By Damian D. Capozzola, Esq., and Jamie Terrence, RN
News
In a medical malpractice case, an appellate court affirmed the dismissal of a wrongful death claim against a critical care physician because of the plaintiff’s failure to submit a compliant affidavit of merit (AOM). The case arose after a patient died from internal bleeding following a kidney biopsy. The plaintiff alleged that multiple physicians, including a critical care specialist, failed to intervene in time to stop the bleeding. The plaintiff submitted an AOM from a general and vascular surgeon with a subspecialty in surgical critical care. However, the defendant argued that the expert did not share her board-certified specialty and subspecialties. The trial court agreed and dismissed the case with prejudice.
The New Jersey Appellate Division affirmed, holding that the statute requires the AOM expert to practice in the same specialty or subspecialty as the defendant. The court found the plaintiff’s expert unqualified under this standard. This decision reinforces the strict “kind-for-kind” requirement for medical malpractice affidavits that can exist.
Background
In June 2018, a patient underwent an elective kidney biopsy guided by computed tomography (CT) imaging. The minimally invasive procedure, intended to obtain kidney tissue samples without requiring general anesthesia, was performed by an interventional radiologist. Shortly after the biopsy, the patient experienced significant complications, including abdominal pain, pallor, and sweating. A follow-up CT scan revealed an internal bleed in the space behind the abdominal lining.
The interventional radiologist referred the patient to the hospital’s emergency department, where several physicians, including a critical care and pulmonary specialist, were involved in evaluating and monitoring the patient. According to the plaintiff, none of these medical providers took adequate steps to stop the internal bleeding. Although transfusions were ordered, the plaintiff alleges the patient never received one. Nearly five hours after the hemorrhage was identified, the patient was taken for an embolization procedure but experienced cardiac arrest during preparation and died.
The decedent’s estate filed a medical malpractice lawsuit. It alleged that the physicians and healthcare providers failed to take timely and appropriate action to manage the patient’s condition. The plaintiff specifically alleged that the critical care physician failed to properly coordinate care, consult necessary specialists, and ensure appropriate surgical intervention to address the life-threatening bleeding.
The critical care physician denied the allegations and moved to dismiss the claims based on the plaintiff’s failure to comply with New Jersey’s Affidavit of Merit (AOM) statute. The AOM statute requires a plaintiff in a malpractice case to submit a sworn affidavit from a qualified expert stating that there is a reasonable probability the care provided fell below accepted medical standards.
In response, the plaintiff submitted an AOM from a board-certified general and vascular surgeon with an additional certification in surgical critical care. The defendant objected, arguing that the expert did not share the same specialty or subspecialty and, therefore, could not satisfy the statutory requirement. The defendant was board-certified in internal medicine, pulmonology, and medical critical care, with all certifications issued by the American Board of Internal Medicine (ABIM), while the plaintiff’s expert was certified by the American Board of Surgery (ABS).
The trial court agreed with the defendant, holding that, under New Jersey law, the AOM must come from a physician with the same board-recognized specialty or subspecialty as the defendant when the treatment at issue involves that specialty. While both physicians may have experience treating critically ill patients, the court concluded that their board certifications and primary specialties were distinct. Accordingly, the affidavit was deemed noncompliant, and the claims against the defendant were dismissed with prejudice.
On appeal, the plaintiff argued that overlapping clinical knowledge in critical care was sufficient to meet the statutory requirement. The Appellate Division rejected this argument and affirmed the dismissal. The panel emphasized that the AOM statute imposes a strict “kind-for-kind” requirement: The expert must be board-certified in the same specialty or subspecialty as the defendant. Because the plaintiff failed to obtain such an affidavit or seek time to cure the deficiency, dismissal was proper.
What This Means for You
The Appellate Division’s decision to uphold the dismissal of the lawsuit against the critical care physician underscores the strict legal requirements governing medical expert testimony and the filing of malpractice suits. New Jersey, like a number of other states, requires that plaintiffs in medical malpractice lawsuits submit what is known as an AOM. This affidavit must come from a licensed medical professional who states, under oath, that there is a “reasonable probability” the care provided by the defendant fell outside the accepted standards of medical practice. The AOM is meant to act as a threshold safeguard. It screens out baseless or speculative claims before physicians are subjected to the burdens of discovery and litigation. The AOM is not about proving malpractice. Rather, it is about showing that the claim is plausible enough to warrant litigation. Without it, the court assumes the claim lacks sufficient expert grounding and, as a result, will dismiss the case — including with prejudice, meaning it cannot be refiled.
The central issue in this case was whether the physician who authored the affidavit was sufficiently similar in specialty to the defendant physician. New Jersey’s AOM statute is very specific about this. If a physician-defendant is board certified in a certain specialty or subspecialty, and the alleged malpractice occurred within the scope of that field, then the expert signing the AOM must hold the same certification. This rule often is referred to as the “kind-for-kind” requirement. It is not enough for an expert to have general or overlapping clinical experience.
The certifying boards, such as ABIM and ABS, are considered authoritative for defining medical specialties. If one physician is certified in internal medicine and critical care through the ABIM, and another is certified in surgical critical care through the ABS, those specialties are not equivalent under the law, even if both physicians manage critically ill patients.
This distinction proved fatal to the plaintiff’s case. The affidavit was signed by a general and vascular surgeon with a subspecialty in surgical critical care. The defendant, however, was certified in internal medicine with subspecialties in pulmonary and critical care medicine. Although both treated critically ill patients, their board certifications were distinct. The court held that the affidavit failed to satisfy the statute and dismissed the claims accordingly.
For physicians, this case affirms the strength of statutory protections designed to prevent inappropriate or uninformed expert testimony. The rationale is straightforward. Malpractice claims should only proceed if a qualified expert, meaning one who actually practices in the same field, is willing to say the defendant likely fell short of accepted standards. This helps ensure that the standard of care is evaluated based on actual peer knowledge, not by someone who treats similar conditions but under different frameworks, training, and protocols.
This is particularly relevant in fields like critical care, where physicians from different training backgrounds, such as surgery, internal medicine, and anesthesiology, may overlap in patient populations while approaching care differently. For example, a surgical intensivist may have different insights, resources, or expectations than a pulmonary critical care physician. In legal terms, those distinctions matter greatly when evaluating whether a provider deviated from standard practices.
This case also highlights why physicians need to be cautious when agreeing to serve as experts in malpractice litigation. While many may feel capable of offering opinions in areas closely related to their own, the legal requirements for doing so often are narrower than the clinical reality. An expert who does not meet the statutory specialty match can have their testimony excluded, and the case may be lost as a result. Any expert brought into a case must not only be clinically knowledgeable but also legally qualified under the statute.
For defendants and their counsel, this ruling is a reminder to closely scrutinize the qualifications of any AOM affiant. If the plaintiff’s expert does not match the defendant’s specialty under the appropriate board, a motion to dismiss may succeed before the case reaches discovery.
Despite the board qualifications held by the physicians in a case, omissions of care by not providing immediate emergency interventions to a patient who is in the hospital with active internal bleeding that is seen in a scan while being treated can comprise gross negligence. The care that the patient needed was in the room where the patient had the procedure. Sending a patient from an acute hospital department to the emergency department, an outpatient department, was not appropriate here. The patient was with the physicians who could have immediately intervened. Instead, the emergency department had to start over. These departments usually are crowded, and staffers there are taking care of multiple patients requiring different levels of care. The patient could, and perhaps should, have gone directly from the radiology department where the CT scan was done to the operating room or back to interventional radiology for the immediate repair of the bleeding vessels.
Finally, note that the court in this case dismissed the plaintiff’s claim with prejudice, meaning it cannot be brought again. That is a severe outcome, particularly in a wrongful death case involving complex medical care. Critically, the plaintiff did not request additional time to obtain a new affidavit, nor did they argue that they substantially complied with the statute or faced extraordinary circumstances. That lack of effort helped seal the dismissal in this case. Note that this may or may not have been the outcome in a particular jurisdiction, so always consult with knowledgeable local counsel concerning such issues.
Reference
- Decided on June 17, 2025, in the Superior Court of New Jersey, Appellate Division, Case No. A-1540-23.
Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles.
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles.
In a medical malpractice case, an appellate court affirmed the dismissal of a wrongful death claim against a critical care physician because of the plaintiff’s failure to submit a compliant affidavit of merit.
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