noting the potential necessity of an evidentiary hearing to resolve "competing affidavits" about critical facts
How later courts described this case
- noting the potential necessity of an evidentiary hearing to resolve "competing affidavits" about critical facts
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3516-22
MARGARET PIKE, executrix
of the Estate of JOHN LONG, and
MARGARET PIKE, individually,
Plaintiffs-Appellants,
v.
RAFFAELE CORBISIERO, M.D.,
and DEBORAH HEART AND
LUNG CENTER,
Defendants-Respondents,
and
MICHAEL ZALENSKI,
D.O., NICHOLAS E. ROY, D.O.,
CORINNE MIKLAS, D.O., and
JEFFERSON CHERRY HILL
HOSPITAL, i/j/s/a,
Defendants.
______________________________
Submitted May 13, 2024 — Decided May 20, 2024
Before Judges Sabatino and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Civil Part, Burlington County, Docket No.
L-1532-21.
Ginsberg & O'Connor, PC, attorneys for appellants
(Gary D. Ginsberg, on the briefs).
Ronan, Tuzzio & Giannone, attorneys for respondents
(Jennifer N. Cortopassi, of counsel and on the brief;
Robert G. Maglio, on the briefs).
PER CURIAM
This medical malpractice appeal concerns the sufficiency of an affidavit
of merit ("AOM") provided in a situation where a defendant physician's answer
to the complaint identified a specialty and a subspecialty in which he was board
certified at the time of a plaintiff's care and which he attests were both involved
in the treatment, but where the plaintiff provided an AOM from a physician
board certified in only one of the two credentials. As we discuss, this "kind-for-
kind credentialing" question of law was addressed in this court's recent
published opinion in Wiggins v. Hackensack Meridian Health, __ N.J. Super. __
(App. Div. 2024).
As we explain herein, Wiggins held that if a defendant physician has board
certifications in two specialties or subspecialties at the relevant time and the
allegedly negligent treatment involved both of those credentials, then a plaintiff
is required to serve an AOM from a physician who is board certified in each of
A-3516-22
2
defendant's specialties. We apply Wiggins to the present case, and affirm the
trial court's dismissal of plaintiff's complaint for lack of an adequate AOM.
I.
The circumstances involve a medical malpractice complaint by decedent
John Long's executrix Margaret Pike 1 against multiple medical professionals,
including Rafaele Corbisiero, M.D., and the Deborah Heart and Lung Center.
The other defendants have been dismissed from the case.
Defendants' answer stated that Dr. Corbisiero "specialized in
[c]ardiovascular [d]isease and [c]linical [c]ardiac [e]lectrophysiology at the
time that he rendered treatment to plaintiff, with such treatment involving
cardiovascular disease and clinical cardiac electrophysiology." (Emphasis
added).
Plaintiff timely filed an AOM from Bruce Charash, M.D., a board certified
physician specializing in cardiology. Dr. Charash's AOM stated there was "a
reasonable probability that the skill, care, and knowledge exercised by [Dr.
Corbisiero], in the cardiac treatment of [plaintiff], fell outside accepted
standards of medical care."
1
For simplicity, we will generally refer to decedent as "plaintiff."
A-3516-22
3
Defendants moved to dismiss the complaint for failure to comply with the
New Jersey Medical Care Access and Responsibility and Patients First Act
("PFA"), N.J.S.A. 2A:53A-37 to -42. The motion asserted that "[a]s set forth in
the Answer, [Dr. Corbisiero] is board certified in Cardiovascular Disease and
Clinical Cardiac Electrophysiology." It noted that the plaintiff's AOM came
from Dr. Charash, "a board certified Cardiologist [who did] not practice in
electrophysiology" and who therefore was "unqualified to render an AOM
against Dr. Corbisiero." Defendants further asserted that they "advised plaintiff
as such, and plaintiff advised it is [plaintiff's] position that the AOM authored
by Dr. Charash is compliant since the [alleged] negligence pertains to
cardiology."
After initially hearing oral argument on the dismissal motion, the trial
court instructed plaintiff to obtain a certification from Dr. Charash explaining
further his opinion about the appropriate specialties or subspecialties involved
in plaintiff's care. Plaintiff filed the requested certification from Dr. Charash.
It stated that "[t]his case [wa]s about improper dosing of Amiodarone based on
[plaintiff's] presentation of atrial fibrillation." The certification further
elaborated that "[a]s a cardiologist, [Dr. Charash] deal[s] with atrial fibrillation
on a daily basis and manage[s] arrhythmias which includes the prescribing of
A-3516-22
4
Amiodarone which is kind of basic cardiology." Finally, the certification
maintained that the "case d[id] not involve any of the[] issues" that "[a]n
electrophysiologist has the ability to perform," nor the "training and experience"
to deal with.
Upon reviewing Dr. Charash's certification, the trial court entered an order
denying defendants' motion to dismiss on December 2, 2022. However,
defendants moved for reconsideration and persuaded the trial court to reverse its
decision, based on newly decided case law, specifically Pfannenstein ex rel.
Estate of Pfannenstein v. Surrey, 475 N.J. Super. 83 (App. Div. 2023), certif.
denied, 254 N.J. 517 (2023) (holding that an AOM from a physician who
specialized in hematology did not satisfy the PFA's kind-for-kind specialty
requirement, since the defendant physician specialized in internal medicine).
On reconsideration, the trial court, applying Pfannenstein, determined that
the defendant physician's subspeciality of clinical cardiac electrophysiology was
involved in plaintiff's treatment, not cardiology, and ordered plaintiff to submit
an AOM from a physician who is board certified in clinical cardiac
electrophysiology. When counsel failed to submit the required AOM and
informed the trial court that plaintiff would not be filing one, the court dismissed
the complaint.
A-3516-22
5
Plaintiff now appeals the reconsideration ruling. Plaintiff is steadfast in
asserting that the AOM from his expert cardiologist suffices, since defendant
physician's other subspecialty of clinical cardiac electrophysiology is allegedly
irrelevant. Alternatively, even if both subspecialities were involved, plaintiff
asserts the AOM is sufficient because both the defendant physician and the
AOM physician are board certified in cardiology.
II.
The PSA prescribes, in pertinent part, as follows:
In an action alleging medical malpractice, a person
shall not give expert testimony or execute an affidavit
pursuant to the provisions of P.L. 1995, c.139
(C.2A:53A-26 et seq.) 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 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
A-3516-22
6
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 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
A-3516-22
7
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
American Board of Medical
Specialties or the American
Osteopathic Association; or
(c) both.
....
c. 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
A-3516-22
8
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(a)-(c) (emphasis added).]
We most recently applied the PFA in Wiggins, which involved an AOM
from a physician who was only board certified in internal medicine, even though
the defendant physician was certified in both internal medicine and
gastroenterology. The defendant's answer attested the plaintiff's care involved
both specialties.
We held in Wiggins that where "the treatment claimed to be negligent
involves both specialties," "plaintiffs must serve an AOM from a physician
board certified in each of defendant doctor's specialties." __ N.J. Super. at __.
We addressed the plaintiff's reliance on language from the Supreme Court in
Buck v. Henry, 207 N.J. 377, 391 (2011), which stated: "A physician may
practice in more than one specialty, and the treatment involved may fall within
that physician's multiple specialty areas. In that case, an [AOM] from a
physician specializing in either area will suffice." Ibid. (emphasis added).
However, Wiggins reasoned that its "careful reading of Buck and its progeny
support[ed] [its] conclusion that the language relied upon by plaintiffs and the
A-3516-22
9
trial court [which we have underscored above] was dicta and not controlling in
the circumstances presented." Id. at 25.
Wiggins noted that allowing plaintiffs to submit only the AOM issued by
a physician specializing in just one of multiple specialties of a defendant
physician would "contravene[] the purpose of the [PFA]" because the Supreme
Court views the statute "'as a framework in which only an equivalently
credentialed specialist would be qualified to testify against another specialist.'"
Id. at 26 (emphasis added) (first citing Buck, 207 N.J. at 391 n.8; and then
quoting Nicholas v. Mynster, 213 N.J. 463, 483 (2013)). "In short, a plaintiff
cannot choose the specialty that the defendant physician was practicing when
treating the patient; the plaintiff must respond to the information provided by
the doctor in the answer." Ibid.2
After the opinion in Wiggins was issued, we invited counsel to submit
supplemental briefs addressing its implications for this case, particularly
considering plaintiff's reliance on the same language from Buck that Wiggins
found to be mere dicta. Defense counsel submitted a supplemental brief
asserting that Wiggins clearly supports dismissal here.
2
As of this time, the plaintiff in Wiggins has not sought Supreme Court review
of our decision.
A-3516-22
10
Plaintiff, meanwhile, asserted in a supplemental brief that Wiggins
incorrectly decided the issue by "fail[ing] to follow[] the principles set forth in
Buck" and "the plain language of N.J.S.A. 2A:53A-41." Plaintiff contends the
relevant passage in Buck was not dicta and Wiggins would require the Supreme
Court "to disavow itself from its own statement." Plaintiff also contends,
tracking the language of N.J.S.A. 2A:53A-41, that an expert need only specialize
in the same specialty or subspecialty of the defendant, which Dr. Charash does,
so the AOM is compliant with the statute.
We reject plaintiff's attempt to distinguish Wiggins. The plain language
of the PFA does not state, as plaintiff argues, that a plaintiff's AOM affiant does
not have to specialize in each subspecialty practiced by a defendant physician
that is involved in the plaintiff's care and treatment. The statute recognizes that
multiple specialties or subspecialties can be involved in a plaintiff's care, and
that the AOM physician's credentials must match the specialties or
subspecialties that were involved.3
3
Notably, plaintiff did not opt to invoke the "waiver" portion of the statute that
allows a plaintiff to seek relief from the court when no licensed professional can
be located who has the requisite specialty to supply an AOM, N.J.S.A. 2A:53A-
41(c).
A-3516-22
11
We are mindful the trial court was presented with conflicting assertions
by Dr. Corbisiero and Dr. Charash disputing whether plaintiff's care did or did
not involve the specialty (or subspecialty) of clinical cardiac electrophysiology.
The Supreme Court's jurisprudence to date has not addressed how a trial court
should resolve such a factual dispute. Buck identified as the court's "second
inquiry" "whether the treatment that is the basis of the malpractice action
'involves' the physician's specialty." 207 N.J. at 391. But the Court had no
occasion to resolve the appropriate process that should be undertaken where, as
here, there are conflicting submissions about the specialty "involved" provided
by a defendant physician and the AOM affiant.
It might be posited that a plenary hearing with testimony from the
competing experts, deposition transcripts, or other evidence would be beneficial
to ascertain the truly "involved" specialties or subspecialties. See, e.g., State v.
Gaitan, 209 N.J. 339, 381 (2012) (noting the potential necessity of an
evidentiary hearing to resolve "competing affidavits" about critical facts). On
the other hand, such a plenary hearing could undercut the objectives of the PFA
and the AOM process to screen out, at the early stages of litigation without
undue expense, unmeritorious claims of professional malpractice. See Buck,
207 N.J. at 393-94.
A-3516-22
12
In the absence of a Supreme Court opinion or directive requiring such a
plenary hearing, we decline to remand for that purpose. The trial court's decision
did not run afoul of existing precedent, and there are at least substantial, albeit
not uncontested, grounds in the record to support the court's determination of
the "involved" subspecialty.
Putting aside the AOM affiant's disagreement, there is no indication that
Dr. Corbisiero's assertion of his subspecialty's involvement in plaintiff's care
was misleading or unfounded. Nor was plaintiff deprived of a Ferreira
conference to attempt to resolve the issue. See Ferreira v. Rancocas Orthopedic
Assocs., 178 N.J. 144, 154 (2003); see also Buck, 207 N.J. at 394-95.
Given these circumstances, we must apply the precedents in Wiggins and
Pfannenstein and uphold the trial court's ruling that the AOM supplied by
plaintiff failed to meet the statute's "kind-for-kind" credentialing requirement.
Affirmed.
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