In late April, 2013, the New Jersey Supreme Court decided the matter of Nicholas V. Minster. The decision was unanimous and the Court determined that under the New Jersey Medical Care Access and Responsibility and Patients First Act, which appears at N.J.S.A. 2A:53A-41, a plaintiff’s medical expert must possess the statutory credentials necessary to testify against defendant physicians. This enhanced qualification requirement applies to all cases arising after July 7, 2004, but has been clarified and restated in essence by the New Jersey Supreme Court. In the Minster matter, plaintiff Nicholas alleged that there was negligent care by Drs. Minster and Sehgal, a Board Certified Emergency Medicine Physician and a Board Certified Family Medicine Physician respectively. Nicholas was brought to the Emergency Room of South Jersey Regional Medical Center in April, 2005 as a result of carbon monoxide poisoning. Treatment with 100% oxygen was initiated by Minster and continued by Sehgal after admission to the hospital, along with prescription for Ativan and other medication. Nicholas suffered brain damage as a result of the poisoning. The allegations relative to the breach of the standard of care, a requisite element of a medical negligence claim, was that Drs. Minster and Sehgal failed to prescribe hyperbaric chamber treatment, which was the standard of care at the time for carbon monoxide poisoning.
During the course of the litigation, plaintiffs identified Dr. Lyndell K. Weaver, a Board Certified Internal Medicine Physician with Subspecialty Certifications in Critical Care Medicine and Pulmonary Disease. He acknowledges as part of his testimony in the case that he neither practiced nor was Board Certified in the Specialties of Emergency Medicine or Family Medicine and conceded that he did not know how the average physician practicing family medicine would have treated Nicholas in 2005. Defendants moved to bar Dr. Weaver as an expert on the ground that under N.J.S.A. 2A:53A-41 he did not have the credentials to testify as to the standard of care applicable to the defendants. The Trial Court initially denied the defendants Motion to determine if Dr. Weaver’s lack of Board Certification in Family and Emergency Medicine concerned the “credibility” of his testimony and/or the admissibility of his testimony citing to Kahn v. Singh, 200 N.J. 82 (2009).
The Supreme Court took up the issue of whether the plaintiff’s expert, a Board Certified Physician in Internal and Preventive Medicine, is able to testify to the standard of care applicable to the treatment of carbon monoxide poisoning in the medical malpractice action involving physicians who were Board Certified in Emergency Medicine and Family Medicine respectively. It is well known that to prove a medical malpractice case, the plaintiff must present testimony, from a competent expert, establishing the applicable standard of care, a deviation from the standard of care and the deviation at issue caused injuries. Though it was recognized that Dr. Weaver was an expert on carbon monoxide poisoning and an expert on hyperbaric chamber treatment for such a condition, the issue is whether in light of the Patient’s First Act, Dr. Weaver could testify to the standard of care applicable to physicians who practice in different specialty areas than himself.
There is now great clarity that when a malpractice action involves a defendant’s specialty, the challenging expert must be an expert in the same field of medicine. Hence, if a defendant practices within a specialty and is Board Certified and the care and treatment at issue involves that specialty, the challenging expert can be credentialed by a hospital to treat that condition or be Board Certified in the same specialty. The hospital credentialing itself is not an alternative to the “same specialty” requirement. The Supreme Court was very succinct in explaining that Emergency, Family, Internal and Preventive Medicine are distinct specialty areas recognized by the American Board of Medical Specialties and that the doctors practicing in each of these specialties perhaps treat carbon monoxide poisoning, but there is no statutory exception that would permit a physician specializing in Internal and Preventive Medicine to act and testify as an expert witness against physicians specializing in Emergency and Family Medicine. When treatment was rendered to Nicholas as a result of his carbon monoxide poisoning, Dr. Minster was Board Certified in Emergency Medicine, Dr. Sehgal was a Specialist and Board Certified in the area of Family Medicine. Dr. Weaver was an expert in treating carbon monoxide poisoning, but his qualifications did not satisfy the requirements of N.J.S.A. 2A:53A-41 because he did not specialize in Emergency or Family Medicine. It is critical that like-kind experts be secured and be in place for purposes of trial testimony and that there be similar Board Certifications. Given the lay of the land with regard to medical practices these days and the fact that many practices have doctors who are capable of treating conditions which go beyond the four corners of their certification or subspecialties, for purposing of litigating a medical negligence matter, that will not, at the end of the day, necessarily or properly qualify an expert to provide testimony against a defendant in litigation.