08-03-09 Abby Ryan and Kirk Ryan v. Andrew Renny, M.D.
A-0176-08T3
In this appeal, we construe N.J.S.A. 2A:53A-41c, which
permits, under appropriate circumstances, a waiver of the
specialty criteria required of a person either testifying as an
expert witness or executing an Affidavit of Merit in a medical
malpractice action. The statute provides that such person must
be a specialist in the same area or subspecialty of the medical
malpractice defendant. N.J.S.A. 2A:53A-41a. However, the court
may waive the specialty requirement if: (1) the plaintiff can
show "to the satisfaction of the court that a good faith [but
unsuccessful] effort has been made to identify an expert in the
same specialty or subspecialty;" and (2) another physician, who
is not a specialist in the area of practice, "possesses
sufficient training, experience and knowledge to provide the
testimony." N.J.S.A. 2A:53A-41c. Here, three experts in the
specialty were identified, but all declined to author an
Affidavit of Merit in favor of plaintiff. We hold a waiver
should not have been granted.
Chase Smith assistant editor
