CLIFFORD HARBESON v. UNDERWOOD-MEMORIAL HOSPITAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2151-08T22151-08T2

CLIFFORD HARBESON and MARY ANN HARBESON,

Plaintiffs-Appellants,

v.

UNDERWOOD-MEMORIAL HOSPITAL, SOUTH JERSEY ANESTHESIA AND PAIN PHYSICIANS, P.C., EVAN O'BRIEN, M.D., JENNIFER SIMMINS, R.N., BARBARA MALEY, R.N., GREGG M. SALDUTTI, M.D., and BEN WRIGHT, C.R.N.A.,

Defendants-Respondents.

___________________________________________

 

Argued: March 25, 2009 - Decided:

Before Judges Fisher, C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-707-07.

Paul Piantino, III, argued the cause for appellants (White & Williams LLP, attorneys; Mr. Piantino, of counsel and on the brief; Geoffrey F. Sasso, on the brief).

George H. Cortelyou argued the cause for respondents Saldutti and Wright (Buckley & Theroux, LLC, attorneys; William G. Theroux, of counsel; Karen M. Mahon, on the brief).

Sharon K. Galpern argued the cause for respondent O'Brien (Stahl & DeLaurentis, P.C., attorneys).

Richard J. Bolger argued the cause for respondents Simmins-Kline and Maley (Orlovsky, Grasso, Bolger, Mensching & Daley, P.A., attorneys; Donald Grasso, of counsel; Mr. Grasso and Christopher J. Orlovsky, on the brief).

PER CURIAM

Plaintiffs Clifford and Mary Ann Harbeson appeal by leave granted from an interlocutory order denying their motion for reconsideration of an earlier order dismissing their claims against defendants Gregg M. Saldutti, M.D. (Saldutti), and Ben Wright, C.R.N.A (Wright). Because the judge erred in denying reconsideration where her earlier order was based on a misinter pretation of N.J.S.A. 2A:53A-41, which governs the qualifica tions required for affiants on an Affidavit of Merit where the allegedly negligent physician was board certified or a specialist or subspecialist, we now reverse.

Clifford Harbeson (Clifford) underwent a "central extensive laminectomy L4-5 with discectomy and left revision hemilaminec tomy, [and] foraminotomy L5-S1" on May 4, 2005, at Underwood Memorial Hospital (the Hospital) that was performed by O'Brien, an orthopedic surgeon, board certified by the American Board of Orthopedic Surgery and the American Board of Spine Surgery. Clifford had been admitted to the hospital at 9:40 a.m. that day. He was then transferred to the surgical holding room. O'Brien certified that he ordered Vancomycin to be given to Clifford in the holding area as prophylaxis prior to the sur gery. O'Brien stated that the order was "written for the preop erative nursing and/or anesthesia staff to carry out in the holding area before surgery along with all orders on the physi cians admitting order sheet." Saldutti was the board-certified anesthesiologist; Wright, a registered nurse anesthetist certi fied by the Council on Certification of Nurse Anesthetists, was the nurse anesthetist; Kline was the circulating nurse; and Maley was the preadmission testing nurse, who saw Clifford on May 2, 2005.

The record is unclear whether the drug was administered in the holding room or after Clifford was brought to the operating room at 10:40 a.m. A box labeled "ABX: Dose Time" in the anesthesia record was filled in "Vancomycin 1gm 1105." Plain tiffs allege that administration of the antibiotic was not begun by Saldutti until 11:05 a.m., approximately four minutes before the first incision, and that Wright monitored the infusing proc ess. Saldutti indicated in his interrogatory answers that he did not recall the specific time the Vancomycin was started nor whether he personally started it, although the usual policy was that the physician who inserts the IV will start the medication, which he stated would likely have been him. He also stated that the infusion was completed at 11:05 a.m.

Wright admitted in his interrogatory answers that he moni tored the progression of the Vancomycin and advised O'Brien when it had reached a sufficient level of absorption. He contended that he documented the time the antibiotic was finished infusing on the chart as 11:05 a.m. and O'Brien was so advised before the incision was made. The Hospital, on the other hand, indicated in its interrogatory answers that the Vancomycin was given in the operating room at 11:05 a.m. by Wright. The timing for the administration of Vancomycin is the central issue in this medi cal-malpractice action. Plaintiffs' expert has opined that administering an antibiotic within four minutes of commencing surgery is tantamount to not giving antibiotic prophylaxis at all.

Plaintiff was discharged from the Hospital on May 6, 2005. On May 17, 2005, Clifford saw O'Brien in a follow-up appoint ment. He allegedly informed O'Brien that he went to his family doctor with a sore throat and swelling about a week after the surgery. O'Brien alleged that Clifford admitted to him that he had severe back pain and spasm starting around May 13 and con tinuing until the follow-up visit. That same day, O'Brien admitted Clifford to the Hospital for lab work and a new MRI scan based on "presumed disc infection."

Clifford subsequently "underwent an exploration of lumbar wound and irrigation and debridement of lumbar wound superficial and deep, while under the care and supervision of Dr. O'Brien." He had developed a postoperative infection and then had numerous subsequent complications requiring years of hospital treatment and therapy and resulting in severe and permanent systemic dam age, leaving him "severely disabled." In their May 2, 2007, complaint and subsequent amended complaint joining Saldutti, Wright, and Kline, plaintiffs generally alleged the negligence of defendants and then set forth thirty specific failures to conform to reasonable standards of medical care under the circumstances.

Prior to filing the complaint, plaintiffs secured an affi davit of merit from John J. Stern, M.D. Stern is board certi fied by the American Board of Internal Medicine and is also board certified in Infectious Diseases. As of December 2003, he was a Clinical Associate Professor of Medicine at the University of Pennsylvania School of Medicine and Chairman of the Infection Control Committee at Pennsylvania Hospital. Stern certified on April 30, 2007, that: "Upon completion of my review of the medi cal records made available to me, it is my opinion that there exists a reasonable probability that the care, skill, or knowl edge exercised or exhibited in the care and treatment of Clif ford Harbeson fell outside acceptable standards of practice." The affidavit of merit, which did not identify any practitioners by name, was attached to the complaint. It was subsequently amended to name Saldutti and Wright and was served on them with a copy of Stern's curriculum vitae.

After receiving the affidavit of merit, Saldutti and Wright moved to dismiss the complaint for failure to comply with N.J.S.A. 2A:53A-41. They argued this statute required plain tiffs to obtain an affidavit from an anesthesiologist rather than an internist or infectious-disease specialist, such as Stern. Accordingly, they argued the affidavit was defective and required dismissal of the complaint with prejudice under N.J.S.A. 2A:53A-29 for failure to state a claim. Plaintiffs opposed the motion, arguing that the cause of action did not go to the defendants' specialty in anesthesiology, but rather to the preoperative prevention of infection.

The matter was heard and the judge granted the motion, find ing that the affidavit was defective under N.J.S.A. 2A:53A-41. She entered an order the same day dismissing plaintiffs' claims against Saldutti and Wright with prejudice. Exactly one month later, plaintiffs filed a motion for reconsideration regarding the dismissal. They again contended that N.J.S.A. 2A:53A-41 was inapplicable to Wright as a nurse anesthetist, and that Saldutti's specialty was irrelevant as their allegations did not involve specialty care or treatment. Saldutti and Wright opposed the motion, arguing there were no new issues. Saldutti urged that the specific issue was not what any physi cian would have done under the circumstances, but what an anes thesiologist would have done. Wright again argued that the statute did in fact apply to nurse anesthetists; therefore, the affidavit of merit was insufficient as to him as well because Stern could not opine on the standard of care governing nurse anesthetists.

The judge heard argument on the matter, as well as on motions to dismiss filed by Kline and Maley. The judge denied the motion for reconsideration, finding that plaintiffs had not met the Rule 4:49-2 standard for same, "stand[ing] by [her] original decision in this case." Noting that Stern was not board certified as an anesthesiologist or nurse anesthetist, she concluded that he was disqualified by N.J.S.A. 2A:53A-41. She also denied Kline's and Maley's motion to dismiss without preju dice, giving plaintiffs the full 120-day statutory period to file an effective affidavit of merit. After argument, but con trary to her ruling from the bench, the judge entered an order granting plaintiffs' motion for reconsideration. The judge amended her order to deny plaintiffs' motion. That same day, plaintiffs filed a motion for leave to appeal with this court, which we granted.

On appeal, plaintiffs contend that N.J.S.A. 2A:53A-41 is not applicable to a nurse anesthetist, that it does not require that an affiant have the same specialty as the negligent profes sional in every circumstance, that Stern's affidavit was suffi cient as to Saldutti and Wright when the medical issue was the failure to timely administer prophylactic antibiotics, and that the judge erred in failing to conduct a Ferreira conference after the amended complaint was filed.

Statutory construction is a purely legal issue and, thus, no deference is owed to the trial court's legal conclusions. See Posso v. Accel'n Nat'l Ins. Co., 402 N.J. Super. 381, 385 (App. Div.) (de novo review appropriate when an issue on appeal "presents only a question of law"), certif. denied, 197 N.J. 14 (2008); Maietta v. N.J. Racing Comm'n, 183 N.J. Super. 397, 401-02 (App. Div. 1982) (statutory construction is a "purely legal issue"), aff'd, 93 N.J. 1 (1983). Our Supreme Court has explained that when interpreting a statute, determining the Leg islature's intent is the paramount goal and, generally, the best indicator of that intent is the statutory language itself. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 231 (1998); DiPros pero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). To determine the Legis lature's intent, we begin with the words of the statute and ascribe to them their ordinary meaning. Mason v. City of Hobo ken, 196 N.J. 51, 68 (2008). We should read the disputed lan guage "in context with related provisions so as to give sense to the legislation as a whole." DiProspero, supra, 183 N.J. at 492.

It is not our function to "rewrite a plainly-written enact ment of the Legislature nor presume that the Legislature intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488 (2002). The Legislature is presumed to know the judicial construction of its enactments. Johnson v. Scaccetti, 192 N.J. 256, 276 (2007). Thus, a reviewing court "cannot 'write in an additional qualifi cation that the Legislature pointedly omitted in drafting its own enactment.'" DiProspero, supra, 183 N.J. at 492 (quoting Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952)). Nor may it "'engage in conjecture or surmise which will circum vent the plain meaning of the act.'" Ibid. (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548 (1980)). If the meaning of the statutory words is clear, the analysis is complete and the court need look no further. Mason, supra, 196 N.J. at 68.

We begin with N.J.S.A. 2A:53A-27. On June 29, 1995, Gover nor Whitman signed a bundle of tort reform bills designed to "'bring common sense and equity to the state's civil litigation system,'" Cornblatt, supra, 153 N.J. at 228 (quoting Office of the Governor, News Release 1 (June 29, 1995)), and to "'strike a fair balance between preserving a person's right to sue and con trolling nuisance suits,'" Ferreira, supra, 178 N.J. at 149 (quoting Office of the Governor, News Release 1 (June 29, 1995)). Part of the tort reform bundle was the Affidavit of Merit Bill, L. 1995, c. 139, now N.J.S.A. 2A:53A-26 to -29 ("the AOM statute"). Cornblatt, supra, 153 N.J. at 228.

Section 2 of the AOM statute provided in pertinent part as follows:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment prac tices. . . . The person executing the affi davit shall be licensed in this or any other state; have particular expertise in the gen eral area or specialty involved in the action, as evidenced by board certification or by devotion of the person's practice sub stantially to the general area or specialty involved in the action for a period of at least five years.

[L. 1995, c. 139, 2 (codified as N.J.S.A. 2A:53A-27).]

"Licensed persons" included accountants, architects, attorneys, dentists, engineers, physicians, podiatrists, chiropractors, registered professional nurses, and health care facilities. N.J.S.A. 2A:53A-26(a)-(j).

Under the original version of N.J.S.A. 2A:53A-27, when a plaintiff alleged general medical malpractice, the affidavit of merit did not need to be "executed by an expert with the same qualifications or certifications as the defending physician." Burns v. Belafsky, 166 N.J. 466, 479 (2001) (holding that a neu rosurgeon could offer an opinion on the conduct of a radiologist due to overlap of specialties); Wacht v. Farooqui, 312 N.J. Super. 184, 188 (App. Div. 1998) (holding that an orthopedic surgeon could render an opinion against a defendant radiologist as to common areas of practice). It was sufficient "that the expert is qualified to supply the required basis for the medical malpractice complaint." Burns, supra, 166 N.J. at 479.

Subsequent to Burns, the Legislature passed the New Jersey Medical Care Access and Responsibility and Patients First Act ("the Medical Care Act"), L. 2004, c. 17, which, among other things, modified N.J.S.A. 2A:53A-27 where medical malpractice was at issue. In adopting the Medical Care Act, the Legislature made certain express findings and declarations:

a. One of the most vital interests of the State is to ensure that high-quality health care continues to be available in this State and that the residents of this State continue to have access to a full spectrum of health care providers, including highly trained physicians in all specialties;

b. The State's health care system and its residents' access to health care provid ers are threatened by a dramatic escalation in medical malpractice liability insurance premiums, which is creating a crisis of affordability in the purchase of necessary liability coverage for our health care providers;

c. One particularly alarming result of rising premiums is that there are increasing reports of doctors retiring or moving to other states where insurance pre miums are lower, dropping high-risk patients and procedures, and practicing defensive medicine in a manner that may significantly increase the cost of health care for all our citizens;

d. The reasons for the steep increases in the cost of medical malpractice liability insurance are complex and involve issues related to: the State's tort liabil ity system; the State's health care system, which includes issues related to patient safety and medical error reporting; and the State's regulation and requirements concern ing medical malpractice liability insurers;

e. It is necessary and appropriate for the State to take meaningful and prompt action to address the various interrelated aspects of these issues that are impacted by or impact on, the State's health care system; and

f. To that end, this act provides for a comprehensive set of reforms affecting the State's tort liability system, health care system and medical malpractice liability insurance carriers to ensure that health care services continue to be available and accessible to residents of the State and to enhance patient safety at health care facilities.

[L. 2004, c. 17, 2 (codified at N.J.S.A. 2A:53A-38).]

"The bill itself is extensive and contains numerous provisions aimed at alleviating the crisis in medical professional liabil ity insurance that the Legislature perceived." N.J. State Bar Ass'n v. State, 387 N.J. Super. 24, 36-37 (App. Div.), certif. denied, 188 N.J. 491 (2006).

The Medical Care Act amended N.J.S.A. 2A:53A-27 by adding the following emphasized language to the AOM statute. L. 1995, c. 139, 2:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment prac tices. The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.

In the case of an action for medical mal practice, the person executing the affi davit shall meet the requirements of a per son who provides expert testimony or executes an affidavit as set forth in sec tion 7 of P.L. 2004, c. 17 (C. 2A:53A-41). In all other cases, the person executing the affidavit shall be licensed in this or any other state; have particular expertise in the general area or specialty involved in the action, as evidenced by board certifica tion or by devotion of the person's practice substantially to the general area or spe cialty involved in the action for a period of at least five years. The person shall have no financial interest in the outcome of the case under review, but this prohibition shall not exclude the person from being an expert witness in the case.

[Ibid.]

The Medical Care Act did not define "medical malpractice action." However, one of the significant changes it made to the State's tort liability system was to provide an "affidavit of noninvolvement" as a means to secure the dismissal of a medical-malpractice action. N.J.S.A. 2A:53A-40. Specifically, "[a] health care provider named as a defendant in a medical malprac tice action may cause the action against that provider to be dismissed upon the filing of an affidavit of noninvolvement with the court." N.J.S.A. 2A:53A-40(a). It further defined "health care provider" as:

an individual or entity which, acting within the scope of its licensure or certification, provides health care services, and includes, but is not limited to: a physician, den tist, nurse, pharmacist or other health care professional whose professional practice is regulated pursuant to Title 45 of the Revised Statutes; and a health care facility licensed pursuant to P.L. 1971, c. 136 (C. 26:2H-1 et seq.).

[N.J.S.A. 2A:53A-40(e).]

Thus, a medical-malpractice action is an action against a licensed individual providing health care services as specified in N.J.S.A. 2A:53A-40(e). Consequently, an affiant on an affi davit of merit in an action against a health-care provider, as defined by N.J.S.A. 2A:53A-40(e), must meet the requirements of N.J.S.A. 2A:53A-41.

Section 7 of the Medical Care Act established the criteria for signing an affidavit of merit or giving expert testimony in a medical-malpractice action. L. 2004, c. 17, 7. The spon sors of the bill explained that this section "provides that an expert must have the same type of practice and possess the same credentials, as applicable, as the defendant health care pro vider, unless waived by the court." Sponsor's Statement to Assembly Bill No. 50, at 20 (Mar. 4, 2004). Section 7 provided in pertinent part as follows:

In an action alleging medical malprac tice, a person shall not give expert testi mony or execute an affidavit pursuant to the provisions of [the AOM statute] 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 American Board of Medical Specialties [(ABMS)] or the American Osteopathic Asso ciation [(AOA)] and the care or treatment at issue involves that specialty or subspe cialty recognized by the [ABMS] or the [AOA], the person providing the testimony shall have special ized at the time of the occurrence that is the basis for the action in the same spe cialty or subspecialty, rec ognized by the [ABMS] or the [AOA], as the party against whom or on whose behalf the testimony is offered and if the person against whom or on whose behalf the testi mony 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 [AOA], the expert witness shall be:

 
(1) a physician credentialed by a hos pital to treat patients for the medi cal condition, or to perform the pro cedure, that is the basis for the claim or action; or

(2) a specialist or subspecialist rec ognized by the [ABMS] or the [AOA] who is board certified in the same spe cialty or subspecialty, recognized by the [ABMS] or the [AOA] . . . .

[L. 2004 c. 17, 7 (codified as N.J.S.A. 2A:53A-41) (emphasis added).]

Thus, Section 7(a) of the Medical Care Act created two classes of defendant health-care providers: (1) specialists and subspecialists recognized by the ABMS or AOA; and (2) board-certified specialists and subspecialists recognized by the ABMS or AOA. As to the first class, the affiant or expert must have the same specialty or subspecialty recognized by the ABMS or AOA as the defendant healthcare provider if, but only if, the care or treatment at issue involves the defendant's ABMS or AOA spe cialty or subspecialty. N.J.S.A. 2A:53A-41(a). As to the sec ond class, the affiant must satisfy the requirements of N.J.S.A. 2A:53A-41(a)(1) or -41(a)(2) if, but only if, "the care or treatment at issue involves that board specialty or subspecialty recognized by the ABMS or AOA." N.J.S.A. 2A:53A-41(a) (emphasis added). We have previously recognized this dual test. N.J. State Bar Ass'n, supra, 387 N.J. Super. at 39. Thus, the Medi cal Care Act has superseded Burns and Wacht where the defendant can invoke N.J.S.A. 2A:53A-41(a). N.J. State Bar Ass'n, supra, 387 N.J. Super. at 39.

Anesthesiology is a physician specialty recognized by the ABMS. American Board of Medical Specialties, Anesthesiology, http://www.abms.org/Who_We_Help/Consumers/About_Physician_Specialties/anesthesiology.aspx (last visited May 12, 2009). Nurse anesthe tists are recognized by the American Association of Nurse Anes thetists and credentialed by the Council on Certification of Nurse Anesthetists, not by the ABMS or AOA. American Associa tion of Nurse Anesthetists, Council on Certification, http://www.aana.com/Credentialing.aspx?ucNavMenu_TSMenuTargetID=111&ucNavMenu_TSMenuTargetType=4&ucNavMenu_TSMenuID=6&id=138 (last visited May 12, 2009). Consequently, N.J.S.A. 2A:53A-41(a) has no application to Wright.

Because Saldutti is board certified, the judge was required to determine whether the care or treatment at issue involved the specialty of anesthesia. The only evidence submitted by Saldutti on this issue in the record before us makes no mention of antibiotic anaphylaxis as a matter within the scope of this specialty. See American Board of Medical Specialties, Anesthe siology, http://www.abms.org/Who_We_Help/Consumers/About_Physician_ Specialties/anesthesiology.aspx (giving overview of anes thesiology practice areas) (last visited May 12, 2009). Plain tiffs contend that the duty to guard against infection is a "general medical duty transcend[ing] the bounds of each spe cialty at play in the surgical procedure." Saldutti has not proven to the contrary. As a consequence, Saldutti is not enti tled to enforce the requirements of N.J.S.A. 2A:53A-41(a) in this case.

Plaintiffs contend that Stern's affidavit of merit as to Saldutti is governed by, and sufficient under, N.J.S.A. 2A:53A-27. We reject this argument because we have already determined that this section of the AOM statute no longer applies to medi cal-malpractice actions. The Medical Care Act does not expressly address the criteria governing an affiant or expert against a defendant ABMS or AOA board-certified physician or an ABMS or AOA specialist or subspecialist who has provided care or treatment that does not involve the defendant's specialty or subspecialty. However, Section 7 does provide as follows:

b. If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, 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:

(1) active clinical practice as a gen eral practitioner; or active clinical practice that encompasses the medical condition, or that includes perform ance of the procedure, that is the basis of the claim or action; or

 
(2) the instruction of students in an accredited medical school, health pro fessional school, or accredited resi dency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or

 
(3) both.

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

Of course, we recognize that Saldutti is not a general prac titioner per se. He is a board-certified anesthesiologist. However, he was providing care and treatment that could have been provided by any physician or nurse, including general prac titioners. Because the role he was fulfilling required no specialty expertise, the sufficiency of Stern's credentials should be measured against the criteria applicable where the defendant health-care provider is a general practitioner. Those criteria are more restrictive than the qualification required under N.J.S.A. 2A:53A-27.

For example, under Burns and Wacht, Stern would indubitably be qualified to opine on a deviation by Saldutti from the gen eral standard of care applicable to all health care providers respecting prevention of infection. However, under N.J.S.A. 2A:53A-41(b), he will have to demonstrate that for the year prior to the act of malpractice he devoted a majority of his time to an active clinical practice that encompassed treatment of infection, N.J.S.A. 2A:53A-41(b)(1), or that he devoted a majority of his time to the instruction of students in an accredited medical school, N.J.S.A. 2A:53A-41(b)(2).

It would not be reasonable to construe Section 7 of the Medi cal Care Act as only applying to "general practitioners" as that term is generally understood, i.e., health-care providers without any specialty, because it would eliminate any required qualifications for an affiant or expert opining regarding a deviation by a health-care provider in a position such as Saldutti. This is so because the criteria contained in N.J.S.A. 2A:53A-27 simply no longer apply in a medical-malpractice action and there are no other criteria in the Medical Care Act save those set forth in subsections (a) and (b) of N.J.S.A. 2A:53A-41. Furthermore, the application of N.J.S.A. 2A:53A-41(b) to Stern is consistent with the legislative findings and declara tions respecting the Legislature's intent to reform the State's tort liability system governing medical malpractice, including reform respecting the qualifications of affiants and experts opining on deviations from established standards of care. It is also consistent with the notion that when a specialist or sub specialist, board certified or not, provides care or treatment outside the scope of that health-care provider's specialty, that provider is functioning as a general practitioner utilizing the general skills and knowledge he or she acquired in medical school and as an intern.

Because plaintiffs allege that Saldutti failed to execute a "general medical duty" to "timely administ[er an] antibiotic to guard against infection," Stern must satisfy the criteria of N.J.S.A. 2A:53A-41(b) in order to sign an affidavit of merit or testify as an expert against Saldutti. We cannot on this record determine whether Stern satisfies these criteria because we do not have information respecting the nature of his practice dur ing the year preceding May 4, 2005, as is required by N.J.S.A. 2A:53A-41(b). A remand is thus required.

As to Wright, he asserts that the ABMS recognizes anesthe siology "as a separate and distinct specialty from that of the subspecialty of Infectious Disease." According to Wright, because the American Association of Nurse Anesthetists also administers anesthesia-related care, he "is entitled to the same Affidavit of Merit as would be required for the Anesthesiolo gist, Dr. Saldutti." We disagree. Wright is a registered pro fessional nurse and his certification in anesthesia is not rec ognized by the ABMS or the AOA, whose specialties and subspe cialties are limited to physicians and osteopaths. As such, Wright is a general practitioner and N.J.S.A. 2A:43A-41(b) specifies the criteria Stern must meet in order to express an opinion regarding the care and treatment provided by Wright. Because the record is insufficient to permit us to determine whether Stern is qualified with respect to Wright, a remand is required for further development of the record.

In light of our disposition of the above issues, we need not discuss the Ferreira issue. However, see Paragon Contrac tors, Inc. v. Peachtree Condominium Association, ___ N.J. Super. ___ (App. Div. Apr. 27, 2009), for a discussion of this issue.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

In their briefs in opposition to this appeal, defendants Evan O'Brien, M.D. (O'Brien), Jennifer Simmins-Kline, R.N. (Kline), and Barbara Maley, R.N. (Maley), requested that we exercise original jurisdiction over their applications to dismiss plaintiffs' complaint, which are based on the same grounds that the claims against defendants Saldutti and Wright were dismissed. We decline to do so as it is not "necessary to the complete determination of [the] matter on review." R. 2:10-5.

It is not clear when, why, or how Maley was added to the complaint.

In doing so, she did not construe the applicable statues, discuss any case law, or find the facts, contrary to Rule 1:7-4(a).

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).

(continued)

(continued)

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