Stephen Meehan v. Peter Antonellis, Dmd(075265)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

Stephen Meehan v. Peter Antonellis, DMD (075265) (A-45-14)

Argued March 15, 2016 – Decided August 9, 2016

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal involving the Affidavit of Merit statute (AOM statute), N.J.S.A. 2A:53A-26 to -29, the Court

determines whether an affiant submitting an affidavit of merit must have credentials equivalent to those of the

defendant, either pursuant to the like-qualified standard of the Patients First Act, N.J.S.A. 2A:53A-41 (section 41),

or under the credentials standards outlined in N.J.S.A. 2A:53A-27 (section 27) of the AOM statute. The Court also

determines the sufficiency of the affidavit of merit that plaintiff submitted in support of his action against defendant

for dental malpractice.

Plaintiff consulted defendant, an orthodontist, seeking treatment for sleep apnea. Defendant fitted plaintiff

with a dental appliance intended to reduce plaintiff’s symptoms. After wearing the device while sleeping, plaintiff

noticed that his teeth had shifted. A subsequent sleep study revealed that plaintiff’s symptoms worsened during the

time that he used the appliance. Defendant attempted to remedy plaintiff’s condition with a new appliance, without

success. Plaintiff filed an action for dental malpractice against defendant, alleging that defendant’s treatment

created large gaps between his teeth and worsened his sleep apnea condition. Defendant’s answer to the complaint

did not identify the field in which he specialized and whether his treatment of plaintiff involved that specialty, as

required by Rule 4:5-3.

Plaintiff filed a timely affidavit of merit from a dentist who specializes in prosthodontics and has over

twenty years of experience in the treatment of sleep apnea. He opined that defendant’s failure to inform plaintiff of

the risks associated with use of the dental device fell outside the standards of care for oral appliance therapy.

Defendant filed a motion to dismiss plaintiff’s complaint with prejudice, asserting that plaintiff was required to

submit an affidavit of merit from a like-qualified dentist, which, in this case, was an orthodontist. The trial court

granted defendant’s motion and dismissed plaintiff’s complaint with prejudice. The court held that section 27 of the

AOM statute required that the affidavit of merit be submitted by a like-qualified professional who practices in the

same specialty or subspecialty as the defendant, and therefore required plaintiff to submit an affidavit of merit from

an orthodontist. The court denied plaintiff’s motion for reconsideration, finding that the affiant and defendant were

not equivalently qualified because the affiant specialized in different areas of practice.

The Appellate Division affirmed the orders dismissing plaintiff’s complaint with prejudice and denying

reconsideration. The appellate panel recognized the distinction between medical malpractice and dental malpractice

actions, but found that the credentialing requirements for affiants who provide an affidavit in a medical malpractice

action under section 41 of the Patients First Act also apply to section 27 of the AOM statute. Applying that

standard, the panel concluded that plaintiff’s affiant lacked the requisite statutory qualifications to issue an affidavit

of merit against the defendant.

This Court granted plaintiff’s petition for certification. 221 N.J. 218 (2015).

HELD: The enhanced requirements of section 41 of the Patients First Act which govern the qualifications of

persons permitted to submit an affidavit of merit, or provide expert testimony, in a medical malpractice action, apply

only in medical malpractice actions. In all other actions against a licensed professional, section 27 of the AOM

statute prescribes the qualifications of the person who may submit an affidavit of merit against a licensed

professional. The affidavit of merit that plaintiff submitted in this action, from a licensed dentist with experience in

the treatment of sleep apnea, satisfies section 27. The trial court therefore improperly dismissed the complaint.

1. The AOM statute is intended to eliminate frivolous claims against licensed professionals early in the litigation

1

process, and to permit meritorious claims to proceed efficiently. Under section 27 of the statute, a plaintiff alleging

that certain designated professionals negligently performed professional services is required to provide an affidavit

from an expert attesting to the merits of the claim. The submission of an affidavit of merit is considered an element

of the claim, and the failure to submit an appropriate affidavit of merit ordinarily requires dismissal of the complaint

with prejudice. However, a complaint will not be dismissed if the plaintiff has substantially complied with the

affidavit of merit obligations. Additionally, if the plaintiff can demonstrate extraordinary circumstances that

prevented compliance, the complaint will be dismissed without prejudice. An accelerated case management

conference, as required by Ferreira v. Rancocas Orthopedic Assocs. 178 N.J. 144 (2003), is intended to identify and

address, early in the litigation, any issues concerning the affidavit of merit. (pp. 14-18)

2. Section 27 of the AOM statute was amended in 2004 to direct that medical malpractice actions comply with

section 41 of the Patients First Act. Section 41 precludes a person from providing expert testimony or executing an

affidavit of merit in a medical malpractice action unless the expert or affiant is a licensed physician or other health

care professional in the United States, and meets other standards, depending on the qualifications and area of

practice of the party against whom or on whose behalf the testimony is provided. In all negligence actions against

designated licensed professionals, other than medical malpractice actions, the affidavit of merit is governed by the

original provisions of section 27. (pp. 18-20)

3. In determining whether the enhanced credential standards stated in section 41 apply to an action for dental

malpractice, the Court examines the legislative intent of the statute. The plain language of section 41 states that the

like-qualified standards apply only to physicians who are defendants in medical malpractice actions. This

interpretation is also supported by and consistent with the stated purpose of the Patients First Act and its legislative

history. The issues regarding the delivery of health care that the Legislature identified and the measures that the

Legislature adopted to address them with the adoption of section 41 pertain only to physicians, without reference to

any other licensed professionals. Under the plain language of sections 27 and 41, the enhanced credential

requirements established by section 41 for those submitting affidavits of merit and expert testimony apply only to

physicians in medical malpractice actions. (pp. 21-25)

4. Section 27, which is applicable here, does not impose a like-qualified standard for an affiant who submits an

affidavit of merit in a negligence action against designated professionals. The language of section 27 under

consideration has remained unchanged since the AOM statute was adopted in 1995. Section 27 requires the affiant

to be licensed in this or another state, and have particular expertise in the general area or specialty involved in the

action, and addresses the manner in which that expertise may be demonstrated. There is no textual support for the

application of the like-qualified requirement of section 41 to affiants submitting an affidavit of merit against

designated professionals under section 27. (pp. 25-26)

5. Based on the statute’s plain language and the manner in which it has been applied since its adoption, the Court

concludes that section 27 requires no more than that the person submitting an affidavit of merit be licensed in this or

another state, and have particular expertise in the general area or specialty involved in the action. The enhanced

requirements of section 41 governing the qualifications of persons permitted to submit an affidavit of merit, or

provide expert testimony against or in support of a physician in a medical malpractice action, apply only in medical

malpractice actions. In this case, the affiant is a licensed dentist who has particular expertise in the diagnosis and

treatment of sleep apnea, the general area involved in the professional negligence action that plaintiff commenced.

Measured by these standards, the affidavit of merit that plaintiff submitted satisfied the requirements of section 27.

(pp. 28-34)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court

for further proceedings.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA and

SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE PATTERSON did not participate.

2

SUPREME COURT OF NEW JERSEY

A-45 September Term 2014

075265

STEPHEN MEEHAN,

Plaintiff-Appellant,

v.

PETER ANTONELLIS, DMD,

Defendant-Respondent.

Argued March 15, 2016 – Decided August 9, 2016

On certification to the Superior Court,

Appellate Division.

E. Drew Britcher argued the cause for

appellant (Britcher Leone, attorneys; Mr.

Britcher and Jessica E. Choper, on the

briefs).

Kenneth M. Brown argued the cause for

respondent (Wilson, Elser, Moskowitz,

Edelman & Dicker, attorneys; Robert T.

Gunning, of counsel and on the briefs).

Abbott S. Brown argued the cause for amicus

curiae New Jersey Association for Justice

(Lomurro, Munson, Comer, Brown and

Schottland, attorneys; Mr. Brown, Jonathan

H. Lomurro, and Christina Vassiliou Harvey,

on the brief).

John Zen Jackson argued the cause for amicus

curiae Medical Society of New Jersey

(McElroy, Deutsch, Mulvaney & Carpenter,

attorneys).

JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

1

In this appeal, we return to the vexing and recurring issue

of whether an affidavit of merit submitted by a plaintiff in an

action alleging negligence by a licensed professional satisfies

the requirements of the Affidavit of Merit statute (AOM

statute), N.J.S.A. 2A:53A-26 to -29. Plaintiff sought treatment

for sleep apnea from an orthodontist. Plaintiff used the

appliance given to him for treatment but complained that it

caused the dislocation of some teeth. Contending that the

orthodontist did not inform him that the appliance may dislocate

teeth, plaintiff filed a complaint alleging that the treating

orthodontist provided insufficient information to permit him to

make an informed decision to proceed with the recommended

treatment.

The trial court conducted a Ferreira1 conference and

determined that plaintiff submitted a timely affidavit of merit;

however, the court dismissed with prejudice plaintiff’s

complaint because plaintiff submitted the affidavit from a

dentist who specialized in prosthodontics and the treatment of

sleep apnea. The court stated that plaintiff knew that the

dentist who treated him was an orthodontist and that the statute

required submission of an affidavit of merit from a like-

qualified dentist. In other words, the court determined that

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

2

plaintiff was required to submit an affidavit of merit from an

orthodontist rather than an affidavit from a board-certified

prosthodontist who had specialized in the treatment of sleep

apnea for twenty years.

Since the adoption in 2004 of the New Jersey Medical Care

Access and Responsibility and Patients First Act (Patients First

Act), N.J.S.A. 2A:53A-37 to -42, there has been a proliferation

of litigation yielding disparate results on whether the enhanced

qualification standards of the Patients First Act in medical

malpractice actions apply to negligence actions against all

licensed professionals. In addition, we have repeatedly

addressed the contours of the Ferreira conference due to

problems with the timing of the conference, the omission of the

conference in some instances, and the substance of such

conferences.

In this appeal, we hold that the like-qualified standard2

prescribed in the Patients First Act, N.J.S.A. 2A:53A-41

(section 41), applies only in actions for medical malpractice.

In all other negligence actions against a licensed professional,

the credential standards outlined in N.J.S.A. 2A:53A-27 (section

27) apply.

2 This standard is also referred to in case law and litigation as

“like-credentialed,” “equivalently credentialed,” “equivalently

qualified,” and “kind-for-kind.”

3

The Ferreira conference is designed to identify and

alleviate issues regarding the affidavit of merit. Here, the

Ferreira conference failed to accomplish one of its primary

functions, that is, determining whether the treatment provided

by the professional defendant involved the defendant’s

specialty. Normally, we would vacate the dismissal with

prejudice and remand to permit the plaintiff to obtain an

affidavit of merit from a qualified professional. That remedy

is unnecessary here. There is no need to prolong this already

protracted matter because we conclude that the affidavit of

merit submitted by plaintiff satisfies the credential

requirements of section 27. We therefore reverse the judgment

of the Appellate Division and remand the matter to the trial

court for further proceedings.

I.

We derive the facts from a record limited to the

transcripts of the Ferreira conference, the motion to dismiss,

and the motion for reconsideration, as well as the briefs and

exhibits submitted in support of and in opposition to those

motions.

Plaintiff consulted defendant for treatment for sleep

apnea. On May 4, 2010, defendant fitted plaintiff with a dental

appliance known as a positioner. The device was intended to

help reduce plaintiff’s sleep apnea symptoms. Plaintiff asserts

4

that he expressed a concern that the device would cause his

teeth to shift and that defendant “unequivocally assured” him

that his teeth would not move. After wearing the device while

sleeping, plaintiff noticed that his teeth had shifted.

Plaintiff decided to undergo a sleep study, which revealed that

plaintiff’s condition had progressed from moderate to severe

during the period of time that he used the appliance. Defendant

unsuccessfully attempted to remedy plaintiff’s condition with a

new appliance.

On August 29, 2012, plaintiff filed a complaint against

defendant alleging that defendant’s treatment caused chronic

muscle pain and headaches, created large gaps between his teeth,

and worsened his sleep apnea condition. Defendant filed an

answer on October 11, 2012. The answer did not identify the

field in which defendant specialized and whether his treatment

of plaintiff involved that specialty as required by Rule 4:5-3.

A Ferreira conference was conducted on January 18, 2013.

At the outset of the conference, the trial court did not realize

the nature of the conference. Defense counsel promptly informed

the court that plaintiff had not filed an affidavit of merit and

that the document was due in about three weeks. Addressing

plaintiff, who was self-represented, the trial court informed

plaintiff that he was required to submit an affidavit of merit.

Plaintiff stated that he was familiar with the affidavit of

5

merit requirement but requested the court “to explain [the

requirement], just to make sure there is no misunderstanding[.]”

The trial court proceeded to explain the purpose of the

affidavit of merit, mentioned that the affidavit was not a

substitute for expert testimony at trial about the standard of

care, and emphasized that the failure to submit an affidavit, or

the submission of a noncompliant affidavit, would trigger a

motion to dismiss the complaint. Plaintiff asked whether the

period for calculating the due date of the affidavit ran from

the date the answer was filed or when it was received by him.

The trial court did not directly answer that question. Rather,

the court stated, “You could make that argument.” The trial

court also informed plaintiff that a good faith effort to obtain

an affidavit may not satisfy the statutory requirement for

production of an affidavit of merit.

At the conclusion of the Ferreira conference, the trial

court realized that the matter was a dental malpractice claim.

The trial court informed plaintiff that the affidavit “would

have to come from a dentist or one who practices dentistry.”

When plaintiff advised the trial court that defendant had not

identified any area of specialty or whether his treatment

involved that specialty, the court initially advised plaintiff

that the information could be obtained through discovery. The

following exchange occurred:

6

THE COURT: I’m not sure what you mean by

that.

[PLAINTIFF]: He’s supposed to -- by the

rules of the court he’s supposed to respond

what field of medicine he’s practicing and

with this appliance (phonetic) -- apparently,

he’s an orthodontist, and I believe he is

practicing outside his field of expertise.

THE COURT: There’s -- there’s discovery,

which can take place. But I would just -- I

don’t want you to be distracted. There’s

certainly time to pronounce interrogatories

or, if you feel necessary, take depositions.

But if this affidavit of merit issue is

not resolved there won’t be any discovery in

this case. Because there won’t be any case

for discovery to take place.

[PLAINTIFF]: Uh hum.

THE COURT: All right?

[PLAINTIFF]: Okay.

THE COURT: Okay.

[PLAINTIFF]: Okay. Thank you --

THE COURT: Thank you.

[PLAINTIFF]: -- for letting me try to

voice my --

THE COURT: That’s okay. All right.

[DEFENSE COUNSEL]: Thank you, Judge.

At no time did the trial court address defendant’s failure to

provide the information required by Rule 4:5-3. Defense counsel

did not provide any information about whether defendant’s

treatment of plaintiff involved the specialty of orthodontics.

7

Plaintiff filed a timely affidavit of merit from Dr. Mark

Samani, a dentist who specializes in prosthodontics and has over

twenty years of experience in the treatment of sleep apnea. Dr.

Samani stated that

[j]aw movement, tooth movement and even

tempor[o]mandibular joint pain are all know[n]

complications associated with oral appliance

therapy for the treatment of obstructive sleep

apnea. These complications arising in and of

themselves are not breach[es] of the standards

of care. Based on my knowledge, education and

experience in the treatment of obstructive

sleep apnea with oral appliances, if the

patient was not informed about these very real

possibilities, as stated by Mr. Meehan, th[e]n

the patient was not given the opportunity to

make an educated decision on treatment and the

informed consent process fell outside the

standards of care for oral appliance therapy

for the treatment of obstructive sleep apnea.

Defendant filed a motion to dismiss plaintiff’s complaint

with prejudice, asserting that plaintiff was required to submit

an affidavit of merit from a like-qualified dentist, that is, an

orthodontist. During oral argument on the motion, plaintiff

advised the trial court that he was aware that defendant was an

orthodontist but was under the impression that defendant was not

treating him as an orthodontist. Plaintiff explained that he

sought and obtained an affidavit from a dentist who specializes

in the treatment of sleep apnea.

The trial court granted defendant’s motion and dismissed

plaintiff’s complaint with prejudice. In a written statement

8

accompanying the order, the trial court declared that section 27

required that the affidavit of merit be submitted by a like-

qualified professional. Addressing the affidavit submitted by

plaintiff, the trial court determined that “the fact that Dr.

Samani is an expert in sleep apnea is irrelevant in this

malpractice claim because the statute clearly requires the

affidavit of merit to be submitted by a person who practices in

the same specialty or subspecialty.” Thus, the court declared

that plaintiff was required to submit an affidavit of merit from

an orthodontist. The trial court determined that plaintiff had

not applied for a waiver pursuant to section 41, or shown

exceptional circumstances to permit a deviation from the

statutory requirement of a like-qualified professional, or

satisfied the good faith requirements of Ryan v. Renny, 203 N.J.

37 (2010).

In response to plaintiff’s motion for reconsideration,

which the trial court denied, the trial court elaborated on its

reasoning in a written opinion. Relying on Buck v. Henry, 207

N.J. 377, 389 (2011), the court declared that the expert

providing the affidavit of merit “should be equivalently-

qualified to the defendant” physician. The court also

determined that the affiant and defendant were not equivalently

qualified because the affiant specialized in prosthodontics and

defendant specialized, and rendered treatment to plaintiff, in

9

orthodontics. The trial court asserted that a dismissal with

prejudice of plaintiff’s complaint was consistent with the rule

announced in Nicholas v. Mynster, 213 N.J. 463 (2013), an

opinion issued following entry of the order granting a

defendant’s motion to dismiss. The court also reasoned that it

could not provide any relief from the strict requirements of the

Patients First Act because plaintiff had not applied for a

waiver.

The Appellate Division affirmed the orders dismissing

plaintiff’s complaint with prejudice and denying reconsideration

in an unpublished opinion. Relying on this Court’s

interpretation of section 41 in Nicholas, id. at 481-82, the

Appellate Division applied credentialing requirements for those

providing an affidavit of merit or expert testimony in a medical

malpractice action to a dental malpractice action, and declared

that “a plaintiff’s medical expert must possess the same

specialty or subspecialty as the defendant physician.” The

appellate panel recognized the distinction between medical

malpractice and dental malpractice actions but determined that

“the Patient[s] First Act’s detailed standards for experts

executing an [affidavit of merit] . . . are consistent with the

limitations found in [section 27,] which . . . mandates that

experts in other professional malpractice actions possess

particular expertise in the specialty involved in the action.”

10

Applying that standard, the panel concluded that plaintiff’s

affiant “lacked the requisite statutory qualifications to issue

an [affidavit of merit] against defendant.” The appellate panel

also determined that defendant’s failure to identify his

specialty was not fatal because the Ferreira conference record

demonstrated that plaintiff knew that defendant was an

orthodontist.

The Court granted plaintiff’s petition for certification to

address three questions: (1) whether the Appellate Division

erred in extending the Patients First Act to dental malpractice

actions; (2) whether the Appellate Division erred in determining

that plaintiff’s affidavit of merit from Dr. Samani was

insufficient because it was not from an orthodontist; and (3)

whether, due to the alleged Ferreira conference failures,

exceptional circumstances exist warranting reinstatement of

plaintiff’s complaint. Meehan v. Antonellis, 221 N.J. 218

(2015).

II.

A.

Plaintiff asserts that the plain language of section 41

dictates that the enhanced or like-qualified requirements of the

Patents First Act apply only to medical malpractice actions.

Plaintiff acknowledges that the Appellate Division noted that

section 41 applies only to medical malpractice actions, but

11

states that the panel nonetheless proceeded to apply the expert

credential requirements governing medical malpractice actions to

this dental malpractice action. Plaintiff further argues that

the affidavit of merit submitted by Dr. Samani satisfied the

qualification requirements of section 27 because plaintiff

received treatment for sleep apnea, Dr. Samani is a licensed

dentist who specialized in prosthodontics, a specialty that

treats sleep apnea, Dr. Samani has specialized in the treatment

of sleep apnea for over twenty years, and the treatment provided

by defendant to plaintiff did not fall solely within the field

of orthodontics.

In the alternative, if this Court determines that Dr.

Samani’s affidavit of merit does not satisfy the statutory

requirements for this dental negligence matter, plaintiff

requests that this Court permit him additional time to present a

conforming affidavit. Plaintiff maintains that the Ferreira

conference did not adequately address the issue of defendant’s

qualifications as required by Buck, supra, 207 N.J. at 394-95.

B.

Defendant argues that the Appellate Division correctly

affirmed the dismissal with prejudice of plaintiff’s complaint

because plaintiff failed to serve an appropriate affidavit of

merit. Defendant maintains that plaintiff knew defendant was an

orthodontist, and therefore, the affiant must be an

12

orthodontist, that plaintiff never asserted his claim was

limited to informed consent, and that the appellate panel did

not extend the Patients First Act to dentists. Defendant argues

that the trial court said nothing at the Ferreira conference

that would have led plaintiff to believe that he could submit an

affidavit of merit from any licensed dentist other than an

orthodontist. Addressing plaintiff’s contention that

defendant’s silence in his answer and at the conference about

his specialty contributed to the submission of an affidavit by a

dentist other than one specializing in orthodontics, defendant

argues that he also “never asserted that he treated [plaintiff]

outside of his dental practice specialty of orthodontics.” In

other words, defendant argues that plaintiff should have assumed

that the treatment provided by defendant fell within the

specialty of orthodontics unless and until he was informed to

the contrary.

Furthermore, defendant argues that section 27 requires

“particular expertise in the general area or specialty involved

in the action.” Asserting that he treated plaintiff from 2002

to 2012 exclusively as an orthodontist, defendant maintains that

the record does not support a conclusion that he treated

plaintiff as a general dentist or in any way outside his

established specialty. Defendant acknowledges that Dr. Samani

has devoted over twenty years to the treatment of sleep apnea

13

but maintains that plaintiff has not established that Dr.

Samani’s prosthodontics specialty overlaps with defendant’s

specialty in orthodontics.

C.

Amicus curiae New Jersey Association for Justice (NJAJ)

argues that the Patients First Act unconstitutionally interferes

with the judiciary’s power to regulate practice and procedure in

the courts. Amicus curiae Medical Society of New Jersey (MSNJ)

recognizes that the issue raised by NJAJ is not within the scope

of the order granting certification. Nevertheless, MSNJ

responds that the AOM statute and the Patients First Act do not

transgress the separation of powers doctrine because the

Patients First Act addresses substantive elements of a cause of

action rather than the admissibility of evidence. MSNJ also

argues that dismissals for noncompliance with either statute

should be without prejudice.

III.

The stated purpose of the AOM statute, N.J.S.A. 2A:53A-26

to -29, is laudatory -- to weed out frivolous claims against

licensed professionals early in the litigation process.

Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 146

(2003). The submission of an appropriate affidavit of merit is

considered an element of the claim. See Alan J. Cornblatt, P.A.

v. Barow, 153 N.J. 218, 244 (1998) (holding that failure to

14

submit affidavit of merit “goes to the heart of the cause of

action as defined by the Legislature”). Failure to submit an

appropriate affidavit ordinarily requires dismissal of the

complaint with prejudice. Id. at 243.

On its face, the AOM statute did not seem to impose “overly

burdensome obligations,” Ferreira, supra, 178 N.J. at 146, yet

this single piece of legislation has unleashed a veritable

avalanche of litigation. This Court addressed the initial

statute, originally enacted in 1995, nine times before the

Legislature adopted further obligations regarding medical

malpractice actions in 2004. Id. at 144; Palanque v. Lambert-

Woolley, 168 N.J. 398 (2001); Hubbard ex rel. Hubbard v. Reed,

168 N.J. 387 (2001); Fink v. Thompson, 167 N.J. 551 (2001);

Christie v. Jeney, 167 N.J. 509 (2001); Galik v. Clara Maass

Med. Ctr., 167 N.J. 341 (2001); Burns v. Belafsky, 166 N.J. 466

(2001); Cornblatt, supra, 153 N.J. 218; In re Petition of Hall,

147 N.J. 379 (1997).

Consistent with the dual purposes of the statute to

identify and eliminate unmeritorious claims against licensed

professionals and to permit meritorious claims to proceed

efficiently through the litigation process, Hubbard, supra, 168

N.J. at 395, the Court fashioned two equitable remedies “that

temper the draconian results of an inflexible application of the

statute,” Ferreira, supra, 178 N.J. at 151. Thus, a complaint

15

will not be dismissed if the plaintiff substantially complied

with the affidavit of merit obligations, Palanque, supra, 168

N.J. at 405-06; Fink, supra, 167 N.J. at 351-59, and a complaint

will be dismissed without prejudice if the plaintiff can

demonstrate extraordinary circumstances that prevented

compliance, Palanque, supra, 168 N.J. at 404-05.

Still, problems persisted, turning the seemingly

straightforward obligations of the statute into a procedural

minefield and spawning a new subset of motion practice in

professional liability litigation. It was in this context that

the Court declared in Ferreira that an accelerated case

management conference should be conducted within ninety days of

the filing of an answer to identify and address any and all

issues concerning the affidavit of merit served or not served by

the plaintiff. The Court directed that,

[a]t the conference, the court will address

all discovery issues, including whether an

affidavit of merit has been served on

defendant. If an affidavit has been served,

defendant will be required to advise the court

whether he has any objections to the adequacy

of the affidavit. If there is any deficiency

in the affidavit, plaintiff will have to the

end of the 120-day time period to conform the

affidavit to the statutory requirements. If

no affidavit has been served, the court will

remind the parties of their obligations under

the statute and case law.

[Ferreira, supra, 178 N.J. at 155.]

16

Soon thereafter, the Legislature enacted the Patients First

Act, adding further obligations to the affidavit of merit

requirement. This appeal presents the fourth occasion for this

Court to consider the issues that have arisen from the 2004

amendments. See Nicholas, supra, 213 N.J. 463; Buck, supra, 207

N.J. 377; Ryan, supra, 203 N.J. 37.

In this appeal, we address two issues. First, we address

whether the like-credential requirements of section 41 apply in

professional negligence actions other than medical malpractice

actions. Second, we address whether the Ferreira conference

conducted in this matter adequately addressed the sufficiency of

the affidavit of merit required for plaintiff’s dental

malpractice action to proceed. We review these legal issues de

novo. See Mortgage Grader, Inc. v. Ward & Olivio, L.L.P., ___

N.J. ___, ___ (2016) (slip op. at 10) (“An appellate court

interprets both statutes and court rules de novo.”). We

commence our discussion with the interpretive issue presented by

the affidavit of merit submitted by plaintiff in this action.

A.

The starting point for our inquiry is the text of two

statutes -- N.J.S.A. 2A:53A-27 and -41. Section 27 is the

central element of legislation adopted in 1995 and commonly

referred to as the AOM statute. L. 1995, c. 139. In general

terms, the Legislature established a procedure that required a

17

person alleging that certain designated professionals

negligently performed professional services to produce an

affidavit from an expert attesting to the merits of the claim.

Dentists were and continue to be among the licensed persons

covered by the AOM statute. N.J.S.A. 2A:53A-26(d).

Section 27, in its original form, provided 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

. . . 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 . . . standards or

treatment practices. . . . 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

certification or by devotion of the person’s

practice substantially to the general area or

specialty involved in the action for a period

of five years[.]

[L. 1995, c. 139, § 2 (codified at N.J.S.A.

2A:53A-27).]

The section also requires that the affiant have no financial

interest in the outcome of the matter. Ibid.

As part of certain 2004 tort reform measures regarding

medical malpractice actions, language was added to section 27,

L. 2004, c. 17, § 8, expressly directing that medical

18

malpractice actions be treated in accordance with the

requirements of section 41 of the Patients First Act. As

amended, the relevant portion of section 27 now states:

In the case of an action for medical

malpractice, the person executing the

affidavit shall meet the requirements of a

person who provides expert testimony or

executes an affidavit as set forth in [section

41].

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

The standards in the original statute continue to apply “[i]n

all other cases.” Ibid. In other words, in all negligence

actions against designated licensed professionals, other than

medical malpractice actions, the affidavit of merit is governed

by the original provisions of section 27.

Section 41 “establishes qualifications for expert witnesses

in medical malpractice actions” and “provides that an expert

must have the same type of practice and possess the same

credentials, as applicable, as the defendant health care

provider, unless waived by the court.” Assembly Appropriations

Comm., Statement to Assembly No. 50, at 2 (2004).

Section 41 precludes a person from providing expert

testimony or executing an affidavit of merit in a medical

malpractice action unless the expert or affiant is a licensed

physician or other health care professional in the United States

and meets other standards, depending on the qualifications and

19

area of practice of the party against whom or on whose behalf

the testimony is provided. See N.J.S.A. 2A:53A-41a. The

equivalency or kind-for-kind credential requirement may be

waived if the moving party demonstrates that a good faith effort

failed to yield a qualifying expert in the specialty or

subspecialty, and the trial court determines that the proposed

expert or affiant has sufficient training, experience, and

knowledge to provide an opinion. N.J.S.A. 2A:53A-41c. The

training, education, and experience must be derived from “active

involvement in, or full-time teaching of, medicine in the

appropriate area of practice or a related field of medicine.”

Ibid.

In Buck, supra, we characterized sections 41a and b of the

Patients First Act “as setting forth three distinct categories

embodying this “kind-for-kind” rule:

(1) those who are specialists in a field

recognized by the American Board of Medical

Specialties (ABMS) but who are not board

certified in that specialty;

(2) those who are specialists in a field

recognized by the ABMS and who are board

certified in that specialty; and

(3) those who are “general practitioners.”

[207 N.J. at 389.]

See also Nicholas, supra, 213 N.J. 483.

B.

20

To resolve the interpretive issue before the Court, that

is, whether a person submitting an affidavit of merit in a

dental malpractice action must comply with the enhanced

credential standards set forth in section 41, we must examine

the canons of statutory interpretation that apply to this case.

When the interpretation of a statute is at issue, “[t]he

objective of that task ‘is to discern and effectuate the intent

of the Legislature.’” Shelton v. Restaurant.com, Inc., 214 N.J.

419, 428-29 (2013) (quoting Murray v. Plainfield Rescue Squad,

210 N.J. 581, 592 (2012)).

We commence our examination of the text of the AOM statute

and the Patients First Act with section 27. See DiProspero v.

Penn, 183 N.J. 477, 492 (2005) (stating that best indicator of

Legislature’s intent is statutory language (citing Frugis v.

Bracigliano, 177 N.J. 250, 280 (2003)). In 2004, the AOM

statute was amended to add a sentence to section 27. That

sentence provides that “[i]n the case of an action for medical

malpractice, the person executing the affidavit shall meet the

requirements of a person who provides expert testimony or

executes an affidavit as set forth in [section 41].” L. 2004,

c. 17, § 8. The 2004 amendment then adds the phrase “in all

other cases” to the existing sentence that describes the

credentials for those submitting an affidavit of merit in

professional negligence actions. Ibid.

21

Section 41 addresses the qualifications for those providing

expert testimony or an affidavit of merit “in an action alleging

medical malpractice.” N.J.S.A. 2A:53A-41. The expert or

affiant must be a licensed physician, ibid., and must meet

additional criteria depending on the qualifications and area of

practice of the physician against whom or on whose behalf an

opinion is offered, N.J.S.A. 2A:53A-41a and b.

The plain language of section 41 states that the like-

qualified standards apply only to physicians. And it does so

repeatedly. For example, N.J.S.A. 2A:53A-41a governs parties to

a medical malpractice action who are specialists or

subspecialists recognized by the American Board of Medical

Specialties or the American Osteopathic Association. Those

organizations recognize and establish the criteria for board

certification only for physicians. The proposed expert or

affiant must have specialized in the same specialty or

subspecialty recognized by those organizations. Only a

physician may satisfy that standard. Further, if the physician

party is board certified in a specialty or subspecialty and the

care and treatment provided by the physician involved that

specialty or subspecialty, the expert or affiant must be a

physician with credentials from a hospital to treat patients for

the medical condition or perform the procedure that is the

subject of the claim, or a physician who possesses board

22

certification in the same specialty or subspecialty as the

physician and has devoted a majority of his or her professional

practice to that specialty or subspecialty through active

clinical practice or the instruction of students or both.

N.J.S.A. 2A:53A-41a.

Similarly, only a physician falls within the bounds of

N.J.S.A. 2A:53A-41b. That subsection addresses general

practitioners and limits the expert or affiant to a physician

(1) actively engaged in “clinical practice as a general

practitioner” or active in clinical practice involving the

medical condition or procedure that is the basis of the claim,

or (2) who instructs students at an accredited medical school,

health professional school, or residency or research program or

both. Ibid.

Interpreting section 41’s like-qualified credential

requirements as applying only to physicians who are defendants

in medical malpractice actions is also supported by and

consistent with the stated purpose of the Patients First Act and

its legislative history. See Wilson ex rel. Manzano v. City of

Jersey City, 209 N.J. 558, 572 (2012) (“When the statutory

language is sufficiently ambiguous that it may be susceptible to

more than one plausible interpretation, we may turn to such

extrinsic guides as legislative history, including sponsor

statements and committee reports.” (citing Burns, supra, 166

23

N.J. at 473)). In enacting the Patients First Act, the

Legislature made several findings and declarations regarding the

state of health care in this State and identified the retirement

or relocation of physicians as a problem hampering the delivery

of high-quality health care in New Jersey. See N.J.S.A. 2A:53A-

38. Furthermore, the Legislature determined that a confluence

of factors, including a dramatic escalation of medical

malpractice liability insurance premiums, was related to the

State’s tort liability system and contributing to the State’s

shortage of qualified physicians. Ibid. The Legislature

concluded that certain reforms were necessary to counteract the

identified problems. Ibid. One of those reforms is embodied in

the enhanced standards contained in section 41 governing a

person who submits an affidavit of merit or an expert opinion in

favor of or against a physician in a medical malpractice action.

The problems identified by the Legislature and the measures

adopted to address those problems pertain only to physicians.

There is no mention made of any other licensed professional in

section 41.

In sum, we conclude that the plain language of sections 27

and 41 lead to the inexorable conclusion that the enhanced

credential requirements established under section 41 for those

submitting affidavits of merit and expert testimony apply only

to physicians in medical malpractice actions. See Lozano v.

24

Frank DeLuca Constr., 178 N.J. 513, 522 (2004) (instructing that

court applies statute as written when legislative intent is

clear (citing In re Passaic Cty. Utils. Auth., 164 N.J. 270, 299

(2000))). This determination does not conclude our inquiry,

however, for we must determine whether section 27 itself imposes

a similar like-qualified standard for affiants and experts in

all other negligence actions against designated professionals,

including dentists.

C.

Plaintiff argues that section 27 does not impose a like-

qualified standard for the person selected to submit an

affidavit of merit in this dental malpractice action. Rather,

plaintiff contends that the affiant must be licensed to practice

dentistry in this state and have particular expertise in the

general area or specialty involved, which may be evidenced by

the affiant substantially devoting his practice to the area or

specialty involved.

Defendant disagrees. Defendant argues that only an

affidavit from a similarly credentialed dentist will satisfy the

AOM statute because he is a board-certified orthodontist and has

substantially devoted his practice to orthodontics.

The language under consideration from section 27 is not

new. Indeed, it has remained unchanged since the AOM statute

25

was adopted in 1995. The only addition to section 27 is a third

sentence directing that the standards governing the person

submitting an affidavit of merit or expert testimony against or

in support of a physician in a medical malpractice action shall

be governed by section 41.

On its face, section 27 requires a plaintiff to “provide

each defendant with an affidavit of an appropriate licensed

person.” Section 27 requires the affiant to be licensed in this

or another state and have “particular expertise in the general

area or specialty involved in the action.” Section 27 then

addresses the manner in which that expertise may be

demonstrated. There is simply no textual support for the

application of the like-qualified requirements of section 41 to

those submitting an affidavit of merit in negligence actions

against designated professionals, such as dentists.

D.

Relatively few opinions have directly addressed the

sufficiency of credentials of the person submitting the

affidavit of merit and, specifically, whether the person

submitting an affidavit of merit must be licensed in the same

profession or specialize in the same field as the defendant.

Those cases that have addressed the issue have held that in

certain circumstances the affiant should be a similarly licensed

professional but have not addressed whether the affiant must

26

share the defendant’s specialty. Hill Int’l v. Bd. of Educ.,

438 N.J. Super. 562, 570 (App. Div. 2014) (holding licensed

engineer not appropriately licensed person to provide affidavit

of merit against architect), appeal dismissed, 224 N.J. 523

(2016); Medeiros v. O’Donnell & Naccarato, Inc., 347 N.J. Super.

536, 542 (App. Div. 2002) (holding affidavit of merit submitted

by licensed engineer and architect against defendant engineering

firm sufficient); Borough of Berlin v. Remington & Vernick

Eng’rs, 337 N.J. Super. 590, 597-98 (App. Div.) (holding

licensed professional hydrogeologist appropriately licensed

person to submit affidavit of merit against defendant

engineering firm which allegedly negligently sited and

constructed two wells), certif. denied, 168 N.J. 294 (2001).

Hill International and Berlin emphasize that the like-

licensed requirement for the professional submitting the

affidavit of merit rests on the assumption that the negligent

services provided by the defendant professional were within his

or her profession or occupation. Hill Int’l, supra, 438 N.J.

Super. at 589; Berlin, supra, 337 N.J. Super. at 596-98; see

also Murphy v. New Road Constr., 378 N.J. Super. 238, 242-43

(App. Div.) (holding that affidavit of merit not required if

defendant’s conduct does not implicate standards of defendant’s

profession), certif. denied, 185 N.J. 391 (2005). In Berlin,

supra, the hydrogeologist affiant was considered an

27

appropriately licensed person because the complaint focused

solely on the alleged negligence of the engineering firm in

failing to adhere to recognized hydrogeologic guidelines, and

the negligent siting of two wells by its hydrogeologist

employee. 337 N.J. Super. at 596. In Hill International,

supra, the appellate panel held that, if the plaintiff’s claim

implicated the standards of care governing an architect, the

plaintiff’s affidavit of merit was required to be from an

architect. 438 N.J. Super. at 594.3

E.

Based on the plain language of section 27 and the manner in

which it has been applied since its adoption, we conclude that

section 27 requires no more than that the person submitting an

affidavit of merit be licensed in this state or another and have

“particular expertise in the general area or specialty involved

3 A pre-Patients First Act case, Wacht v. Farooqui, 312 N.J.

Super. 184 (App. Div. 1998), addressed whether the affiant must

share the same specialty as the defendant. The Appellate

Division permitted an orthopedic surgeon specializing in

shoulders and elbows to submit an affidavit of merit against a

board-certified radiologist. Citing the statutory requirement

that the affiant must have devoted at least five years to the

specialty involved in the action, the Appellate Division

determined that an orthopedic surgeon specializing in shoulders

possessed the particular expertise required to execute an

affidavit of merit. Id. at 187-88. The panel also referenced

the “overlap” of orthopedics and diagnostic radiology to support

its conclusion that the orthopedic surgeon possessed the

appropriate expertise to submit an affidavit of merit. Id. at

188.

28

in the action.” N.J.S.A. 2A:53A-27. Such particular expertise

is “evidenced by board certification or by devotion of the

person’s practice substantially to the general area or specialty

involved in the action for a period of at least five years.”

Ibid. (emphasis supplied). Notably, section 27 is bereft of the

rigid categories established in section 41 for those who are

general practitioners, board-certified specialists, or non-

board-certified specialists. See N.J.S.A. 2A:53A-41a and b.

Section 27 also employs the term “or” throughout its

recitation of the expertise required for an affiant. In

interpreting a statute, we must give meaning to every word.

Shelton, supra, 214 N.J. at 441. The word “or” is a disjunctive

term that permits a person to satisfy statutory conditions by

meeting one, rather than all, of the identified conditions. In

re Adoption of Children by G.P.B., 161 N.J. 396, 406 (1999). In

other words, a person may submit an affidavit of merit if the

affiant has particular expertise in the general area involved in

the action or in the specialty involved in the action. N.J.S.A.

2A:53A-27. Such particular expertise may be evidenced by board

certification or by devotion of his practice substantially to

the general area or specialty involved in the action for at

least five years. Ibid.

In most instances, we anticipate that the affiant and the

professional-defendant will be similarly licensed. However,

29

there may be circumstances when the alleged departure from the

professional standard of care is within the particular expertise

of two licensed professions. In such cases, in assessing the

sufficiency of the affidavit of merit, a court must focus, as in

Berlin, on the specific allegations of professional negligence.

Berlin, supra, 337 N.J. Super. at 597-98; cf. Garden Howe Urban

Renewal Assocs. v. HACBM Architects Eng’rs Planners, L.L.C., 439

N.J. Super. 446, 458-59 (App. Div. 2015) (holding that licensed

engineer could be qualified to render expert opinion against

architect regarding compliance with construction codes because

both types of professionals are responsible for knowledge of and

compliance with appropriate codes).4

F.

Measured by those standards, the affidavit of merit

submitted by plaintiff satisfied the requirements of section 27.

Dr. Samani is a licensed dentist. He also has particular

expertise in the diagnosis and treatment of sleep apnea -- the

general area that is the subject of this action -- having

devoted a significant portion of his practice to the diagnosis

and treatment of sleep apnea for over twenty years.

4 We therefore hesitate to endorse the broad statement expressed

in Hill International, supra, 438 N.J. Super. at 587, that

“[t]he professional has a right to expect that those standards

of care by which his or her conduct will be measured will be

defined by the same profession in which he or she holds a

license, and not by some other profession.”

30

In reaching that determination, we must acknowledge that

the treatment of sleep apnea is not exclusive to a single dental

specialty or subspecialty. A variety of professionals can treat

sleep apnea, including various types of dentists and physicians.

See Mayo Clinic Staff: Sleep Apnea Treatments and Drugs, Mayo

Clinic, http://www.mayoclinic.org/diseases-conditions/sleep-

apnea/basics/treatment/con-20020286 (last visited July 15,

2016). In particular, sleep apnea can be treated by both

orthodontists and prosthodontists, cf. ibid., which are two of

the nine dental specialties recognized by the American Dental

Association, see American Dental Association, Specialty

Definitions, http://www.ada.org/en/education-careers/careers-in-

dentistry/dental-specialties/specialty-definitions (last visited

July 15, 2016). An orthodontist is a “uniquely qualified

specialist[] who diagnose[s], prevent[s] and treat[s] dental and

facial irregularities to correctly align teeth and jaws.”

American Association of Orthodontists, Who We Are, https://

www.aaoinfo.org/about/what-we-do (last visited July 15, 2016).

“A prosthodontist is a dentist who specializes in the esthetic

restoration and replacement of teeth” and is a “master[] of

complete oral rehabilitation” whose expertise may be employed to

treat wide-ranging conditions including jaw joint disorders,

traumatic injuries to the mouth’s structures, snoring, and sleep

disorders. Pacific Coast Society for Prosthodontics, What is

31

Prosthodontics?, http://www.pcsp.org/whatisprostho.html (last

visited July 15, 2016). A prosthodontist, therefore, is capable

of having the “particular expertise” necessary to prepare an

affidavit of merit in support of a claim regarding negligent

dental treatment for sleep apnea. Plaintiff’s affiant has

demonstrated the requisite particular expertise to further the

purpose of identifying meritorious professional negligence

claims.

Having concluded that the affidavit of merit submitted by

plaintiff is sufficient, we need not resort to the equitable

remedies of substantial compliance and good faith effort that

permit relaxation of the affidavit of merit requirements. The

statute imposes no more than a licensure requirement and

particular expertise in the general area or specialty involved

in the action. Dr. Samani satisfies those requirements. He

does not have to share the same specialty or subspecialty as

defendant. Section 27 imposes only licensure and particular

expertise standards for affiants; it does not -- either on its

face or as applied since its enactment -- impose a like-

credential standard akin to that of section 41.

We also have no need to remand this matter to the trial

court for an appropriate case management conference and review

of the sufficiency of Dr. Samani’s affidavit because the

affidavit is sufficient. Cf. Buck, supra, 207 N.J. at 395.

32

This appeal, however, illustrates that a timely and effective

Ferreira conference continues to be a critical component of

fulfilling the purpose of the AOM statute.

An effective Ferreira conference would probably have

prevented this appeal. The trial court pointedly declined to

resolve the issues presented by plaintiff. The court stated

that it could not give advice to plaintiff and failed to elicit

any statement or representation from defense counsel as to

whether defendant’s treatment of plaintiff was within his

specialty of orthodontics, but informed plaintiff that he was

required to submit an affidavit of merit from a dentist. In

sum, the Ferreira conference failed to achieve its purpose of

identifying and resolving any affidavit of merit problems before

imposing the ultimate sanction of a dismissal with prejudice.

IV.

In conclusion, we hold that the enhanced requirements of

section 41 governing the qualifications of persons permitted to

submit an affidavit of merit, or to provide expert testimony

against or in support of a physician, in a medical malpractice

action apply only in medical malpractice actions. In all other

actions against a licensed professional, including a dentist,

section 27 prescribes the qualifications of the person who may

submit an affidavit of merit against a licensed professional who

is alleged to have acted negligently. The affiant must hold an

33

appropriate license and must demonstrate particular expertise in

the general area or specialty involved in the action, but he or

she is not required to possess credentials equivalent to those

of the licensed professional defendant. Neither the plain

language nor the purpose and history of the AOM statute or

Patients First Act support importation of the like-credential

standard governing physicians in medical malpractice actions to

professional negligence actions governed by section 27.

We also hold that the affidavit of merit submitted by

plaintiff satisfies section 27. The affiant is a licensed

dentist who has particular expertise in the diagnosis and

treatment of sleep apnea -- the general area involved in the

professional negligence action filed by plaintiff.

This appeal also illustrates the need for a timely and

effective Ferreira conference in all professional negligence

actions. The conference is designed to identify and resolve

issues regarding the affidavit of merit that has been served or

is to be served. To that end, all participants must be prepared

to identify at the conference the general area or specialty

involved in the action and whether the defendant was providing

professional services within that profession or specialty. We

request that the Civil Practice Committee consider whether Rule

4:5-3 should be amended to embrace all professional negligence

actions subject to the AOM statute.

34

V.

The judgment of the Appellate Division is reversed.

CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-

VINA and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICE

PATTERSON did not participate.

35