A New Jersey appeals court has upheld the constitutionality of screening medical malpractice cases through affidavits of merit.

To weed out frivolous lawsuits, about two dozen states require an expert to review the allegations and assure the court that they raise legitimate questions of liability. Otherwise, the case can be dismissed.

The details of these laws vary from state to state. New Jersey’s statute, passed in 2004, specifies that the experts must practice in the same specialty as the accused physicians.

In the case before the court, a patient sued two neurosurgeons and an anesthesiologist claiming that the way he was positioned during a 10-hour laminectomy caused permanent disfigurement and numbness. He did not challenge the surgeons’ technique, blaming his injuries solely on how blocks were placed on the operating table.


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According to the appellate ruling, the patient submitted an affidavit from an anesthesiologist, who found the actions of all three physicians “fell outside acceptable professional standards.”

But as the anesthesiologist had no experience in neurosurgery and no hospital credentials to perform a laminectomy, the trial judge ruled the affidavit was not filed by “an appropriate licensed person” and dismissed the case against the surgeons. A subsequent trial exonerated the laminectomy anesthesiologist.

The patient appealed, arguing that the law was vague and impinged on the judiciary’s power to decide an expert’s qualifications. In a unanimous decision, a three-judge panel from the Appellate Division of the Superior Court of New Jersey rejected both contentions, citing earlier rulings in similar challenges.