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Buck v. Henry
Under the New Jersey Affidavit of Merit statute, plaintiff in a medical malpractice action must provide an affidavit from an equivalently credentialed physician attesting that there is a reasonable probability that the defendant physician’s treatment fell outside acceptable professional standards.
Plaintiff Robert Buck sued defendant Dr. James Henry, who had diagnosed Buck as suffering from depression and insomnia and prescribed an anti-depressant and a sleep aid. Plaintiff alleged that Dr. Henry failed to properly treat him.
In March 2009, Plaintiff provided an affidavit of merit signed by Dr. Larry Kirstein, a licensed psychiatrist, who concluded that Dr. Henry’s treatment fell outside acceptable standards. In April 2009, due to a clerical error, the trial court mistakenly issued an order stating that “all issues involving the Affidavit of Merit statute have been addressed” and “there is no need” for a Ferreira conference.
Dr. Henry moved for summary judgment, claiming that the affidavits were not from equivalent specialists. The court found that Dr. Henry was a family-medicine specialist based on his certification and, thus, Plaintiff was required to obtain an affidavit from a specialist in family medicine. The court therefore granted Dr. Henry’s motion and dismissed the case with prejudice.
The Appellate Division affirmed.
Upon review, the Supreme Court reversed the appellate and trial courts and remanded a Ferreira conference. The Court found Plaintiff acted in good faith in filing affidavits of merit from two different medical specialists; and if the conference had been conducted as required and the trial court found deficiencies, Plaintiff would have had additional time to submit an affidavit that conformed to the merit statute.