In Short v. Atlantic Care Regional Medical Center, the medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified Orthopedic Surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute in that State.
The proof of negligence requires evidence that the defendant's health care provider failed to conform to the conduct required of a reasonable person acting in the same or similar circumstances within the same specialty. The expert must be familiar with the knowledge and skill possessed and employed by similar professionals. That is, if the treatment falls within a particular branch or medical specialty, the expert, although he need not be certified in that particular specialty, must have sufficient education and experience to testify as to the skill and care required of a person rendering care in that specialty. In Short v. Atlanticare Regional Medical Center, the court concluded that the plaintiff expert, a general practitioner, did not have the education, knowledge, and experience to conclude that the defendant orthopedic surgeon had deviated from the appropriate standards of care.
Similarly, for purposes of medical expert testimony, medical experts should be board-certified in the relevant specialties. For example, if the malpractice action involved an untoward event that occurred post-operatively while the patient was in the recovery room, the appropriate medical experts who could address any alleged breach in the standard of care would be a surgeon, an anesthesiologist, a recovery room nurse, and a hospital administrator (for hospital liability including fiduciary duty, policies and procedures, agency, etc.). If the injury resulted in an hypoxic event leading to brain damage for example, then the appropriate causation and damages medical experts would be a pulmonologist and neurologist respectively. Many a case has been weakened by poor selection of medical expert specialty. Because attorneys are not physicians it is prudent for attorneys to consult with physicians who are experienced in medical-legal matters who could provide direction and assist in strategic and tactical planning.
