In Wiggins v. Hackensack Meridian Health (A-43-23/089441) (Decided January 22, 2025), the New Jersey Supreme Court held that when a defending physician practices in more than one specialty and the treatment involved falls within any of that physician’s specialty areas, then an affidavit of merit (AOM) from a physician specializing in one of those specialties is sufficient.
Facts of Wiggins v. Hackensack Meridian Health
Plaintiffs, the administrators of the Estate of April Carden, filed a medical malpractice complaint against defendants Hackensack Meridian Health d/b/a JFK University Medical Center (JFK), Alok Goyal, M.D., and South Plainfield Primary Care (SPPC) (collectively, defendants).
The Plaintiffs allege that Carden’s death was directly attributable to Allopurinol prescribed by Dr. Goyal, that Dr. Goyal’s negligence caused Carden’s death, and that JFK and SPPC were vicariously liable because Dr. Goyal was an “agent, servant, or employee” of both.
Dr. Goyal and SPPC filed their answer and included the following Rule 4:5-3 Specialty Statement: “At all relevant times, these defendants practiced the medical specialties of Internal Medicine and Gastroenterology and their treatment of [Carden] involved the medical specialties of Internal Medicine and Gastroenterology.”
Plaintiffs provided each defendant with an AOM from Dr. Stella Jones Fitzgibbons, who is board certified by the American Board of Internal Medicine. Defendants stated that Dr. Fitzgibbons was unqualified to execute an AOM as to them. Dr. Goyal amplified his Specialty Statement, noting that “[a]ll treatment that I rendered to [Carden] was provided as both an internist and as a gastroenterologist.” Defendants then moved to dismiss the complaint for failure to comply with the AOM statute.
Plaintiffs argued that internists prescribe Allopurinol, not gastroenterologists. Alternatively, they argued that, given defendants’ Specialty Statement, an AOM from an internist is sufficient. The trial judge denied the motions to dismiss the complaint. He found “that the ‘care and treatment at issue’ was the prescribing of Allopurinol, and the ‘care or treatment at issue involves internal [medicine].’”
Relying on Buck v. Henry, 207 N.J. 377 (2011), the trial judge concluded alternatively that plaintiffs complied with the AOM statute by submitting the AOM from Dr. Fitzgibbons, who is board certified in internal medicine. In Buck, the Supreme Court found that when a physician practices “in more than one specialty, and the treatment involved may fall within that physician’s multiple specialty areas . . . an [AOM] from a physician specializing in either area will suffice.” The judge later denied defendants’ motion for reconsideration. The Appellate Division reversed, concluding that plaintiffs were required to “serve an AOM from a physician board certified in each of [Dr. Goyal’s] specialties” and that the language from Buck on which the trial court relied was dicta.
NJ Supreme Court’s Decision in Wiggins v. Hackensack Meridian Health
The New Jersey Supreme Court reversed. It held that when a defending physician practices in more than one specialty and the treatment involved falls within any of that physician’s specialty areas, then an AOM from a physician specializing in one of those specialties is sufficient under the statutes.
As explained by the New Jersey Supreme Court, N.J.S.A. 2A:53A-27 requires a medical malpractice plaintiff to show that the complaint is meritorious by obtaining an affidavit from “an appropriate licensed person” attesting to the “reasonable probability” of professional negligence. Enacted in 2004, the Patients First Act (N.J.S.A. 2A:53A-41) adds to the AOM statute the “equivalently qualified” requirement for an AOM in a medical malpractice case.
For those physicians who are specialists in a field recognized by the American Board of Medical Specialties and who are board certified in that specialty, the challenging expert must either be credentialed by a hospital to treat the condition at issue or be board certified in the same specialty in the year preceding the occurrence that is the basis for the claim or action.
The New Jersey Supreme Court next turned to Buck, which it found provided guidance —which was not dicta — germane to when a defending physician practices in more than one specialty and when the treatment involved may fall within those specialty areas.
As Justice Fasciale explained, “‘[M]atters in the opinion of a higher court which are not decisive of the primary issue presented but which are germane to that issue … are not dicta, but binding decisions of the court’ [and] ‘the legal findings and determinations of a high court’s considered analysis must be accorded conclusive weight by lower courts.’”
Turning to the text of the statute, the New Jersey Supreme Court emphasized that the AOM statute referenced “specialty” or “subspecialty” in the singular, indicating that the statute only required one specialty. Justice Fasciale wrote:
It is undisputed that Dr. Goyal is board certified in the specialty of internal medicine and in the subspecialty of gastroenterology. N.J.S.A. 2A:53A-41(a) requires the affiant of the AOM to be board certified in the same “specialty or subspecialty” of the defending physician, not specialties or subspecialties. N.J.S.A. 2A:53A-41(a)(2)(a) requires the affiant of the AOM to devote a majority of that person’s “active clinical practice” to the defending physician’s “specialty or subspecialty,” not specialties or subspecialties. Dr. Fitzgibbons meets those requirements. The plain language of N.J.S.A. 2A:53A-41 does not require an AOM to be from an individual with the same numerous specialties as the defending physician; instead, it requires only the same “specialty or subspecialty” in the singular (emphasis added). The New Jersey Supreme Court also found that the AOM complied with Buck. “Under Buck, when ‘the treatment involved may fall within [a] physician’s multiple specialty areas’ — as is the case here — ‘an [AOM] from a physician specializing in either area will suffice,’” Justice Fasciale wrote. “Therefore, Dr. Fitzgibbons’ AOM complies with the AOM statute, N.J.S.A. 2A:53A-41(a)(2)(a), and Buck, neither of which require an AOM from an individual matching all areas of practice if a defending physician practices in multiple specialty areas.”