Appellate Division Maintains Kind-for-Kind, Credential Equivalency Requirement Under Affidavit of Merit Statute

The plaintiffs alleged that the defendant, Dr. Goyal, prescribed tramadol to the decedent for pain associated with a medical condition. One month later, a different doctor prescribed allopurinol (a medication to treat high uric acid levels) to the decedent. The plaintiffs asserted that the decedent suffered an allergic reaction from either medication or a combination of the two and was subsequently treated for Stevens-Johnson Syndrome, a rare disorder most commonly caused by an adverse drug reaction. The plaintiffs asserted that the decedent suffered and ultimately died from cardiopulmonary arrest, attributed, in part, to her development of Stevens-Johnson Syndrome.

Dr. Goyal specialized in both internal medicine and gastroenterology, and the plaintiffs served an Affidavit of Merit (AOM) against all defendants from a physician who specialized in internal medicine, but not in gastroenterology. The trial court held that the AOM was sufficient because the affiant specialized in internal medicine—one of the two fields of Dr. Goyal’s expertise.

On appeal, however, the New Jersey Appellate Division held that the trial court erred in finding the plaintiffs met the kind-for-kind specialty requirement when they only served an AOM from an internal medicine physician as to Dr. Goyal—a board-certified physician in two specialties. Because the affiant of merit was a “lesser-qualified” doctor than Dr. Goyal, the court found that the submission of this AOM would contravene the purpose of the AOM statute itself. The court held, “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.” As a result, the court determined that the complaint should have been dismissed by the trial court on this basis alone. 

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