Monday, August 09, 2010

Judicially neutered scarecrows?

So said the dissent in a case involving New Jersey's "affidavit of merit" requirement in medical malpractice cases.

A post by the amednews included the text:

The case, Ryan v Renny, was the first court interpretation of the waiver exception in the law.

Justices said the Legislature created a "safety valve" for cases where a same-specialty expert can't be found "by providing the judge with broad discretion to accept an expert with 'sufficient training, experience and knowledge to provide the testimony,' but only if plaintiff made a good-faith effort to satisfy the statute."
Abby Ryan, who underwent a colonoscopy in 2007 that resulted in a perforated colon, made that good-faith effort, the court said.

After being unable to find a board-certified gastroenterologist who would submit an affidavit, Ryan's attorney filed one from a board-certified surgeon who performed more than 100 colonoscopies, the last one three years before Ryan's procedure. The physician also had repaired tears relating to colonoscopies; treated, diagnosed and evaluated colon and bowel abnormalities and diseases; and published articles on the topic, according to court documents.


In a dissent, Justice Roberto A. Rivera-Soto said Ryan did not meet the law's good-faith effort because she didn't seek the waiver until "well past" the 120 days allowed to do so under the law. She also didn't ask for it until after Dr. Renny moved to dismiss the case because the expert filing the affidavit wasn't a board-certified gastroenterologist like himself.

"Clearly, phrased legislative requirements ... have become judicially neutered scarecrows," Rivera-Soto wrote. "It tramples the right to be free of malpractice claims lacking in merit -- a right the Legislature intentionally and unequivocally granted to defendant."

What wasn't thoroughly discussed was that New Jersey physicians are somewhat adverse to testifying against other New Jersey physicians. In part, there is a problem because there is basically only one medical malpractice carrier in New Jersey.

Plaintiffs then have to look to places like New York, where experts are more expensive. Further, defendants can drive plaintiffs out of court by seeking extensive depositions, for which reimbursement to plaintiff is minimal. There is a lot of economics going on here.


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