SZEMPLE v. UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY et al

Filing 108

OPINION. Signed by Judge Kevin McNulty on 2/8/2016. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CRAIG FRANCIS SZEMPLE,

Civ. No. 10-258 (KM)

Plaintiff,
OPINION
UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY,
et al.,
Defendants.

MCNULTY, U.S.D.J.
I.

INTRODUCTION
Plaintiff Craig Francis Szemple, while an inmate at the New Jersey State

Prison in Trenton, developed a dental problem.’ Dr. Charles Getzoff, D.D.S., an
oral surgeon, performed a tooth extraction at the prison medical clinic. Szemple
alleges that Dr. Getzoff broke a filling, severed nerves, and cut a major blood
vessel under the tongue. Afterward, bleeding continued, and Szemple lost some
1.5 liters of blood. He required hospitalization and transfusions, and suffered
other medical consequences.
In 2010, Szemple brought this action alleging, inter alia, state law claims
of dental malpractice. Among the named defendants are Dr. Getzoff, the
2
University of Medicine and Dentistry of New Jersey (“UMDNJ”, now part of
Rutgers), and University Correctional Healthcare (“UCH”). Those Defendants
These facts, taken from the allegations of the Complaint, have not been tested
by any fact fmder. They are stated simply to set out the nature of Szemple’s claims for
purposes of this motion.
1

Szemple filed the action pro se. District Judge Dennis M. Cavanaugh, now
retired, authorized appointment of pro bono counsel in October 2013. Counsel was
actually appointed on April 16, 2014, the same day the case was reassigned to me. Dr.
Richard Mann, one of the defendants/movants here, was voluntarily dismissed from
the action. (ECF No. 97)
2

1

3
have moved to dismiss the complaint. They contend that Szemple has not
served a timely, proper Affidavit of Merit (“AOM”).
Defendants brought their motion as one to dismiss for failure to state a
claim under FED. R. Civ. P. 12(b)(6). An AOM, however, is not strictly speaking
an element of a claim. In addition, the defendants’ motion attaches exhibits
and affidavits extraneous to the pleadings. (ECF Nos. 84, 85) I therefore
invoked my discretion under FED. R. CIV. P. 12(d) to convert the motion to one
for summary judgment. (See Memorandum and Order, ECF No. 99, citing
Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. Withum Smith
Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir. 2012)). Because Szemple did not
have fair warning that he was in jeopardy of summary judgment, I gave him 14
days to submit any additional proofs. He opted not to do so. (ECF No. 100) In
the end, however, it matters little; as plaintiff’s counsel implies, id., the issue is
predominantly one of law, based on matters of procedural history.

II.

DISCUSSION
In an action alleging professional malpractice, New Jersey requires an

Affidavit of Merit (“AOM”). See the Affidavit of Merit Statute (“AMS”), N.J. Stat.
Ann.

§ 2A:53A-26 to 29. Within 120 days after the defendant files an answer,

the malpractice plaintiff must file such an affidavit from an appropriate
licensed professional. That AOM must state, to a reasonable probability, that
the defendant’s conduct fell short of accepted standards in the relevant
profession. If a proper, timely AOM is not filed, the case will be dismissed.
“Defendants”, in this opinion, refers to the movants only. Defendants’ moving
brief (ECF No. 84) is cited as “DBr”; the plaintiffs response (ECF No. 85) as “PB?; and
Defendants’ reply (ECF No. 86) as “DRep”.
4
A federal court must apply the AOM requirement to malpractice claims under
New Jersey law, whether under diversity jurisdiction or the Federal Tort Claims Act.
See Kindig v. Gooberman, 149 F. Supp. 2d 159, 163 (D.N.J. 2001) (diversity; citing
Chamberlain v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000)); Fontanez v. United
States, 24 F. Supp. 3d 408, 411 (D.N.J. 2014) (Donio, U.S.M.J.) (FTCA case; citing
Staub v. United States, No. 08-206 1, 2010 WL 743926, at *2 (D.N.J. Mar. 3, 2010)). A
fortiori, it applies to state law claims brought in their own right, pursuant to the
Court’s supplemental jurisdiction. 28 U.S.C. § 1367.
2

Here, the claim is one of dental malpractice. It is brought against, among
others, Dr. Getzoff, who is a dentist specializing in oral surgery. The plaintiff,
Szemple, filed and served an AOM on November 5, 2014. (ECF No. 79) That
AOM, signed by Dr. Martin Giniger, DMD, MsD, PhD, FICD, states that there is
“a reasonable probability that the skill, care, and knowledge exercised by the
dental (and other) professional defendants during Mr. Szemple’s tooth
extraction and thereafter, fell below the accepted professional standard of
care.” Id.
A.

The AOM statutory scheme

The requirement of an AOM is intended to screen out meritless
malpractice claims:
The core purpose underlying the [AMS] is to require plaintiffs
to
make a threshold showing that their claim is meritorious, in order
that meritless lawsuits readily could be identified at an early stage
of litigation. Importantly, there is no legislative interest in barring
meritorious claims brought in good faith. Indeed, [tjhe legislative
purpose was not to create a minefield of hyper-technicalities in
order to doom innocent litigants possessing meritorious claims.
...

Ryan v. Renny, 999 A.2d 427, 435—36 (N.J. 2010) (internal quotations
and citations omitted).
The AMS sets forth the basic AOM requirement as follows:
In any action for damages for personal injuries, wrongful death or
property damage resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or occupation,
the plaintiff shall, within 60 days following the date of filing of the
answer to the complaint by the defendant, provide each defendant
with an affidavit of an appropriate licensed person that there exists
a reasonable probability that the care, skill or knowledge exercised
or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional or
occupational standards or treatment practices. The court may
grant no more than one additional period, not to exceed 60 days, to
file the affidavit pursuant to this section, upon a finding of good
cause.
N.J. Stat. Ann.

§ 2A:53A-27. A plaintiff’s failure to file an AOM from an

appropriate licensed person, unless excused by extraordinary circumstances, is
3

§

grounds for dismissal of the complaint with prejudice. See N.J. Stat. Ann.
2A:53A-29; Palanque v. Lambert Wooley, 774 A.2d 501, 505 (N.J. 2001).

The AMS defines the class of cases in which an AOM must be filed. An
AOM is required, not just in medical cases, but in “all actions for damages
based on professional malpractice,” Ryan, 999 A.2d at 435, brought against “a
licensed person in his profession or occupation,” N.J. Stat. Ann.

§ 2A:53A-27.

5
The AMS specifies sixteen such professions and occupations. As relevant here,
a covered professional includes “a dentist licensed under [N.J. Stat. Ann.
45:6-1” as well as “a health care facility.” N.J. Stat. Ann.

§]

§ 2A:53A-26.

Business organizations of licensed professionals are likewise covered. See
More specifically, the AMS defines licensed professionals by means of a list:
“Licensed person” defmed
As used in this act, “licensed person” means any person who is licensed as:
a. an accountant pursuant to [N.J. Stat. Ann. § 45:2B—42 to —75];
b. an architect pursuant to [N.J. Stat. Ann. § 45:3—1 to —46];
c. an attorney admitted to practice law in New Jersey;
d. a dentist pursuant to [N.J. Stat. Ann. § 45:6—1 to —73];
e. an engineer pursuant to [N.J. Stat. Ann. § 45:8—27 to —60];
f. a physician in the practice of medicine or surgery pursuant to [N.J. Stat.
Ann. § 45:9—1 to —58];
g. a podiatrist pursuant to [N.J. Stat. Ann. § 45:5—1 to —20];
h. a chiropractor pursuant to [N.J. Stat. Ann. § 45:9—41.17 to —32];
i. a registered professional nurse pursuant to [N.J. Stat. Ann. § 45:11—23 to
67];
j. a health care facility as defined in [N.J. Stat. Ann. § 26:2H—2];
k. a physical therapist pursuant to [N.J. Stat. Ann. § 45:9—37.11 to —37.34f];

—

1. a land surveyor pursuant to [N.J. Stat. Ann. § 45:8—27 to —60];
m. a registered pharmacist pursuant to [N.J. Stat. Ann. § 45:14—40 to —82];
n. a veterinarian pursuant to [N.J. Stat. Ann. § 45:16—1 to —18];
o. an insurance producer pursuant to [N.J. Stat. Ann. § 17:22A—26 to —57]; and
p. a certified midwife, certified professional midwife, or certified nurse midwife
pursuant to [N.J. Stat. Ann. § 45: 10—1 to —22].
N.J. Stat. Ann. § 2A:53A—26 (emphasis added).
4

Martin v. Perinni Corp., 37 F. Supp. 2d 362, 366 (D.N.J. 1999).
The AMS imposes time limits. The AOM must be filed within 60 days
after the filing of the defendant’s answer. The court, on a showing of good
cause, may extend that deadline for an additional 60 days. N.J. Stat. Ann.

§

2A:53A-27.
The AMS also states who is qualified to be an affiant on an AOM. For
that purpose, N.J. Stat. Ann.

§ 2A:53A-27 draws a distinction between medical

malpractice cases and others:

In the case of an action for medical malpractice, the person
executing the affidavit shall meet the requirements of a person who
provides expert testimony or executes an affidavit as set forth in
section 7 of P.L.2004, c.17 [N.J. Stat. Ann. § 2A:53A-41].
In all other cases, the person executing the affidavit shall be
licensed in this or any other state; have particular expertise in the
general area or specialty involved in the action, as evidenced by
board certification or by devotion of the person’s practice
substantially to the general area or specialty involved in the action
for a period of at least five years [sic in original].
N.J. Stat. Ann.

§ 2A:53A-27 (emphasis and paragraph break added for clarity).

As to medical malpractice cases, then,

§ 2A:53A-27 incorporates by
reference a separate statute. That statute, N.J. Stat. Ann. § 2A:53A41, sets a
high standard of eligibility to be an AOM affiant:

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 [N.J. Stat. Ann. § 2A:53A-26 etseq.] 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
5

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 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.
N.J. Stat. Ann. § 2A:53A-41 (emphasis added).
For non-medical malpractice cases, however, N.J. Stat. Ann. § 2A:53A-27
retains its own standard. The AOM affiant must be appropriately licensed, and
must have particular expertise in the general area or specialty involved in the
6

action, as evidenced by board certification or five years’ relevant experience. Id.
From now on I will refer to those two statutes, N.J. Stat. Ann. §
2A:53A-27 and 2A:53A-41, as “Section 27” and “Section 41.”

B.

Timeliness

Defendants’ motion claims that Dr. Giniger’s AOM was not timely, and
that the complaint must therefore be dismissed. They press that argument with
less force in their reply. They continue to stress, however, that if Dr. Giniger’s
AOM is found inadequate, the statutory deadline of 60 or 120 days implies that
it is now too late to submit another. I find that the original AOM was filed
timely. And because I find that the AOM is legally adequate (see Section 1I.C,
infra), the hypothetical timeliness of a resubmitted AOM does not arise as an
issue.
First, I find that the deadline is 120 days, not 60. As noted above,
Section 27 imposes a deadline of 60 days from the filing of defendant’s answer,
but provides that the deadline may be extended an additional 60 days for good
cause. There are no rigorous procedural prerequisites to such an extension:
“The New Jersey Supreme Court has held that a plaintiff is riot required to file a
motion for an extension for ‘good cause’ within the original 60-day period in
order to gain an additional 60 days within which to file the required affidavit of
merit.” See Costa v. Cnty. of Burlington, 566 F. Supp. 2d 360, 362 (D.N.J. 2008)
(citing Bums v. Belafsky, 166 N.J. 466, 766 A.2d 1095, 1100-01(2001)).
The “good cause” threshold, moreover, is low; counsel’s inadvertence is
enough. The key issue is whether “demonstrable prejudice” would flow from a
60-day extension:
[I Inadvertence of counsel may justly be deemed to constitute good
cause where the delay does not prejudice the adverse party and a
rational application under the circumstances present favors a
determination that provides justice to the litigant. [Martindell v.
Martindell, 21 N.J. 341, 122 A.2d 352 (1956)]. Absent
demonstrable prejudice, “it is neither necessary nor proper to visit
the sins of the attorney upon his [or her] blameless client.”
Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 196, 486
A.2d 920 (App. Div. 1985); see also Parker v. Marcus, 281 N.J.
7

Super. 589, 594, 658 A.2d 1326 (App. Div. 1995).
Bums, 766 A.2d at 477—78 (quoting Appellate Division decision below, 741
A.2d at 654; bracketed material in original). The AOM is not a device to bar
stale claims, but to screen meritless ones. Particularly where prejudice is
lacking and a claim is meritorious, attorney inadvertence should not bar
application of the 60-day extension. Id.
I find sufficient cause to extend the deadline an additional 60 days, for a
total of 120 days. First, Defendants have not established any prejudice that
accrued by November 2014 as a result of the 60-day extension. This action,
although four years old, had been pursued pro se and had not progressed
substantially. (A trip up and down the appellate ladder added some delay.)
Second, pro bono counsel for plaintiff had been appointed relatively recently.
They had to familiarize themselves with an ongoing case and deal with the
legacy effects of the plaintiff’s unfamiliarity with legal procedures. Third, as
outlined below, there is at least an ambiguity in the statute as to whether the
deadline runs from each defendant’s answer, or from the time that all
defendants have jointly answered. If plaintiff’s counsel erred—and, as
established below, I do not believe they did—their inadvertence should not be
visited on the client. Fourth, this case did not enjoy the clarifying effect of two
state procedures that are intended to guard against the severe consequences of
failure to file an AOM:
Aware of this harsh consequence, the New Jersey Supreme
Court instituted two safeguards to aid plaintiffs in complying with
the AOM Statute. First, it directed that New Jersey’s Civil Case
Information Sheet be amended to contain the question, “IS THIS A
PROFESSIONAL MALPRACTICE CASE?,” and boxes to check “YES”
or “NO.” Underneath the question is the following sentence: “IF YOU
HAVE CHECKED ‘YES,’ SEE N.J.S.A. 2A:53A27 AND APPLICABLE
CASE LAW REGARDING YOUR OBLIGATION TO FILE AN
AFFIDAVIT OF MERIT.” See Bums v. Belafsky, 166 N.J. 466, 766
A.2d 1095, 1101 (2001).
Second, the New Jersey Supreme Court required that an
accelerated case management conference be held within 90 days of
the service of the answer in all malpractice actions. See Ferreira v.
8

Rancocas Orthopedic Assocs., 178 N.J. 144, 836 A.2d 779, 785
(2003). At this conference, if the plaintiff has not filed an affidavit,
the trial court is to remind it of the requirement. Id.
Nuveen, 692 F.3d at 291. Those state-law procedural safeguards do not apply
in federal court. Id. at 304—05. Nevertheless, I consider their absence as an
additional factor tending to excuse any inadvertence and support a grant of the
“good cause” 60-day extension.
The good cause extension is granted; the deadline, is 120, not 60, “days
following the date of filing of the answer to the complaint by the defendant.”
See Section 27.
From what date does the 120-day period run? The relevant defendants
jointly have filed serial amended answers—five in all—to the First Amended
Complaint. The first answer on behalf of Dr. Getzoff (the Second Amended
Answer, ECF No. 69) was filed on July 17, 2014. A Third Amended Answer
followed quickly, and the Fourth Amended Answer filed on behalf of Dr. Getzoff
and others on August 15, 2014.6 (See ECF No. 75) That was the operative
answer at the time the plaintiff filed Dr. Giniger’s AOM on November 5, 2014.
There is no case law that deals with precisely this procedural
configuration. To me, however, the liberal spirit of the case law suggests that
the 120 day deadline should run from the filing of the Fourth Amended
Answer. See, e.g., Costa, 566 F. Supp. 2d at 562-63 (“Dr. Evans’s Answer to
the second Amended Complaint, which is presently the answer to the final
amended complaint, was filed on May 30, 2008. Therefore, Costa has at least
120 days from that date to file an appropriate affidavit of merit before this
Court may consider any motion to dismiss filed by Dr. Evans.”) (emphasis
added). Cf. Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002)
(AOM deadline runs from defendant’s answer to the amended complaint, not
from his answer to the original complaint, even though the amended complaint
6
Defendants filed a Fifth Amended Answer to the Amended Complaint on
January 19, 2016. (See ECF No. 106)

9

did not change the allegations against him in particular). I am inclined to think

that the relevant Answer is the one currently in effect when the AOM is filed.
An amended pleading supersedes what went before. To require an AOM before
the pleadings are finally settled would result in uncertainty, as well as needless
duplication of effort as AOMs must be revised to conform to new allegations. A
plaintiff should not be placed in the position of guessing how “new” a “new”
amended joint answer is (or will be, once it is filed) as to each individual
7
defendant. A deadline that places plaintiff in jeopardy of default must be
clearer than that.
I therefore count the 120 day period from the filing of the Fourth
Amended Answer on August 15, 2014. So reckoned, the deadline fell on
December 13, 2014. The AOM, filed on November 5, 2014, was therefore
timely. (And the AOM was filed before the filing of a Fifth Amended Answer on
January 19, 2016.)
In the end, however, the correctness or not of my interpretation is not
critical. The very first answer filed on behalf of Dr. Getzoff was the Second
Amended Answer, filed on July 17, 2014. Even counting from that date, the
120 day deadline would have expired on November 14, 2014. On that
alternative calculation, the filing of Dr. Giniger’s AOM on November 5, 2014,
8
was still well within the 120 day deadline.

Defendants stress that anything new in the Fourth Amended Answer did not
relate to Dr. Getzoff personally. But even the very first answer filed on behalf of Getzoff
(i.e., the Second Amended Answer, ECF No. 69) was filed on July 17, 2014—still within
the 120-day window.
8
UMDNJ and UGH are also movants here. The first answer filed on their behalf
was the First Amended Answer. (ECF No. 54) It was filed on November 21, 2013,
outside the 120-day window for filing an AOM. Dr. Giniger’s AOM, however, does not
name those defendants. Nor is it clear that they are even accused of a breach of
professional dental standards. In their reply brief, Defendants narrow the issue: they
clarify that they seek dismissal only as to “negligence claims as to [UMDNJ] and UGH
with regard to vicarious liability claims for Dr. Getzoff’s actions. If this Gourt fmds that
Dr. Giniger is not qualified to author an Affidavit of Merit as to Dr. Getzoff, it would be
illogical and in conflict with the purposes of the Affidavit of Merit Statute to allow the
same claims to proceed through vicarious liability principles.” DRep at 9. I take that as
an acknowledgement that defendants seek dismissal of the vicarious claims against
10

I therefore deny the motion to dismiss to the extent that it rests on the
alleged untimeliness of the AOM.

C.

Eligibility of Dr. Giniger as AOM affiant

Defendants’ motion also challenges the substance of the AOM, asserting
that Dr. Giniger is not a qualified affiant under Sections 27 and 41, quoted
above. They note correctly that Dr. Giniger, a general dentist, does not practice
in the same dental specialty as defendant Dr. Getzoff, an oral surgeon. But that
9
disparity, in my view, does not disqualify Dr. Giniger as an affiant.
1. The nonmedical/medical division between Sections 27 and 41
Although both parties focus on Section 41, the proper analysis must
begin with the affiant eligibility scheme set out in Section 27, as amended by
the Patients First Act of 2004.
As to the standards for eligibility of an AOM affiant, Section 27 imposes a
clear division of labor, described in more detail above. In cases of “medical
malpractice,” Section 27 incorporates by reference the exacting standards of
Section 41. “In all other cases” of professional malpractice, Section 27 sets its
own, somewhat lower standard.
The significance of that Section 27/Section 41 division of labor lies in the
amendment history of the AMS. Section 27 was originally enacted in 1995. At
UMDNJ and UCH as a necessary consequence of the dismissal of the claims against
Getzoff. I have not dismissed the claims against Dr. Getzoff. In any event, it is Dr.
Getzoff’s adherence, or not, to professional dental standards that must be the subject
of an AOM; the vicarious liability of UMDNJ and UCH does not depend on their skill at
dentistry. Hence I do not reach plaintiff’s other arguments for the appropriateness or
timeliness of the AOM as to UMDNJ and UCH.
In their original motion papers, the defendants alleged that Dr. Giniger left the
active practice of dentistry in 2006, and therefore was not a qualified affiant as of
2009, when the events in suit occurred. (DBr 8) Although Giniger’s c.v. recites that he
took on corporate responsibilities starting in 2006, it does not state that he left the
practice of dentistry; that is an inference drawn by the defendants. The plaintiffs
response attaches a declaration of Dr. Giniger in which he clarifies that his active
dental practice, encompassing some 30 years, continued through 2009 and continues
to the present day. (PBr 10; Giniger affidavit, ECF No. 85-2 ¶4) In their reply,
defendants withdrew this portion of their challenge. (DRep 1)

9

11

that time, the general Section 27 affiant eligibility standard was the only one,
and it applied to all malpractice cases:
In its original iteration, the statute broadly required that the
affidavit be executed by an affiant who was “licensed” and had
“expertise in the general area or specialty involved in the action, as
evidenced by board certification or by devotion of the person’s
practice substantially to the general area or specialty involved in
the action for a period of at least five years[.]” L. 1995, c. 139, § 2.
Under that standard, a physician in one field was qualified to
render an opinion with respect to the performance of a physician in
another if their practices overlapped. Bums v. Belafsky, 166 N.J.
466, 480, 766 A.2d 1095 (2001).
Ryan, 999 A.2d at 436.
In 2004, however, the legislature passed the New Jersey Medical
Care Access and Responsibility and Patients First Act, L. 2004, c. 17. The
Patients First Act was a so-called “tort reform” package, designed to
address the “dramatic escalation in medical malpractice liability
insurance premiums.” N.J. State Bar Ass’n v. State, 902 A.2d 944, 951
(N.J. Super. App. Div.) (quoting preamble to 2004 bill), certf denied, 909
A.2d 726 (2006). The 2004 Patients First Act added Section 41, a more
stringent eligibility standard for cases of “medical malpractice”:
In 2004, the Legislature enacted the New Jersey Medical Care
Access and Responsibility and Patients First Act (“Act”), L. 2004, c.
17; N.J.S.A. 2A:53A—37 to —42, which modifies the Affidavit of Merit
statute and applies to causes of action arising after July 7, 2004....
The 2004 version provides more detailed standards for a testifying
expert and for one who executes an affidavit of merit, generally
requiring the challenging expert to be equivalently-qualified to the
defendant [quoting Section 411.
Id. See also Hill Int’l, Inc. u. Atl. City Bd. of Educ., 106 A.3d 487, 493 (N.J.
Super. App. Div. 2014) (Sabatino, P.J.) (describing, post-2004, the “more
stringent specialization requirements imposed for affiants in medical
malpractice cases in N.J.S.A. 2A:53A—41”), appeal granted, 112 A.3d 589, 116
A.3d 1069 (N.J. 2015).
Viewed from a post-2004 perspective, then, Section 27 embodies a
12

vertical division of cases by subject matter: medical vs. non-medical. But
viewed from a historical perspective, Section 27 contains horizontal,
archaeological layers. Before the 2004 amendments, all malpractice actions
were subject to the general affiant eligibility standard of Section 27. Post-2004,
non-medical malpractice cases remain subject to that same Section 27
eligibility standard. Medical malpractice cases, however, are now subject to the
heightened affiant eligibility standard of Section 41.
2. Does Section 41 apply to this case?
A threshold issue, then, is this: Are Szemple’s claims of dental
malpractice “medical malpractice” claims, subject to the stringent AOM
eligibility standard of Section 41? Or are they “other claims,” subject to the
lesser eligibility standard of Section 27? I hold that this is a dental, not a
medical, malpractice case, and that Section 41 therefore does not apply.
To summarize and simplify a bit, Section 41 embodies a “same-specialty”
rule, at least for doctors. In a medical malpractice case, where the physician
alleged to be at fault practices in a specialty recognized by the American Board
of Medical Specialties or the American Osteopathic Association, the plaintiff’s
AOM affiant must practice in the same specialty. See Nicholas v. Mynster, 64
A.3d 536, 539 (N.J. 2013) (Section 41 “requires that plaintiff’s medical expert
must ‘have specialized at the time of the occurrence that is the basis for the
[malpractice] action in the same specialty or subspecialty’ as defendant
physicians”). Thus, under Section 41, “the first inquiry must be whether a
physician is a specialist or general practitioner

....

The second inquiry must be

whether the treatment that is the basis of the malpractice action ‘involves’ the
physician’s specialty.” Id. at 550.
Defendants, citing that same-specialty rule of Section 41, say that Dr.
Gininger is not qualified to offer an AOM. (DBr 9) Dr. Getzoff specializes in oral
surgery and was acting as an oral surgeon when he treated Mr. Szemple. Oral
and Maxillofacial Surgery is a specialty recognized by the American Dental
Association. See

www.ada.org / en / education-careers / careers-in
13

dentistry! dental-specialties / specialty-definitions (last visited Feb. 7, 2016).
Dr. Giniger, although he is a dentist and may perform tooth extractions, is not
certified in that oral surgery specialty. Defendants acknowledge that this is not
a case alleging malpractice by a physician. Nevertheless, they say, the
heightened same-specialty rule of Section 41 “applie[s] equally to dental
malpractice cases.” (DBr 8)
I start, as always, with the plain wording of the statute, Section 41. It
speaks strictly in terms of “medical,” not dental, malpractice. In common
parlance, medicine and dentistry are not considered equivalent. A dentist is not
a physician, and is not required to possess a medical degree. Neither Giniger
nor Getzoff is an M.D., or physician.
The structure of Section 41 confirms that it does not extend to dentistry.
It requires that the affiant and the defendant practice in the “same specialty or
subspecialty, recognized by the American Board of Medical Specialties or the
American Osteopathic Association.”
Consider the issue from the medical specialty side. Section 41 lists
medical, not dental, specialties and subspecialties. The American Board of
Medical Specialties lists no specialty or subspecialty in Oral or Maxillofacial
Surgery. See www. abms. org / member-boards / specialty- subspecialty
certificates! (last visited Feb.7, 2016). Likewise, the American Osteopathic
Association recognizes no specialty in oral surgery.
www. osteopathic. org / inside-aoa / development / aoa-board
certification / Pages / specialty- subspecialty-certification. aspx (last visited Feb. 7,
2016). So a dentist, as such, could not practice any of the specialties listed or
referred to in Section 41; to a dentist, Section 41 has no application.
Or look at the question from the dental specialty side; the result is the
same. Defendants identify Dr. Getzoff’s relevant specialty as Oral and
Maxillofacial Surgery, as recognized by the American Dental Association. (DBr
9) Section 41 does not refer to that or any dental specialty. The American
Dental Association, its recognized specialties, and indeed the entire subject of
dentistry, are absent from Section 41.
14

I must follow the statute’s plain language, except in the rare cases where
“absurd results” and “the most extraordinary showing of contrary intentions’
justi1r a limitation on the ‘plain meaning’ of the statutory language.” First
Merchs Acceptance Corp. v. J.C. Bradford & Co., 198 F.3d 394, 402 (3d Cir.
1999) (quoting Garcia v. US., 469 U.S. 70, 75, 105 S. Ct. 479 (1984)); see also
Thorpe v. Borough of Thorpe, 770 F.3d 255, 263 (3d Cir. 2014), cert. denied,
136 5. Ct. 84 (2015) (denying family members’ application for reinterment,
holding that broad definition of “museum” in statute concerning return of
plundered Native American cultural items will not be applied to include the
borough of Jim Thorpe, PA, or the grave where the athlete’s remains were
buried in accordance with his wife’s wishes).
Szemple’s reading of Section 41 is not absurd; far from it. The state
legislature could rationally have decided to confine Section 41 to the field of
medicine. Every other profession is relegated to the general standard of Section
27; it is not anomalous that dentistry should take its place among them. I take
judicial notice that medical, not dental, malpractice awards have been a driver
of tort reform measures like this one. The preamble to the 2004 Patients First
Act is very clear on that point: the problem it seeks to address is formulated
explicitly in terms of “doctors,” “physicians,” “health care,” “a dramatic
escalation in medical malpractice liability insurance premiums,” and the like.’
0

10

The preamble to the 2004 bill states:
a. One of the most vital interests of the State is to ensure that highquality health care continues to be available in this State and that the
residents of this State continue to have access to a full spectrum of
health care providers, including highly trained physicians in all
specialties;

b. The State’s health care system and its residents’ access to health care
providers are threatened by a dramatic escalation in medical malpractice
liability insurance premiums, which is creating a crisis of affordability in
the purchase of necessary liability coverage for our health care providers;
c. One particularly alarming result of rising premiums is that there are
increasing reports of doctors retiring or moving to other states where
insurance premiums are lower, dropping high-risk patients and
15

Neither dentistry nor dental malpractice is mentioned. And there are more
particular reasons why the heightened “same specialty” standards of Section
41 might have seemed uniquely applicable to the practice of medicine. The
human body comprises many complex organs and systems; to deal with them,
medical subspecialties have proliferated. But the legislature, assuming it even
considered the matter, could have thought that dentistry is already something
of a specialty; further subspecialization might not be necessary to effectively
discharge the gatekeeping function of an AOM. At any rate, the words of
Section 41 are not so at war with its patent purpose that I can disregard the
statute’s plain meaning.
’
1
I turn to the case law. It is sparse and unpublished, and the New
Jersey Supreme Court has not spoken on the issue. What case law there is,
however, suggests that Section 41 does not apply to claims of dental
malpractice.
For example, Meehan v. Antonellis, No. L-2205-12, 2014 WL 5800811
procedures, and practicing defensive medicine in a manner that may
significantly increase the cost of health care for all our citizens;
d. The reasons for the steep increases in the cost of medical malpractice
liability insurance are complex and involve issues related to: the State’s
tort liability system; the State’s health care system, which includes
issues related to patient safety and medical error reporting; and the
State’s regulation and requirements concerning medical malpractice
liability insurers;
e. It is necessary and appropriate for the State to take meaningful and
prompt action to address the various interrelated aspects of these issues
that are impacted by, or impact on, the State’s health care system; and
f. To that end, this act provides for a comprehensive set of reforms
affecting the State’s tort liability system, health care system and medical
malpractice liability insurance carriers to ensure that health care
services continue to be available and accessible to residents of the State
and to enhance patient safety at health care facilities.
[L. 2004, c. 17, § 2.]
N.J. State Bar Ass’n, 902 A.2d at 951.
A state rule of court, N.J. Ct. R. 1:36-3, prohibits the citation or use of
unpublished decisions as precedent. Lacking any other authority, however, I must
take them as at least an indication of the state of the law in New Jersey.
11

16

(N.J. Sup. Ct. App. Div. Nov. 10, 2014) (unpublished), certif. granted, 221 N.J.
218, 110 A.3d 931 (2015), agrees with the plaintiff as to this narrow point: “We
recognize that the Patient First Act’s detailed standards for experts executing
an AOM pertain to actions alleging medical malpractice and not dental
malpractice.” Id. at *4 (citing Section 41). 12
Rab v. Doner, No. L-9931-07, 2010 WL 2869528 (N.J. Super. Ct. App.
Div. July 19, 2010) (unpublished) holds that, while Section 41 “applies to
medical specialists and subspecialists, it does not apply to dentists.” Id. at *6.
Rab reasoned, as do I, that the medical specialties invoked by Section 41
simply do not relate to dentistry at all. Thus it permitted a physician
specializing in infectious disease to testify to a deviation from the standard of
13
care in a dental malpractice case.
Bashford v. Olawyoe, No. HNT-L-188-1 1, 2011 N.J. Super. LEXIS 3163
(N.J. Super. Ct. Law Div. Hunterdon Cnty., Dec. 16, 2011) (unpublished), cited
Rab and elaborated on it:
Although defendants are correct that the legislature defined
“health care provider” to include dentists, see N.J.S.A. 2A:53A40(e), there is no indication that the American Board of Medical
Specialties or the American Osteopathic Association recognizes a
dentist as a specialist or subspecialist, which is the clear
requirement of N.J.S.A. 2A:53A-41(a). As dentistry is not included
within the purview of N.J.S.A. 2A:53A-41(a), that section is not
applicable to the present action.
Bashford, 2011 N.J. Super. Unpub. LEXIS 3163 at*7_8.
For all of those reasons, then, I hold that a dental malpractice case is not
a medical malpractice case. It is not governed by the stringent AOM eligibility
standards of Section 41. Rather, it is subject to the general eligibility standard
of Section 27. To Section 27 I therefore turn.

Meehan did, however, hold in a dental case that the AOM failed the test of
Section 27. I discuss that component of the Meehart holding in connection with
Section 27, infra.
12

13
Recall that Section 41, by its terms, applies equally to AOM affiants and expert
witnesses at trial.

17

3. Is Dr. Giniger an eligible affiant under Section 27?
The question remaining is whether Dr. Giniger, as a dentist, meets the
less stringent standards of Section 27. I hold that he does, and is eligible to
submit an AOM in this case.
Under Section 27, the AOM affiant (1) must hold an appropriate “license”
and (2) must possess “particular expertise.” I discuss those two requirements.

Appropriate licensed person. Some congruence is required between the
license possessed by the AOM affiant and that possessed by the defendant.
Section 27 does not, however, elaborate further. The state Supreme Court has
not spoken, and there is little case law of any kind on this specific point. The
Appellate Division, however, in a reported opinion written by Judge Sabatino,
recently held that the affiant must “possess the same category ofprofessional
license as the defendant who has been sued.” Hill Int’l, Inc. v. Ati. City Bd. of
14
Educ., 106 A.3d 487, 503 (N.J. Super. App. Div. 2014) (emphasis added). By
the “same category” of license, Hill did not mean the “same license”; it meant
“the same category of professionals listed in the sixteen subsections of N.J.S.A.
2A:53A—26. A perfect match of credentials within the same license is not
always required.” Hill, 106 A.3d at 503 (emphasis added). (The Section 26 list
of professions is quoted in full at n.5, supra.)
A professional can reasonably expect to be judged by the standards of
that profession, and not some other. 106 A.3d at 503. But Section 27 does not
cut it any finer than that. The profession listed in Section 26 is the appropriate
unit of analysis. Thus Hill, a case against an architect, noted that “architect” is
a listed profession in Section 26. Another architect would therefore be an
appropriate AUM affiant, without regard to any architectural specialties or
5
subspecialties.’
14
The New Jersey Supreme Court has granted leave to appeal from the Appellate
Division’s decision in Hill. 112 A.3d 589, 116 A.3d 1069 (N.J. 2015). As in the case of
Meehan, infra, I cannot speculate as to the likelihood of affirmance or reversal.

Conversely, said Hill, a nurse is not an appropriate AOM affiant as against a
physician, or vice versa; although certain functions may overlap, nursing and
medicine are separately listed professions in Section 26. The same is true of an
15

18

Dentistry is separately listed as a profession in Section 26. To satisfy the
“license” requirement, it suffices that Dr. Giniger is, like Dr. Getzoff, a dentist.
Giniger is an appropriate licensed professional, without regard to specialties or
subspecialties.
Particular expertise. The AOM affiant must also, however, possess
“particular expertise in the general area or specialty involved in the action, as
evidenced by board certification or by devotion of the person’s practice
substantially to the general area or specialty involved in the action for a period
of at least five years.” N.J. Stat. Ann. § 2A:53A-27. Particular expertise is an
additional, not an alternative, requirement of Section 27. Hill, 106 A.3d at 588.
Unlike Section 41, Section 27 does not clearly prescribe the breadth of
the area of professional expertise. It refers only to the “general area or specialty
involved in the action.” That disjunctive formulation appears to be a broad one,
and the case law confirms that impression.
Recall that the Section 27 standard is a carryover from 1995; before the
2004 amendments, it applied to all malpractice cases, whether medical or not.
Thus the pre-2004 medical malpractice case law can still illuminate post-2004
non-medical cases (but not post-2004 medical cases, which now fall under
Section 41). That Section 27 standard was (and as to non-medical cases, still
is) fairly forgiving:
Under that [pre-20041 standard, a physician in one field was
qualified to render an opinion with respect to the performance of a
physician in another if their practices overlapped. Bums v.
Belafsky, 166 N.J. 466, 480, 766 A.2d 1095 (2001).
Ryan, 999 A.2d at 436.
The cited case, Bums v. Belafsky, was a pre-2004 medical malpractice
case under the general Section 27 standard. There, the plaintiff filed a
accountant and a lawyer. And the same goes for an engineer and an architect, the
situation that was before the Court in Hill. 106 A.3d at 50 1—02. Strictly speaking, the
issue before me is narrower than the one decided by Hill. I do not need to decide
whether a member of an overlapping, coordinate profession can never be an
appropriate affiant; for the present case, it is enough to say that licensure in the same
profession (dentistry) is sufficient to satisfy the license” requirement.
19

malpractice complaint against a radiologist, and proffered an AOM from Dr.
Salcman, a neurosurgeon. The New Jersey Supreme Court upheld the
Appellate Division’s decision that Salcman was an acceptable affiant. The
Section 27 standard, Bums held, is not a same-specialty rule:
[A]n affidavit of merit need not be executed by an expert with the
same qualifications or certifications as the defending physician;
that the expert is qualified to supply the required basis for the
medical malpractice complaint is sufficient. See Wacht v. Farooqui,
312 N.J. Super. 184, 188, 711 A.2d 405 (App. Div. 1998) (holding
that merely because defendant in medical malpractice action was
board certified diagnostic radiologist did not mean that similarly
qualified expert had to execute affidavit of merit against him;
“doctor in one field would be qualified to render an opinion as to
the performance of a doctor in another with respect to their
common areas of practice”).
766 A.2d at 1102. Implicit in Section 27 is a recognition that separate
specialties may overlap, and that a doctor with five years’ relevant
practice experience in the area of overlap is qualified to execute an AOM.
Id. (citing Wacht, supra ((citing Rosenberg by Rosenberg v. Cahill, 492

A.2d 371, 377—79 (N.J. 1985) (pre-AMS case holding that medical doctor
is appropriate expert witness in case of chiropractic malpractice involving
x-rays and diagnosis); Sanzari v. Rosenfeld, 167 A.2d 625, 629 (N.J.
1961) (pre-AMS case holding that medical doctor is appropriate expert
witness in case of alleged malpractice involving dental anesthesia)); see
also Kindig v. Gooberman, 149 F. Supp. 2d 159, 168 (D.N.J. 2001).
Bums found it “unlikely that a neurosurgeon would not be
qualified to discuss various radiological diagnosis techniques, given the
need [in his practice] to locate the area and determine the type of
surgical intervention needed.” 766 A.2d at 1102 (quoting 741 A.2d at 655
(Appellate Division decision on review)). The two specialties overlap in
practice, making the neurosurgeon an appropriate affiant under Section
27.
I find a similar overlap in the practices of Dr. Giniger and Dr. Getzoff.

20

Getzoff is, of course, an oral surgeon; he, like the defendant radiologist in
Burns, has a specialty. Dr. Giniger, however, is well credentialed and qualified
in the dental field, and he has been practicing for 30 years. He, like the
neurosurgeon in Burns, practices in an area that overlaps with that of the
defendant. As a general dentist, Dr. Giniger is qualified to extract teeth, the
procedure that is the subject of Szemple’s claim. Giniger has extracted teeth as
part of his 30-year practice, and his residency at Newark Beth Israel Hospital
focused on tooth extraction. Indeed, Dr. Giniger was in 1984-85 a staff dentist
at the very state prison where Szemple was confined, and he performed
extractions there. (Declaration of Martin Giniger, ECF No. 85-2
¶f 5-9) Like Dr.
Salcman in Bums, Dr. Giniger is not in the same specialty as the defendant,
but he has for many years practiced the procedure—tooth extraction—in which
the malpractice allegedly occurred.
The strict Section 41 same-specialty requirement,

f it applied,

would not

permit an AOM from a specialist in another field who happened to be qualified
to perform the same procedure. See Nicholas, supra, 64 A.3d at 551. But
Section 41 does not apply. Dr. Giniger’s qualification to perform extractions,
and his long experience in doing so, demonstrate that he meets the more
practice-based AOM standard of Section 27.
Defendants cite Meehan v. Antonellis, 2014 WL 5800811 (N.J. Super Ct.
App. Div. November 10, 2014), certf granted, 110 A.3d 931 (N.J. 2015)
(discussed as to Section 41 at pp. 16—17, supra). There, in an action against an
orthodontist, the trial court had excluded an AOM signed by a prosthodontist

and sleep apnea expert. Meehan, disagreeing with the trial court, held that the
medical malpractice standard of Section 41 did not apply in that dental case.
Nevertheless, Meehan opined that the Section 27 standards were similar and
would require the same result: “Nonetheless, they [i.e., the Section 41
standards] are consistent with the limitations found in the AMS, which, as
noted, mandates that experts in other professional malpractice actions possess
particular expertise in the specialty involved in the action.” Id. Seemingly

21

applying Section 27 and adverting to “the statutory criteria of the AMS,”
*5
Meehan upheld the exclusion of the AOM. Id. at
The New Jersey Supreme Court has granted certification in Meehan, but
6
argument has not yet been held.’ That is a set of tea leaves I cannot read;
whether the grant of certification bespeaks disapproval of, support for, or
general concern about, the Meehan holding is unknown, at least to me.
Instead, I simply state that I find Meehan unpersuasive as to the
application of Section 27 to a dental malpractice case. For the reasons
expressed above, I do not think that the Section 27 standards are similar to
those under Section 41, or that the Section 41 standards have any application
here.
Under Section 27, Dr. Giniger is eligible to act as AOM affiant in this
case. 17
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the
complaint for failure to file a compliant AOM is denied.

Dated: February 8, 2016
t

I
I

.-

’U.S. LTY
1
HON. KEVIN MCNU9)J.

The question presented is “Was plaintiff’s dental malpractice action properly
dismissed for failure to comply with the Affidavit of Merit statute (N.J. STAT. ANN. §
2A:53A-26 to -29)?” (No. A-45- 14, www.judiciary.state.nj .us/calendars/ sc_appeal.htm)
17
Because I so hold, I do not reach other contentions: for example, that an AOM
or a late AOM should be excused, that there is substantial compliance, or that the
AOM requirement does not apply because the alleged negligence is a matter of
“common knowledge.”
22