ASSEMBLY, No. 1810

STATE OF NEW JERSEY

215th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION

 


 

Sponsored by:

Assemblyman  HERB CONAWAY, JR.

District 7 (Burlington)

 

 

 

 

SYNOPSIS

     Revises standards for expert witnesses in medical malpractice actions.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act concerning expert witnesses in medical malpractice actions and amending P.L.2004, c.17.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    Section 7 of P.L.2004, c.17 (C.2A:53A-41) is amended to read as follows:

     7.    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 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] and

     (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 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].

     b.    If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, 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:

     (1)   active clinical practice as a general practitioner; or active clinical practice that encompasses the medical condition, or that includes performance of the procedure, that is the basis of the claim or action; or

     (2)   the instruction of students in an accredited medical school, health professional school, or accredited residency or clinical research program in the same health care profession in which the party against whom or on whose behalf the testimony is licensed; or

     (3)   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 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]:

     (1)   the expert specializes in a substantially similar speciality or subspecialty that includes the evaluation, diagnosis or treatment of the medical condition that is the subject of the claim or action and has prior clinical experience treating similar patients;

     (2)   if the party against whom or on whose behalf the testimony is offered is board certified in a speciality or subspecialty, the expert is certified by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association in a specialty or subspecialty having acknowledged expertise and training directly related to the particular health care matter at issue;

     (3)   the expert has devoted a majority of his professional time during the five years immediately preceding the date of the occurrence that is the basis for the claim or action to the active clinical practice of the same or a substantially similar specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; and

     (4)   the expert has demonstrated to the satisfaction of the court both that the standards of care and practice in the two specialties or subspecialties are similar and that the expert has substantial familiarity between the specialties or subspecialties.

     d.    Nothing in this section shall limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.

     e.     In an action alleging medical malpractice, an expert witness shall not testify on a contingency fee basis.

     f.     An individual or entity who threatens to take or takes adverse action against a person in retaliation for that person providing or agreeing to provide expert testimony, or for that person executing an affidavit pursuant to the provisions of P.L.1995, c.139 (C.2A:53A-26 et seq.), which adverse action relates to that person's employment, accreditation, certification, credentialing or licensure, shall be liable to a civil penalty not to exceed $10,000 and other damages incurred by the person and the party for whom the person was testifying as an expert.

(cf: P.L.2004, c.17, s.7)

 

     2.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill tightens the standards and requirements for expert witnesses in actions involving medical malpractice and amends N.J.S.A.2A:53A-41, which sets forth the standards for expert witnesses.

     The bill makes the following changes to the expert witness requirements:

C   the bill deletes the option that an expert witness for a specialist or subspecialist would be qualified to give testimony if the person is either a hospital-credentialed physician or a board certified specialist or subspecialist in the same specialty or subspecialty and requires, instead, that the person be both hospital-credentialed and board certified;

C   the bill deletes the option that an expert witness for a specialist or subspecialist would be qualified to give testimony if the person devotes a majority of his professional time to 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 requires, instead, that the person devote a majority of his professional time to the active clinical practice of the same health care profession in which the defendant is licensed; and

C   regarding the court's option to waive the same specialty or subspecialty requirement for an expert witness, the bill provides that the waiver shall be granted if the court determines that:

       (1)  the expert specializes in a substantially similar speciality or subspecialty that includes the evaluation, diagnosis or treatment of the medical condition that is the subject of the claim or action and has prior clinical experience treating similar patients;

       (2) if the party against whom or on whose behalf the testimony is offered is board certified in a speciality or subspecialty, the expert is certified by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association in a specialty or subspecialty having acknowledged expertise and training directly related to the particular health care matter at issue;

       (3) the expert has devoted a majority of his professional time during the five years immediately preceding the date of the occurrence that is the basis for the claim or action to the active clinical practice of the same or a substantially similar specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; and

       (4) the expert has demonstrated to the satisfaction of the court both that the standards of care and practice in the two specialties or subspecialties are similar and that the expert has substantial familiarity between the specialties or subspecialties.