ROBERT BUCK v. JAMES R. HENRY, M.D.

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0362-09T1

ROBERT BUCK,

Plaintiff-Appellant,

JAMES R. HENRY, M.D.,

Defendant-Respondent,

and

SANOFI-AVENTIS and SANOFI-SYNTHELABO, INC.,

Defendants.

___________________________________________________

Argued January 12, 2010 - Decided March 25, 2010

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No.
L-4008-08.

John R. Connelly, Jr. argued the cause for
appellant (Drazin & Warshaw, attorneys;
Mr. Connelly, on the brief).

John J. Bannan argued the cause for
respondent (Reynolds & Drake, attorneys;
Mr. Bannan, on the brief).

PER CURIAM

This is a medical malpractice case. By leave granted,

plaintiff Robert Buck appeals from the order of the Law Division

granting defendant Dr. James R. Henry's motion for summary

judgment.1 The motion judge found that the two physicians who

authored the affidavits of merit submitted by plaintiff to meet

his burden under N.J.S.A. 2A:53A-41 were not qualified to

evaluate and opine upon the propriety of the treatment defendant

provided to plaintiff.

We agree and affirm. Because this case comes before us

from the trial court's grant of defendant's motion for summary

judgment, we will recite the salient facts as viewed in the

light most favorable to plaintiff. Brill v. Guardian Life Ins.

Co. of Am.,
142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

In November 2006, plaintiff visited Dr. Henry complaining

of sleeping problems. Dr. Henry diagnosed plaintiff as

suffering from mild depression and insomnia; he prescribed

Zoloft to improve his mood and Ambien to treat his sleep

difficulties.

On December 18, 2006, plaintiff took his prescribed dose of

Ambien, began inspecting his .38 caliber Colt revolver, and fell

asleep. Thereafter, plaintiff was awakened by what he thought

was the sound of a telephoning ringing. Forgetting that the

1
Plaintiff's cause of action against defendants Sanofi-Aventis
and Sanofi-Synthelabo, Inc., the manufacturers of the sleep
medication marketed under the name "Ambien," is not part of this
appeal.

A-0362-09T1
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handgun was still in his right hand, he reached for the

telephone with his left hand. According to plaintiff, this

action caused the barrel of the handgun to enter his mouth and

discharge. In his pleading, plaintiff averred that "[t]he

gunshot fractured his skull and multiple facial bones, including

the orbital floor, and ruptured the left globe, causing

blindness in that eye."

Plaintiff filed suit based on product liability against the

manufacturer of Ambien and a medical malpractice action against

Dr. Henny, alleging that he deviated from accepted medical

standards when he prescribed the sleep medication. Plaintiff

submitted two affidavits of merit regarding the medical

malpractice suit. One affidavit was authored by Larry Kirstein,

M.D., a psychiatrist. The other was supplied by Joshua M.

Kosowsky, M.D., a physician who is board certified in emergency

medicine.

Dr. Henry, who specializes in a family practice, moved for

summary judgment arguing that because the two physicians who

submitted affidavits in support of plaintiff's claims were not

family medicine practitioners, they were not statutorily

qualified to opine on the merits of the treatment Dr. Henry

provided to plaintiff.

A-0362-09T1
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In rebuttal, plaintiff brought to the court's attention

that pursuant to N.J.S.A. 45:9-22.22,2 Dr. Henry had identified

himself as board certified in emergency medicine and having a

specialty in family practice. Plaintiff thus argued that as a

board certified physician in emergency medicine, Dr. Kosowsky

was competent to evaluate Dr. Henry's treatment in this

capacity. Alternately, plaintiff argued that because Dr. Henry

was not board certified in family medicine, he was truly a

general practitioner who was treating plaintiff for mild

depression, a psychiatric illness. As a psychiatrist, Dr.

Kirstein was thus qualified to opine on the merits of this

course of treatment.

In rejecting these arguments, the motion judge emphasized

that neither of the physicians who had submitted affidavits on

behalf of plaintiff were board certified in family medicine or

otherwise identified themselves as family practitioners. The

motion judge also rejected the notion that a general

practitioner is synonymous with a doctor who practices in the

recognized specialty of family medicine.

2
This statute authorizes the Division of Consumer Affairs in the
Department of Law and Public Safety to collect and maintain
information concerning all physicians, podiatrists and
optometrists licensed in the State "for the purpose of creating
a profile of each physician, podiatrist and optometrist pursuant
to this act." N.J.S.A. 45:9-22.22(a).

A-0362-09T1
4

After reviewing the relevant statutory language, we agree

with the trial court that Dr. Henry was acting as a family

medicine specialist when he treated plaintiff for mild

depression and insomnia. Because neither of the physicians who

had submitted affidavits were board certified in family medicine

or identified themselves as family medicine practitioners, they

were not statutorily qualified to opine on the merits of the

treatment plaintiff received from Dr. Henry.

We will start our analysis by reaffirming certain basic

principles of statutory construction and appellate review.

Statutory interpretation is "a purely legal issue." Maietta v.

New Jersey Racing Comm'n,
183 N.J. Super. 397, 401 (App. Div.

1982), aff'd,
93 N.J. 1 (1983). Thus, because the court's grant

of summary judgment here concerns a question of law, we will

review the motion judge's decision de novo. Posso v.

Acceleration Nat'l Ins. Co.,
402 N.J. Super. 381, 385 (App.

Div.), certif. denied,
197 N.J. 14 (2008).

Our Supreme Court has offered the following guidance with

regard to statutory construction:

The Legislature's intent is the paramount
goal when interpreting a statute and,
generally, the best indicator of that intent
is the statutory language. We ascribe to the
statutory words their ordinary meaning and
significance . . . and read them in context
with related provisions so as to give sense
to the legislation as a whole . . . It is

A-0362-09T1
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not the function of this Court to rewrite a
plainly-written enactment of the Legislature
or presume that the Legislature intended
something other than that expressed by way
of the plain language. We cannot write in
an additional qualification which the
Legislature pointedly omitted in drafting
its own enactment . . . or engage in
conjecture or surmise which will circumvent
the plain meaning of the act . . . Our duty
is to construe and apply the statute as
enacted.

[DiProspero v. Penn,
183 N.J. 477, 492
(2005)(citations and quotations omitted).]

Under N.J.S.A. 2A:53A-27, a party bringing an action for

malpractice must submit an affidavit of merit to support the

suit. Specifically,

[i]n 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
practices.

[N.J.S.A. 2A:53A-27.]

Moreover, when the cause of action is for medical malpractice,

"the person executing the affidavit shall meet the requirements

A-0362-09T1
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of a person who provides expert testimony or executes an

affidavit as set forth in [N.J.S.A. 2A:53A-41]." Ibid.

N.J.S.A. 2A:53A-41 establishes the criteria that the party

offering the affidavit of merit must meet to allow the action to

proceed. These criteria vary depending upon whether or not the

defendant is a general practitioner. Under this statute, the

particular medical professional "shall not give expert testimony

or execute an affidavit . . . 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

[certain] criteria[.]" N.J.S.A. 2A:53A-41. Under subsection

(a) of this statute,

[i]f 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 or
the American Osteopathic Association and the
care or treatment at issue involves that
specialty or subspecialty recognized by the
American Board of Medical Specialties 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
American Board of Medical Specialties 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 American

A-0362-09T1
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Board of Medical Specialties 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 American Board of Medical Specialties
or the American Osteopathic Association who
is board certified in the same specialty or
subspecialty, recognized by the American
Board of Medical Specialties 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 American Board of Medical Specialties
or the American Osteopathic Association, the
active clinical practice of that specialty
or subspecialty recognized by the American
Board of Medical Specialties 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 American Board of Medical Specialties 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

A-0362-09T1
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American Board of Medical Specialties or the
American Osteopathic Association; or

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

The Legislature also authorized the trial court to waive

the specific requirements for the affidavit of merit upon motion

by the party seeking the waiver, if certain conditions are met.

Specifically,

[a] court may waive the same specialty or
subspecialty recognized by the American
Board of Medical Specialties or the American
Osteopathic Association and board
certification requirements of this section,
upon motion by the party seeking a waiver,
if, after the moving party has demonstrated
to the satisfaction of the court that a good
faith effort has been made to identify an
expert in the same specialty or
subspecialty, the court determines that the
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.

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

If a party fails to provide an affidavit of merit that

complies with the above statutory requirements, or fails to

submit a sworn statement in place of such an affidavit as

permitted by N.J.S.A. 2A:53A-28, "it shall be deemed a failure

to state a cause of action." N.J.S.A. 2A:53A-29. See also Burt

v. West Jersey Health Sys.,
339 N.J. Super. 296, 304 (App. Div.

A-0362-09T1
9

2001) ("Absent extraordinary circumstances, a failure to comply

with the statute requires the complaint to be dismissed, with

prejudice.").

It is now well-settled that, in adopting the Affidavit of

Merit Statute, the Legislature intended to decrease and

discourage frivolous litigation against a distinct class of

defendants holding professional licenses. In re Hall By and

Through Hall,
147 N.J. 379, 391 (1997). Consistent with this

goal, the statute was modified in 2004 as part of a

"comprehensive package of tort reform legislation." Ryan v.

Renny,
408 N.J. Super. 590, 595 (App. Div.), certif. granted,

200 N.J. 504 (2009). One specific amendment "increased the

requirements of a person testifying as an expert or executing an

Affidavit of Merit in a medical malpractice action." Ibid.

Under its current form, N.J.S.A. 2A:53A-41(a) creates two

classes of physicians: (1) specialists practicing a specialty

recognized by the ABMS or AOA; and (2) board certified

specialists recognized by the ABMS or AOA. In New Jersey State

Bar Ass'n v. State, a case in which we addressed the

constitutionality of these new amendments, we described

subsection (a) in the following manner:

If the party against whom or on whose behalf
the proposed expert is testifying is a
specialist or subspecialist recognized by
the American Board of Medical Specialties or

A-0362-09T1
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the American Osteopathic Association and if
the care or treatment at issue in the action
involves that specialty or subspecialty,
then the proposed expert must have
specialized at the time of the occurrence in
that same specialty or subspecialty.
Further, if the party against whom or on
whose behalf the proposed expert is
testifying is board certified and the care
or treatment at issue involves that board
specialty or subspecialty, the proposed
expert witness must either be credentialed
by a hospital to handle the treatment or
procedure in question or be board certified
in the same specialty and during the year
immediately prior to the occurrence in
question, have devoted a majority of his or
her professional time to either active
clinical practice in that area or teaching
in that area in an accredited
medical school.

[New Jersey State Bar Ass'n v. State, 387
N.J. Super. 24, 39 (App. Div.), certif.
denied,
188 N.J. 491 (2006) (citation
omitted) (emphasis added).]

In using the word "further," we definitively clarified that

the subsection created two categories of statutorily recognized

specialists: those who are specialists by virtue of their

dedicated area of practice and those who are board certified

specialists. In so doing, we emphasized that the two classes

are not synonymous. In Ryan v. Renny, we recognized that

subsection (a) describes two distinct categories of individuals.

[I]f the party against whom or on whose
behalf the testimony is offered is a
specialist and the care or treatment at
issue involves that specialty[,] the person
providing the testimony shall have

A-0362-09T1
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specialized at the time of the occurrence
that is the basis for the action in the same
specialty[.] If the defendant is board
certified, the expert must be similarly
board-qualified.

[Ryan v. Renny, supra, 408 N.J. Super. at
595 (citations omitted).]

Once again, by making a distinction between the two groups, this

Court acknowledged the existence of two separate categories of

physicians.

Plaintiff argues, without the benefit of authoritative

support, that subsection (a) requires that the person, not the

specialty practiced, be either recognized as a specialist by the

ABMS or AOA or be board certified. We reject this argument. As

Dr. Henry's appellate counsel correctly points out, plaintiff's

argument would render the two classes of subsection (a)

redundant and legally meaningless.

The ABMS defines the specialty of family medicine as

follows:

A Family Physician is concerned with the
total healthcare of the individual and the
family and is trained to diagnose and treat
a wide variety of ailments in patients of
all ages. The Family Physician receives a
broad range of training that includes adult
medicine and care of the aged, the care of
children, women's health, maternity care,
preventive medicine and behavioral science.
Special emphasis is placed on the primary
care of families, utilizing consultants and
community resources when appropriate.

A-0362-09T1
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[American Board of Medical Specialties,
About Physician Specialties, Family
Medicine,
http://www.abms.org/Who_We_Help/Consumers/Ab
out_Physician_Specialties/family.aspx (last
visited Mar. 9, 2010.)]

Here, we accept Dr. Henry's certification that he is a

family medicine specialist because he has devoted his medical

practice to that recognized specialty area.3 For purposes of the

Affidavit of Merit Statute, Dr. Henry need not be board-

certified in family medicine to declare himself a specialist in

this area of medicine. Furthermore, absent competent evidence

indicating otherwise, we have no reason to conclude that the

treatment at issue here did not concern the practice of family

medicine.

Dr. Henry falls squarely under the first class of

physicians described in subsection (a). Under the statute's

clear requirements, plaintiff had to provide an affidavit of

merit from a physician who "specialized at the time of the

for the action in the same
occurrence that is the basis

specialty or subspecialty, recognized by the American Board of

Medical Specialties or the American Osteopathic Association, as

3
Dr. Henry's board certification in emergency medicine is
irrelevant because the treatment at issue was not related to
emergency care. Accordingly, plaintiff's affidavit from Dr.
Kosowsky, a board certified physician in emergency medicine, is
not applicable to satisfy the statute.

A-0362-09T1
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the party against whom or on whose behalf the testimony is

offered[.]" N.J.S.A. 2A:53A-41(a).

Because plaintiff was required to submit an affidavit of

merit from a physician who specialized in family medicine, and

he failed to do so, the motion judge correctly granted Dr.

Henry's motion to dismiss his complaint. The affidavit of merit

submitted by Dr. Kirstein, a physician board certified in the

field of psychiatry, does not meet the statutory requirement.

Although Dr. Henry diagnosed plaintiff as suffering from

depression and insomnia, two maladies with clear psychiatric

overtones, Dr. Henry's conduct cannot be evaluated through the

standard of care applicable to a psychiatrist. Only a board-

certified family medicine physician or a physician otherwise

dedicated as a practitioner to that recognized specialty is

statutorily qualified to submit an affidavit of merit here.

Alternately, plaintiff argues that Dr. Henry should be

considered a general practitioner who would therefore fall under

the provisions of subsection (b), which provides:

[i]f 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 general
practitioner; or active clinical practice

A-0362-09T1
14

that encompasses the medical condition, or
that includes performance of the procedure,
that is the basis of the claim or action; or

(2) the instruction of students in an
accredited medical school, health
professional school, or accredited residency
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).]

We reject this argument because plaintiff has not come forward

with any evidence to support his claim that Dr. Henry is a

general practitioner within the meaning of the statutory

definition cited above. Given the clear and comprehensive

criteria adopted by the American Board of Medical Specialties

defining the various medical specialties, and the specialty of

family medicine in particular, we have no basis to conclude that

the title of family practitioner is synonymous with a "general

practitioner."

Affirmed.

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