTS OF THE CASEThe claim of alleged malpractice arose out of the April 2005 treatment given to a man who had been doing construction work using a gas-powered cutting machine in the basement of a customer’s house. He collapsed at the work site after inhaling noxious fumes and vapors that had built up in the work space. He was brought to the Emergency Department facilities where the presenting problem was suspected carbon monoxide poisoning.

The patient was evaluated by a Board-certified Emergency Medicine physician Dr. Mynster. After his initial evaluation of the patient, Dr. Mynster contacted another physician who came to the Emergency Room and admitted the patient for further care in the Intensive Care Unit. That physician, Dr. Sehgal, was certified by the American Board of Family Practice. The treatment started in the ED and continued in the ICU combined medication for the patient’s agitation and muscle cramps with 100% oxygen administration by mask.

Plaintiff’s counsel provided an affidavit of merit from Lindell Weaver, M.D. Dr. Weaver did not practice either Emergency Medicine or Family Practice and was not certified in either field. His credentials, however, include certification by the American

Board of Internal Medicine and subspecialty certification in Critical Care and Pulmonary Disease by the same American Board of Internal Medicine as well as certification from the American Board of Preventative Medicine.

He was a well-published and well-regarded proponent of hyperbaric oxygen therapy for carbon monoxide poisoning. As reflected in a written report, it was Dr. Weaver’s opinion that the standard of care required that Dr. Mynster and/or Dr. Sehgal refer the patient for hyperbaric oxygen treatment immediately following his presentation to the hospital and that had Mr. Nicholas received hyperbaric oxygen his problems would have been prevented or mitigated.

The adequacy of this affidavit was challenged and plaintiff provided an additional affidavit from an Emergency Medicine practitioner in at least facial satisfaction of the statutory requirements.

This designated Emergency Medicine provider, however, did not prepare a written report and for purposes of trial the only identified expert witness on behalf of plaintiff addressing the issue of standard of care as to the medical providers was authored by Dr. Weaver. Although he was certified in several specialty areas and well-published, a pretrial

1 For example in Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), the Court ruled that the failure to move promptly for dismissal based on lack of an affidavit of merit would prevent the defendant from advancing that defense and it injected the need for the trial judge to conduct a case management conference to remind counsel of the need for plaintiff to have an affidavit of merit within the statutory time period of 120 days after the filing of defendant’s responsive pleading. Then in Ryan v. Renny, 203 N.J. 37 (2010), a general surgeon had provided an affidavit of merit in a case against a board-certified gastroenterologist arising out of a bowel perforation during a colonoscopy. The Court ruled that there would be a waiver of the statutory specialty requirement for the physician providing the affidavit of merit where there had been a good-faith effort to obtain such an affidavit but could not do so but had obtained an affidavit from a phy-sician with sufficient training and knowledge of the condition or procedure in issue.



Continued from page 5

deposition clearly established Dr. Weaver’s lack of credentials or experience in Family Practice or Emergency Medicine.

Indeed, in 2008 the American College of Emergency Physicians had issued a Clinical Policy on the management of adults presenting to the Emergency Department with carbon monoxide poisoning. One of the points under consideration was whether hyperbaric oxygen therapy should be used. Based on its review of available evidence, it made only Level C recommendations and these noted that hyperbaric oxygen was a therapeutic option; “however, its use cannot be mandated.”

With the close of the time for identifying expert witnesses to testify at trial, the defendants moved for summary judgment of dismissal on the ground that plaintiff did not have an appropriate witness to establish the necessary predicate of the applicable standard of care and deviation from or breach of that standard of care as it related to the conduct of the defendants. The trial court rejected the motion, finding that there was enough “similarity” between what Dr. Weaver did and the condition being evaluated and treated by the defendants.

The Supreme Court agreed to review the case in advance of a final decision at the trial level.

THE SUPREME COURT RULINGIn addition to the briefs on behalf of the parties, the Court received amicus briefs from the Medical Society of New Jersey and the American Medical Association and from the New Jersey Association for Justice (NJAJ), a representative of

the organized plaintiff’s bar.

The Court began its analysis with the postulate voiced (but not actually enforced) in earlier decisions that generally a plaintiff's medical 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.

It concluded that in denying summary judgment the trial court had erroneously relied upon case law that predated the 2004 Patients First Act amendments that went into effect in April 2005 that had allowed medical professionals may express opinions in overlapping fields provided they have sufficient knowledge of professional standards applicable to the situation under investigation.

It accepted the defense argument in a medical malpractice action where a defendant physician is specialist and board certified in a specialty and the care and treatment involves that specialty, the Patients First Act triggered two requirements.

First, the plaintiff's expert must have specialized in the same specialty as the defendant physician who treated the patient. Second, if the defendant physician was board certified, the plaintiff's expert must either meet the hospital-credentialing requirement of N.J.S.A. 2A:53A-41(a)(1) to treat patients for the medical condition or perform the procedure at issue or be board certified and meet the additional requirements of N.J.S.A. 2A:53A-41(a)(2) with regard to the time of active practice of the specialty or instruction of medical students or residents concerning the specialty. But the threshold was

being of the same specialty.

It rejected the position advanced by plaintiffs that under the statute there was an alternative to the requirement of equivalent specialty and the next requirement of equivalent of board-certification so that someone like Dr. Weaver could offer an expert opinion on the standard of care for treating carbon monoxide poisoning because he was “credentialed by a hospital to treat” the condition of carbon monoxide poisoning.

Plaintiffs had contended that “any doctor who is credentialed by a hospital to treat the same condition . . . is a ‘specialist’ in the treatment of that condition . . . and should be deemed qualified to testify to the standard of care for treatment.” Instead, the Court looked to the statutory language which defined the scope of “specialty” by the categories recognized as specialties and subspecialties by the American Board of Medical Specialties and the American Osteopathic Association.

The core of the Court’s decision is found in the following two paragraphs:

If a defendant physician not only practices in an ABMS specialty, but also is board certified in that specialty, then the challenging expert must have additional credentials. Thus, if the defendant physician specializes in a practice area “and . . . is board certified and the care or treatment at issue involves that board specialty . . ., the expert witness” then must either be credentialed by a hospital to treat the condition at issue, N.J.S.A. 2A:53A-41(a)(1) (emphasis added), or be board certified in the same specialty in the year preceding “the


occurrence that is the basis for the claim or action,” N.J.S.A. 2A:53A-41(a)(2).

The hospital-credentialing provision is not an alternative to the same-specialty requirement; it only comes into play if a physician is board certified in a specialty. Again, only a specialist can testify against a specialist about the treatment of a condition that falls within the specialty area. The hospital-credentialing provision is only a substitute for board certification.

In reaching its decision, the Court concluded that the specific statutory scheme regarding standard of care experts in medical malpractice actions trumped the more general provisions regarding qualifications of experts found in the Rules of Evidence.

IMPACT OF THE DECISIONEmphasizing its role as not being to judge the merits or wisdom of the statute “but only to construe its meaning and to enforce it as intended by the Legislature,” the Court found that the “plain textual reading” of this statute meant that the plaintiff could not establish the standard of care through a medical expert who does not practice in the same medical specialties as the defendant physicians and any such expert would be barred from testifying to the standard of care governing defendants.

This is a very positive outcome for at least the short term. Indeed, the report and commentary on the decision that appeared in the New Jersey Law Journal on April 29, 2013 had the headline of “No Wiggle Room for Specialties of Medical Malpractice Experts.” While the Supreme Court did not

explicitly address the application of its decision to cases not yet tried but awaiting disposition, the usual paradigm for judicial decisions is to have retroactive application at least to other cases “in the pipeline.” That remains to be seen.

Another issue that remains open is the basis for invoking a statutory waiver of the same specialty as well as the board-certification requirement. The statute explicitly provides that “a court may waive” these requirements on motion by a party seeking a waiver if there is a demonstration of “a good faith effort … to identify an expert in the same specialty or subspecialty” and a basis for the court’s determination that the proposed alternative expert “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” The Supreme Court in Nicholas remarked that the plaintiffs had not sought to invoke the waiver provision. Its full scope has yet to be tested.

There is the likely effect of a diminution in cases with multiple defendants having differing specialties since it will require the investment and expense of multiple specialty experts be incurred for purposes of trial. In cases of non-catastrophic magnitude, that may have a dampening effect since plaintiff’s counsel look for a return on investment.

The interplay between the more relaxed approach to the initial affidavit of merit and the trial witness standard should be the subject of new litigation challenges to bring the requirements of “same specialty”

for the AOM itself in line with the trial witness standard enforced in Nicholas. It is a tautology to suggest that the Nicholas decision does not advance the touted purpose of the statute to block frivolous claims. This contention is built upon a very well qualified expert having identified problematic care. However, the law in New Jersey reflected in many court opinions and embodied in the Model Jury Charge – similar to that in other jurisdictions – is that the conduct of a physician defendant who is a specialist is measured against the knowledge and skill normally possessed and used “by the average specialist in that field” to determine if there has been a breach.

The circumstance of where a patient’s condition could properly be treated by more than one specialty does not change the conclusion that where the defendant is a certified specialist in one field treating a condition properly treated by that particular specialty, the statute requires a testifying expert to be of that specialty, even if physicians in other specialties might also have competently provided the treatment. The legislative intent to have physicians with comparable training and experience as the defendant would control.

The statute’s use of the ABMS and AOS categorizations of particular specialty areas results in a workable approach because these areas are objectively identifiable and reflect recognition by certifying bodies that certain practice areas involve distinct training and experience. Those categorizations by ABMS and AOS provide a meaningful definition to the concept of “specialist” or “subspecialist.”

An unintended and potentially



undesirable consequence of the Nicholas case may be that the cases of lesser magnitude with multiple potential defendants may be narrowly focused on the key player, leaving out the somewhat tangential physicians who are still involved in the chain of events. Since a plaintiff is not required to sue all potential tortfeasors, it may fall upon a sole defendant to totally embrace the case or choose the unpalatable path of pointing fingers at absent parties and even affirmatively bringing them into the case in order to claim the protective benefit of joint tortfeasor contribution and allocation laws.

In a footnote, the Supreme Court noted that the amicus NJAJ had raised a challenge to the constitutionality of the statute as violating the separation of powers doctrine and intruding on the authority of the Supreme Court (and not the Legislature) over the rules of procedure and the establishment of rules of evidence.

The amicus submission on behalf of MSNJ and AMA had responded to that assertion both procedurally pointing out that it was an issue that had not been raised by any of the actual litigants in the case and on the merits. Commenting that amicus curiae must generally accept the case as presented by the parties and cannot raise issues not raised by the parties, the Supreme Court declined to address the issue. In some future case, however, the issue may in fact be raised as an explicit challenge.1

Well-qualified specialty physicians have become increasingly involved in litigation. The original specter of the virtual total unavailability of qualified and competent physicians to participate in litigation has no substance anymore. Indeed, many specialty societies recognize an obligation to be available as a source of information and support. However, that undertaking is accompanied by the duty to provide ethical, honest, and reliable testimony in the formulation of the medical opinions. The role of specialty societies in monitoring the conduct of its members should be encouraged by the Nicholas decision.

A related issue to the matter of qualifications and equivalent credentials is the basis for the medical opinion. New Jersey uses a multi-factorial test and has not explicitly adopted the federal standard in the Daubert v. Merrill-Dow decision. MSNJ has been a participant in recent hearings before the New Jersey Supreme Court supporting proposal for strengthening the reliability test for expert opinion in civil litigation generally and in medical malpractice actions in particular.

The Court’s language also signals reason to be hopeful as to a change in the judicial stance on the interpretation of legislative reform efforts. That remains to be seen and may well be a function not only of political will but also the clarity of expression necessary to compel a “plain textual reading” of the enacted legislation. The opportunity for action may also find support in Protection of Patients and Affordable

Care Act.

There is little said in the Obamacare law about malpractice reform; however, in Section 6801 the “sense of the Senate” was articulated. This statement recognized that health care reform presented an opportunity to address issues related to medical malpractice and “encouraged” States to develop and test alternatives to the existing civil litigation system to improve patient safety, reduce medical errors, and stimulate efficiency in the resolution of disputes while preserving an individual’s right to seek redress through the courts. Moreover, Section 10607 provides the potential of federal grant money to support demonstration or pilot programs to develop alternatives.

There is still much to do. But the Nicholas decision is an important step in the journey.

* The author is certified by the Supreme Court of New Jersey as a civil trial attorney and is a partner in McElroy, Deutsch, Mulvaney & Carpenter, L.L.P. and a member of its Health Care Practice Group.

Mr. Jackson was counsel for the Medical Society of New Jersey and the American Medical Association in the Nicholas v. Mynster and Ryan v. Renny appeals to the New Jersey Supreme Court and other matters.

2 Such a case with this issue is now in the court system. On June 4, 2013, a motion was filed in Carter v. Riverview Medi-cal Center et al., Docket No. MON-L-387-13 seeking a declaration that the Affidavit of Merit Statute is unconstitutional and invalid.

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vs Inaction

We understand the differenceThe Litigation Center of the American Medical Association and the State Medical Societies fights to protect doctors and uphold the highest standards of patient care.

In courtrooms across America, we are achieving legal victories that preserve the rights of physicians, promote public health and protect the integrity of the profession.

Whether we are challenging managed care organizations’ payment practices or preserving the autonomy of the hospital medical staff, one thing remains constant: The Litigation Center is an active force fighting for physicians’ rights.

Learn more on how The Litigation Center can help you: www.ama-assn.org/go/litigationcenter

Membership in the American Medical Association and the Medical Society of New Jersey makes the work of The Litigation Center possible.

Join or renew your memberships today.

IN ACTION

The Litigation Center is proud to have Lawrence Downs, Medical Society of New Jersey CEO, serve on its executive committee.

www.ama-assn.org www.msnj.org

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Medical Society of New Jersey Spring 2013 Physician Advocate

Documents

Transcript of Medical Society of New Jersey Spring 2013 Physician Advocate