A New Jersey appeals court has reinstated a medical malpractice claim involving allegations of negligence in the performance of “gastric sleeve” surgery. The lawsuit was previously dismissed because the injured party had not filed an affidavit with the court from a licensed and approved specialist stating that the standard of care used in the surgery was substandard. According to the appeals court, the plaintiff had made a good faith effort to comply and should be given the opportunity to meet the standard.
Under New Jersey’s Affidavit of Merit law, a person alleging medical malpractice must submit a sworn statement with the court, from a licensed medical specialist, that alleges that the doctor or hospital failed to meet or follow the proper standard of care. In the case before the court, the plaintiff had secured a person to prepare that affidavit, but the court ruled that the person in question lacked the requisite qualifications to submit the affidavit. The proposed witness had performed more than 75 similar surgeries, but had been an administrator for 10 years and had not performed any surgery during that period. The court then dismissed the complaint.
The appeals court, however, found that the injured party had made a reasonable effort to find a suitable replacement to prepare and submit the affidavit. The court also concluded that justice would better be served if the plaintiff was allowed to submit the affidavit and the court made a ruling on the merits, rather than on a technicality.
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